Bradley v. Triangle Amoco, Inc.

859 S.W.2d 333, 1993 Tenn. App. LEXIS 203
CourtCourt of Appeals of Tennessee
DecidedMarch 17, 1993
StatusPublished
Cited by1 cases

This text of 859 S.W.2d 333 (Bradley v. Triangle Amoco, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bradley v. Triangle Amoco, Inc., 859 S.W.2d 333, 1993 Tenn. App. LEXIS 203 (Tenn. Ct. App. 1993).

Opinion

OPINION

LEWIS, Judge.

This is an appeal by plaintiff/appellant, Carolyn Bradley, from the judgment of the trial court entered on the jury’s verdict in favor of the defendants/appellees and the dismissal of her suit.

The pertinent facts are as follows:

Plaintiff filed this suit after she was injured under circumstances which she alleged were caused by the negligence of the defendants, Triangle Amoco, Inc. and its employee, William Downs.

Plaintiff’s vehicle was parked at the defendant’s Triangle Amoco, Inc. (Triangle) station and, when she attempted to start the vehicle, it would not start. Defendant, William Downs, who was employed by Triangle, attempted to assist plaintiff in starting her automobile. When Mr. Downs was unsuccessful in starting the automobile, he got out of the automobile, walked to the front, and raised the hood to check the choke. He then got back into the automobile and attempted to start it again, but was unsuccessful. He put the transmission in neutral and attempted again to start it, and was successful. He returned the shift lever to the park position, got out of the automobile with the motor continuing to run, went to the front of the automobile and began replacing a wing nut on the top cover of the air filter. The car suddenly and unexpectedly began to move in reverse. It hit plaintiff, who was standing behind the automobile, knocked her down, and continued on into East Main Street. Mr. Downs ran after the vehicle and stopped it in East Main Street. He got into the vehicle, put the brakes on, put the transmission in drive and drove the vehicle back onto Triangle’s lot.

Mr. Downs testified that to the best of his knowledge the gear selector was in reverse when he got into the vehicle in East Main Street to drive it back onto Triangle’s lot. He also testified that he was sure he had put the plaintiff’s vehicle in park before getting out of it to replace the air filter cover. On cross-examination, Mr. Downs admitted that he had earlier stated that he had put the vehicle in park before exiting it “as far as I know.”

The investigating officer from the Galla-tin Police Department testified that when he arrived at the scene the plaintiff was lying on the ground, and that a gasoline pump had been knocked over. He was unable to talk to the plaintiff because he was fearful she would go into shock because of her pain. The investigating officer testified that Mr. Downs did not make any statement that the plaintiff’s vehicle had gone into reverse, and if he had made any statement, that information would have been included in his report.

At trial, the defendants contended that there was a defect in plaintiff's vehicle which caused it to jump into reverse and that Mr. Downs did not negligently leave the car in neutral or otherwise negligently cause it to back over the plaintiff.

There is evidence from a previous owner of the vehicle that it had been in her family for some twenty years before she sold it to plaintiff’s son-in-law in 1989, that it was in good condition when sold and had never required transmission work of any kind, and that there had been no problems with the gear selector. She further testified that, in the year before the vehicle was sold, the witness had driven it and that her [335]*335aunt had owned the vehicle for almost twenty years and she was unaware of any problems existing in the vehicle during her aunt’s ownership. There is also evidence that there had not been any problems in starting the car in park, nor was there any play in the gear selector.

Following the accident the vehicle was driven from Triangle’s place of business and there was no problem with the gear shift at that time. The vehicle did not “roll []” after it was parked and there was no difficulty in putting the gear shift in park. Following the accident in the instant case, the car was driven for some twenty-one months without any problems with the transmission or the gear shift.

In August 1991, the vehicle was involved in a collision and was “totaled.” It was not started again until January 1992, when the defendants’ expert examined the vehicle. This was two years and one month after the accident in the instant case.

Following the accident in which the vehicle was “totaled”, the vehicle had to be towed and the belts had to be cut before the engine would start. Therefore, the engine could only be run a few minutes at a time.

Plaintiff testified that her son-in-law had given her the car in November 1989 and that she had no problems with the vehicle in the short time that she drove it.

A discovery deposition was taken by plaintiff of Greg Caulton, defendants’ expert witness. Mr. Caulton stated in the discovery deposition that he examined the vehicle two years and one month following the instant accident and at that time gave two possible theories for the defendant’s contention that the car had simply “jumped” into reverse. In his discovery deposition, his first theory was that there had been a misplaced cross-shaft in the transmission linkage. His second theory was based on a bushing missing from the hole in which the cross-shaft was supposed to have been engaged. He testified that his opinions were based upon his examination of the external transmission linkage. He did not, in his discovery deposition, put forth the theory that all C-6 Ford transmissions had a manufacturing defect that would cause a car to “jump” into reverse from neutral. Several witnesses were called who testified on the issue of whether there was a defect in the transmission. The testimony of the several witnesses was in conflict.

At trial, Mr. Caulton changed his theory from the two given in his discovery deposition to a theory of a manufacturing defect. Plaintiff objected at the time this theory was offered on the basis that it was speculative and conjecture.

Mr. Caulton admitted that he had no personal knowledge to establish the existence in plaintiff’s vehicle of the defect which he said existed and that this theory was contrary to his previous theories.

Plaintiff’s first issue is: “Whether the verdict in this case was contrary to the preponderance of evidence.”

The appellate courts of this state have consistently held that where there is material evidence to support the verdict of the jury, the verdict will not be disturbed. Valentine v. Conchemco, Inc., 588 S.W.2d 871 (Tenn.App.1979). Rule 13(d), Tennessee Rules of Appellate Procedure provides in part: “Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict.”

At oral argument, plaintiff conceded that this issue is not a proper issue in this Court. We agree, and find it to be without merit.

Plaintiff’s second issue is:

Whether the court erred in admitting the testimony of the expert witness, Greg Caulton, called by the defendants, when the expert’s opinion testimony was based upon conjecture and speculation which was obvious when said witness testified he had made no actual physical examination of the internal transmission linkage of the plaintiff’s vehicle, but that he had the opportunity to do so.

Mr. Caulton, who was employed with Packer Engineering Company in Naper-ville, Illinois, was employed by the defendants to come to Sumner County and examine plaintiff’s vehicle in January 1992, some [336]

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Bluebook (online)
859 S.W.2d 333, 1993 Tenn. App. LEXIS 203, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradley-v-triangle-amoco-inc-tennctapp-1993.