# FILED
December 23, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ GARY L. NORMAN and KATHRYN NORMAN, Appellants, Shelby Circuit No. 55616 Vs. C.A. No. 02A01-9706-CV-00118 VICKI LYNN PRATHER a nd RAY PRATHER, Appellees.

________________________________________________________ ____________________ FROM THE SHELBY COUN TY CIRCUIT COURT THE HONORABLE ROBERT A. LANIER, JUDGE

William A. Cohn of Cordova For Appellants Michael L. Robb, Donna T. Snow of Thomason, Hendri

x, Harvey, Johnso

n & Mitchell of Memphis, For Appellees

AFFIRMED AND REMANDED

Opinion filed:

W. FRANK CRAWFORD,

PRESIDING JUDGE, W.S.

CONCUR: DAVID R. FARMER,

JUDGE HOLLY KIRBY LILLARD, JU DGE
This case involves a vehicle/ p edestrian collision. Plaintiffs, Gary L. Norman and1 Kathryn Norman’s suit is a derivative action for loss of services and consortium.

The opinion will deal with the case as though Mr. Norman was the sole plaintiff. 2 Kathryn Norman 1 , filed suit against defendants Vicki Lynn Prather and Ray Prather for personal injuries sustained by Gary L. Norman when he

was struc k by a vehicle driven by Vicki Lynn Prather and owned by Ray Prather. The complaint alle ges that on June 8, 1 993, plaintiff was a pedestrian crossing Central Avenue, north bound , when h e was struck by the Prather vehicle proceeding westbound on Central Avenue. The complaint avers that plaintiff wasin the turning lane of Central Avenue when he was struck and that Vicki Lynn Prathe r wa s operating her vehicle without proper ca

re, failed to ope

rate the vehicle

in a reasonable

and prudent manner

and
was operating the vehicle with reckless disregar d for the rig

hts and safety of others. The complaint also alleges tha t Vicki Prath er violated the statutes of the State of Tennessee and Ordinances of the City of Memphi s, all of which dire

ctly and proximate

ly caused a collision and the resulting losses, injuries and damages claimed by plaintiff. Plaintiff further avers that Ray Prather was the owner of the automobile driven by Vicki Prather and that she was dr

iving with his permission and in his service. The defendants’ answer denies the material allegations of negligence and the violation of statutes and ordinances. The defendants further aver that plaintiff was guilty of

negligence which was the direct an

d proxima

te cause of the collision and affirmatively rely upon the doctrine of comparative fault. They aver that plaintiff was crossing at other than a cros s walk and thus violated T.C. A. § 55- 8-135. Defenda nt, Ray Prather, f

iled a counter cl

aim against plaintiff to recover property damage to his vehicle. At trial, plaintiff testified that he was crossing northbound on Central, that he had reached the left turn lane and had stopped to allow westbound traffic to proceed. While standing there, he was struck by plaintiff’s vehicle. Plaintiff , on the other hand, testified that she was proceeding in a normal manner in the left hand lane when the plaintiff suddenly crossed in front of her. She thereup

on swerved into

the left turn lane and defendant darted into her path, striking the right front corner of her car. Witnesses testified that plaintiff stepped into the street without looking and was walking across the street with his head down, whi le other pedestrians were stopped and waiting for eastbound traffic to clear. The jury returned its verdict assessing ninety percent proximate negligence to plaintiff,3

Norman, and ten percent negli gence t o Vicki Prather. The jury further found no damages sustained by plaintiff and assessed damages sustained by Ray Prather at $2,000.00. They

also found that the vehicle drivenby Vicki Lynn Prather was not a family purpose automobile. The trial court entered

judgment on the jury verdict for defendants as to the original complaint and awarded cross-plaintiff, Ray Prather, property damages in the amount of $1,800.00. Plaintiffs have appealed and present three issues for review, which, as stated in the brief, ar e: 1. Whether T.C.A. § 55-18-136 and T.C.A. § 55-8-135 requires a presumption that the

pedestrian is no mo

re than 49% liable

in a vehicle pedestrian collision. 2. Whether the facts of the cas e support a

jury verdict finding the plaintiff/pedestrian was m ore neglige nt than the defendant/driver. 3. Whether the Court erred in failing to allowproof that a statu te exists governing sp

eed in school zone

s. We must first consider defendant’s assertion that plaintiffs have waived the presentation of these issues fo

r review. T.R.A. P. 3(e) provides in pertinent part: (e) Initiation of appeal as of right . An appeal as of right tothe Supreme Court, Court of Appeals, or Court of Criminal Ap

peals shallbe taken by timely filing a notice of appeal with the clerk of the trial court . . . . Provided, however, that in all cases tried by a jur y, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions grantedor refused, misconduct of jurors, parties or counse l, or other action co mmitted or occurring during the trial of the case, or other ground upon w

hich a new trial is

sought, unless the same was specifically state

d in a motion for a new trial ; otherwise such issues will be treated as waived. T.R.A.P. 3(e) (emphasis added). Plaintiffs’ motion f

or a new trial sta

tes as follows: NOWCOMES THE PLAINTIFF, and hereby requests that a new trial be granted. The grounds are that the jury found no neglig ence on the part of Plaintiff, but the st

atutes clearly p

lace the burden

on the Defendan

t; WHEREFORE, premises considered plain tiff prays that thi

s Honorable Court grant the requested relief. Plaintiffs’ motion for a new trial is confusing at best because the jury did indeed find that the plaintiffs we

re ninety perce

nt at fault. Althoug

h the motion for a ne

w trial is deficient, we perceivefrom the argument in plaintiffs’ brief that pl ainti ff is complaining that the trial court gave erroneous instru

ctions to th

e jury orshould have further instructed the jury concerning plaintiff s’ in terpretation of s

tate statutes. In e

ssence, plaintif

fs assert that the

applicable4

provision o f the Tennes see Code, when read together, create a presumption that anytime a vehicle is involved in a collision with a pedestrian, that the pedestrian is no more than 49% liable. The rele

vant provisions re

lied on provide as f

ollows: 55-8-135. Crossing at other t han crosswalks.

-- (a) Every pedestrian

crossing a roadway at any point other than within a marked crosswalk or within an unmarkedcrosswalk at anintersection sha ll yield the right-of-way to all vehicles upon the roadway. * * * * (c) B etween adjacent intersections at which traffic-control signals are i n operation pedestrians shall not cross at any place except in a marked crosswalk. T.C.A. § 55-8-135 (1993). 55-8-136. Dri vers to exercise due care. -- Notwithstanding the foregoing provisions of this chapter, every driver of a vehicle shall exercise d ue care to avoid colliding with any pedestrian upon any roadwa y, and sha ll give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway. T.C.A. § 55-8-136 (1993). Mr. Norman, through counsel, argues that when the statutes are read together, the phrase “Notwithstanding the foregoing pro visio n s” amounts to a legi slative declara

tion that anytime there is a pedestrian/v

ehicle collision, t

he driver is pres

umed primaril

y at fault. Mr. Norman asserts that the jury should have been instructed that if the driver is determined to be negligent the jury cannot find

that the driver is less than 51% responsible for the accident. Mr. Norman cites no authority for this proposition, and we doubt that any can be found. The fundamental purpose of a court in interpreting a statute is to give effect to legislative intent. Biddle v. Town of Farra gut , 646 S.W.2d 925 (Tenn. App . 1982). The meaning of a statute is to be determined, not from special words in a single sentence or section but from the statute taken as a whole and viewing the legislation in light of its general purposes. Tidwell v. Servomation-Willoughby Co. , 483 S.W.2d 98 (Tenn. 1972). The legisla tive intent or purp

ose is to be ascertaine

d primarily

from the natural and ordinary meaning of the language used when read in context

of the entire statute and without any forced or subtle construction to limit import of the language. City of Caryville v . Campbell County , 660 S.W.2d 510 (Tenn. App. 1983). We believe the provisions of the statutes in que stion are clear and unambiguous in stating that notwithstanding the various rights and duties placed upon drivers and pedestrians by the “rules of the road,” and no

twithstanding that p

edestrians not in c

rosswalks must yiel

d the right-of-way to vehicles u

pon the roadw ay, drivers of vehicles on the roadway do not have a license to run5

over pedestrians who are not following the rules. By no liberal readi

ng of plaintiffs’ motion for a new trial could weinclude Issues 2 and 3. To allow plaintiffs’ first issue to be include

d in the motion for a new trial is liberalism to the extreme. But even if we construe the motion to include the first issue, plaintiffs’ appe al mu st failfor two reasons. First, plaintiffs are complaining that the trial court erroneously instructed the jury or did not give complete instructions to the jury. However, therecord reflects that the jury charge is not included in the transcript. If the original charge to the jury is

not included in the record, the presumption is th at the trial court

charged the jury

fully and correctly. Bennett
v. Sanders , 685 S.W.2d 1 (T enn. App. 1984); Pickard v. Ferrell , 45 Tenn. App. 460, 325 S.W.2d 288 (1959). And, second, as heretofore noted, plaintiffs’ interpretation of the statute is
erroneous. The judgment of the trial court is affirmed. The case is remanded to the t r ial court for such further procee

dings as are nec

essary. Costs of the

appeal are asse

ssed against the a

ppellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING JUDGE, W.S. CONCUR:

____________________________________ DAVID R. FARMER,

JUDGE

____________________________________ HOLLY KIRBY LILLARD, JU DGE