PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Kinser, and 

Lemons, JJ., and Stephenson, S.J. 

LEISA D. KIMBERLIN 

 OPINION BY 

v. Record No. 011393 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.

 

PM TRANSPORT, INC., ET AL. June 7, 2002 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Robert P. Doherty, Jr., Judge 

 In this appeal, we determine whether the trial court erred 

in striking the plaintiff's evidence and entering judgment in 

favor of the defendants. 

I 

 Leisa D. Kimberlin (the Plaintiff) filed a personal-injury 

action against the Administrator of the Estate of James E. Rapp, 

Jr., deceased, and Rapp's employer, PM Transport, Inc. 

(collectively, the Defendants). The Plaintiff alleged that her 

injuries sustained in an automobile accident were proximately 

caused by Rapp's negligence while he was acting in the scope of 

his employment. 

 Following a three-day jury trial, the trial court struck 

the Plaintiff's evidence and entered final judgment in favor of 

the Defendants. We awarded the Plaintiff this appeal. 

II 

 According to well-established precedent, we must view the 

evidence and all reasonable inferences deducible therefrom in 

the light most favorable to the Plaintiff. The Plaintiff was 
injured in a motor-vehicle accident that occurred on the night 

of November 21, 1997.∗

 Rapp was driving a tractor pulling a 

fully loaded tanker containing 8,000 gallons of gasoline. Rapp 

was traveling in the northbound lane of U.S. Route 220 Business, 

in Alleghany County, near the City (now Town) of Clifton Forge. 

A short distance south of the accident scene, U.S. Route 220 

Business intersects with U.S. Route 220. 

 The accident scene is in an area where rocks often fall 

onto the highway. Consequently, there were three highway signs 

in the area that read, "Watch for Falling Rocks." Rapp was very 

familiar with this portion of the highway because he traveled it 

often, and he was aware of the signs. 

 The night of the accident was dark and stormy. Rain was 

falling, and, according to Rapp, it was "real foggy." There was 

no artificial lighting in the area. 

 As Rapp turned the tractor-tanker from Route 220 onto Route 

220 Business, the driver of an approaching vehicle flashed the 

vehicle's headlights. Rapp considered this a warning. Despite 

this warning, however, Rapp increased his tractor's speed and 

proceeded along Route 220 Business about 45 miles per hour, the 

posted speed limit. 

 ∗

 Shortly after the accident, Rapp died of causes unrelated 

to the accident. Thus, much of the evidence consists of 

statements admitted pursuant to Code § 8.01-397, the so-called 

"Deadman's Statute." 

2
 Although Rapp had an unobstructed view of 300 to 400 yards 

and his vehicle was equipped with headlights and fog lights, 

Rapp's tractor struck a rock in the middle of his lane of 

travel, and he lost control of the vehicle. The tractor-tanker 

veered to the left, struck a rock wall, and came to rest 

"snug[ly]" against the wall on the west side of the highway. 

Gasoline from the tanker and diesel fuel from the tractor were 

rapidly spilling onto the highway, which slopes downgrade to the 

north. Rapp quickly exited the tractor and ran north along the 

highway. 

 As Rapp proceeded, he observed a vehicle, operated by the 

Plaintiff, approaching from the north. Rapp tried to warn the 

Plaintiff of the impending danger, but the Plaintiff never saw 

Rapp or his vehicle. 

 As the Plaintiff approached the accident scene, she 

observed what she believed to be fog, but which may have been 

smoke. The Plaintiff reduced the speed of her vehicle to 20 or 

25 miles per hour. Immediately upon entering the fog or smoke, 

the Plaintiff's vehicle exploded and was engulfed in flames, and 

the Plaintiff sustained burns. 

 The day after the accident, a rock, described as "large," 

was found near the front of Rapp's vehicle. Rapp never saw the 

rock and gave no explanation for not having seen it. 

