Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and 

Agee, JJ., and Stephenson, S.J. 

JOHN DOE 

OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 052137 January 12, 2007 

RUSSELL M. TERRY, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Joseph A. Leafe, Judge 

 In this appeal, we consider whether the plaintiff 

established by a preponderance of the evidence that the 

defendant, John Doe, was negligent. 

Plaintiff, Russell M. Terry, filed his motion for 

judgment against John Doe, an unknown driver of an automobile. 

Plaintiff alleged that he was injured as a result of John 

Doe's negligence. At the conclusion of a jury trial, the jury 

returned a verdict in favor of the plaintiff in the amount of 

$175,000. The circuit court reduced the verdict from $175,000 

to the amount of the ad damnum, $100,000, and the court 

entered a judgment confirming the verdict. The defendant, 

John Doe, appeals. 

Terry is armed with a jury verdict and, thus, "occupies 

the most favored position known to the law." Pugsley v. 

Privette, 220 Va. 892, 901, 263 S.E.2d 69, 76 (1980); accord

Atrium Unit Owners Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d 

545, 547 (2003). Additionally, we will recite the facts and 

all reasonable inferences therefrom in favor of Terry, the 
2

prevailing party in the circuit court. Atrium Unit Owners 

Ass'n, 266 Va. at 293, 585 S.E.2d at 547. 

Terry was employed as a safety service patrolman for the 

Virginia Department of Transportation and stationed at the 

Hampton Roads Bridge Tunnel. On June 1, 2002, about 3:00 

a.m., Terry entered the tunnel and began to walk towards the 

bottom of the tunnel to clean camera lenses on equipment used 

to monitor vehicular traffic. He was walking on a "catwalk" 

in the direction of oncoming traffic. The "catwalk" is 46 

inches above the tunnel's traffic lanes. The posted speed 

limit in the tunnel is 55 miles per hour. 

After Terry had cleaned three camera lenses, he observed 

three approaching vehicles. Terry testified as follows: 

"[O]ne [vehicle] was a car followed by a tractor-trailer. 

When the tractor-trailer came by, I nodded my head down so not 

to be hit with the debris that comes with it. And I picked my 

head back up and started walking again, and that's when I was 

struck in my right forehead." 

Terry further testified during his direct examination: 

 "Q: All right. When the truck – during the 

time frame when there is the three vehicles, there's 

the truck, where was the third vehicle? 

 "A: I hadn't yet seen the third vehicle 

coming. When the truck come by, like I said, they 

travel 55 miles an hour, so everything was like 

within split seconds of one another. Once the 

tractor-trailer came by I raised my head, and that's 
3

when I noticed another vehicle had come down from 

the bottom of the tunnel and was working its way 

towards me. 

 "Q: All right. And at any time while you were 

walking that tunnel, did you hear anything in the 

tunnel, other than the sound of traffic? 

 "A: Yes. After the tractor-trailer had 

practically gotten by me and my head was still down 

I heard some people yelling in the tunnel. 

 "Q: What kind of yelling did you hear? 

 "A: Like catcalls. Just somebody whooping it 

up coming through there. 

 "Q: All right. And tell us, from the time 

period of hearing the whooping it up until the time 

that something happened to you how much time passed? 

 "A: It's hard to say. Maybe two to three 

seconds. It was – it was that fast. 

 "Q: All right. And what if anything happened 

during those two to three seconds? What did you – 

what did you see, hear, feel, anything about that? 

Tell us what – 

 "A: Just after I heard the voices I lift my 

head, started walking. The car was approaching and 

then I was hit with something, and that's it. 

 "Q: Do you have any idea what you were hit 

with? 

 "A: At the time, no. 

 "Q: At the time did you have any idea? Did 

you see – 

 "A: No, I didn't. Once it hit me I was out 

cold." 

 During cross-examination at trial, Terry gave the 

following testimony about the accident: 

 "Q: All right. Now, you say . . . that you 

were aware of three vehicles? 

 "A: I was – 

 "Q: Is that my understanding? 

 "A: Not necessarily that area. I was aware of 

three vehicles that had come my direction in my 

approach down to the bottom of the tunnel. 

 "Q: The first one was an automobile, right? 

