IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
FILED
April 30, 1998
STEWART B. FOULKE, III, ) GREENE CIRCUIT
Cecil Crowson, Jr.
and TERESA FOULKE, ) Appellate C ourt Clerk
) NO. 03A01-9712-CV-00523
Plaintiffs/Appellants )
)
v. ) HON. BEN K. WEXLER
) JUDGE
CITY OF GREENEVILLE, )
TENNESSEE; )
GREENE COUNTY, )
TENNESSEE; )
GREENEVILLE & GREENE )
COUNTY EMS, and )
MICHAEL J. McCRARY, )
)
Defendants/Appellees ) AFFIRMED
Daniel B. Minor, Kingsport, for Appellants.
Jeffrey M. Ward, Greeneville, for Appellees.
OPINION
INMAN, Senior Judge
This is an action for damages for personal injuries arising from a collision
between a van driven by Mr. Foulke and a Greeneville EMS ambulance at the
intersection of the four-lane U. S. Highway 11-E and American Road in Greene
County on October 3, 1994. The Governmental Tort Liability Act controls.
The trial judge apportioned liability 50 - 50, and dismissed the complaint.
See, McIntyre v. Balentine, 833 S.W.2d 52 (Tenn. 1992). The dispositional
issue is whether the finding that the plaintiff, Mr. Foulke, was 50 percent
negligent is supported by a preponderance of the evidence. Our review of the
findings of fact made by the trial court is de novo upon the record of the trial
court, accompanied by a presumption of the correctness of the finding, unless
the preponderance of the evidence is otherwise. TENN. R. APP. P., RULE 13(d).
The accident occurred about 5:00 a.m. The van was headed west on U. S.
11-E; the ambulance was headed east on 11-E and was turning left onto
American Road en route to a factory where an employee had suffered a possible
heart attack. The night was dark, the weather fair, the roads were dry. The
ambulance was equipped with the required lights, including strobe, flashing,
revolving and constant, both white and red, all of which were on, together with
an operating siren.
As the ambulance approached the intersection, a milk truck, also
approaching (westbound), pulled off to the shoulder of 11-E and stopped
because the ambulance was commencing its turn. Whether the ambulance came
to a complete stop, or to a ‘rolling stop’ before crossing the westbound lanes is
debatable, but the preponderant evidence is that the van came “from somewhere
behind the milk truck” and struck the ambulance in the ‘fast’ lane of U.S. 11-E. 1
Tenn. Code Ann. § 55-8-132 requires drivers approaching an emergency
vehicle with siren and lights activated to yield the right of way and drive to a
position parallel to and as close as possible to the curb or edge of the roadway,
the procedure adhered to by the milk truck driver. Mr. Foulke had no memory
of the accident, and his wife no information about it, and thus we do not know
why Mr. Foulke failed to see or hear the ambulance and failed to yield the right
of way. See, Wright v. City of Knoxville, 898 S.W.2d 177 (Tenn. 1995);
Thomas v. State, 742 S.W.2d 694 (Tenn. App. 1987).
We are unable to find that the evidence preponderates against the
judgment, which is affirmed at the costs of the appellants. The remaining issues
are pretermitted.
1
A review under the “clearly erroneous” standard obviously compels the same result we reach under
the preponderance of evidence standard.
_______________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Houston M. Goddard, Presiding Judge
_______________________________
Herschel P. Franks, Judge