# FILED April 30, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

STEWART B. FOULK

E, III, ) GREENE CIRCUIT and TERESA FOULKE, ) ) NO. 03A01-9712-C V-00523 Plaintiffs/Appell

ants )

) 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 A

ppellants. Jeffrey M. Ward, Gree

neville, for Appe

llees.

O P I N I O N

INMAN, Senio

r Judge This is an action for

damages for pe

rsonal injuries ar

ising from a col

lision between a van drive

n by Mr. Foulke and a Greeneville EMS ambulanc

e at the intersection of the four-lane U. S. Highway 11-E

and America

n Road in Greene County on October

3, 1994. The Gove

rnmental Tor

t Liability Ac

t controls. The trial judge apporti oned liability 50 - 50 , and dismissed the complain t. See, McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992). The dispositional issue is whether the

finding that the plaint

iff, Mr. Foulke , was 50 percent negligent is supported b

y a preponderan

ce of the evidence.

Our review of th

e findings of fact m

ade by the trial

court is de novo upon the record of the trial court, accom

panied by a presu

mption of the cor

rectness of the fin

ding, unless the preponderance o f the evidence is oth erwise. T ENN . R. A PP . P., R ULE 13(d).1 A review under the “clearly er roneous” standard obviously compels t he same result we reach under the prepondera

nce of evidence

standard. The accident occurred about 5:00 a.m. The van was headed west on U. S. 11-E; the ambu

lance was headed e

ast on 11-E and was turning left onto American Road en route to a fac tory where an

employee h

ad suffered a possib

le heart attack. T

he night was dark, t

he weather fair

, the roads were

dry. The ambulance wa

s equipped with the re

quired lights, includi

ng strobe, flashing, revolving and constant,

both white and red,

all of which wer

e on, together wit

h an operating siren. As the ambulanc

e approached the int

ersection, a m

ilk truck, also approaching (westbound), pulled off to the shoulder of 11-E and stopped becau se the ambula nce wa s commen cing its tu rn. Whe ther t he ambu lance came to a complete st

op, or to a ‘rolli

ng stop’ before cr

ossing the westbound la

nes is debatable, but the preponderant evidence is that the van came “from som ewhere 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 t o yield the right o

f way and drive

to a posit ion par allel t o and as close a s poss ible to the cur b or edg e of the roadway, the procedure adhered to by the milk truck driver. Mr. Foulke had no mem ory of the accident, a

nd his wife no inform

ation about it, and thu s we do not know why Mr. Foulke

failed to see or hea

r the ambulanc

e and failed to y

ield the right of way. See, Wright v. City of Knoxv ille, 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 evidenc

e preponderates against the judgment, which is affirmed at the costs of the appellants. The rem aining issues are preterm

itted._______________________________ William H.

Inman, Senio

r Judge CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Herschel P. Fr

anks, Judge