 "A: Yes. 

 "Q: The second one was a tractor-trailer? 
4

 "A: Yes. 

"Q: And when the tractor-trailer passed you, 

you were not aware of the third one? 

 "Q: Not at that -- no. 

 "A: All right. And you have indicated that 

you got -- thought something happened just 

milliseconds after the tractor-trailer had passed 

you, right? 

 "A: Yes. 

 "Q: And in those milliseconds, you had lifted 

your head and had observed that there was another 

automobile approaching from the bottom of the 

tunnel, right? 

 "A: Yes. 

 "Q: Okay. So, there was no vehicle right 

there behind the tractor-trailer, correct? 

 "A: Not that I'm aware of, no. 

. . . . 

 "Q: Other than the automobile approaching from 

the bottom of the tunnel? But you didn't see 

anything airborne coming towards your body, true? 

 "A: No, I did not. 

 "Q: You don't know what struck you, if 

anything, true? 

 "A: Yes, that's true. 

 "Q: All right. You don't know if there was 

something that came towards you and struck you? You 

don't know where it came from, true? 

 "A: Well, no. Whatever struck me come from my 

front, because it hit me on my head on my right 

side. 

. . . . 

 "Q: All right. And you can't tell us whether 

it came from a vehicle's passenger side or the 

driver's side, true? 

 "A: That's true. 

"Q: The catcalls, the yell or what have you, 

was something that you heard, but couldn't identify 

where it came from; is that true? 

"A: Well, it's something I heard. It came 

from inside the tunnel." 
5

Raymond R. Gray, Jr., who was also a safety service 

patrolman at the Hampton Roads Bridge Tunnel, responded to the 

accident scene. He found Terry unconscious, lying in one of 

the eastbound traffic lanes of the tunnel. Terry had a "huge 

knot" that looked like a "golf ball" on the side of his head. 

Gray found "pieces of glass all around" Terry. 

Robert Mauldin, a traffic control supervisor at the 

Hampton Roads Bridge Tunnel, also responded to the accident 

location. He also found broken glass in the vicinity where 

Terry was injured. 

 Doe argues that Terry failed to establish that the 

defendant was negligent. Continuing, Doe asserts that Terry 

did not present evidence that Doe was the individual who threw 

the object that injured the plaintiff. Responding, Terry 

contends that he presented evidence that would permit the jury 

to infer that Doe was the individual who threw the bottle that 

injured the plaintiff. We disagree with Terry. 

 This Court has repeatedly held that a plaintiff in a tort 

action must establish negligence by a preponderance of the 

evidence. For example, over 100 years ago, we stated in 

Chesapeake & O. Ry. Co. v. Heath, 103 Va. 64, 66-67, 48 S.E. 

508, 508-09 (1904): 

 "The party who affirms negligence must 

establish it by proof sufficient to satisfy 
6

reasonable and well balanced minds. The evidence 

must show more than a probability of a negligent 

act. An inference cannot be drawn from a 

presumption, but must be founded upon some fact 

legally established. This Court has repeatedly held 

that when liability depends upon carelessness or 

fault of a person, or his agents, the right of 

recovery depends upon the same being shown by 

competent evidence, and it is incumbent upon such a 

plaintiff to furnish evidence to show how and why 

the accident occurred – some fact or facts by which 

it can be determined by the jury, and not be left 

entirely to conjecture, guess or random judgment, 

upon mere supposition, without a single known fact. 

C. & O. Ry. Co. v. Sparrow, 98 Va. 630-641, 37 S.E. 

302; N. & W. R. R. Co. v. Cromer's Adm'x., 99 Va. 

763-765, 40 S.E. 54; Southern R. R. Co. v. Hall's 

Adm'r., 102 Va. 135, 45 S.E. 867." 

Accord Virginia Ry. & P. Co. v. Winstead, 119 Va. 326, 333, 89 

S.E. 83, 85 (1916). 