3
 Although the tractor-tanker had been equipped with 

reflective triangles and other warning devices, including orange 

cones, Rapp did not set out any of these devices because he was 

scared and wanted to get away from the vehicle as soon as 

possible. A representative of Rapp's employer testified, 

however, that the Federal Motor Carrier Safety Regulations 

mandate the use of warning devices after an accident and that 

Rapp was not "supposed to react" as he did. 

III 

 Ordinarily, negligence and proximate cause are issues to be 

decided by a fact finder. Therefore, a jury should weigh the 

evidence, determine the credibility of the witnesses, and 

ultimately decide these issues when reasonable minds could 

differ about them. Only when reasonable minds could not differ 

are issues of negligence and proximate cause questions of law to 

be decided by a court. Phillips v. Southeast 4-H Educational 

Ctr., 257 Va. 209, 213, 510 S.E.2d 458, 460 (1999); Poliquin v. 

Daniels, 254 Va. 51, 57, 486 S.E.2d 530, 534 (1997). 

 In ruling on a motion to strike a plaintiff's evidence, a 

trial court must view the evidence and all reasonable inferences 

drawn therefrom in the light most favorable to the plaintiff and 

overrule the motion when there is any doubt about the question. 

Artrip v. E.E. Berry Equipment Co., 240 Va. 354, 357, 397 S.E.2d 

821, 823 (1990). Indeed, we have emphasized that striking a 

4
plaintiff's case-in-chief "is a drastic measure with high costs 

to the administration of justice and should be avoided unless 

there is no doubt that the plaintiff has not proven any cause of 

action against the defendant." West v. Critzer, 238 Va. 356, 

359, 383 S.E.2d 726, 728 (1989). 

 With these legal principles in mind, we determine whether 

the Plaintiff's evidence established a prima facie case that 

Rapp was guilty of negligence that proximately caused the 

Plaintiff's injuries. In so doing, we first consider the issue 

of speed. In that regard, we have said that whether speed is 

excessive or reasonable must, in large measure, be governed by 

the existing conditions and not necessarily by the posted speed 

limit. Goodwin and Reed v. Gilman, 208 Va. 422, 431, 157 S.E.2d 

912, 919 (1967). 

 In the present case, the evidence shows that Rapp was 

driving a large tanker truck loaded with 8,000 gallons of 

flammable gasoline on a dark, rainy, and foggy night. He knew 

that he was driving in an area where rocks were known to fall 

onto the highway. As Rapp made the turn onto Route 220 

Business, an approaching vehicle signaled a warning. 

Notwithstanding these circumstances and conditions, however, 

Rapp increased his vehicle's speed to the maximum allowable 

speed and continued at that speed until his vehicle struck a 

large rock in the middle of his lane of travel. Based upon this 

5
evidence, we conclude that reasonable minds could differ about 

whether Rapp was negligent in operating his vehicle at an 

excessive speed under the existing conditions and whether any 

such negligence was a proximate cause of the accident. 

 We next consider the issue of failure to keep a proper 

lookout. By his own admission, Rapp never saw the large rock 

directly ahead of him even though he had an unobstructed view of 

300 to 400 yards, his vehicle was equipped with headlights and 

fog lights, and he knew that rocks were likely to fall onto the 

highway in the area. Based upon this evidence, we conclude that 

reasonable minds could differ about whether Rapp was negligent 

in failing to keep a proper lookout and whether any such 

negligence was a proximate cause of the accident. 

 For these reasons, we hold that the Plaintiff's evidence 

established a prima facie case of negligence and proximate cause 

and that the trial court erred in striking the evidence. 

IV 

 The Plaintiff also contends that the trial court erred in 

ruling as a matter of law that Rapp did not violate § 392.14 of 

the Federal Motor Carrier Safety Regulations, 49 C.F.R. § 

392.14 (1995), which has been adopted as Virginia law. See 19 

VAC 30-20-40 and 30-20-80. The federal regulation provides, in 

pertinent part, as follows: 

6
 Extreme caution in the operation of a commercial 

motor vehicle shall be exercised when hazardous 

conditions, such as those caused by . . . fog, mist, 

[or] rain . . . , adversely affect visibility or 

traction. Speed shall be reduced when such conditions 

exist. If conditions become sufficiently dangerous, 

the operation of the . . . vehicle shall be 

discontinued and shall not be resumed until the . . . 

vehicle can be safely operated. 

