Estate of Velma Russell v. Knox County ( 2001 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 28, 2001 Session
THE ESTATE OF VELMA MONROE RUSSELL v. KNOX COUNTY,
TENNESSEE
Appeal from the Circuit Court for Knox County
No. 2-393-98 Harold S. Wimberly, Judge
FILED MAY 3, 2001
No. E2000-02692-COA-R3-CV
The Estate of Velma Monroe Russell, which was substituted as a party Plaintiff after the death of
Mrs. Russell after the suit was filed but prior to trial, sues Knox County for injuries to her as a result
of an automobile accident at a four-way-stop intersection. The Trial Court found the County was
guilty of no negligence proximately causing the accident and the injuries to Mrs. Russell. We affirm.
Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Cause Remanded
HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
D. MICHAEL SWINEY, JJ., joined.
Samuel W. Brown, Knoxville, Tennessee, for the Appellant, The Estate of Velma Monroe Russell
Wendell K. Hall, Knoxville, Tennessee, for the Appellee, Knox County, Tennessee
OPINION
This suit was initiated by Velma Monroe Russell, seeking damages against Knox County,
Tennessee, for injuries received in an automobile accident at the intersection of Andersonville Pike
and Emory Road in Knox County. During the course of Mrs. Russell’s discovery deposition in this
case she became ill and died the next day from causes apparently unrelated to the injuries she
received in the automobile accident. Her death resulted in this case being revived in the name of her
Estate.
The Trial Court found that “the plaintiff has not carried the burden of proof and shown by
a preponderance of the evidence that the responsibility of the accident should be placed upon the
County,.”
The Estate appeals, contending the evidence preponderates against the Trial Court’s finding.
The accident occurred on July 24, 1997, at approximately 10:50 a.m. At the time Mrs.
Russell was traveling in an easterly direction on Emory Road, approaching its intersection with
Andersonville Pike. The intersection is a four-way stop and Mrs. Russell, who had never passed
through the intersection before, did not heed the stop sign at the intersection and drove into it at the
approximate speed of 25 to 351 miles per hour and struck the passenger side of another vehicle which
had stopped in obedience to a stop sign on Andersonville Pike and then proceeded in a southerly
direction into the intersection.2
The discovery deposition of Mrs. Russell, both in this case and in another case growing out
of the same action wherein she was the defendant, were introduced in proof. They show that Mrs.
Russell never saw the stop sign and proceeded because the vehicle with which she ultimately
collided stopped for the purpose in her mind to yield the right-of-way.
It is the theory of the Estate that the County was negligent in not trimming tree limbs and
other vegetation which obscured the stop sign from Mrs. Russell’s vision. Proof was introduced in
the form of photographs made two days after the accident, which shows an obstruction of the sign,
although it is clear these pictures were made some distance west of the intersection. The pictures
also show that there is a warning sign some distance west of the intersection that a stop sign is
upcoming, and also there was in Mrs. Russell’s lane of traffic what is known as a “stop bar”—a
24-inch painted white stripe which designates a point where a vehicle “is required to stop” before
entering the intersection.3
In addition to that proof the County introduced the deposition of Jerry Haggard, who was
following Mrs. Russell. He testified as follows:
Q On this particular date, June 24th, 1997, do you recall seeing that stop sign on
that date, June--
A Yes, sir.
1
Mrs. Russell stated in her deposition that she was going “around 25 miles an hour” and Jerry Haggard,
a witness who was following Mrs. Russell, said her speed was approximately 35 miles per hour. The speed limit for that
portion of Emory Road was 40 miles per hour.
2
Although the comp laint alleges M rs. Russell was operating her vehicle in a northerly direction and the
other vehicle was being operated in an easterly direction, the parties stipulated that the directions are as shown in this
paragraph.
3
Mrs. Russell’s dep ositions are silen t as to whether she observed the sign warning a stop sign was ahead,
or the “stop b ar” stripe acr oss her lane o f travel.
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Q If you would, describe the condition of the stop sign on that date.
A Clearly visible. There wasn’t nothing blocking the view of that stop sign.
Q Are you saying that from your usual recollection of that stop sign, from seeing
it on a daily basis, or are you recalling that from that exact date, June 24th, 1997?
A Actually, both, because it was clearly visible. You know, there’s no excuse
not seeing it.
MR. KNIGHT: I didn’t hear that.
BY MR. HALL:
Q Could you repeat that answer?
A Restate your question again.
Q When you described the condition of the stop sign, do you recall it from that
specific date of June 24th, 1997, or are you recalling that just from your usual
experience in driving through that intersection?
A Well, usually experience. But like I say, it was clearly visible.
Q Okay. So were you able to view that stop sign on the days previous to June
24th, 1997, immediately previous to that date?
A Yes, sir.
Q And do you recall the condition of the stop sign on those dates?
A Clearly visible.
Q Do you specifically recall seeing that stop sign on June 24th, 1997, on the date
of this accident?
A Yes, sir. Uh-huh.
Q Do you recall any vegetation having grown up around that stop sign?
A No, sir. Huh-uh.
Q How far away would you say the nearest vegetation to that stop sign was?
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A Well, there’s two cedar trees just a little way down from it, but the county
always kept it cut back, trimmed down from the bottom of the trees, so the stop
sign was clearly visible at all times. They always kept that trimmed.
Q Did you drive through there on a daily basis?
A Yes, sir.
Q How often would you say prior to this accident the county mowed that area,
in your estimation?
A Well, this time the state, they come through there. The state took that over
from the county, and they do all the mowing now through there, and I believe it
was the week before that the state come through there mowing.
MR. KNIGHT: I’d object to the response to the question...not a
response.
BY MR. HALL:
Q Was the sign standing?
A Yes, sir.
Q And you saw it standing on that date?
A Yes.
Q Was it legible? Could you read it?
A Yes, sir.
Q And you noticed that on this date, June 24th, 1997?
A Yes, sir.
Q In your estimation, how far back could you see that stop sign?
A Probably about a thousand foot.
Upon re-direct examination Mr. Haggard conceded that his testimony of 1000 feet was only
an estimate, but that the point the stop sign could be seen from the direction Mrs. Russell was
traveling was “along about the first driveway to a church if you’re traveling going east on Emory.”
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At the beginning of the trial the parties stipulated, as best we understand the stipulation, that this
distance is 300 feet.
In this non-jury case, our review is de novo upon the record of the proceedings below;
however, that record comes to us with a presumption that the trial court’s factual findings are correct.
Tenn.R.App.P.13(d). We must honor that presumption unless we find that the evidence
preponderates against the trial court’s factual findings. Union Carbide Corp. v. Huddleston, 854
S.W.2d 87 (Tenn. 1993). The trial court’s conclusions of law, however, are not accorded the same
deference. Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).
Our review of the record persuades us that the evidence does not preponderate against the
determination of the Trial Court relative to liability of the County. In this connection, we think it
significant that one of Mrs. Russell’s daughters-in-law, who took pictures two days after the
accident, did not take a picture to substantiate her husband’s testimony that “It was like kudzu vines
hanging down over the stop sign.”
For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against The Estate of Velma Monroe
Russell and its surety.
_________________________________________
HOUSTON M. GODDARD, PRESIDING JUDGE
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