### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE December 5,

2000 Session

HARRY FLETCHER, ET AL 

### . v. ANTHONY EDWIN BICKFORD, ET AL 

### .

Appeal from the Circuit Court for Hamilton County No. 96CV 1404 Hon. W. Neil Thomas, III, Judge

FILED JANUARY 5, 2001

No. E2000-01020-COA-R3-CV

Plaintiff’s car was caught between the minivan in front of him and the dump truck behind him when the minivan and Plaintiff’s car stopped to avoid an obstruction in theroad way. The dump truck was unable to stop and hit Plaintiff’s car. The jury returned a verdict for Plaintiff for $225,000. The jury allocated 80 percent of thefault against the dump truck driver and owner and 20 percent of the fault against Plaintiff’s uninsured motorist insurance carrier on behalf of the unknown driver of a truck which dropped the obstruction onto the road. The dump truck driver and owner appeal, raising issues of law including the introduction of claimed inadmissible evidence , prejudicial fina l argument, improper and incomplete jury instructions, jury misconduct and the failure of the Trial Court to grant Defendants’ motions for directed verdict and judgment notwithstanding the verdict. We affirm the judgment of the T

rial Court.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed; Case Remanded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined.

Michael R. Campbell, Chattanooga, Tennessee, for Appellants Anthony Edwin Bickford and Robert Gamble.
G. Brent Burks, Chattanooga, Tennessee, for Appellees Harry Fletcher and Phyllis Fletcher.

Ron ald D. W ell s, C hat tan ooga , Te nne sse e for Nat ion wid e Ins uran ce C omp any. Gary W. Starnes, Chattanooga, Tennessee for Blue Cross & Blue Shield of Tennessee.-2- OPINION
Background

On July 13, 1995, Harry Fletcher (“P lainti ff”) was driving his 1988 Pontiac Trans Am east during afternoon rush hour in heavy traffic on I -24 in Chattanooga, Tennessee . In front of Plaintiff’s vehicle was a mini van driven by

Rhonda Roddy.

Behind Plaintiff’ s vehicle was a du mp truck driven by Anthony Bickford (“Bickford”) an employee of Beach Truc king, a partnership of defendants

Solon Beach and R

obert Gamble. A r

ailroad crosstie

was l ying on th

e roa dwa y, exacerbating rush hour traffic problems as motorists came upon the obstruction and u ndertook evasive maneuvers. Ms. Roddy saw the traffic in fr

ont of her come

to a stop. She slowed down, and then saw the crosstie in the roadway in front of her for the first time. As she slowed down further andtried to maneuver over or around the obstruction, Plaintiff slowed down behind her. Bickford slowed down behind Plaintiff, but Bickford’s dump truck rear-ended Plaintiff’s Trans Am, which then rear -ended Roddy ’s minivan. Plaintif f sustained neck a

nd spinal injuries r

esulting in lo ss o f work and $25,349 in medical expenses.

Plaintiff brought this suit for damages against Bickford, the dump truck driver, and
owners of the truck, Beach and Gamble. Nationwide Insuran ce Comp any, which provided uninsured motorist coverage for Plaintiff’s wife, Phyllis Fletcher (a lso a plaintiff), was served with a copy of the Complaint pursuantto the Tennessee Uninsured Motorist Coverage Act, T.C.A. § 56-7-1201 et seq. Beach was never served with process. Bickford and Gamble (“Defendants”) answered, alleging that the accident was caused by the neglige nce of a tractor trailer driver who had suddenly swer ved from the right lane of

Interstate 2

4 into the middle lane, in

advertenly

throwing the cr

osstie from its trailer into the path of

a vehicle in front of Plaintiff creating a hazardous, emergency situation which caused the accident. Nationwide answered, admitting that it pro vided unin sured moto rist covera ge to Ms. Fletcher but denying ne gligenceon the part of the “John Doe” unknown motorist who allegedly dropped the crosstie onto the roadway

. Trial was held July 6

through July

9, 1999. The first day of trial was devoted entir

ely to voir dire of prospecti

ve jurors who were questioned extensively by c ounsel for Plaintiff and Defendants. A number of prospective juro

rs were excused.

On the second day

of trial, Ms. Roddy testified that, on the afternoon of the accident, she was driving home and was annoy ed because the traff ic was hea vy and would slow down and then pick up, causing her to wonder if there w as an accident ahead. She described the scene:

At one point the car i

n front of me seem

ed to resu me speed and got away from me and immediately upon the car moving away , I realized what turned out to be a cross tie in the road . . . I somewhat panicked because it was large enough that I was afraid ha d I just go ne right
across it, that it

would bump up under

the car or cause

some problem for me to lose control . . . so I slowed as far down as I could to1 When artfully re-crossed by Mr. Cam pbell, counsel for Defend ant, Ms. Roddy testif ied that she did not have time to stop b efore her ve hicle went right o ver the cross tie, and that she m ight have cau sed the acc ident.
-3- maneuver it. And right at the

time that I app

roached it I

felt th at someone hit me in the back.

