# FILED

December 12, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT NASHVILLE

______________________________________________ SHIRLEY R. FERRELL, Plaintiff -Appella nt, Davidson Circuit No. 94C-2199 Vs. C.A. No. 01A01-9703-CV-00100 JESSE L. MCRAE, JR., Defendant-Appellee.

__________________________________________________ __________________________ FROM THE DA

VIDSON CO UNTY CIRCU IT COURT THE HONORABLE WALTER KURTZ, JUDGE

Gus A. Wo od; James R. Omer & A ssociate s of Nash ville For Appellant David S. Zinn of Nas hville For Appellee

AFFIRMED AND R

EMANDED Opinion fi led:

W. FRANK CRAWFORD,

PRESIDING J

UDGE, W.S.

CONCUR:

ALAN E. HIGH

ERS, JUDGE DAVID R.FARMER,

JUDGE This is a personal injury case. The jury return ed a ver dic t for plaintiffs and found the personal injury da

mages to b e $10,528 .40. The j ury also found pla intiff fo rty perc ent negli gent, and the court entered judgment for plaintiff on the jury ve rdict i n the amount of $6,155.04.2

Plaintiffs filed a motion for a new trial and/or additur, and, after a he aring, the trial court granted

an additur of $3,500.00 which the defendant accepte d. Plaintiff has appealed and presents five issues for review. PLEADINGS Plaintiff s’ complaint alleges that

on Octobe

r 18, 1993 , plaintif

f, Shirle y L. Ferr ell, was operating her auto mobile in a northerly direction onGallatin Road in Davidson County and that the defendant was operating his Chevro let picku p truck a lso in a north

erly direction on G allatin Road. Plaintiff

avers that defendant’s truck struck the re ar of her vehicle, and that defenda nt was guilty of common la

w neglige nce in tha t he failed to keep h

is vehicle under du e and re asonable control; he was op erating his vehic le in a r eckless manner; he failed to observe that which he should have observed; he operated his vehicle a t a speed which wa s ex cessive under the conditions then existing; and that he failed to bring his vehicle under control. Plaintiff

also avers that defendant violated T.C.A. § 55-8-124 (following too closely) and that the acts of common law negligence and the violation of t he statute wer e the proximate cause of the accident a nd plaintiff’s resulting

inju ries. Plai ntiff avers that she sustained injuries to her back, neck, shoulder s, with cuts, abrasions, contusions and lacerations, and she incurred e xpenses for medical care and treatment for her injuries. Plaintiff ave rs that as a

proximate result of defendant’s negligence she wil l continue to incur pain, suffering, loss of enjoyment of the pleasures of life, and loss of wages and ear ning capacity. Defendant’s answer denies the material allegations of the complai nt a nd joins issue thereon. The answer further avers that plaintiff was not injured in the manner and to the extent alleged in the complaint, and asserts comparative negligence on the part of the plaintiff. FACTS Plaintiff, defendant, and police officer, Da nny Duncan, testified concerning the facts of the accide nt. Officer Duncan testified that he is with the Metro Police Department and received

a cal l to inve stigate the accident involving these parties. When he arr ived at the scene, he described damage to the back rear light and fender of plaintiff’s vehicle and to the who le front end of the defendant’s vehicle. He testified that he ta lked with both pa rt ies, and that plaintiff stated to him that “she was driving north on Gallatin Road, she stopped for the vehicle in front of her, when she stopped

she was hit in the rear end by vehicle number two [the McRae vehicle].3

He testified that defendant told him that “he was heading north on Gallatin Road, that

the vehic le in front of him stopped, the road was wet and he couldn’t stop and hit her in the bac k end.” Plaintiff testified that on the date of the accident , she left Briley Parkway and got on Gallatin Road and was proceeding in a northerly direction. She testified that she stoppedat the traffic lig ht at Walt

on Lane and was in the left of two north bound lanes. When the light changed to green, she continued north on Gallatin Road in the left-hand lane. She had proceeded ninetyfeet or

so when she saw a car in the left-hand lane in front of her stop with the turn signal on to turn l eft. She d

escribe s the eve

nt as follo ws: Q. Now, when you say this car, what car are you t alking ab out? A. A car that was in front, was way in front of me. Q. How fa

r in fron t of you wa s it? A. Well, I ’d say two

city blocks, is the w ay I saw it. Q. And what was that car doing? A. It had stopped w ith a turn s ignal on to turn left

