# FILED July 31, 1998 Cecil W. Crowson Appellate Cou rt Clerk EDWARD TRAUGHBER, a minor, ) individually, and by next fri ends and ) parents, EDWARD WE AVER and ) JUANITA TRAUGHBER, and EDWARD) WEAVER and JUANITA TRAUGHBER,) individually, ) ) Montgomery Ci

rcuit Plaintiffs/Appellants

, ) No. C-9-217

) VS. ) ) KELLY A. KRESS, JAM ES LEON ) Appeal No. MILLER, SR., CLARK SVILLE ) 01A01-9709-CV-00525 MONTGOMERY COUN TY SCHOOL ) BOARD and CLARKSVILL E ) MONTGOMERY COUN TY SCHOOL ) SYSTEM, ) ) Defendants/Appellee

s. )
IN THE COURT OF AP PEALS OF TENNESSEE AT NASHVILLE APPEAL FROM

THE CIRCUIT COURT OF MONTGOMERY COUN TY AT CLARKSVILLE, TENN ESSEE HONORABLE JAMES E. WALTO N, CHANCELLOR

Roland Robert Lenard 321 Franklin Street Clarksville, Tennessee 37040 ATTORNEY FOR PLAINTIF FS/APPELLANTS Steven C. Girsky 121 South Third Street Clarksville, Tennessee 37040 ATTORNEY FOR DEFENDANTS/APPELLEES
AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING JUDGE, MIDDL E SECTION-2-

CONCUR: BEN H. CANTRELL, JUDGE WILLIA M B. CAIN, JUDGE EDWARD TRAUGHBER, a minor, ) individually, and by next fri ends and ) parents, EDWARD WE AVER and ) JUANITA TRAUGHBER, and EDWARD) WEAVER and JUANITA TRAUGHBER,) individually, ) ) Montgomery Ci

rcuit Plaintiffs/Appellants

, ) No. C9-217

) VS. ) ) KELLY A. KRESS, JAM ES LEON ) Appeal No. MILLER, SR., CLARK SVILLE ) 01A01-9709-CV-00525 MONTGOMERY COUN TY SCHOOL ) BOARD and CLARKSVILL E ) MONTGOMERY COUN TY SCHOOL ) SYSTEM, ) ) Defendants/Appellee

s. ) 

## O P I N I O N
The plaintiff, Edwar

d Traughber wa

s seriously in

jured prio

r to boarding a school bus which was stopped with re d warning light

s flashing and a

stop si gn exten ded from the side of the bus.

Some of the background of the injury is undi

sputed. Edward is

the youngest of several ch ildren of Mr. and Mrs. Traughber whose home is on the north side of E Street. The reg ular bus driver was accustomed to proceed eastward on E Street an d to stop for the Traughber children in the street in front of the Traug hber home. Mrs. Traughber was accustomed t

o watching for the arrival of the bus and to notify her children that it was waiting. On the morning of the inj ury, the school bus was o perated by

a substitute

driver who had driven the route before butwas using a map showing the location of stops for children. The front of the bus moved a short distance past the customary stop a nd sto pped “in the middle of the street” to await the children. Edward was the first child to leave the house. The bus driver looked out the front of the bus and saw an aut

omobile approach

ing at a rapid

speed with no apparent intention of-3-

stopping as required by

law when a school

bus is stopped with fl

ashing lig ht s and stop s ign displayed. The

driver attempted

to induce the appr

oaching auto

to stop by waving his arm out his window. The drive

r made no attempt t

o sto p except to “take my foot off the gas.” As the auto passedthe bus, Edward was injured. After the injury of Edward, the passing car made 58 feet of skid marks befor e stopping.

The precise immediate circumstances of the injury of Edward are unclear
. It is reasonably

clear that the pa

ssing auto was in t

he street at the ti

me of the injury. It is conceded that the cause of Edward’s injury was contact between the right side of the passing vehicle and Edw ard’ s bo dy.