Ms. Roddy didn’t see a truck drop the crosstie

and doesn’t know how it got in the road. It appeared suddenly in front of her car, and she thin ks that is because the car in front of her cleared the obstruction and then pulled away from her car, leaving her next in line to confront the obstruction. When she saw the object, she had only a few seconds to decide what to do. She may have slowed down, or she may have stopp ed co mpl ete ly by the time she was hit from behind by Plaintiff’s vehicle. 1 After the collision, Ms. Roddy got out of her car, went back to Plaintiff’s car, and apologizedto him because she t hought she m igh t have done a better job in trying to avoid the accident. While she was standing with Plaintiff, Bickford came up to them and also apo

logized to Plaintiff. Ms. Roddy test

ified that her mini

van did not sustain any noticeable damage, but it looked to her as if Plaintiff’s Trans Am was a total loss.

Officer George Perry

Walden, the Chattan

ooga Police Dep

artme nt Off

icer who responded

to the traffic accident, testified that one of the thr ee perso ns involved in the ac cident, either Plaintiff, Bickford, or Ms. Roddy, told him at the scene that a crosstie had fallen off theback of a lowboy truck onto the roadway and caused

the accident. Th

e participants tol

d him that the dump truck struck the Trans Am in the rear and knocked it into the minivan. Plaintiff told him that he saw the traffic in

front of him stopping and that he stopped behind Ms. Roddy’s car. Then he looked in his rear view mirro

r and saw Defen

dants’ dump truck behind h im, sliding, with its brakes locked and tires smoking. The dump truck hit Plaintiff’s Trans Am, propelling it forward approximately 50 feet into Ms. Roddy’s minivan. Bickford told him that he was glad when he saw the driver of the Trans Am get out of his car because he was afraid he had killed somebody

.

Bick fo rd was called by Plaintiff as an adverse witness and testified that on the afternoonof the accident he was traveling at the speed limit or five miles over the speed limit when he topped Missionary Ridge on I-24 heading e ast in the dump truck. He testified he was traveling in the lef t-h and lan e of t he t hree east bou nd l anes , as he al ways does on that trip. As he was coming down the ridge, traveling at a bout 55 miles per hour, he observed a tractor and lowboy trailer carrying a Euclid dump truck. When he first saw the lowboy, that vehicle was 200 to 300 feet ahead of him, in the right-hand lane. After the lowboy passed the Moore Road exit, the driver ch

anged into the center lane, and at that point, Bickford saw the crosstie, which was being used as a block behind a wheel of the Euclid, come off the lowboy and fall in the direction of the roa dway to the left. He didnot see exa ctly where the cr osstie lan ded, but he did see many veh icles swerv ing. At that point, he “hit” or “feath

ered” his brake

s to try to slow down. Then he saw the rear brake lights of the Trans Amin front of him

about 80 to 100 fee

t away. He

normally leaves about that much distance between his dump truck an d the vehicle in fr ont of it, because

“if you lea

ve more room than t

hat, they wi

ll pull in anyway.”

Although he thought he had room to stop, he was mistaken and hit the Trans Am witha he avy impact while traveling about five to ten miles per hour. He thought he ha d killed2 Plaintiff, an expe rienced p ilot, testified that “if I had h ad an ejec tion seat, I wou ld have be en out of there .”
-4- Plaintiff. When questioned on cross-examination by counsel for Nationwide Insu ranc e Co mpa ny, he agreed that he

had the responsib

ility to keep a lookout f

or objects in the r

oad, to keep his ve

hicle und er co ntr ol, and to b e abl e to sto p, w het her f or an oth er ve hic le o r fo r an o bje ct i n th e roa dwa y.

Plaintiff testified consistently with Bickford and Ms. R oddy as to the

traffic
con ditions on th e day of the accident. He testified that, because of his experienc e as a defensive driving instructor, he “literally abides by the two second rule that the National Transportation and Safety Board and National Safety Counsel reco mme nd, ” i. e., “I al ways keep a couple of car lengths betweenmyself and the car in front. ” He said that whe n Ms. Roddy’s m

