FILED

April 30, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

STEWART B. FOULKE, III, ) GREENE CIRCUIT

and TERESA FOULKE, )

) 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.

O P I N I O N

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).
1

A review under the “clearly erroneous” standard obviously compels the same result we reach under

the preponderance of evidence standard.

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.
_______________________________

 William H. Inman, Senior Judge

CONCUR:

_______________________________

Houston M. Goddard, Presiding Judge

_______________________________

Herschel P. Franks, Judge