The testim ony of

the witnesses is conflicting as to where Edward was when he was injured and whether he was standing still or moving toward the bus, i.e ., into the stre et. The evidence is also conflicting as to the precise location of the Kress vehicle when Edwa rd wa s injured. The evidence also varies as to whether the bus driver signaled the

children that it was safe to enter the street before Edward was injured. There is

testimony of w

itnesses that they

did notsee yellow or red lights flashing or an extended stop sig

n, but no witness tes

tified positively that these warnings were not displayed and some witnesses testified that the

y actually saw the warnings displayed.

The plaintiffs sued Ms. Kress, the driver of the automobile, the driver of the school bus, andthe school board and system which employed the bus driver. It was stipulated that the school boardand system

were parts of a governmental entity subject to the uniform Gover nmental Tort Liability Act, T.C.A. §§ 29-2

0-101 et seq. The b

us driver was dismi

ssed from the cas

e because of the immun ity grante

d by § 29-20- 310(b). A settleme nt of the liability

of Ms. Kress wa s approved by the Trial

Court, and she was

dismissed. The only

issue left for re

solutio n bythe Trial Court was the liability of the Board and System for negligence of their employ ee, the bus driver.-4- At the conclusion of the evidence, the Trial Judge delivered

an oral opinion containing the follow ing: The plaintiffs, of course, have the burden of

proof to esta b lishby a prepon

derance of the

evidence two thin

gs. First, that the school board though its driver, Mr. Miller, was negligent.

- - - - First of all, there’s no dispute that the bus stopped.

- - - - I find that Mr. Miller as he was driving up the r oad hadon the flashing yellow caution. I also find that

at the time he was stopped in front of this home that the red lights were on flashing and also thestop sign outside of the bus had been activated.

- - - - So there’s no debate about the level of duty and res pon sib ili ty th at M r. M ill er ha d. It was a ver y high dut y. Mr. Miller

says that he did not

at any time wave to the children. He said he did wave, but it was at the driver of the vehicle. But he says

that he did

not tell the children to come across the road.

- - - - All right, the acci

d ent , itself, when Edward was struck. He obvio usly was hit or the side of the ca

r hit him. Whether he ran into the side of the car, whether the side of the car in some fashion hit him as he was stand ing near the e dge of the drive, proba

bly no one wil

l ever kn ow. In the deposition tes tim ony, Edward felt that he was in the driveway andnot out in t he street . Today his me mory was, a

nd again he was being as truthful as he knew how to be, was that he was near the edge of

the drive as indicated in the diagram; and that when he saw the driver wave, that he was going to walk up the si de of t he street, cross in front of the bus and get on the bus. He doesn’ t remember the ca r hitting him.

- - - - Even if these childrenan d in particular Edward thought that Mr. Miller was waving them to come across the road, I find that he

never intended

or did that. I f

ind that his effort to stop Ms. K ress was entirely responsible and reasonable. I find that in no way did Mr. M

iller violate

a duty which would consti

tute n egligence or that would be proximate

cause of the injury and dam age that Edward has so unfortunately suffered.

- - - - The damage and injuries suffered by Edward is the result of the negligence of Ms. Kress in totally failing to obey the l aw and totally disregarding the lights and signs by th e school bus, which were there for her to see.

- - - - I find that the plaintiff has failed to carry its burden of proof by a preponde rance of the evidence and has not establishedthat the defendants through its driver, Mr. Miller,-5- was negligent or such negligen ce, if any, was the proximate cause of the injury and damage to Edward.
The Trial J udge entered j udgment sta ting:

THE COURT FINDS that the sole proximate cause of the accident is th

e conduct of KEL

LY KRESS. THE COURT FURT

HER FINDS that

the Plaintiff has failedto prove that any actions o

r inac tions of the CLARKSVILLE-

M ONTGOMERY

COUNTY SCHOOL BOARD’s agent, JAMES LEON MILL ER, SR., in any way caused or contr

ibuted to cause thi

s accident. On appeal, the pla

intiffs state the is sues in the followin g form: 1. That

the Court er

r ed by failing to find the appellees responsible for the personal injuries to appellant by a preponderance of the evidence. 2. That the C ourt erred by failing to follow the law of the State of Tennessee concerning the duty of school bus drivers to children entrusted in their care. Appellants

first rely u

pon “the plentitude

of violations of the

driver’s ma

nua l.” However, appellants cite no particular part of said manual which the driver is shown to have violated.
Appellants

next complain that the Tri al C ourt found the defendant Kress negligent because he found that war

ning lights

andsign were dis played by the bus dr iver. The Tr ial Judge credited the testimony of defe

ndant Miller and anothe r witness as to the w

arning device

s. Nothing in this record justifies a revision of t he fi ndi ng of the Tri al J udge as t o cre dib ili ty. Hill v. Lawson , Tenn. 1992, 851 S.W.2d 822.
Appellants

next complain that the Trial Judge ignored c ertain key testimony an

d exhibits reflecting upon the “wave” of the bus driver. However, no specific cita tion supports this complaint. This Courtagr ees with the Trial Judge that the preponderance of the evidence establishes that the negligence o f the defendant K

ress in disregarding the warning devices on the bus created an eme

rgency i n which all others a

cted within their

ability to prevent the tra

gic-6-

result. The circumstanc

es support the find

ing that th

e neg ligence of Ms. K

ress was the sole pro xim ate caus e of t he i nju ry.
Appellants

cite Cartwright v. Graves , 182 Tenn. 114, 184 S.W.2d 373 (1944), wherein the Supreme Court affirmed a jury verdict for the plaintiff. The injured child was on board the bus, and the driver opened the door and permitted her to leave the bus despite the fact that a large lumber truck was meeting the bus and about to pass it o n the left side. In the present case, the Trial Jud ge, sitting without a jury, found that the driver did not signal the children tha t the y mi ghtsafe ly enter the street to board the bus, but was try ing to stop a vehicle which had approached

and was about to pass the bus at a high speed in spite of visible warning devices on the bus and the strict requirements of the law.

The sum and substance of the behavior of the defend ant, Mille r, as found by the Trial Judge is that Mr. Miller stopped his bus in the middle of the street, saw no vehicles approaching andwas about to signal the children to cross in front of the bus to enter the door when Ms. Kress
came speeding towar

d the bus, and he devoted all his efforts to getting her to stop as required by law, but she did not do so. She admitted that her only response to signals from the bus was to “take her foot off of the gas.” Her 58 feet of skid mar ks began at t

he point of collision corroborating her failure to a pply brakes sooner. I

f, as she insists, the

child ran into

the side of her car, the car

was at a place where it had no right to be, namely passing a stoppedschool bus.
T.C.A. § 55-8-151 p

rovides in pertine

nt part as follows: Overtaking

and passing school or churc h bus - Markings - Dischar gi ng passengers - Penalties . - (a)(1) The driver of a vehicle

up on a highway, upon meeting or overtaking from either direction any school bus which has stoppe d on the highway for the purpose of receiving or dischargingany school c

hildren, shall

stop the vehicle before reaching such school bus, and the driver shall not p roceed until such school bus re

sumes motion or is sig

n aled by the school bus driver to proc eed or the visual signals are no longer actuated.

- - - --7- (5) Any

person fail

ing to comply with the requirements

of this subsection, requi ring motor vehic les to stop upon approa ching school buses, or violating any of the provisions of th is su bsection, commits a Class C misdemeanor.
The evidence does not

preponderate against the factual findings by the Trial Judge, and
no error of law is found in his conclusion t hat the sole proximate cause of the injury was the negligence o

f the defendant,

Ms. Kress.

The judgment of the Trial Court is affirmed. Costs of this appeal are taxed against the appellants. The cause is remanded to the Trial Court for necessary further procedure.

AFFIRMED AND

REMANDED
.

_________________________________ HENRY F. TODD PRESI DING JUDGE, MIDDLE SECT IO N

CONCUR:

_____________________________ BEN H. CANTRELL, JUDGE

_____________________________ WILLIA M B. CAIN, JUDGE