PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and Agee,
JJ., and Russell, S.J.
ESTATE OF BOBBY GENE MOSES, OPINION BY
DECEASED, BY THE PERSONAL JUSTICE G. STEVEN AGEE
REPRESENTATIVE, CARLTON L. MOSES April 20, 2007
v. Record No. 060369
SOUTHWESTERN VIRGINIA TRANSIT
MANAGEMENT COMPANY, INC., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
Carlton L. Moses (“Moses”), personal representative of the
Estate of Bobby Gene Moses (the “decedent”) appeals from the
judgment of the Circuit Court of the City of Roanoke in favor of
Southwestern Virginia Transit Management Company, Inc. and Karen
R. Poindexter (collectively, “the defendants”). Moses contends
the circuit court erred when it set aside a jury verdict in his
favor and entered judgment for the defendants on the basis that
the decedent was guilty of contributory negligence as a matter
of law. For the reasons set forth below, we will reverse the
judgment of the circuit court.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
The decedent, seventy-two years of age, was crossing
Campbell Avenue, a one-way, four-lane street in downtown Roanoke
on the afternoon of July 16, 2002. He testified that he looked
both ways before stepping onto Campbell Avenue at a point
approximately 125 feet from a crosswalk at the nearest
intersection. At some point as the decedent crossed Campbell
Avenue, a Southwestern bus, driven by Poindexter, exited the
adjacent Southwestern bus terminal and struck him. The decedent
suffered a fractured hip and other related injuries from the
accident. The decedent died of unrelated causes before filing
an action at law for his injuries. His personal representative,
Moses, filed a motion for judgment against the defendants for
those injuries pursuant to Code § 8.01-25.
At trial, the videotaped deposition of the decedent was
introduced to describe the accident, in which he stated: “I had
been over to the Union Bank and I was crossing the street, and
the bus pulls out of the garage and hits me.” The decedent knew
that there was no crosswalk at the point where he crossed, but
he attempted to cross because “[e]verybody else crosses there.”
On direct examination, the decedent explained the precautions he
took in crossing the street:
Q. And did you look both ways before you crossed?
A. Yes, sir. I looked both ways, yes, sir.
Q. And was there any traffic coming?
A. No, sir, wasn’t a thing coming.
The decedent testified on cross-examination that the
accident occurred when he was preparing to step up onto the curb
adjacent to the bus station:
Q. So you had completely crossed Campbell Avenue?
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A. Just about, yeah.
Q. And you were stepping up on the sidewalk?
A. Yes, ma’am.
Q. On the same side where the bus terminal is?
A. Yeah.
. . . .
Q. And you were in the process of stepping up on the
curb?
A. Yeah.
Q. When what happened?
A. That’s when the bus pulls out and hits me.
. . . .
Q. Were you almost at the curb, or were you stepping
up onto the curb?
A. I think I stepped up on it. I can’t swear to it.
I was getting ready to.
When the decedent was asked to explain why he did not see
the bus approaching as he crossed the street, he testified in
the following colloquy:
Q. All right. Can you explain to us how it was that
you didn’t see the bus in order to get out of the
way?
A. I didn’t see the bus get out of the way? The bus
hadn’t pulled out until I started to cross the
road . . .
Q. All right.
A. The bus was sitting over there.
Q. Did you try to avoid the bus?
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A. I didn’t know the bus was going to pull out until
after it hit me. . . . The bus wasn’t moving
when I crossed the road. (emphasis added).
An eyewitness to the accident explained that Poindexter was
looking to her right in the direction of oncoming traffic on the
one-way street, while simultaneously closing the doors to the
bus and attempting to make a left turn onto Campbell Avenue,
when the bus she was driving struck the decedent, who was
positioned to her left:
Q. The driver of the bus. When the impact occurred
–
A. Yeah, she was looking to her right –
Q. – she was looking to her right.
A. She was looking to her right for traffic. I do
remember that, yes.
Q. Okay. The elderly man that was involved in the
accident, was he right there to her right?
A. No.
Q. So when the impact occurred she wasn’t looking in
his direction?
A. No.
The defendants presented conflicting eyewitness testimony
as to the cause of the accident, including one witness who
testified that the decedent “didn’t react at all until the bus
hit him. He just kept walking straight across the street.”
Testimony was also presented that the impact occurred out in
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Campbell Avenue and farther from the curb than the decedent
described.
Following a two-day trial, the jury returned a verdict for
Moses and awarded damages of $50,000. When the court polled the
jury, there was confusion on the part of some jurors as to the
verdict. The court then gave the jury additional instruction
and sent the jury to deliberate further. After the jury again
expressed confusion, the court provided additional instructions,
and the jury again deliberated. When the jury returned, it
delivered a unanimous verdict for Moses in the amount of
$50,000, as it did originally. Moses then moved for entry of
judgment on the verdict, but the court denied “the motion for
entry of judgment today.” The defendants moved to set aside the
jury verdict. In its final order dated January 25, 2006, the
circuit court granted the defendants’ motion, set the jury
verdict aside “on the ground that the plaintiff’s decedent was
guilty of contributory negligence as a matter of law,” and
entered judgment in favor of the defendants. We granted Moses
this appeal.
II. ANALYSIS
The circuit court's authority to set aside a jury verdict
is limited and should be exercised “only if a jury verdict is
plainly wrong or without credible evidence to support it.”
McGuire v. Hodges, 273 Va. 199, 205, 639 S.E.2d 284, 287 (2007)
5
(quoting Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d 404, 407
(2005)); see also Cohn v. Knowledge Connections, Inc., 266 Va.
362, 366, 585 S.E.2d 578, 581 (2003); Shalimar Dev., Inc. v.
FDIC, 257 Va. 565, 569-70, 515 S.E.2d 120, 123 (1999); Code
§ 8.01-430. If the evidence adduced at trial is conflicting on
a material point, or if reasonable persons may draw different
conclusions from the evidence, or if a conclusion is dependent
on the weight the fact finder gives to the evidence, a judge may
not substitute his or her conclusion for that of the jury merely
because he or she would have reached a different result.
McGuire, 273 Va. at 205, 639 S.E.2d at 287; see also Jenkins,
269 Va. at 388, 611 S.E.2d at 407; Cohn, 266 Va. at 366, 585
S.E.2d at 581; Shalimar Dev., 257 Va. at 570, 515 S.E.2d at 123.
For purposes of this appeal, the defendants’ primary
negligence in the accident is not at issue. Rather, what is in
controversy is whether there was sufficient evidence upon which
the jury should resolve the issue of contributory negligence or
whether, as a matter of law, the decedent was guilty of
contributory negligence. See e.g., Jenkins, 269 Va. at 389, 611
S.E.2d at 407.
We have stated the principles of law that define
contributory negligence and its determination on many occasions.
“Contributory negligence is an affirmative defense that must be
proved according to an objective standard whether the plaintiff
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failed to act as a reasonable person would have acted for his
own safety under the circumstances.” Jenkins, 269 Va. at 388,
611 S.E.2d at 407; see also Sawyer v. Comerci, 264 Va. 68, 74,
563 S.E.2d 748, 752 (2002); Ponirakis v. Choi, 262 Va. 119, 124,
546 S.E.2d 707, 710 (2001); Artrip v. E.E. Berry Equip. Co., 240
Va. 354, 358, 397 S.E.2d 821, 823-24 (1990). “The essential
concept of contributory negligence is carelessness.” Jenkins,
269 Va. at 388, 611 S.E.2d at 407; Sawyer, 264 Va. at 74, 563
S.E.2d at 752; Ponirakis, 262 Va. at 124, 546 S.E.2d at 711;
Artrip, 240 Va. at 358, 397 S.E.2d at 823-24.
“The issue whether a plaintiff is guilty of contributory
negligence is ordinarily a question of fact to be decided by the
fact finder.” Jenkins, 269 Va. at 389, 611 S.E.2d at 407; see
also Sawyer, 264 Va. at 74, 563 S.E.2d at 752; Hot Shot Express,
Inc. v. Brooks, 264 Va. 126, 135, 563 S.E.2d 764, 769 (2002);
Ponirakis, 262 Va. at 125, 546 S.E.2d at 711. “The issue
becomes one of law for the circuit court to decide only when
reasonable minds could not differ about what conclusion could be
drawn from the evidence.” Jenkins, 269 Va. at 389, 611 S.E.2d
at 407; see also Hot Shot Express, 264 Va. at 135, 563 S.E.2d at
769; Love v. Schmidt, 239 Va. 357, 360, 389 S.E.2d 707, 709
(1990).
Contributory negligence consists of the independent
elements of negligence and proximate causation. See Karim v.
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Grover, 235 Va. 550, 552, 369 S.E.2d 185, 186 (1988). Proof of
a plaintiff’s negligence alone is insufficient to establish
contributory negligence, even if the plaintiff is negligent per
se, as we explained in Karim:
When a defendant relies upon contributory
negligence as a defense, he has the burden of proving
by the greater weight of the evidence not only that
the plaintiff was negligent, Burks v. Webb,
Administratrix, 199 Va. 296, 307, 99 S.E.2d 629, 638
(1957), but also “that his negligence was a proximate
cause, a direct, efficient contributing cause of the
accident,” Whitfield v. Dunn, 202 Va. 472, 477, 117
S.E.2d 710, 714 (1961); accord Powell v. Virginian
Railway Co., 187 Va. 384, 390-91, 46 S.E.2d 429, 432
(1948). Thus, while the violation of a statute
regulating traffic constitutes negligence,
it does not necessarily follow that such
negligence will as a matter of law prevent a
recovery by the plaintiff. There must be a
causal connection between the violation of
the statute and the injury, otherwise the
violation is immaterial; and unless it is
shown that the plaintiff's violation was a
proximate or concurring cause which
contributed directly to his injury, he is
not thereby barred from a recovery.
Powell, 187 Va. at 390, 46 S.E.2d at 432; accord Bray
v. Boston, etc., Corp., 161 Va. 686, 692, 172 S.E.
296, 298 (1934); Lavenstein v. Maile, 146 Va. 789,
801, 132 S.E. 844, 848 (1926).
Ordinarily, the issue of proximate cause is a
question of fact for resolution by a jury. It becomes
a question of law for decision by a court only when
reasonable minds cannot differ about the result.
Litchford v. Hancock, 232 Va. 496, 499, 352 S.E.2d
335, 337 (1987).
235 Va. at 552-53, 369 S.E.2d at 186.
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Citing our decision in Thomas v. Settle, 247 Va. 15, 439
S.E.2d 360 (1994), Moses contends on appeal that the decedent
was not negligent and alternatively, even if he was negligent in
crossing the street outside the crosswalk, his negligence was
not a proximate cause of the accident. In either circumstance,
Moses asserts that the issue of whether the decedent was
contributorily negligent was properly left to the jury, and the
circuit court thus erred when it set aside the jury’s verdict.
The defendants respond that the circuit court correctly set
aside the jury verdict because the decedent was contributorily
negligent as a matter of law. The defendants contend that by
crossing in the middle of the street and not at a crosswalk – in
violation of Code § 46.2-923 – the decedent placed himself in
obvious peril, barring him from recovery for his injuries.
Relying on Hooker v. Hancock, 188 Va. 345, 348, 49 S.E.2d 711,
712 (1948), the defendants argue that the decedent knowingly
walked into the path of a moving vehicle, thereby establishing
contributory negligence as a matter of law.
As the circuit court failed to articulate a basis for
holding the decedent “was guilty of contributory negligence as a
matter of law,” we must examine the record to determine if the
evidence on the elements of contributory negligence were
sufficient for the jury to decide the issue or whether the
circuit court correctly determined “reasonable minds could not
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differ about what conclusion could be drawn from the evidence.”
Jenkins, 269 Va. at 389, 611 S.E.2d at 407. Upon that review,
we agree with Moses that the circuit court erred because the
issue of contributory negligence was proper for a decision by
the jury.
