Burroughs v. Keffer

1
Present: 	All the Justices
JESSICA LUANN BURROUGHS
v. 	Record No. 051745 	OPINION BY JUSTICE DONALD W. LEMONS
June 8, 2006
LESLIE KEITH KEFFER, ET AL.
FROM THE CIRCUIT COURT OF GILES COUNTY
Colin R. Gibb, Judge
In this personal injury action arising from a motor
vehicle accident, we consider whether the trial court erred in
setting aside a jury verdict on the ground that the plaintiff,
Jessica Luann Burroughs ("Burroughs"), was contributorily
negligent as a matter of law. 	For the reasons discussed
below, the judgment of the trial court will be reversed.
I. 	Facts and Proceedings Below
Even though the trial court set the verdict aside, we
accord the recipient of a jury verdict the benefit of all
substantial conflicts of the evidence and all reasonable
inferences that may be drawn therefrom. 	Therefore, we will
state the facts in the light most favorable to Burroughs, and
if there is any credible evidence in the record that supports
the verdict, then we must reinstate that verdict and enter
judgment thereon. 	Loving v. Hayden, 245 Va. 441, 442, 429
S.E.2d 8, 9 (1993).
At approximately 7:40 a.m. on the morning of September
17, 1999, Randolph Beasley, Jr., ("Beasley") attempted to load
an excavator onto a low-slung flatbed trailer known as a

2
"lowboy," that was parked in a gravel lot adjacent to U.S.
Route 460 in Pembroke, Virginia. 	The relevant portion of
Route 460 for purposes of this appeal is a curving, undivided
highway with two lanes going east and two lanes going west.
Beasley was unsuccessful and the excavator fell off of the
lowboy trailer onto the gravel lot, with several feet of the
excavator's boom extending into the right travel lane of
eastbound Route 460.
Leslie Keith Keffer ("Keffer"), a heavy equipment
operator and friend of Beasley's, saw the overturned excavator
as he was driving eastbound on Route 460 towards the gravel
lot. 	Keffer was driving a large truck, pulling a lowboy
trailer with a backhoe on it. 	Keffer stopped his truck in the
right, eastbound lane of Route 460 behind the portion of the
excavator's boom extending into Route 460. 	Keffer checked to
see if anyone was injured and, learning that Beasley was
uninjured, went to the rear of his trailer to direct traffic
into the left, eastbound lane around his truck and the
excavator's boom. 	Despite the fact that both Beasley and
Keffer had flares and warning triangles, neither placed them
on Route 460 to warn on-coming traffic.
Keffer directed traffic for several minutes before
Burroughs ran into the back of Keffer's trailer. 	Keffer dove
out of the way and was uninjured, but Burroughs was injured in

3
the collision. 	Burroughs filed a motion for judgment against
Beasley and Keffer, and their employers, Lowell Curtis Smith,
Jesse Williams, Jesse Williams d/b/a Williams Construction,
Jesse Williams t/a J.E. Williams, and Jesse Williams d/b/a
Williams Excavating (collectively "defendants"), seeking
$500,000 in compensatory damages, pre- and post-judgment
interest, and costs.
At trial, Burroughs testified that she was driving the
posted speed limit of 45 miles per hour and that she came
around the curve, was blinded by the sun, and collided with
the back of Keffer's trailer. 	Burroughs stated that she did
not see Keffer or his trailer and backhoe prior to the
collision because the sun blinded her. 	Keffer testified that
traffic was "getting a little heavy" during the time leading
up to the accident. 	The defendants introduced maps of Route
460 and photographs of the portion of Route 460 leading up to
and including the scene of the accident. 	From these maps and
photographs, defendants argued that Burroughs should have seen
Keffer's trailer from approximately 1,200 feet away, which
would have given Burroughs as much as 18.5 seconds to react
when driving at 45 miles per hour.
At the conclusion of Burroughs's case-in-chief,
defendants moved to strike her evidence on the ground that she
was contributorily negligent as a matter of law. 	Defendants

4
requested the trial court to enter summary judgment. 	The
trial court took these motions under advisement. 	Defendants
renewed their motions at the conclusion of the presentation of
their evidence, and the trial court again took the motions
under advisement. 	The trial court then instructed the jury,
including instructions on contributory negligence. The jury
returned a verdict in favor of Burroughs and awarded her
$125,000.
The jury was dismissed and defendants renewed their
motion to strike and also moved to set aside the jury's
verdict on the ground that Burroughs was contributorily
negligent as a matter of law. 	The trial court requested
briefs from the parties and, at a subsequent hearing, the
trial court granted the defendants' motion to set aside the
jury's verdict. 	The trial court stated:
I just think that under the evidence which is
uncontradicted, the plaintiff's evidence, and
the plaintiff was contributorily negligent
because either she was blinded for only a few
of the 18-and-a-half seconds or failed to see
what was there to see during the rest of that
time period or she was blinded for most or all
of the 18-and-a-half seconds and failed to
react reasonably to that incapacity.
We awarded Burroughs an appeal to consider one assignment of
error: 	whether the trial court erred in setting aside a jury
verdict in favor of Burroughs and entering judgment in favor

5
of the defendants on the ground that Burroughs was guilty of
contributory negligence as a matter of law.
II. 	Analysis
A trial court may set aside a jury's verdict only if the
verdict is plainly wrong or without credible evidence to
support it. 	Code § 8.01-430. 	See, e.g., Bussey v. E.S.C.
Restaurants, Inc., 270 Va. 531, 534, 620 S.E.2d 764, 766
(2005); Jenkins v. Pyles, 269 Va. 383, 388, 611 S.E.2d 404,
407 (2005). 	This authority is "explicit and narrowly
defined." 	Bussey, 270 Va. at 534, 620 S.E.2d at 766; Jenkins,
269 Va. at 388, 611 S.E.2d at 407. 	As we stated most recently
in Bussey:
Trial court judges must accord the jury
verdict the utmost deference. 	If there is a
conflict in the testimony on a material point,
or if reasonable people could differ in their
conclusions of fact to be drawn from the
evidence, or if the conclusion is dependent on
the weight to be given to the testimony, the
trial court may not substitute its conclusion
for that of the jury merely because the judge
disagrees with the result.
Because the jury's function is to
determine the credibility of witnesses and the
weight of the evidence, and to resolve all
conflicts in the evidence, we will reinstate
the verdict on appeal if credible evidence
supports the verdict. 	On appeal, evidence is
deemed to be credible unless it is "so
manifestly false that reasonable men ought not
to believe it, or it [is] shown to be false by
objects or things as to the existence and
meaning of which reasonable men should not
differ." 	In reviewing the evidence, we will
accord the recipient of the verdict the benefit

6
of all substantial conflicts of evidence, and
all fair inferences that may be drawn from the
evidence.
270 Va. at 534-35, 620 S.E.2d at 766 (citations omitted).
The principles of contributory negligence are familiar
and well-settled:
Contributory negligence is an affirmative
defense that must be proved according to an
objective standard whether the plaintiff failed
to act as a reasonable person would have acted
for his own safety under the circumstances.
The essential concept of contributory
negligence is carelessness.
The issue whether a plaintiff is guilty of
contributory negligence is ordinarily a
question of fact to be decided by the fact
finder. 	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 388-89, 611 S.E.2d at 407 (citations
omitted).
In Jenkins, the plaintiff was unable to see an oncoming
truck and corn planter because of the hill he was ascending at
the time of the accident. 	269 Va. at 389, 611 S.E.2d at 408.
Also, Jenkins's view was obstructed by a large truck in front
of him. 	Id. 	In reversing the trial court's grant of a motion
to set aside a jury's verdict, we stated that the jury
"reasonably could have concluded from this evidence that
although Jenkins maintained a proper lookout, he nevertheless
was unable to see Pyles' truck and the corn planter in time to

7
avoid a collision because the hill and the telephone truck in
front of him restricted his ability to see the oncoming
traffic." 	Id.
As in Jenkins, the relationship between the duty to keep
a proper lookout and topography of the scene of the accident
is important in the instant case. 	The duty to keep a proper
lookout is not a duty to see; rather, it is a duty to look
with reasonable care and to heed what a reasonable lookout
would have revealed: 	"[T]he duty is to look with reasonable
care, not an absolute duty to discover by looking, unless the
thing to be looked for is in such plain view that looking with
reasonable care [one] was bound to have discovered it." 	Reams
v. Doe, 236 Va. 237, 239, 372 S.E.2d 405, 406-07 (1988)
(quoting Oliver v. Forsyth, 190 Va. 710, 716, 58 S.E.2d 49, 51
(1950)). 	In the instant case, the trial court properly
instructed the jury on this duty in Instruction 15:
The duty to keep a proper lookout requires
a driver to use ordinary care to look in
all directions for vehicles that would
affect her driving, to see what a
reasonable person would have seen, and to
react as a reasonable person would have
acted to avoid a collision under the
circumstances.
This instruction was given without objection.
Defendants introduced maps of Route 460 and photographs
of the portion of Route 460 leading up to and including the
scene of the accident. 	The photographs indicate that the

8
eastbound portion of Route 460 leading up to the scene of the
accident curves and twists. 	From these photographs the jury
reasonably could have concluded that Burroughs was unable to
see the defendants' trucks stopped in the right lane from
approximately 1200 feet and that she did not have 18.5 seconds
to react. 	Similarly, the jury could have concluded the
opposite. 	Additionally, the jury heard evidence that traffic
was heavy, that Burroughs was driving the posted speed limit,
and that Burroughs was blinded by the sun immediately before
the collision.
Because reasonable persons could differ regarding whether
Burroughs was guilty of contributory negligence, that issue
was a question of fact for the jury. 	The trial court erred in
setting aside the verdict for Burroughs.
III. 	Conclusion
For these reasons, the judgment of the trial court will
be reversed and final judgment will be entered in favor of
Burroughs in accordance with the jury's verdict.
Reversed and final judgment.