Present: All the Justices
HOT SHOT EXPRESS, INC., ET AL.
OPINION BY
v. Record No. 011952 JUSTICE LAWRENCE L. KOONTZ, JR.
June 7, 2002
HATTIE E. BROOKS
FROM THE CIRCUIT COURT OF AUGUSTA COUNTY
Charles H. Smith, Jr., Judge Designate
In this appeal, we consider various issues arising out of a
judgment in favor of the plaintiff in a personal injury action.
BACKGROUND
On September 22, 1998, Thomas A. Bell was driving a
tractor-trailer for Hot Shot Express, Inc. from Pennsylvania to
Stuarts Draft, Virginia. Bell arrived in Stuarts Draft at
approximately 9:00 p.m. Bell planned to drop the trailer at the
intended delivery site on highway U.S. 340 and to return the
next morning to complete the delivery. Bell was unfamiliar with
Stuarts Draft and did not know the precise location of the
delivery site.
As Bell turned the tractor-trailer onto U.S. 340 in Stuarts
Draft, he drove to the right northbound travel lane and slowed
his vehicle to between 15 to 20 miles per hour. Bell
subsequently maintained that he had activated the tractor-
trailer’s four-way hazard lights at that time. After traveling
approximately one-half mile, Bell realized that he had gone past
the delivery site and stopped the tractor-trailer. At the point
where Bell stopped his vehicle, U.S. 340, which runs north and
south, has two travel lanes in each direction and a center turn
lane, but no shoulders. Thus, when Bell stopped his vehicle, it
completely blocked the right northbound travel lane. The speed
limit on this portion of the highway is 45 miles per hour.
Bell determined that he could not back his vehicle to the
delivery site and decided to proceed down U.S. 340 to find a
place to turn around. Before driving forward, Bell observed
from his rearview mirror two vehicles traveling in the right
northbound lane. Bell observed one of the vehicles move to the
left northbound lane. Bell was “not positive” which vehicle
moved to the left lane, but “believe[d] it was the vehicle in
front.” Bell then turned his attention ahead and began to drive
the tractor-trailer forward at a speed of approximately five
miles per hour. After proceeding fifteen to twenty-five feet,
Bell felt the impact of a collision at the rear of his vehicle.
Bell did not see the collision from his rearview mirror and did
not know whether his vehicle had been struck by one of the
vehicles that he had observed earlier or by some other vehicle.
Bell’s tractor-trailer had been struck by a compact sedan
driven by Hattie E. Brooks. Brooks’ vehicle was wedged under
the rear of the tractor-trailer. The roof of her vehicle had to
be removed by rescue workers in order to remove Brooks from the
vehicle’s interior. Brooks was severely injured as a result of
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the collision, including injuries to her neck, back, and both
wrists.
On February 2, 1999, Brooks filed a motion for judgment
against Hot Shot Express and Bell (hereinafter collectively “Hot
Shot Express”) seeking $3,000,000 in damages for injuries she
sustained in the September 22, 1998 collision. 1 Thereafter, Hot
Shot Express filed grounds of defense denying negligence and
asserting that Brooks’ own negligence was the cause of the
collision. Prior to trial, Brooks stipulated that she had no
memory of the events that led to the collision, but further
stipulated that she would not assert her memory loss as an
element of her damages resulting from the injuries she sustained
in the collision.
Beginning on May 10, 2001, a two-day jury trial was held in
the Circuit Court of Augusta County. In addition to the facts
recounted above, the trial court received evidence from Brooks,
who was 78 years of age at that time. She testified that on the
night of the accident she had driven her car along U.S. 340 from
her place of employment and that her car was in good condition
prior to the accident. However, she testified that she had no
recollection of how the accident occurred and very little
1
Brooks’ suit also named an additional party defendant.
That party was subsequently dismissed from the suit with
prejudice.
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recollection of her subsequent treatment in the hospital for
several weeks.
Also, Pamela J. Coffman testified that she had driven by
the accident scene in her vehicle immediately after the accident
occurred. Coffman described the road conditions as “very dark”
and testified that she could not see lights illuminated on
either the tractor-trailer or Brooks’ vehicle as she approached
the accident scene in the right northbound lane of U.S. 340.
Coffman further testified that she had avoided striking Brooks’
vehicle only by braking suddenly and moving sharply into the
left northbound lane. One of the police officers responding to
the accident testified that he observed the four-way hazard
lights on Bell’s vehicle activated at some point, but that he
did not recall whether those hazard lights were burning when he
first arrived at the scene.
At the conclusion of Brooks’ case-in-chief, Hot Shot
Express moved to strike her evidence on the grounds that it
failed to show that Bell was negligent or that his negligence
was a proximate cause of the collision. Hot Shot Express
contended that the evidence showed that Bell’s actions had
comported with Code § 46.2-1040, requiring drivers to activate
all four turn signals simultaneously when stopped on a highway
and, thus, that he was not negligent as a matter of law. Brooks
responded that Bell’s actions were in violation of Code § 46.2-
4
888, requiring drivers not to stop on a highway so as to impede
traffic except in the case of an emergency. The trial court
denied the motion to strike.
Hot Shot Express then moved to strike the evidence on the
ground that Brooks was contributorially negligent as a matter of
law. Hot Shot Express contended that Brooks’ evidence plainly
showed that she failed to maintain a proper lookout. Brooks
responded that she was entitled to a presumption of using
ordinary care and that Coffman’s testimony established that the
tractor-trailer was difficult to see. The trial court denied
the motion to strike, stating that contributory negligence was
an issue for the jury to determine on the evidence so far
adduced.
At the conclusion of all the evidence, Hot Shot Express
renewed its motions to strike Brooks’ evidence on the same
grounds that it had previously asserted. The trial court again
denied these motions. Brooks then moved to strike Hot Shot
Express’ evidence regarding the issue of primary negligence.
The trial court, over Hot Shot Express’ objection, ruled that
Bell had violated Code § 46.2-888 by stopping his vehicle on the
highway under the existing circumstances and, therefore, was
negligent as a matter of law. The trial court further ruled
that the questions whether Bell’s negligence was a proximate
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cause of the collision and whether Brooks was contributorially
negligent would be submitted to the jury.
Thereafter, the trial court, over Hot Shot Express’
objection, refused its proffered instruction A concerning the
duty of a driver of a vehicle not to “follow another vehicle
more closely than is reasonable and prudent.” Hot Shot Express
contended that Brooks’ theory of the case required the jury to
accept that she was the driver of the second vehicle observed by
Bell from his rearview mirror and that the jury could find that
she had been following the first vehicle too closely. Brooks
responded that her theory was only that the first vehicle may
have obscured her view of the tractor-trailer.
Hot Shot Express also objected to the trial court’s
granting of Brooks’ instruction P, which provided:
In the absence of evidence to the contrary, it
must be presumed that [Brooks] exercised ordinary care
for her own safety and did only what an ordinarily
prudent person would have done under the circumstances
of this case.
Hot Shot Express contended that because Brooks’ memory loss
prevented her from presenting evidence regarding her actions
prior to the collision, she should not be entitled to a
presumption that those actions were proper. Brooks asserted
that the instruction was a proper statement of the law. Brooks
further asserted that her stipulation regarding her memory loss
was only that her memory loss was not an element of her damages,
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and not that it was unrelated to the accident. Hot Shot Express
contended that the stipulation contained no such limitation.
The trial court stated that it was “concerned about giving
. . . instruction [P],” because the court had already resolved
to instruct the jury on contributory negligence. However,
relying on Petress v. Seay, 219 Va. 1053, 1059-60, 254 S.E.2d
91, 95 (1979), the trial court determined that the presumption
of ordinary care instruction was not conclusive and could be
given along with instructions on contributory negligence.
The jury returned its verdict for Brooks, awarding her
damages in the amount of $340,000. Hot Shot Express moved to
set aside the jury’s verdict on the ground that it was contrary
to the evidence and the law. The trial court denied this motion
and entered judgment on the jury’s verdict in a final order
dated May 30, 2001. We awarded Hot Shot Express this appeal.
DISCUSSION
Primary Negligence
Hot Shot Express first contends that the trial court erred
in failing to strike Brooks’ evidence on the ground that it
failed to establish that Bell’s actions were negligent or a
proximate cause of the collision. As it did in the trial court,
Hot Shot Express relies upon Code § 46.2-1040, contending that
Bell’s actions comported with the requirements of that statute
and that no other evidence would permit the jury to determine
7
that he was otherwise negligent. Brooks, also adopting her
argument from the trial court, contends that Bell’s actions were
clearly in violation of Code § 46.2-888 and, thus, the trial
court correctly ruled that Bell was negligent as a matter of
law. We agree with Brooks.
In relevant part, Code § 46.2-888, which permits certain
emergency stopping of vehicles on highways, provides that:
No person shall stop a vehicle in such manner as
to impede or render dangerous the use of the highway
by others, except in the case of an emergency, an
accident, or a mechanical breakdown. In the event of
such an emergency, accident, or breakdown, the
emergency flashing lights of such vehicle shall be
turned on if the vehicle is equipped with such lights
and such lights are in working order.
Similarly, Code § 46.2-1040, which provides for the
appropriate use of hazard lights, states in relevant part that:
Motor vehicles, trailers, and semitrailers, when
temporarily stopped on the traveled or paved portion
of the highway so as to create a traffic hazard, shall
flash all four turn signals simultaneously to signal
approaching motorists of the existing hazard whenever
such vehicle is equipped with a device which will
cause the four turn signals to flash simultaneously.
Contrary to Hot Shot Express’ contention, made during oral
argument of this appeal, there is nothing inherently
contradictory in these two statutes. Indeed, they are wholly
consistent in the factual context of this case. Code § 46.2-
1040 specifies the circumstances in which a stopped vehicle’s
four-way hazard lights are to be activated. Code § 46.2-888
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specifies the circumstances under which a driver may lawfully
stop his vehicle on the highway and then is required to activate
the four-way hazard lights on his vehicle.
For this part of our analysis only, we will assume that the
evidence supports Hot Shot Express’ contention that Bell had
activated the tractor-trailer’s four-way hazard lights prior to
the collision. The fact that this action was in compliance with
Code § 46.2-1040 does not preclude, however, a conclusion that
Bell nonetheless acted in violation of Code § 46.2-888.
Bell testified that he stopped his tractor-trailer in a
travel lane of U.S. 340, a heavily traveled main road with no
shoulder, because he was unfamiliar with the area and had driven
beyond the site where he had intended to turn off the highway.
Clearly, Bell’s reason for stopping his vehicle did not involve
“an emergency, an accident, or a mechanical breakdown.”
Accordingly, even if Bell complied with the requirements of Code
§§ 46.2-888 and 46.2-1040 in activating the four-way hazard
lights on his vehicle, he was nonetheless in violation of the
former statute because he had no lawful reason to stop on the
highway and “impede or render dangerous the use of the highway
by others.”
It is negligence per se to violate a statute prohibiting
the stopping of a motor vehicle in such manner as to impede or
render dangerous the use of the highway by others, except in the
9
case of an emergency, as the result of accident, or because of a
mechanical breakdown. Baxley v. Fischer, 204 Va. 792, 798, 134
S.E.2d 291, 295 (1964). As the trial court here recognized,
however, in such circumstances the “[p]roximate cause or causal
connection between negligence and the accident is usually a
question of fact for the jury to decide.” Id. Accordingly, we
hold that the trial court did not err in failing to strike
Brooks’ evidence and in ruling that Bell was negligent as a
matter of law, leaving to the jury the question whether that
negligence was a proximate cause of the collision.
Contributory Negligence
Hot Shot Express next contends that the trial court erred
in failing to strike Brooks’ evidence and to rule that she was
contributorially negligent as a matter of law. Hot Shot Express
relies upon Perdue v. Patrick, 182 Va. 398, 407-08, 29 S.E.2d
371, 374-75 (1944), for the proposition that a driver who
collides with the rear section of a stalled vehicle when
traveling at a speed sufficient to demolish his vehicle is
contributorially negligent as a matter of law. Brooks contends
that Perdue is inapplicable to the facts of this case. She
contends that in Perdue there was no question that the stopped
vehicle was clearly illuminated by lights and a flare, whereas
here the evidence regarding whether the four-way hazard lights
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on Bell’s tractor-trailer were activated and visible was in
conflict. Again, we agree with Brooks.
Ordinarily, whether a plaintiff is guilty of contributory
negligence is a jury issue. The issue becomes one of law for
resolution by the trial court only when reasonable minds could
not differ about the conclusion from the evidence. Love v.
Schmidt, 239 Va. 357, 360, 389 S.E.2d 707, 709 (1990). Unlike
the question of Bell’s negligence in this case, in considering
the question of Brooks’ contributory negligence, we may not
assume that the evidence conclusively supports Hot Shot Express’
contention that Bell activated the tractor-trailer’s four-way
hazard lights prior to the collision. Although Bell testified
he had done so, Coffman testified that when passing the accident
scene immediately after the accident she saw no lights burning
on the tractor-trailer. Based upon this conflict in the
evidence, we cannot say the trial court erred in submitting the
issue whether Brooks was contributorially negligent to the jury.
See Godwin v. Camp Manufacturing Co., 183 Va. 528, 534, 32
S.E.2d 674, 677 (1945). Accordingly, we hold that the trial
court did not err in denying Hot Shot Express’ motion to strike
on the ground that Brooks was contributorially negligent as a
matter of law.
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Jury Instructions
Hot Shot Express asserts that the trial court erred in
giving Brooks’ instruction P. Hot Shot Express contends that an
instruction that a plaintiff is presumed to have acted with
ordinary care is proper principally in wrongful death cases, and
then only when no evidence rebuts the presumption. In this
instance, Hot Shot Express contends that, if the presumption
would otherwise apply, there was evidence of Brooks’ negligence
that would rebut the presumption. Brooks responds that the
instruction is appropriate in any case where the plaintiff is
alleged to be contributorially negligent, the plaintiff is
incapable of testifying regarding the cause of the accident, and
there is no evidence to rebut the presumption.
Unquestionably, it has long been the rule that when
contributory negligence is asserted as a defense in a personal
injury action, negligence on the part of the plaintiff is not
presumed, and a defendant who relies on contributory negligence
as a defense has the burden of proving that it existed and that
it was a proximate cause of the accident. Elliott v. Lewis, 207
Va. 361, 365, 150 S.E.2d 129, 131 (1966). As a corollary to
this rule, it has also long been accepted universally that in a
wrongful death action, in the absence of eyewitness testimony or
other evidence to the contrary, it will be presumed that the
deceased acted with ordinary care. Charlottesville Music Cen.
12
v. McCray, 215 Va. 31, 37, 205 S.E.2d 674, 679 (1974); Hagan v.
Hicks, 209 Va. 499, 505, 165 S.E.2d 421, 426 (1969); see also
Looney v. Metropolitan Railroad Co., 200 U.S. 480, 488 (1906)
(“if there is no evidence which speaks one way or the other with
reference to contributory negligence of the person killed, then
it is presumed that there was no such negligence”). This well
settled principle derives from the recognition that, death
having silenced the decedent from testifying in his own behalf,
the defendant should not benefit from being able to assert that
the decedent was negligent in the absence of other evidence to
support that assertion. See, e.g., Richards v. Southern Pacific
Transp., 666 F.2d 99, 109 (5th Cir. 1982) (Tate, J.,
dissenting.) Of course, when there is clear evidence that the
decedent failed to act with ordinary care, the presumption does
not apply. See Powell v. Nichols, 209 Va. 654, 659, 166 S.E.2d
243, 246 (1969).
We have extended the presumption of ordinary care to
include not only those instances in which the plaintiff was
killed as a result of the accident, but also to those in which
the plaintiff’s injuries rendered him incapable of testifying on
his own behalf. See, e.g., Martin v. Carrington, 193 Va. 627,
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629-30, 70 S.E.2d 313, 315 (1952). 2 However, we have not
previously applied the presumption to the circumstance where the
plaintiff is capable of testifying, but asserts a lack of memory
as to how the accident occurred.
In those jurisdictions which have addressed this issue, it
is generally, though not universally, accepted that if the
injuries sustained in the accident cause retrograde amnesia, 3 the
presumption will apply in the absence of independent evidence of
the plaintiff’s negligence. See, e.g., Schultz & Lindsey
Construction Co. v. Erickson, 352 F.2d 425, 434 (8th Cir. 1965);
Sherry v. Asing, 531 P.2d 648, 660 (Haw. 1975); Shaw v. Bashore,
2
In VEPCO v. Mabin, 203 Va. 490, 492, 125 S.E.2d 145, 147
(1962), we stated that “[a] plaintiff in a personal injury case
is entitled to the legal presumption that he was free of
negligence, and this presumption will prevail in his favor
unless his negligence appears from his own evidence or from that
produced by the defendant.” That case was not a wrongful death
action and the plaintiff testified at trial. The plaintiff, a
part-time roofer, was injured on a roof of a dwelling over which
VEPCO had installed an electrical wire. The sole issue was
whether the evidence established that the plaintiff was guilty
of contributory negligence as a matter of law.
The authorities cited for the quoted proposition all
involve wrongful death actions. Taken in proper context, we
were addressing our review of a successful plaintiff’s case on
appeal by the defendant. We did not mean to suggest, however,
that the presumption of care extends to any plaintiff when there
is no evidence that rebuts that presumption regardless of a
particular case. Brooks’ suggestion to the contrary is
rejected.
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90 N.W.2d 688, 691 (Mich. 1958); Haider v. Finken, 239 N.W.2d
508, 521 (N.D. 1976); Anderson v. Schulz, 527 P.2d 151, 152
(Wyo. 1974). But cf. Dickson v. Bober, 130 N.W.2d 526, 532
(Minn. 1964) (presumption of ordinary care applied only to death
case by statute and would not be extended to memory loss case).
The majority view of other jurisdictions that a plaintiff
suffering retrograde amnesia as a result of injuries sustained
in an accident is entitled to a presumption of ordinary care in
the absence of evidence to the contrary supports a logical
extension of our prior application of the presumption of
ordinary care in Virginia. We perceive no significant
distinction between the rationale underlying this presumption in
wrongful death cases or those where the plaintiff’s injuries
render him incapable of testifying on his own behalf and the
rationale which supports this presumption in a case of traumatic
retrograde amnesia. So long as the plaintiff’s inability to
testify fully in his own behalf was caused by injuries suffered
in the accident with the defendant, then such a surviving
plaintiff and a deceased plaintiff differ logically only in the
degree of their injuries rather than their entitlement to the
presumption of ordinary care. Accordingly, we hold that the
3
The term retrograde amnesia is used here generally to mean
the failure to recall prior experiences as opposed to senility
or some other form of memory loss.
15
presumption of ordinary care is applicable to a plaintiff who
establishes that his or her retrograde amnesia was caused by
injuries suffered in an accident in the absence of proof, either
from an eyewitness or other evidence, to the contrary.
Applying this principle in the present case, we are unable
to find, nor have we been directed to find, any evidence in the
record that establishes that Brooks’ loss of memory was caused
by the injuries she suffered in the accident, and we are not
willing to extend the presumption of ordinary care to cases of
memory loss unrelated to or not caused by the injuries suffered
by a plaintiff. Brooks was not incompetent to testify and, in
fact, as we have noted, did testify at trial. She was able to
recall and relate some matters, but she maintained that she had
no memory of the critical events that led up to the collision of
her vehicle with Bell’s vehicle. There is no suggestion that
Brooks was feigning her loss of memory and the parties seem to
agree that it was genuine.
However, Brooks did not attempt to identify the cause of
her loss of memory. Moreover, the three doctors who testified
by deposition at trial regarding Brooks’ injuries and their
treatment of Brooks for those injuries did not opine that
Brooks’ loss of memory was caused by those injuries. We also
observe that although the apparent force of the impact of the
collision between the parties’ vehicles suggests that Brooks
16
probably suffered retrograde amnesia as a result, such a
conclusion would not be based upon fact but, rather, pure
speculation.
Additionally, Brooks’ stipulation that she was not claiming
damages for her loss of memory does not establish that her loss
of memory was caused by the injuries she suffered in the
accident. Rather, Brooks’ counsel sought to avoid introduction
of evidence that Brooks had suffered episodes of memory loss,
and other medical problems, prior to the date of the accident.
Brooks’ counsel obviously was not in a position to stipulate
that Brooks’ memory loss was caused by her injuries and counsel
for Hot Shot Express did not agree to so stipulate.
We hold that Brooks was not entitled to receive the benefit
of the presumption of ordinary care because she failed to
establish that her retrograde amnesia was caused by the injuries
she suffered in the accident. Therefore, we further hold that
the trial court erred in granting Brooks’ instruction P. “If an
issue is erroneously submitted to a jury, we presume that the
jury decided the case upon that issue.” Clohessy v. Weiler, 250
Va. 249, 254, 462 S.E.2d 94, 97 (1995). Accordingly, we cannot
say that the trial court’s error in instructing the jury on the
presumption of ordinary care was harmless, and we must reverse
the judgment in favor of Brooks.
17
Hot Shot Express also assigns error to the trial court’s
refusal to give its instruction A on following too closely.
Because the issue will undoubtedly arise in any trial on remand,
we will address this issue as well.
Bell testified only that he saw two vehicles from his
rearview mirror. He did not testify with regard to the distance
between the two vehicles or that Brooks was driving the second
vehicle. Even assuming that Brooks was the driver of the second
vehicle, evidence that a plaintiff was following a car driven by
an unknown person prior to a collision with another vehicle,
without more, does not warrant the giving of a “following too
closely” instruction. Nicholoau v. Harrington, 217 Va. 618,
624-25, 231 S.E.2d 318, 323 (1977). Accordingly, the trial
court did not err in refusing Hot Shot Express’ instruction A.
CONCLUSION
For these reasons, the judgment of the trial court will be
affirmed in part, reversed in part, and the case will be
remanded for a new trial consistent with the views expressed in
this opinion.
Affirmed in part,
reversed in part,
and remanded.
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