. Q. And what did you do, if anything? A. I ju st left off of my gas instead of, you know, hitting the bra kes, I just -- because it was a little distance too. I just let off the gas. Q. Then what happened? A. Then I got jolted. I mean I was hit. I didn’t know what had happened. I grabbed the steering wheel, braced myself. I hit the brakes. Q. Did you ever seethe car that hit you

prior to th

e point in time that you hit? A. No, I d

idn’t. Q. Did you ever put

your brakes on prior to the point in time that you hit? A. No, I d

idn’t. Q. Do you kno w what you r speed w as at the

time you were hit ? A. I really don’t know, but I -- probably somewhere ar ound 30, 35. On cross examination, plaintiff was ques t ioned concerning her statements at the scene of the accident to the investigating officer Duncan:4 Q. Now, you heard Officer Dunca n testify that you told him that you were stopped a

t the time th

e accid ent occu rred, c orrect ? A. Yes, I heard him say that. Q. And it’s your testimony you didn’tte ll Officer Duncan that then? A. I don’t remember telling that, but at the time, Iwas so shook up -- Q. Well -- I’m sorry. A. I don’t remember telling him I stopped. I know I was telling him that the car ahead of me had stopped and I had let up. I don’t remembe r saying I stopped to

him. Q. Well, there would be a big difference between whether

a car was stopped and whether a car wa s going 35, wouldn’t there? A. Yes, it would. Q. Are you confused today about whether or not you stopped that day in the left lane? A. I, I wasn’t stopped. Imay have told him I was, but I wasn’t stopped. Defendant

testified that at the time of the accident he was proceeding in the left-hand lane at a spee d of appr

oximately thirty mile s per hour . He desc ribes the accide nt as follo ws: Q. Tell us, if you would, what happened. A. Well, I didn’t realize she had, like, she had stopped or slowed down, so I started slowing down. Q. No w, you say

you start ed slowing

down. Wha

t was you r speed before you started slowing down? A. Approximately 30. Q. And can you rem em ber how far -- Can you estimate for us how far behind he

r vehicl e your ve

hicle wa s? A. I don’t remember. Q. Were you tailgating her? A. No. MR. WOOD: Object to leading, Your Honor. THE COURT: Sustained. MR. WOOD: I don’t think that’s appropriate. Q. When you saw her vehicle stopped or -- did it stop?5 A. Well, i f I -- I t

hink she w as, Q. She was stopped? A. I think. I ain’t sure. Q. Was she going 35 miles an hour? A. No. Q. What did you do when you realized her vehicle was stopped or stopping? A. I applied my bra

kes. Q. What happened? A. Well, I didn’t stop, and I cut, took a right to miss her. Q. How ha

rd did you a

pply them? A. Well, hard. Q. Did you

apply the m hard at first? A. Well, I really don’t remember. ISSUES 1. Whethe r there is material evidence to support the jury’s verdict that plain tiff was guilty of negligenc e amounti ng to forty percen t of the pr oximate c ause of t

he acci dent. Fin dings of fact

by a jury i

n civil ac tions shall

be set as ide only if

there is no materia l evidence to support

the verd ict. T.R.A .P. 13 (d). The appellate court’s role in reviewing jury verdict s, was succinctly stated by our Supreme Court in Electric Power Board of Chattanooga v. St. Joseph Valley Structural Steel Corp. , 691 S.W.2d 522 (Tenn. 1985):

It is the long es tabl ished rule in this state that in reviewing a judgmentbased upon a

jury ver dict the a ppellate courts are not at liberty to weigh the evidenceto decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict ; the appe llate cou rt is requ ired to take the strongest legitimate view of all of the evidence in favor of the ver dict, to assume

the truth o f all that

tends to su

pport it, allowing al l reasona

ble infe rencesto sustain t

he verdi ct, and to discard all to the contrary. Having thus examined the record, i f there be any material evidence to support the verdict, it must be affirmed; if it were

otherwis e, th e parties would be deprived of their constitutional right to trial by jury. Crabtree M asonry Co. v. C & R Const., Inc., Tenn., 57 5 S.W.2d 4, 5 (1978); City of Chattanooga v. Rogers, 201 Tenn. 403, 299 S.W.2d 660 (1956); D.M. R ose & C

o. v. Snyder , 185 Tenn. 499, 206 S.W.2d 897 (1947). Electric Power Bd., 691 S.W.2d at 526.6 The collision in this case occurred in the left hand lane of two northbound traffic lanes

on a busy thoroughfare. Plaintiff apparently told the investigating officer that she had stopped her vehicle when she was hit. At the trial , plaintif

f testified that she

merely sl owed her

vehicle because of a left turning vehicle approximately two city blocks ahead o f her. D efenda nt also told the investigative officer that the plaintiff had stopped, but at trial testified that he rea lly did not know if she actually stopped or slowed down. Although there appears to be some dispute a s to whether plaintiff stopped or