inivan in front of h

im stopped, he stopped, and he still had a couple of ca r leng ths between his car and hers. Then he looked in his rearview mirror, saw the dump truck behind him, knew or felt like the truck would not be able to stop and that he had nowhere to go, and so he pulled up as close as possible to the vanand stopped. He looked in the rearview mirror again and saw the dump truck with its brakes locked and its wheels or tires smoking. He knew the truck was not going to stop, so he put his hands over the steering wheel, and his head down on his arms, and waited in “shee r terror, b ecause I knew I was dead.” 2 He recalls that thedump truck hit his car and pushed it forward, but he cannot describe the force of the impa ct because t hings happened so quickly. (“I said, thank God I ’mnot dead. That’s really all I know about the impact itself.”) Plaintiff also testified that he and the driver of the minivan slowed and then stopped a ppropriately

when confronte

d with the obstruction in the roadway, and that he never did anything he considered to be an emerg ency or panic situation in try ing to stop. He
never saw the car ahead of him skid or slide or swerve, and he never heard any tires squeal in front of him. All of the changes in speed of the minivan, and all of his change

s in speed, were g

radual. Moreover, after the accident, he stood against a railing alongside the road and looked up and down the line of traffic, and he observed that the only accident ca used by the crosstie was the oneinvolving the dump truck.

Plaintiff testified that

he was in shock immediately after the accident and did not feel any pain, but after he

got out of th

e car and sat down on the guardrail, he began to feel strain. As time went on, he started getting “sore and achy” but declined the police officer’s recommendation to go to the hospital in an ambulance because his wife was on her way to the scene, and he wanted her to transport him. He believed that ambulance travel was for life-threatening injuries and thought that he did not need it. His wife took him to the emergency room, where he was x-rayed to rule out broken bones and given

pain medication. He wa

s told to see an orth

opedic specialis

tthe nex t da y, which he tried to do for four days, but could not get an a ppointme nt. Finally, he called a FAA Medical Examiner, who called a friend, Dr. Phillip Bryant, an osteopathic doctor, and setup an appointment

for the following day. Although Plaintiff had back surge ries ten years prior to this accident,he had no residual complaints or pain in his back, neck or arm from that condition and was in good health at th

e time of the acc

ident. Dr. Bry

ant prescribed p

ain and anti -inflam matory medication and physical therapy, including hydrotherapy and

deep tissue massage. Plaintiff testified he lost about 400 hours of work. His salary was $55,000 annually a tthe time of the accident. During his recovery period, he and his wife moved to North Carolina for profe ssional reasons where-5-

he started seeing doctors at Charlotte Orthopaedic Group. As stated, hi s medical expenses were $25,349.

Plaintiff

testified that sinc

e the accident, h

e is no longer ab

le to snow ski with his

wife
as was their custom,

and he had t o quit his softball league because he can no longer play . Also, although flying airplanes has alway s been “the love of his life,” and he normally flew five hours a week, he stopped flying planes an d being a f light instructor after the accident because he was not able when flying

to get out and walk around when he experienced pain, as he could when traveling by car. Plaintiff sold his airplane and has not ke pt his medical certificate up to date. He can no longer work in the yard with his wife and can no longer cut and split firewood.

All of the above-described testimony having been heard, the jury was dismissed for the day, after

which Defendants’ counsel moved for a mistrial. For grounds, De fendants argu

ed that, earlier in the day, counsel for Nationwide Insuranc e Company

had asked Plaintiff, “[i]sn’t it true that yo u were pa id for the car by or on behalf of Mr. Bickford and Mr . Gamble?” and Plaintiff had replied, “Yes, sir.” Defendants’ co unsel had objecte

d to the question in a be

nch conferenc

e after it
was posed, whereupon the Trial Court had “allowed Mr. Wells to continue with his examination.” The Court responded to the motion for mistrial by explaining that the examination did, indeed, continue, but “it wasn’t on tha t same subject . . . I

said ‘let’s preserve

it and discuss it

when we’ve excused the jury.’ ” In arguing the motion for mistrial, Defendants’ counsel opined that “there’s no way to unring that bel

l . . .” and that the evidence was inadmissible and highly prejudicial. Plaintiff’s counsel responded that Plaintiff had no part in the colloquy and would be greatly prej udiced by a mistrial. Counsel for

Nationwide Insurance defended the question by a rguing that he had structured the question very carefully so as not to “br ing insurance into it” and had offered the payment as admission against

interest in a hotly

contested case of liability in which Defendants had pointed the finger of liability at Nationw ide. The Trial Court and all counsel agreed to research the problem overnight. The n

ext morning, Defe

ndants’ counsel to

ld the Trial Court:

I want some way

to resolve this pro

blem without ringin g this bell again any louder than it has to be r ung. So what I would like and suggest and ask the Court to do is I want the parties to stipulate that
no payment was made on behalf of B ickf ord and Gamble, that the testimonyto that effect was inadvertent on the part of Mr. Fletcher, not deliberate because he didn’t know - - you know, he

didn’t know whose name’s on the check or remember tha

t. So I want the parties to stipulate that no payment was made on beha lf of Bickford and Gamble, and I want the

C ourt to give a specific curative instruction to the jury to d isr egar d th at t est imo ny - - and I’ve prepared a proposed curative instruction - - and then poll the jury to see if they can do that . . . [i]n the absence of that, I stand on my motion for mistrial . . . .