 The Defendants assert that the regulation "does not equate 

rain and fog with 'hazardous conditions' " and that "the 

evidence fails to show whether the rain and fog amounted to 

'hazardous conditions.' " While we believe that the regulation, 

in plain and unequivocal language, states that conditions caused 

by fog, mist, or rain become hazardous when they "adversely 

affect visibility or traction," the regulation, in the interest 

of public safety, merely imposes a duty on the operator of a 

commercial motor vehicle to exercise "[e]xtreme caution" under 

such conditions. 

 Based upon the evidence in the present case, we conclude 

that reasonable minds could differ about whether Rapp violated 

this duty and whether any such negligence was a proximate cause 

of the accident. Therefore, the trial court erred in ruling as 

a matter of law. 

 On the other hand, we agree with the Defendants that 

violation of the regulation does not constitute negligence per

se. The regulation, as we previously noted, simply creates an 

7
expanded duty of care for the operation of commercial motor 

vehicles under the conditions stated therein. 

V 

 The Plaintiff further contends that the trial court erred 

in ruling as a matter of law that Rapp was not negligent per se

in failing to comply with the requirements of Code § 46.2-111 

and 49 C.F.R. § 392.22 (1995). Code § 46.2-111 provides, in 

pertinent part, that, whenever a vehicle used for the 

transportation of flammable liquids in bulk is disabled and 

stops on a highway, the operator shall place or cause to be 

placed certain warning devices, among other places, "in the 

center of the lane of traffic occupied by the disabled vehicle 

and not less than 100 feet therefrom in the direction of traffic 

approaching in that lane." The federal regulation contains a 

similar requirement for the placement of warning devices. 

 In the present case, although Rapp's vehicle was equipped 

with the required warning devices, Rapp failed to place any of 

the devices on the highway. Instead, he fled from the accident 

scene because he was scared and wanted to get away from his 

vehicle. 

 The record, however, does not show how much time had 

elapsed after Rapp's vehicle had become disabled and the 

Plaintiff arrived upon the scene. All it shows is that Rapp had 

had time to exit the tractor and to proceed on foot some 

8
distance along the highway. Although we have said that "[t]he 

violation of a statute of this character constitutes negligence 

per se," Savage Truck Line v. Traylor, 193 Va. 579, 585, 69 

S.E.2d 478, 482 (1952) (decided under predecessor statute), our 

finding of a statutory violation was based upon the length of 

time, prior to an accident, that a truck had been standing on a 

highway without the deployment of warning devices. We 

determined that the statute required action "as promptly as may 

be reasonably practicable." Id. 

 Consequently, we hold, in the present case, that the trial 

court erred in removing this issue from the jury. The jury 

should have been allowed to determine whether Rapp violated the 

statute and federal regulation and whether any such violation 

was a proximate cause of the accident. 

VI 

 In addition, the Plaintiff sought to present evidence that 

Rapp's corrected vision was 20/40, the minimum required by the 

federal regulations. See 49 C.F.R. § 391.41 (1995). The 

Plaintiff asserts that this vision evidence was relevant in 

determining whether Rapp's conduct was reasonable under the 

existing conditions. We do not agree. Rapp's corrected vision 

met the federal requirement, and his visual acuity was not 

sufficiently deficient to have had an effect upon his conduct. 

Therefore, the trial court properly excluded the evidence. 

9
 The Plaintiff also sought to show, pursuant to Code § 8.01-

397.1, that Rapp was in the habit of failing to wear his 

glasses. Code § 8.01-397.1(B) defines habit as "a person's 

regular response to repeated specific situations." In order for 

evidence of a person's habit to be admissible to prove that 

person's conduct on a particular occasion, examples of habit 

must be sufficiently numerous and regular. Moreover, because of 

the danger of abuse in such evidence, habit is "never to be 

lightly established." Wilson v. Volkswagen of America, Inc., 

561 F.2d 494, 511 (4th Cir. 1977) (applying Fed. R. Evid. 406). 

 In the present case, we do not believe that the Plaintiff's 

proffer pertaining to Rapp's habit of going without eyeglasses 

met the above-stated requirement. Therefore, the trial court 

properly excluded the evidence suggesting that Rapp may have 

been driving without his glasses. 