slowed do wn, it app ears und isputed th at there

was no ne cessity

for plaintiff to materi ally cha

nge the sp eed of he

r vehicl e in this t

hrough traffic

lane. Fro m this proof, the jury could have concluded that plaintiff’s act of materia lly changing the speed of

her vehicle without any necessity to do so at this particular place where one would

not reas onably contempl ate traffic

stopping in a through-traffic lane constituted negligence on plaintiff’s part that contributed forty percent to the cause of the accident. Although very slight, there appears to be mate

rial evid ence to s upport the

jury’s ve rdict. We will next consider plaintiff’s Issue No. 3: 3. The Court erred in o verruling item number 14 of plaintiff’s Motion i n Lim ine and admitting the hypothetical question and answer posed to Dr. Ronald T. Zellum, M.D. The record

reflec ts that pla

intiff wa s treate d initially after the ac cident in the hospital emergency room and then appar en tly was se en by Dr. Card, who subseque ntly retir ed due to illness. Dr. Richard Smith, an internist, took over Dr. Card’s practice, and he first saw the plaintiff on August 15, 1994, with compl aints of neck pain. Dr. Smith testified that he was given

a history of the motor vehicle accident in 1993 and that since that time plaintiff had nec k discomfort

a nd heada ches but a

pparent ly without w eakness , parath esia, or other ne urologic sym ptom. Dr. Smith’s diagnosis was muscular ligamentous injury, and he prescribed typica l conservative treatme

nt, such a s muscle r

elaxant s and pain

medicati on. Dr. Sm

ith opi ned that there was a causal relationship bet wee n the accident and the conditions for which he treate d plaintiff on three occasions between August 15, 1994 and Januar y of 1995 when he referred plaintiff to Dr. Zellum, a neurosurgeon. Dr. Smith a l so testified that on February 28, 1995, during an office visit for another medical condition, plaintiff told him that she had reinjured her neck, but Dr. Smith’s re cords did not indica

te when this additional injury occurred. Dr. Zellum testified that he first saw p laintiff o n February 8, 1995. He testified that he ordered var ious7

diagnosti c tests from which he reache d the conclusion of spondylitic changes in her cervical spine, and he opined that based upon her history, this pre-existing condition was aggravated by the automobile accident. Plaintiff has objected to the following hypothetical question elicited on cross examination and the answers thereto.

Let me as k you to ass ume that Dr. Smith has testified he first saw Mrs. Ferrel l on Aug ust 15, 1994. And that, although, she co mpl ainedof neck pain and associated headac hes that she related to episodes of stress, that he has testified, in his opinion, that there were

no neuro logical f

indings tha

t he made in regar d to her neck, despite seeing her

a number of times between August of 1994 and late December, Decembe r 30, 1994. In other words, he saw her severa l times. B ut the very

first time he made any neurological findings in regard to her neck was December

30, 1994. W

ould it be significant to you that she saw him for numerous things in a period between Au gust and December and made no complaints of neck pa in? A. How many times do you think he saw her? Q. I’ll tell you. MR. WOOD: I’m going to object to the form of the question. You’re indicating sign ificant, and I think maybe we -- you may well want to go beyond that. You may not. BY MR. ZINN: Q. Let’s assume that he saw her four time s betwee

n August and n otcounting December 30th. And there were no c omplaint s o f neck pain on any of those

occasions, and no neurological findings in regard to the neck until December 30th. Of wha t significance would t hose fac ts be to you in regard to this lady’s history and condition? A. It might impl

y that the patient a t that time had no pain or symptoms to complaint of. Q. If, again, assuming that he made no neurological findings, she made no complaint to him of neurol og ical signsor symptoms until December

30, 1994, would it cause you to question whether there was, in your opinion, a causal relationship between the motor vehicle accident of October 1993 and the pr oblems for which you trea

ted this la dy surgic ally in

February, March, 1995? A. Yes, it

might. Q. And why

is that? A. The cont

inuity of her compl aints for me is a ve ry important indicator of a cause and effect relationship. Plaintiff asserts that

the hypoth

etical qu estion should have b een exc luded bec ause it did notcontain t

he nece ssary fa

cts, was unfairly posed, and further because the response thereto by8

the witness was speculative. A hypothetical question must be supported by the evidence presented at trial. Banks v. St. Francis Hospital , 697 S.W.2d 340, 343 (Tenn. 1985). In Cortrim Mfg. Co. v. Smith , 570 S.W.2d 854 (Tenn. 1978), the Court said:

C ounsel must be given some leeway in his choice of wo rds i n framing such que stions a n d the matter is primarily one for the exerci se of discretion by the trial judge. Moreover, thedefendant had the opportunity to restate the hypothetical question on cross examination or frame

other questions of his own to point out any deficiencies in the question posed by the plaintiff. Id. at 856. From our review o f the rec ord, it appears that the essential facts were inc luded in the hypothetical question and plaintiff’s counsel could have utilized re-direct examination to correct any deficiencies that he might have perceived. Plaintiff also contends that Dr. Zellum’s answer to the hypothetical question was speculative and shoul d have been s tricken . We must b ear in mind that this hypothetical question was asked on cross examination where Dr. Ze llum had stated that he relied u

pon the his tory give

n to him by pl aintiff a s a premis e for his opinion that her injuries were causally related to the acc ident. Under those circumstances, it was proper for the question t

o be aske d. While

Dr. Zellu m’s answe

r is inconclusive, it could be considered as casting some doubt on his previously given opinion. While doubt was cast upon the opinion, no effort was made for rehabilitation nor to elicit a less speculative answer. We do not find that the trial court abused its discretion in admitting the question and answer.

2. The ver

dic t r endered by the jury was inadequate, outside the range of reasonableness and aga inst the weight of the evidence. As we noted

in dealin g with the f

irst issue , this Court

is not at liberty to weigh the evidence to decide where the preponderance lies but is limited to deter mining whe

ther the re is any material evidence

to supportthe verdict. Electric Power Bd. of Chattanooga v. St. Joseph Valley Structural Steel Corp. , 691 S.W.2d 522 (Tenn. 1985). The medical informati on in this c aseindicates that plaintiff had other physical maladies notconnected with the acci dent and t hat she incurred

medical e

xpenses in treating these maladies

. The record

also indicates that although plaintiff had initial medical treatment for her injuries, she apparently did not have any persistent trouble for some months after the accide nt. When she star

ted seei ng Dr. Smith

she had in

termitten t problems , and during the same period9

of time was having totally unrelated physical problems for which she was receiving treatme nt. There was some indication that plaintiff may have sustained another neck injury, but the record doesn’t r eveal a ny investi gation of

this other than the s tatement

made by D r. Smith as t

o what plai ntiff had told him. The belated onset of neurological deficits could very possibly h av e influenced

the jury. Clearly Dr. Zellum ’s opinion is based u

pon the his tory give

n to him by the plaintiff. H e indica

ted that th

e correctness of

his opinion

could poss ibly be af

fected if some other facts ha d been kn own to him. T

he medic al opinion

in this case was based upon the history g iven by the plaintiff. If the jury questions the plaintiff’s credibility, it is not bound to accept the physicia

n’s medic al opinion

if it is based upon the history given by the plaintiff. Baxterv. Vandenhovel , 686 S.W.2d 908, 912 (Tenn. App. 1984). Based upon the e

ntire re cord in

this case, we find material evidence to support the verdict of the jury. Plaintiff’s fourth issue has heretofore been answe redby our consi deratio n of the f irst issue. Pla

intiff’s last issue

for review is: 5. The Trial Court erred in his charge to the jury as to the Defendant’s duty to the Plaintiff. Plaintiff asserts in her brief: The Courts chargeupon the issue of the Defendant’s duty (Tr. 174) begins with an assertio n that the assured clear d istance rule (withoutany explanation of what the assured clear distance rule is or was) d

oes not ap

ply “. . . w

here a d river e ncounter s a dangerous situation w

hich he ha d no reas on to antic ipate

. . .” and proceeds to relieve the de fen dant of the duty to ob serve to his front and to maintain a

safe distance between

his vehicle and the vehicle to his front and to have his vehicle under con trol at all times. The trial court charged the jury: In ad dition, you should consider the law on following too close. A driver is required to compl y with Te nnessee Code Annotated55, dash, 8, d ash, 124, which provides in part as follows : The driver of a motor vehicle shall not follow anothe r vehicle more clo sely than

is reaso nable

and prudent, having due regard for the speed of such

vehicles and the traffic upon and the conditions of the highway. He is require d to drive

his vehicle at a sufficient distance to the rear of the vehicle ahead so as to be able to stop in the clear space betweenthe vehicles in case the preceding vehicle is stopped with due care. The assured clear distance rule doe s not apply where the driver10 encounters a dangerous situation which he had no rea son to antic ipate, and the r

equired standar d relate d to follow ing too clo se is then up to the judgment of the jury. We find the court’s instruction to be c orre ct, and if plaintiff felt that the charge was incomplete, she should have presented a special request for instructionto complete the charge. The judg m ent of the trial court is affirmed, and this case is remande d for such further procee dings as ma

y be nec essary. Costs of the appeal a re asse ssed aga

inst the ap

pellant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE