1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court , with

concurrence of all judges pa rticipating in the case, may affirm, reverse or modify the actions of the trial court by memora ndum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINI ON,” shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case. 1 

# FILED
Au gust 18, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT JACKS ON

_______________________________________________________ ) C. A. No. 02A01-9703-CV-00056 STEVE CARRO LL and wife , ) McNairy County Circuit Court TAMMY CA RROLL , ) No. 4251 ) Plaintiff

s/Appella nts. ) HON. JON KERRY BLACKWOOD,

) JUDGE VS. ) ) AFFI RMED AND REMANDED J. R. ROACH , ) ) OPINI ON FIL

ED: Defendant/Appellee. ) ) W. J. REYNOLDS , Rey nolds & Re

yno lds La w Firm, Sa

vannah, for Plain

tiffs/App ellants. CHARLES M.PURCELL , Waldrop & Hall, P.A., Jackson TERRY ABER

NATHY , Law Offices of Terry A bernathy, Selmer for Defendant/Appellee.

______________________________________________________________________________ MEMORAN

DUM OP

INION 1

______________________________________________________________________________ FARMER, J.

Steve Carroll and wife Tammy Carro ll sue d J. R. Roach to recover for damages sustai ned as a re sult of a vehicular accident between a c ar driven by Mr. Carroll and a truck and trailer driven by

Mr. Roach.
Following a bench trial, the trialjudge found that Mr. Carroll’s negligence was 50%
or more of th

e total ne glige

nce of th e partie s compar

ed, thus th

e plaintif fs’ re co ve ry i s barred. McIntyre v. Balentine , 833 S.W.2d 52 (Tenn. 1992). The plaintiffs contend on appeal that the trial court’s ruling was in error. Our review of thi s matter i s de novo on the record with a presumption that the trial court’sfinding s of fac t are co rrect unless t

he pr eponder

ance of the evide

nce is2

otherwise. Rule 13(d) T.R.A.P.

The ac ci de nt oc cu rr ed in a r ur al ar ea of Mc Na ir y C ounty at

the intersection of Bethesda Road and Purdy Road. Prior to the impact, Mr. Car roll was dr ivin g a 1991 Chevrolet automobile

in a gen erally westerly direction on Bethesda Road and Mr. Roach was driving a truck tractor with a 25 f

oot traile r ina gene

rally easter ly direction on Purdy Road. B ethesda Road curves to the left at about the point where Purdy Ro ad intersects with it. There is a stop sign governing traffic on Purdy

Road.

Mr. Carroll testified that he had no memory of the accident

at all and was unab le to estimate his speed . He was d

riving t he auto mobile nor

mall y driven by

his wife, although he has driven it o n numerou s occasi ons.

Mr. J. R. Roach testified that he and his brother, James Roach, were hauling hay . As they approached the intersection, he stopped at the stop sign, saw nothing coming a nd proceeded to pull onto Bet

hesda Roa

d which wo

uld entai l him bear

ing to hisleft as he pulled away f rom the stop sign. As he started to pull onto Bethesda Road, he saw a vehicle coming in the opposite direction
on Be t hesda Road “airborned over the hill.” He slammed on his bra kes and cut his wheels. He estimated his speed at approximately 10 m.p.h. prior to apply ing his brakes. When he first saw the car he estimated

that about one-third or one-quarter of the ca r was over the centerline of Be thesda Road. As the car approached his truck, the c ar turned sideways, hit a ditch

on the car’s right side, then came back and hit the truck. He described the impact as turning the c ab b ack in the other direction and stated that the truck was stopped prior to impact. The car struck the cab of the truck about the right front wheel. He estimated Mr. Carroll’s speed at 60 to 80 m.p.h., possibly more. He testified that after his truck came to a stop, the whole two lanes of Bethesda Road were clear to Mr. Roach’s right and also some ten to twelve feet to the shoulder of the road was clear to his left. He testified that

he measu red the d istance from the t

op of the h

ill from which Mr. Carroll was coming toward h im to be some

thing mor e than 300

feet to th e point of impact.

James Roach, the defendant’s brother, was a pa ssenger in the truck. He testified that3

J. R. pulled u

p to the stop sig

n and stopp ed. James lo oked to hisright a nd told him

it was cle ar in that directio n. The truck pulled forwar d and J. R. sa

id “[w]e’re going to get hit.” James Roach then
saw the appr

oaching car ove r the hill traveling at “a pretty

fast speed.” As the car came towa rd the truck it came sideway s in the road, got off the road onto

grave l to the driver’s r

ight, the n back on to the road just shortl

y be fore impa ct.

The only other ey

ewitness, Tina Littlejohn, was called by the plaintiffs. She testified that she saw the accident from inside her house and sa w the Roach truck co ming at a high rate of speed. She testified that the truck did not stop and that the Carroll car was try ing to leave the road. She testified that the truck was in Carroll’s lane a t the tim e of impact. Ms. Littlejohn testified on cross-examination that she wears glasses but was not wear ing them that day . She testified that she needs her gla sses “to

see good.” She further testified that Mr. J. R. Roach was not driving the truck, butcame upon the scene about 15 m inutes lat e r. She testified that there were 6 or 7 highwa y patrolmen present at the scene and that the men in the truck did not go to thecar to try to he lp Mr. Carroll. J. R. Roach testified that there were only 2 highway

patrolmen who came to the scene. Both J. R. and James Roach testified that, after the y crawled out of the window of the truck, they went immediate

ly to the car where

J. R. Roach c

rawled inside the

car and held Mr. Ca

rroll’s h ead until help arrived.
Appellan

ts contend that the evidence that the Roach vehicle was over the centerline of Bethesda Road at the time of impact, coupled with the testimony of Ms. Littlejohn, should neg ate the trial court’s imputation of the greater fault to Mr. Carroll. It is apparent fr om the ruling of

the court below that it found the testimony of J. R. Roach and James Roach to be more credible than that of Ms. Littlejohn. The trial judge had the opportuni

ty to see and h ear the witnesse s, to obser

ve their appearance

and demeanor. His determination of their cred i bility is entitle d to gre at weig

ht on appe al. Tenn-Tex Propertie

s v. Brownel

l-Electro , 778 S.W.2d 423 (T enn. 1989 ); Town of Alamo v. Forcum-James Co. , 327 S.W.2d 47 (Tenn. 1959). After reviewing this record, we do not find the evidence to preponderate against the trial cour t’s finding that

Mr. Carroll’s negligence wa s 50% or more of the total negligence of the parties compared.4 The judgment of the trial cou rt is aff irmed and the cost s of this ap peal ar e taxed to th e a pp el la nt s, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ LI LL ARD, J. (Conc

urs)