The case at bar is similar to Settle in which this Court
reversed the circuit court’s judgment setting aside the jury
verdict. 247 Va. at 20, 24, 439 S.E.2d at 363, 365. In Settle,
a sixteen-year old driver’s car stalled after it ran out of gas,
and he was attempting to maneuver the car out of traffic when a
truck rear-ended the vehicle. Id. at 17-18, 439 S.E.2d at 361-
62. After the jury decided in favor of the plaintiff, the
circuit court sustained defendant’s motion to set aside the
verdict and entered judgment for the defendant, concluding the
plaintiff had been contributorily negligent as a matter of law.
Id. This Court, while assuming the possibility of plaintiff’s
negligence, held “the trial court erred in concluding that the
decedent's negligence, if any, was a proximate cause of the
accident as a matter of law; that question presented a classic
jury issue under the facts of this case.” Id. at 20, 439 S.E.2d
at 363.
As in Settle, we hold that the circuit court erred in
determining contributory negligence as a matter of law because
the evidence “presented a classic jury issue under the facts of
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this case.” Id. Even if we assume, without deciding, that the
decedent was negligent either by crossing the street outside a
crosswalk or otherwise, the decedent’s negligence alone does not
establish contributory negligence. See Karim, 235 Va. at 552-
53, 369 S.E.2d at 186. Just as in Settle, the additional
element must be proven that the plaintiff’s negligence “was a
proximate or concurring cause that contributed directly to the
accident.” 247 Va. at 20, 439 S.E.2d at 363.
The evidence in the record was such that reasonable minds
could differ about the conclusions to be drawn from that
evidence. For example, if the jury believed the decedent’s
testimony that before crossing Campbell avenue he “looked both
ways . . . wasn’t a thing coming,” that “[t]he bus wasn’t moving
when [he] crossed the road,” and that he “was ready to get up on
the curb” when the bus pulled out while Poindexter “wasn’t
looking in [decedent’s] direction,” then reasonable minds could
differ on the conclusions to be drawn from that evidence. It
would thus not be unreasonable, as a matter of law, for a jury
to conclude, based on the foregoing, that the decedent’s actions
were not “a proximate cause, a direct, efficient contributing
cause of the accident.” Karim, 235 Va. at 552, 369 S.E.2d at
186 (quoting Whitfield, 202 Va. at 477, 117 S.E.2d at 714.
Accordingly, the issue of the element of proximate cause for
contributory negligence was properly submitted to the jury for
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resolution. Consequently, it was reversible error for the
circuit court to set aside the jury verdict so determined and to
fail to enter judgment for Moses. See, e.g., Burroughs v.
Keffer, 272 Va. 162, 169, 630 S.E.2d 297, 301 (2006); Jenkins,
269 Va. at 389-90, 611 S.E.2d at 408; Artrip v. E.E. Berry
Equip.Co., 240 Va. 354, 358-59 397 S.E.2d 821, 823-24 (1990).
The defendants’ reliance upon our decision in Hooker v. Hancock
is unavailing because the factual issues were markedly distinct
in that case and not applicable to the case at bar. ∗
Given the conflicting evidence, the jury properly reviewed
the credibility of the witnesses and weighed the evidence in
reaching the verdict. We must therefore reinstate the jury
verdict because credible evidence supports it. See Loving v.
Hayden, 245 Va. 441, 442, 429 S.E.2d 8, 9 (1993).
III. CONCLUSION
For the foregoing reasons, we will therefore reverse the
judgment of the circuit court, reinstate the jury's verdict, and
enter final judgment for Moses.
Reversed and final judgment.
∗
In Hooker, the injured party, attempting to cross a two-way
street on a dark night, ran “real fast” to avoid being hit by a
car headed in one direction, and then dashed into the path of
defendant’s car, which was approaching from the other direction
and had been visible for some distance because there was no
visual obstruction at the time the injured party started across
the busy thoroughfare. 188 Va. at 349-54, 49 S.E.2d at 713-15.
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