# FILED December 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk DARRELL TURNER, ) ) Sumner C ircuit Plaintiff/Appellant, ) No. 14772-C ) VS. ) ) Appeal No. BRIAN W. SKELLY, ) 01A01-9708-CV-00376 ) Defendant/Appellee. )

IN THE COURT OF AP PEALS OF

TENNESSEE MIDDLE SECT ION AT NASHV ILLE APPEA L FROM C IRCUIT COURT OF SUM NER COUNT Y AT GALLAT IN, TENNESSEE HONORABL E THOMAS GOODALL, J UDGE

NEWTON S. HOLI

DAY, BPR #12990 208 Third Avenue, North Fifth Floor Nashville, TN 37201 ATTORNEY FOR PLAI

NTIFF/APPEL

LANT C. L. ROGERS, BPR #4240 119 Court Square Gallatin, TN 37066 ATTORNEY FOR DEFENDANT/APPEL LEE 

### AFFIRMED AND REMANDED.

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR: SAMUEL L . LEWIS, JUDGE BEN H. CANTRELL , JUDGE-2-

DARRELL TURNER, ) ) Sumner C ircuit Plaintiff/Appellant, ) No. 14772-C ) VS. ) ) Appeal No. BRIAN W. SKELLY, ) 01A01-9708-CV-00376 ) Defendant/Appellee. )



## O P I N I O N
The plaintiff, Darrell Turner, has appealed from a jury verdict a

nd judgment dismissing his suit aga

inst the de fendant , Brian W. Skelly for pe rsonal injuries sustained when the right rear view mirror of

a pick-u p truck op erated

by d efenda nt, Bria n w. Skelly, s t ruck plaintiff’s left elbow as he walked on the right edg e of the road at 8:30 p.m. after dark.
Plaintiff presents the following issue for review: I. Wheth erth e Trial Court erred in it’s failure to act as a thirtieth (sic) juror and set aside the jury verdict t hat held that plaintiff was 75% negligent and defenda nt was 25% negligent when

the jury’s ver

dict was contrary

to the weight of the evidence?

. P lai ntiff

testified that, prior to his injury, he was wa lking to his aunt’s house when he
ac cep ted a ride in a vehicle operated by Wanda Perry a

nd occupied by Er

line Duncan and Stephanie Jenkins; that, whe n t he y arrive d at the in tersec tion of Sta

te Route 25 and West Eastland Avenue, plaintiff announced that he had changed his mind and would get out and walk home; that he alighted from the vehicle and beg an walking eastward on the right (south) side of West Eastland; that West Eastland has no sidewalks; that the north shoulder is very na rrow, and the south shoul der is oc cupied by “bushes” which require a p edestria n to walk on the edge of the pavedroadway . (By w alking on his right side of the roadw ay , plain tiff was not facing the eastboundtraffic which

approached from his rear.) Plaintiff furthe r testified that, when he was about 12 to 15 feet from the intersection, he glanced b ack and saw hea dlights; t hat someth

ing hit him and pr

opelled h iminto the bushes; and that it developed that the right rear view mirror of defendant’s truck had struck his left elbow.-3- The only contra

diction in the evidence relates to the speed of the vehicle whose mirror struck plaintiff’s elbow.

Defend ant, Skelly, testified that he was trav eling south on State Route 235, intending

to turn east on We st Eastland; that imme diately north of t he inter section o f State Rou te 25 and w est Eastland, State Route

25 has a sh arp, 90 d

egree curve, s o that it

was necessary

for def endant to negotia te a 90 degree right

turn on Sta

te Route 25 and, imme diately therea fter, to n egotia te a 90 degree left turn into West Eastland; thatdefendant reduced his momentum to about 20 miles per hour because of the two sharp turns and vehicles parked on the paved portion of West Eastland; that, while moving at the same speed, he passed some bushes overhang ing the right edge of

the pavement at which time he heard the noise of a

bump which he assum

ed to be th

e result of his mirror striking part of the bushes; that he did not see the man whose elbow w as injured.

The investigating officer testified that it was dar k at the time of

the acci dent; that he found no witness at the scene who stated that defendant wa s speeding; that there was no room to walk on the south shoulder of the road because of bushes; and t hat there wa s a narrow shoulder on the nor

th side of the road where th ere we re no bush

es.

Shannon Hughes testified that he was driving west on West Eastland appr oac hing the intersection of State Route 25 when he met and passed defenda nt, but he did not see plaintiff walking on or nea r the sout h edge of the pa vement.
Ricky and Bobby F

reeman occupied a vehicle which wa s following the W anda Perry vehicle. They

testifie d that the

y sa w pla inti ff alight from the Perry car and proceed down Eastland Avenue o n the rig ht shoulde

r near t he bushe s and that

defenda nt was tra

veling a t a “high rate of speed” as it turned onto West Eastland.-4- Shannon Hughes testified that he saw defendant’ s truck turn onto West Eastland Avenue “driving well over the speed limit” which he said was “twenty or thirty” and that de

fendant was going “forty

to fifty”.

The witness, Erlita Duncan, a passenger in the Perry

car with plaintiff, testified without contradiction, that plaintiff could ha ve “wa lked on the ya rd side of the shrub

bery” to avoid
wa lk in g i n t he ro ad wa y.

Th e jury fou nd that 75% of the cause of the plaintiff’s injury was the negligence of plaintiff and 25% of the cause of plaintiff’s injury was the neg ligence of defendant. The Tr ial Judge entered a final order dismissing plaintiff’s suit and overr uled plai nt iff’s motions under Rule 50.02 and 59.06.

Plaintiff does not argue against the applica tion of the rule of comparable fault but insists that the allocation of 75% fault to plaintiff was “contrary to the weight of the evidence.”
T.C.A. § 55 -8-136 pr

ovides: 55-8 -136. Drivers to exercise due care
. - Notwithsta

ndin g the foregoing provisions of this chapter, every driver of a ve hicle sha

ll exercis e due ca

re to avo id colliding with any ped

estri an upon a

ny r oadway , and sha

ll give warning by

sounding the hornwhen necessary , and shall exercise proper precau ti on upon observing any child or any confused or in capaci tated pe rson upon

a roadw ay . [Acts 1955, ch. 329, § 35; T.C.A., § 59-836.]
T.C.A. 55- 8-137 pro vides:

55- 8-137. Pedestrians to use right half of crosswalk
. - Pedestrians shall move, whene ver p racticable, upon the right half of crosswalks. [Acts 1955, ch. 329, § 36; T.C.A., § 59-837.]
T.C.A. 55- 8-138 pro vides:-5- 55-8-138. Pedestrians on roadways . - (a) Where sidewalks are pro vided, it isunla wfu l for any pedestr ian to wa lk al on g a nd up on an ad ja ce nt ro ad wa y. (b) Where sidewalks arenot provided, any pede strian walking along and upon a highway shall, when practicable, walk only on the lef t side of the roadway

or its shoulder facing traffic

which may

approac h from the

opposite direction. (c) A violatio n of this section is a Class C misdemeanor. [Acts 1955, ch. 329 , § 37; T.C.A., § 59-838; Acts 1989, ch. 5 91, § 1 13.]
Ge ne ra ll y, the issue of whether a pedestrian is guilty of proximate causal ne gligence by walking on the paved portion of a highway , and/or on the right side or shoulder is a fact question for the jury, unless the undisputed fact creates a question of law for the Court. Thedisputed fact (speed) presented a question of credibility which was decided by

the jury with the

concurrence of the Trial Judge.

The factu al fin ding o f a jury will not be set aside on appeal unless there is no material evidence to support

it. TRAP Rule

13(d), Pullen v. Textron , Tenn. App. 1992, 845 S.W.2d 777.

This Courtfinds no basis f or reve rsing th e finding of the jur

y a nd trial ju dge asto credibi lity , prepon deranc e of the e vidence or deg ree of f ault.

So long as a plaintiff’s neglige nce re mains less than the defendant’s neglige nce, the plaintiff may recove r, but in su ch even

t the plain

tiff’s r ecover y mu st be red

uced in p roportion to the total negligence attributed to the plaintiff. McIntyre v. Balentine , Tenn. 1992, 833 S.W.2d 52, 57.

A necessa

ry corolla ry to the fore going

authority is that, wh

en the pe rcenta ge of f ault attributed to plaintiff is 50 or more, no damages can be a warded to plaintiff.-6- The judgment of the Trial Court is affirmed. Costs of t his appea l are ad judged agains t the plaintiff-appellant. The cause is remanded to the Trial Court for necessary

further procedure.


### AFFIRMED A ND REMAND ED .

HENRY F. TODD PRESIDING

JUDGE, MIDDL

E SECTION

CONCUR:

SAMUEL L . LEWIS, JUDGE

BEN H. CANTRELL , JUDGE