Plaintiff’s counsel ad m itted that, after considerable re

search, he was c

ompelled to agre

e with Defendants’ counsel that the evidence was inadmissible under Tennessee Rule of Evidence 408, but3 Whereupon the trial judge re sponde d, “ . . . e verybody

makes mista kes . . . that’s the nature o f this game . . . as a matter of

fact I was t

aught that

the defini

tion of tr ial practi ce is making t

he least number of

errors.”
-6- that h e could not stipulate that no payment was made on behalf of Bickford and Gamble, since Gamble is a partner

in Beach Trucking, and the payment chec k lists Beach Trucking as the insured. Counsel for Nationwide Insurance Company also ag reed that, after extensiveresearch , he had concluded

that t he evidenc e was inadmissible , and apologized f

or its attempted intr

oduction into evidence. 3 The three attorneys and the trial judge then engaged in a substantial discussion about the best way to correct what all agreed was an error. Defenda nts’ counsel vigorously insisted that either the jury be instructed and polled as described above or a mistrial be declar ed. T he Trial Court declined to so orde

r, and instead inst

ructed the jury

as follows:

Let me start off by saying y

esterday there w as certain evidence that
was given by Mr

. Fletcher to

the effect that he received compensation for his car. Let me instruct you now that t hat evidence is not admissible

and you shoul

d disregard it. Those were matters which we discussed with the attorney s this morning and l

a st evening . As I indicatedto you at the out set o f this trial, sometimes I will strike evidence or

notpermit evidence

to be introduced; a

nd I indicate

d to you that an unanswered question should not be given any weight and if I instruct you to disregard evide nce, th at you should not consider that e vi dence in your deliberations. Consequently, I am instructing you that you should not consider the evidence that was given on the payment for Mr. Fletche

r’s car in y

our deliberation

s. Let me get

a quick show of hands, make sure everybody can follow that instruction anddisregard. If

you can, please raise y

our right hand. (Whereupon, all Jurors raised their

hands.) Okay. Let the rec ord reflect t

hat all jurors, as I knew they would, said they would.

Plaintiff rested his case and the defense then called Bickford, who testified that he hadkept 80 to 100 feet between his dump truck and Plaintiff’s Tr

ans Am during the

trip down the MissionaryRi dge cut, except for when cars would cut in front of the truck. When he saw t h e crosstie being thrown off the

lowboy, he r

eacted immediate

ly by f eathering his br

akes. When he hit his brakes, his

dump truck was about 80 feet behind Plaintiff’s Trans Am, and there was nowhere to go except

straight ahead because the other lanes were full. When his truck actually hit the Trans Am, he was probably going about five to ten miles an hour. After the impact, the truck traveled about three to five feet before it stopped. The impact pushed the Trans Am about 30 feet. When he got out of the truck, he found the crosstie a few feet in front of the dump truck and a few feet behind the Trans Am, in the middle of the road. On cross-examination, Bickford testified that he does not know the stopping dista

nce of th e dump truck wh en it is driven at 45 miles per hour and that he sometimes leaves less than 8 0 feet between h

imself and other c

ars in order to

keep cars from

cutting in f ron t of him . We repr odu ce a p ort ion of t hat tes tim ony:-7- Q: And you conscio

usly as a dump truck

driver, knowing you’re driving a dump truck at 14 to 17 tons, made that decision to prevent people from cutting in front of you t o fo llo w to o cl ose ly?

A: Yes sir, if that’s too close.
Q: Well, wouldn’t you agree with me, Mr. Bickford, that if you can’t stop in time [and] smash the rear end of a Tran s Am , you ’re f oll owi ng to o cl ose ly?

A: Yes, sir.
At the close of trial, Bickford and Gamble moved for a directed

verdict and for the Court tofind as a matter of law th at there was a thi

rd vehicle involve

d which threw a c

rosstie into the road. Counsel for

Nationwide I

nsurance Company

objected, arg

uing that “it’s a

ll disputed fact.” The Trial Court held

that the issues raised were disputed issues of fact for the jury and de

clined to grant the motion.

The parties then eng

aged in final ar

gument. As pertinent to this appeal, Defend

ants’ counsel stated during final argument that “there are no lost wages in this case.” He also argued, as pertinent:

I

want to speak blunt

ly to you here. I

don ’t i nte nd t o of fend anyb ody. The nature of this case is a suit for money and the worse you think the plaintiff is hurt, the more money the plaintiff thinks you’re g oing to award him. This is w

hat this suit is about.
Plaintiff’s counsel, in rebuttal of Defendants’ argument that there were no lost wages, state d:

Lost earning cap aci ty? Mr. Campbell told you there’s no claim for lost wages. He just w

ants to forget. H

e ju st w ants to forget Harry Fletcher lost 400 hours from work a t Blue Cross

- Blue Shield. Four hundred hours times $28 an hour is $7,200.

Plaintiff also attempted to respo

nd to Defendants’ argument that “ the nature of this

case is a suit for
mon ey, and the worse you think the plaintiff is hurt , the more money the plaintiff thinks you’re going to award him. This is what this suit is about.” In response, Plaintiff’s counsel argued:

Mr. McMahan: Insurance companies, trucking c ompanies understand one thing. Th ey understand money. They don’t care about people.-8-

Mr. Campbell: Your Honor, I object to this arg

ument.

Mr. McMahan: They don’t care about people.
Mr. Campbell: Iobject to t his argument. It’s improper. They don’t car e

about people, this is an appeal to passion and prejudice.

The Court: I’lloverrul e the objection, Mr. Campbell. I think thi s i s

closing argument. Go ahead, Mr. McMahan.

After the arguments

were heard, the jury was

dismissed and Defendants again moved for mistrial, because “there was not a shred of proof in this record that this man made $28 an hour. Argument

is based on the fac

ts. I objected

to that. The arg

ument that appeal

e d to passi on and prejudice that trucking companies don’t care about people. I obje

ct[ed] tothat.” The Trial Court found that Plaintiff’s argument that he earned $28 an hour was proper, based on an annual salary of $55,000 and an 1800 hour work year. (“He could’ve used $33 a n hour.”)

The jury returned a verdict for Plaintiff for $225,000 and assessed 80 percent of

the fault a gainst Defendants and 20 percent of the fault against Nationwide I nsurance Compan y

. Defendants

moved for a new trial and for a j udgment notwithstanding the verdict. They later supplementedtheir Motion for New Trial by add ing a new g round, that juror #36, Mr. Karl McKnight,had failed to disclose during jury selection that he had sustained a prior spinal injury and hadundergone a spinal fus ion. The Tr ial Court held an evidentiary hearing in November 1999 during which all of the jurors were examined about their deliberations. On December 14, 1999, the Trial Court denied Defendants’ Motions for New Trial and for Judgment Notwithstanding the Verdict. Defen

dants Bickford a

nd Gamble appeal

.

Discussion
Defendants raise the following issues in this appeal, which we quote:

1. Wh ether

th e trial court err

ed in failing to g

rant these defendants’ motion for mistrial following the introduction of evidence by co-defendant Nationwide that the p ro perty damage to plaintiffs’ vehicle had been paid by or on behalf of defendants

Bickford and Gamble, beca use the court’s curative instruction to the jury was inadequate to remove the prejudicial effect of the evidence on the issue of comparative fault.

2. Whether

the trial court erred

in fa iling to sustain the se defendants’ ob

jecti on to the final argument by plaintiff’s counsel which was inflammatory , prejudicial,

and contained-9- sta tements with no evi dentiary basis , and erred i n failing t o grant these defe ndants’ motion for

mistrial because

of said argument.

3. Whether

the trial court er

red in chargin

g the jury o

n past loss of earning capacity as an

element of damages in the absence of any proof as to how much the plaintiff earned on

an hourly basis.

4. Whether

the trial court erred in f ailin g to give these defendants’ re ques ted jury instruction number 7 that the following to o c losely statute, T.C.A. § 55-8-124, does not apply where a driver encounters a dangerous condition he has no reason to anticipate.

5. Whether

the trial court erred in failing to g ive these defendants’ requested jury instruct ion number 2 regarding for esee abi lit y.

6. Whether

the tria l court erred in failing to grant these defendants’ motion for directed verdict and motion for judgment notwithst

anding the verd

ict.

7. Wh ether

the trial court erred in failing to gran t thes e defendants’ motion for new trial based onthe failure of juror #36, Karl McKn ight, to disclose during the jury selection processthat he had sustained a prior spinal injury and had undergone a spinal fusion.

Our standard of review as to findings of fact by a jury in a civil action is l

imited to determining whether

or not there is any

material evidenc

e to support the ver

dict. Tenn. R. App.

P. 13(d). Appellate

courts do not determine the credibility of witnesses or weigh evidence on appeal from a jury verd

ict. Where the re

cord contains material evid ence supporting the verdict, the judgment based on that

verdict will not

be disturbed on appeal. Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822 (Tenn. 1994). However, a Trial Court’s conclusions of law in a jury trial are subject to a de novo review. Campbell v

. Florida Steel Corp ., 919 S.W.2d 26, 28 (Tenn. 1996). In addition, Tenn. R. App. P. Rule

36(b) provides:

A final judgment f

rom which relief

is availa

bl e and otherwise appropriate

shall not be set asi

de unles s, considering th e whole record, error invo lving a substantial right more probably than not affecte d the judgment or would result in prejudice to the judicial process.-10- Defendants’ first issue on appeal concerns an evidentiary ruling of the

Trial Court. Our standard of review of

the Trial Court’s evidentiary rulings is whether the Trial Court abused its discretion:

In Tennessee, admi ssibility of evidence is wi

thinthe sound discretion of the trial judge. When arriving at the determination to admit or exclude even that evidence wh ich is considered

relevant Trial Co

urts
are generally accorded a wide deg ree of latitude and wi ll only be overturned

on appeal where there

is a showing of abuse of discretion.
Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 442 (Tenn. 1992).

During cross-examination of Plaintiff, counsel for Nationwide Insurance

Company asked: “ [i]sn’t it true that you were paid for the car by or on behalf of Mr. Bickford and Mr. Gamb le?” Plaintiff replied, “Yes, s ir.” D efendants’ counsel objected to the question in a bench conf erence a fter it was posed, but the Trial Court “

allowed Mr. Wells to

continue with his examination.” Defendants then moved for a mistrial bas

ed on the introduc

tion of that inadmiss

ible evidence. The T

rial Court decline

d to so order, and i

nstead instructe

d the jury:

That evidence is not admissible and you should disregard it . .

. I am instructing you that you shoul d not consider the evidence that was givenon the payment for Mr. Fletcher’s car in y our deliberations. Let me get a quick show of hands, make sure everybody can follow that instruction and disregard. If you c an, please raise your r ight hand. (Whereupon, all Jurors raised their hands.) Okay. Let the recor d reflect that all jurors, as I knew they would, sa id they would.

In this case, the parties and the Trial Court agree that the evidence in question was inadmissible. The Trial Court gave a curative instruc

tion requiring a

ll jurors to raise th

eir hands to acknowledge that they would not consider the inadmissible evidence. It is not reversible error for
a Trial Court

to refuse to grant

a mistrial upon the basis of improper testimony where the testimony is corrected by instructions to the jury that the jury is to ignore

the testimony and is not to consider it. Brown v. State, 423 S.W.2d 493, 495, 496 (Tenn. 1968). We find no error by the Trial Court on this issue. We further hold that even if it were error, the record as a whole does not support a finding that it more probably

than not affecte

d the judgment or w

ould result

i n prejudice to the judicial process. Tenn. R. App. P. Rule 36(b). Accordin

gly , affirm the Tria

l Court’s refusal

to grant a mistrial on that bas

is.

Defendants’ s econd issue is whe ther the Trial Cour

t erred in failing

to sustain Defendants’ objection to a portion of Plaintiff’s attorne y’s final a rgument and the

n in refusing to grant a mistrial based on this prejudicial final argument. When a trial judge refuses to grant a new trial based on an attorney’s final argument, we

may not interfere with this action unless the attorney’ s argument was clearly

unwa rranted and made purely for the purpose of appea ling to passion,-11-

prejudices and sentiment which cannot be removed by sustaining the objection of opposing counsel. Davisv. Hall, 920 S.W.2d 213, 217 (T enn. Ct. App. 1995) ; Perkins v. Sadler, 826 S.W.2d 439, 442 (Tenn. Ct. App. 1991). Consistent with this rule, decisions of trial judges with respect to the conduct of att orn eys in open court are examined using the abuse of discretion standard of review. Harrisv. Thurmond, No. 02A01-9803-CV-00074 (Tenn. Ct. App. Marc h 17, 1999) 1999 WL 142382, *5; See In re Ellis, 822 S.W .2d 602, 60 5 (Tenn. Ct. App. 1991). The portion of Plaintiff’s final argu ment objected to included harsh words about both insurance companies and truck ing companies :

Insurance companies, trucking companies un ders tand one th ing. They understand money. They don’t care about

people . . . they don’t care about people.

