Herbert v. Brazeale

902 S.W.2d 933, 1995 Tenn. App. LEXIS 86
CourtCourt of Appeals of Tennessee
DecidedFebruary 14, 1995
StatusPublished
Cited by17 cases

This text of 902 S.W.2d 933 (Herbert v. Brazeale) 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
Herbert v. Brazeale, 902 S.W.2d 933, 1995 Tenn. App. LEXIS 86 (Tenn. Ct. App. 1995).

Opinion

TOMLIN, Presiding Judge (Western Section).

Robin Herbert (“Herbert”), on behalf of herself and her two minor daughters, Tara and Karma Herbert (“plaintiffs”1), filed suit in the Circuit Court of Shelby County against Gregory Brazeale, Harold Brazeale, Donald Devazier, d/b/a Donald Devazier Trucking Company (“defendants”), for personal injuries and property damages sustained by them in an automobile-truck collision. The jury returned a verdict in favor of defendants, finding them not guilty of negligence. Plaintiffs’ motion for a new trial was overruled. On appeal, plaintiffs have set forth the following issues for review: whether the trial court erred in: 1) failing to properly perform its function as a thirteenth juror in approving the jury verdict; 2) allowing the opinion testimony of defendants’ accident reconstruction expert; 3) refusing to allow plaintiffs’ counsel to question defendant Gregory Brazeale about certain aspects of his driving record; 4) granting- defendants’ motion for directed verdict on the issue of loss of earning capacity of minor plaintiff Tara Herbert and striking certain testimony relevant thereto; 5) explaining plaintiffs’ factual contentions to the jury; and 6) failing to properly instruct the jury as to the law of comparative negligence and parental immuni[935]*935ty. With the exception of Issue 4, which we pretermit, we resolve these issues in favor of defendants and affirm.

The facts surrounding this accident, while relatively simple, were hotly disputed. Plaintiff was driving her vehicle, accompanied by her two minor daughters. Upon leaving a gas station at the southeast corner of the intersection of Danny Thomas Boulevard and Poplar Avenue in Memphis, plaintiff pulled into Danny Thomas and headed north in the right hand turning lane, bringing her car to a stop at the light. The traffic control signal for northbound traffic on Danny Thomas was red. Defendant Gregory Brazeale was approaching this same intersection in his tractor trailer truck, proceeding east on Poplar, in the right-hand through traffic lane. When defendant’s tractor-trailer proceeded through the intersection into the northbound lanes of Danny Thomas, plaintiff proceeded from a stopped position into the intersection and struck the right rear wheels of the tractor.

Defendant testified that he entered the intersection on a yellow light and plaintiff pulled her car into the intersection into his truck. A witness in a vehicle in the northbound lane stopped alongside plaintiffs car testified that the traffic light for traffic proceeding north on Danny Thomas turned green before defendant’s truck passed through the intersection. Another witness, who was in a vehicle on the north side of the intersection on Danny Thomas headed south, also testified that defendant’s truck passed through the intersection after the light had changed to green for traffic proceeding north and south on Danny Thomas.

An accident reconstruction expert called by defendants testified that defendant Braz-eale proceeded through the intersection on a yellow light. Using a special verdict form, the jury returned a verdict that defendants were not negligent.

I. The Trial Court as the Thirteenth Juror

Plaintiffs first assert that the trial court failed to properly perform its function as thirteenth juror in approving the jury verdict. Plaintiffs filed a motion for a new trial, which sought a new trial on the ground that the jury verdict was contrary to the weight of the evidence. The motion was overruled. Plaintiffs contend that based upon the various statements made by the trial judge at the hearing on the motion for a new trial, it was clear that he failed to weigh the evidence in accordance with his role as thirteenth juror.

In Miller v. Doe, 873 S.W.2d 346 (Tenn. App.1993), this court recently explained the trial court’s duty as thirteenth juror:

The obligation of a trial judge to act as a thirteenth juror in a civil trial in this state is well established. Cumberland Telephone & Telegraph Co. v, Smithwick, 112 Tenn. 463, 79 S.W. 803 (1904), reads in part as follows:
The rule in civil cases is that, if the circuit judge is dissatisfied with the verdict of the jury, it is his duty to set it aside and grant a new trial, and that upon its being made to appear to this court, from statements made by the circuit judge in passing upon the motion for a new trial, that he was really not satisfied with the verdict, it becomes the duty of this court, when it has acquired jurisdiction of the cause, to do what the circuit judge should have done; that is, to grant a new trial on the ground of the dissatisfaction of that judicial officer with the verdict. (Citations omitted) ....
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The reasons given for the rule are, in substance, that the circuit judge hears the testimony, just as the jury does, sees the witnesses, and observes their demeanor upon the witness stand; that, by his training and experience in the weighing of testimony, and the application of legal rules thereto, he is especially qualified for the correction of any errors into which the jury by inexperience may have fallen, whereby they have failed, in their verdict, to reach the justice and right of [936]*936the ease, under the testimony and the charge of the court; that, in our system, this is one of the functions the circuit judge possesses and should exercise — as it were, that of a thirteenth juror. So it is said that he must be satisfied, as well as the jury; that it is his duty to weigh the evidence, and, if he is dissatisfied with the verdict of the jury, he should set it aside....
Id. 79 S.W. at 804-05.
If called upon to act as a thirteenth juror following the filing of a motion for a new trial, the trial judge simply approves a verdict without any comment, it is presumed by an appellate court that he has performed his function adequately.
In the event that the trial court does state his reasons, an appellate court is to examine them only for the purpose of determining whether the trial court properly reviewed the evidence, and was satisfied or dissatisfied with the verdict. However, if in discharging his duty as thirteenth juror, the trial judge makes comments which indicate that he has misconceived his duty or clearly has not followed it, this court must reverse and remand the case for a new trial.

Id. at 347 (citations omitted).

Both plaintiffs and defendants have relied upon excerpts from the trial court’s statements at the hearing on plaintiffs’ motion for a new trial in support of their respective positions as to whether the trial judge did or did not carry out in proper fashion his function as thirteenth juror. To fully understand the impact of what the trial court said, we quote from the record the court’s remarks in their entirety:

The main thrust of this motion for a new trial is that preponderance of the evidence dictates against the verdict of the jury. The Court has weighed the evidence as suggested by plaintiff’s counsel and it seems to the Court that this is an intersection that’s six lanes unde from the west to the east edges of the intersection. It’s a very busy intersection. Right in the heart of the city. And probably the most traveled street in the City of Memphis

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Bluebook (online)
902 S.W.2d 933, 1995 Tenn. App. LEXIS 86, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herbert-v-brazeale-tennctapp-1995.