VII 

 Finally, the Plaintiff contends that the trial court erred 

in holding as a matter of law that there was no evidence that 

Rapp was guilty of negligence by obstructing the highway. The 

Plaintiff relies, in part, upon Code § 46.2-888. That statute 

provides that "[n]o 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." 

10
 We do not think that Code § 46.2-888 applies in the present 

case. Indeed, the statute, by its express terms, does not apply 

"in case of an emergency, an accident, or a mechanical 

breakdown." 

 The Plaintiff also relies upon Code § 18.2-324. That 

statute provides, in pertinent part, as follows: 

 No person shall . . . deposit or cause to be 

deposited upon any highway . . . any . . . substance 

likely to injure any person . . . or damage any 

vehicle upon such highway, nor shall any person . . . 

deposit or cause to be deposited upon any highway any 

. . . substances so as to create a hazard to the 

traveling public. 

 The Plaintiff asserts that Rapp violated Code § 18.2-324 by 

causing gasoline to have been deposited upon the highway. She 

further asserts that Rapp is presumed to have been negligent for 

violating the statute and that, therefore, the Defendants had 

the burden of overcoming the presumption by producing evidence 

that reasonably explains that the violation resulted from a 

cause other than negligence. 

 In response, the Defendants point out that Code § 18.2-324 

is a criminal statute, and they contend that, to be guilty of 

violating the statute, a person must intentionally deposit the 

hazardous substance on the highway. The Defendants assert that, 

because Rapp never intended to cause any deposit of hazardous 

substances, he did not violate the statute. 

11
 We agree with the Defendants. Although the violation of a 

criminal statute may provide the basis for a wrongdoer's 

liability in a civil action, see, e.g., Code § 8.01-221, in the 

present case, the statute's violation requires proof of an 

intentional act and cannot provide the basis for a presumption 

of negligence. 

 Similarly, the Plaintiff contends that "the trial court 

erred in holding that there was no presumption of negligence 

created by the fact that Rapp's truck was on the wrong side of 

the road." The Plaintiff relies upon Code § 46.2-802, which 

provides, in pertinent part, that "the driver of a vehicle shall 

drive on the right half of the highway." The Plaintiff argues 

that the undisputed evidence shows that Rapp drove his vehicle 

out of the northbound lane of travel and proceeded into the 

southbound lane before crashing into the wall on the western 

shoulder of the highway. 

 We do not think that Code § 46.2-802 applies in the present 

case. Code § 46.2-802 requires an operator to "drive" on the 

right half of the highway, and the evidence conclusively shows 

that Rapp was driving in the northbound lane when the accident 

occurred. The presence of the truck on the western shoulder of 

the highway did not result from Rapp's failure to drive on the 

right half of the highway. 

VIII 

12
 In sum, we hold that the trial court erred in striking the 

Plaintiff's evidence relating to whether Rapp operated his 

vehicle at an excessive speed under the circumstances or failed 

to keep a proper lookout and whether any such negligence was a 

proximate cause of the accident. We also hold that the trial 

court erred in ruling, as matters of law, that Rapp did not 

violate 49 C.F.R. § 392.14, Code § 46.2-111, and 49 C.F.R. 

§ 392.22. 

 We further hold that the trial court did not err in its 

rulings regarding Code §§ 46.2-888, 18.2-324, and 46.2-802. 

The trial court also did not err in excluding evidence of Rapp's 

alleged impaired vision and failure to wear eyeglasses. 

 Accordingly, the trial court's judgment will be affirmed in 

part and reversed in part, and the case will be remanded to the 

trial court for a new trial. 

Affirmed in part, 

reversed in part, 

 and remanded. 

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