Defendants

objected, a

r guing that “this is an appeal to passion and prejudice.” The Trial Court overruled the o bje ction. Although there is support for the argument that this statement was made “for the purpose of appealing to passion, prejudices and sentiment ,” t he record shows that Defendants

had first made a comparab le appeal to passi on, prejudice an

d sentiment when the

ir attorney argued:

I want tospeak bluntly to you here. I don ’t i nte nd t o of fend anyb ody. The nature of this ca

se is a suit for money and the worse you think the plaintiff is hurt, the more money the plaintiff thinks you’re g oing to award him. This is w

hat this suit is about.
Viewing the opposing arg uments as a whole,

Defendants

first said, “[this is] a suit for money and the worse you th

ink Plaintiff is hurt

, the more money

Plaintiff thinks y

ou’re going to

award him.” Plaintiff resp onded byarguing, “ins urance compa nies, truc king compan ies underst and one thi ng. They understand money. They don’t ca re about people . . . they don’t c are about people .” Given this sequenceof events, we find the Trial Court did not

abuse its discretion in its decision with respect to the argument made by Plaintiff’s counsel. Harris v. Thurmond, No. 02A01-9803-CV-00074 (Tenn. Ct. App. March 17, 1999),1999 WL 142382, *5; In re Ellis, 822 S.W.2d 602, 605 (T enn. Ct. App. 1991).

Defendants’ third, fourth and fifth issues involve alleged errors in the Trial Court’s jury instructions. When is sues involving the jury charg

e are raised on a

ppeal, we revie

w th e jury charge in its entirety and consider it as a whole in order to determine whether t he Trial C ourt committed prejudicial error. Thecharge will not be invalidated as long as it fairly defines the le gal issues involved in the case and does not mislead the jury. Otis v. Cambridge Mut. F ire Ins. Co., 850.W.2d 439, 446 (Tenn. 1992).

There was much discussion between counsel an d t he Trial Court about the jury instructions. The T

rial Court determi

ned, as pertinen

t to this appeal, that

(1) Plaintiff’s testimony about his annual salary

and the 400 hours of

time lost w as su fficient to permit a jury instruction about lost wages, (2) the jury should not hear Defendants’ requested

jury instruction number 7 on-12-

the inapplica bility of the “following too closely statute,” and (3) the issue of foreseeability was adequately covered without Defendants’ requested jury instruction number two.

On the first jury

instruction issue, Plaintiff testifie d that as a result o

f the accident, he missed 400 hours of work, inc luding time when h

e was unable to wo

rk and time used in

going to doctors’ appointmen ts and therapy. He also testified that his annual salary at the time of the accident was $55,000. Plaintiff’s counsel then calculated that a $55,000 salary equated to about $28 per hour, multiplied that by the 400 hour s time los t and argued to t he jury that

Plaintiff had lost wages in thatamo unt. The Trial Court found this to be a reasonable argument and gave an appropriate

jury instruction on lost wages based on this proof presented to the jur y of Plaintiff’s annual salary of $55,000 and 400 hours time lost.

The Trial Court fo

und no fault with this

argument, and neither do we. We find this issue to be without merit.

Defendants’ second jury instruction issue is that the Trial Court erred in not giving the jury his requested

jury instruction number

7. That requested instruction states: “The following too closely statute, Tenn. Code Ann. § 55-8-124, does not app ly where a driver encounte rs a dangerous condition he had no reason to anticipate.” Defendants argue that this instruction

should have been given to the jury because:

The undisputed proof was that a railroad crosstie was thrown into the fas tlane of Inte

rstate 24 eastbou

nd causing Rhonda

Ro ddy t o suddenly decelerate and stop in the fast l ane of the interstate, after which plaintiff Fletcher

stopped andwas hit in the rear by Bickford.

Our careful review of the record in this case shows that Bickford admitted having consc iously made the decision to follow t

oo clo sely in ord er to prevent othe r drivers from pu

lling in front of h

im. When questioned, Bickford agreed that if he couldn’t stop in time

and smashed into the rear end of Plaintiff’s car , he was following too closely. Moreover, Ms. Roddy testified that, despite the obstruction, she was abl e to sto p. P lai nti ff t est ifi ed t hat he w as ab le t o st op b ehi nd M s. R odd y. Plaintiff testified that he looked up and down the mile-long Missionary Ridge cut and observed that every othe

r driver was able

to stop in time to avoid a collision - only the dump t ruck was not able to stop. After considering the record as a whole, we hold thatthe Trial Court’s r efusal to give th

is requested instruction was not reversible error.

The third jury

instruction issue Defendants raise is the Trial Court’s refusal to instruct the jury as f

ollows:
Forseesability

must be determined as of the time of t h e acts or omissions claim ed to be negligent. The actor’s conduct must be judged in light of the possibilities apparent to him at the time, and not by looking backwa

rd with the wisdom bo

rn of the event or

with hindsight.-13-

Defendants

argue that this instruction was important because of the highly unusual circumstances of this accident, wher

e a piece of rai

lroad crosstie

was thrown into, and obstructed, the fast lane of the Interstate highway. They argue that Bic

kford testified th

at he had previou

sly come upon

cans, bottles, trash and pieces of tire, but had never come upon anything the size and weight of a railroad crosstie, and t herefo re, the instruction regarding foreseeability w as appropriate. The proof, however, shows that Bickford, in fact, came upon a nd hit the car in front of him, which was stopped in the road behind a minivan, which was also stopped in the road.

The Trial Court gavea detailed and comprehensive jury instruction. Considering the jury c harge a s a whole, we hold that the Trial Court properly instructed the jury based on the evidence and testimony of the witness es at trial, the jury instructions fairly define the le gal issues involved in the case and do not mislead the jury, Otis, 850.W.2d at 446, and the Trial Court’s refusal to give Defendants’ requested jury instruction number two was not err or.
Defendants’ sixth issue concerns the Trial Court’s refusal to grant their motion for directed verdict and motion for

judgment notwithstanding the verdict. Our standard of review of a Trial Court’s decision on a Motion for Directed Verdict iswell-settled. A di rected verdict

is appropriat e only when the evidence is susceptible to but one conclusion. Eaton v. McLain, 891 S.W.2d 587, 59 0 (Tenn. 1994); Long v. Mattingly, 797 S.W.2d 889, 892 (Tenn. Ct. App. 1990). We must “take the strongest legitimate view of the evidence favoring the

opponent of the motion.” Id. In addition, all reasonable inferences in favor of the opponent of the motion must be allowed, andall evidence contrary to the opponent’s position must be disregarded. State Farm Genera l Ins. Co. v. Wood, 1 S.W.3d 6 58, 663 (Ten n. Ct. App. 1999) (quo ting Eaton, 891 S.W.2d at 590; Long, 797 S.W. 2d at 892). Applying these recognized standards, the proof in this case shows that Bickford, by his own admission, was following too closely and smashed into the car in front of hi

m, while the ot her vehicles which had encountered the obstruction were able to maneuver without plowing into other vehicles. Defendants argue on appeal that “reasonable minds cannot differ that the sole, proximate cause of the accident was the negligence of John Doe, the unknown driver of the tractor-trailer

truck which threw the crosstie into the fast lane of Interstate 24.” This assertion flies in the face of Bickford’sown testimony to the contrary, as well as other evidence in the record to the
con tra ry. The evidence ce rtainly is not susceptible only to one conclusion as argued by

Defendants. We find this issue to be

without merit.

Defendants’ seventh issue is whether the Trial Court erred in refusing to grant

a new trial basedon the failure of a juror to disclose

during the jury

selection proce

ss that he had sustained
a prior spinal injury

and had underg

one a spinal fusion. The juror’s test imony during

voir dire was as follows:
Q: And you sai d you were hit in the rear. Were there any

personal injurie

s in that, Mr. McKnig

ht?

A: No, no injuries.-14- Q: Suffer any neck or back problems, sir?

A: No.

The Trial Court, after holding a full evidentiary hearing in which the jurors were examined, found that this juror had answered

“no” because he

had interpreted

the question to

mean, ‘Did you suffer any neck or back problems from the accident in which you were hit in the rear?’ rather than ‘Have you ever suffered any

neck or back pro

blems from any cause?’ The Trial Court found the juror had interpreted the question reasonably and had answered it truthfully . The Trial Court found:

The Court hear d t estimony from the juror in question that he understoodthe que s tion to inquire of back injuries as a result of an accident,not whether he had ever suffered a back injury . Clearly, the transcript of the voir dire submitted to the Cou rt sho ws that the context in which the juror was questioned regarding any back injury
was that of a car wreck. As stated above, the juror conf

irmed this understanding at the time of the heari ng. Thus, the issues presented in Owen v. Arcata

Graphics/Kingsport Press, 813 S.W.2d 442 (Tenn. [Ct.] App. 1990) and State v. Eason, 1996 WL 7273 90 ( Tenn. [Ct. Crim.] App. 1996) are no t applicable. I

n any event

, this court w ill notimpugn the integrity of a juror or his answers to questions during voir dire under circumstances which are less than clear. Themotion on this ground is, therefore, denied.
We read the Trial Court’s finding to be based on a reasonable interpretation of the question posed during voir dire and onthe jur or’ s cr edi bil ity. Because the t rial judge i s in a bette r positio n to weigh andevaluate the credibility of the witnesses who testify , we give great weight to the trial judge’s findings on issues involving credibility

of witnesses. Randolph v. Randolph, 937 S.W.2d 815, 819 (Tenn. 1996). We f

ind this issue is withou

t merit.

Conclusion

The judgment of the Trial Court is affirmed and this cause is remanded to the Trial Courtfor such furthe r proceedin gs as may be required, if any , consistent with this Opinion, and for collection of

the costs below. The costs on appeal are assessed against Edwin Bickford and Robert Gam ble and the ir s uret y.

___________________________________ D. MICHAEL SWINEY, JUDGE