 This basic tort principle has remained intact, without 

equivocation, and we restated this rule in Waters v. Holloman, 

216 Va. 726, 730, 222 S.E.2d 549, 552-53 (1976) (quoting 

Weddle v. Draper, 204 Va. 319, 322, 130 S.E.2d 462, 465 

(1963)): 

"Negligence cannot be presumed from the mere 

happening of an accident. The burden is on the 

plaintiff who alleges negligence to produce evidence 

of preponderating weight from which the jury can 

find that the defendant was guilty of negligence 

which was a proximate cause of the accident. The 

evidence produced must prove more than a probability 

of negligence and any inferences therefrom must be 

based on facts, not on presumptions. It is 

incumbent on the plaintiff who alleges negligence to 

show why and how the accident happened, and if that 

is left to conjecture, guess or random judgment, he 

cannot recover." 
7

We recently reaffirmed this fundamental precept in Blue Ridge 

Service Corp. v. Saxon Shoes, 271 Va. 206, 218, 624 S.E.2d 55, 

62 (2006): "It is incumbent on the plaintiff who alleges 

negligence to show why and how the accident happened, and if 

that is left to conjecture, guess or random judgment, he 

cannot recover." 

When a plaintiff files a negligence action against an 

unidentified motorist, the plaintiff has the burden of proof 

to establish by a preponderance of the evidence that the 

unknown driver of the motor vehicle was guilty of negligence. 

See e.g., Lawson v. Doe, 239 Va. 477, 481-82, 391 S.E.2d 333, 

335 (1990). And, as we have already stated, the plaintiff 

must produce evidence that proves more than a probability of 

the unknown driver's negligence and any inferences therefrom 

must be based on facts, not presumptions. Weddle, 204 Va. at 

322, 130 S.E.2d at 465. 

The plaintiff in this case, Terry, failed to establish by 

a preponderance of the evidence that John Doe, the driver of 

the unknown vehicle, was negligent. There is no evidence in 

the record that would permit a finder of fact to infer that 

the driver of the unknown vehicle was the individual who threw 

the bottle that struck Terry. The plaintiff, who was the only 

witness to the accident who testified at trial, stated that 
8

there were three vehicles in the tunnel, and that he was 

injured after two of the vehicles passed him. After the 

tractor-trailer passed the plaintiff, he heard someone 

"yelling" and "voices." The plaintiff testified: "Just after 

I heard the voices I lift [sic] my head, started walking. The 

car was approaching and then I was hit with something, and 

that's it." The plaintiff's own testimony demonstrates that 

there may have been more than one person in the vehicle from 

which the plaintiff alleges someone threw the bottle that 

injured him. 

The plaintiff does not know whether the unknown driver of 

the car threw the bottle or whether a passenger threw the 

bottle. He has no idea who threw the bottle. In response to 

the question, "And you can't tell us whether it [the object 

that struck you] came from a vehicle's passenger side or the 

driver's side, true?," the plaintiff responded, "That's true." 

The plaintiff's conclusion that the driver of the unidentified 

vehicle threw the bottle is based on conjecture, guess, or 

random judgment. This conclusion is not based upon any fact 

in the record before this Court. 

Terry testified that he heard voices in the tunnel. We 

are compelled to infer from Terry's direct testimony that 

those voices emanated from the car that the unknown driver was 
9

operating. Even if the voices did not emanate from the car 

that the unknown driver was operating, Terry's testimony that 

he heard voices indicated that other persons were in the 

tunnel, and one of those persons may have thrown the bottle 

that injured Terry. Terry has the responsibility to present 

evidence from which the jury could infer the driver of the 

unknown vehicle threw the bottle. The plaintiff failed to 

present such evidence.*

For the foregoing reasons, we will reverse the judgment 

of the circuit court and enter final judgment on behalf of 

John Doe. 

Reversed and final judgment. 

JUSTICE KINSER, with whom JUSTICE LACY and JUSTICE LEMONS 

join, dissenting. 

 I respectfully dissent because, in my view, the jury 

could have reasonably inferred from the evidence that John Doe 

was negligent. I would therefore affirm the circuit court’s 

judgment in favor of Russell Terry. 

 The majority’s holding today departs from several wellestablished principles. First, the jury, not this Court, 

determines the credibility of the witnesses and the weight of 

 *

 In view of our holding, we need not consider the 

litigants' remaining arguments. 
10

the evidence. See Southern Floors & Acoustics, Inc. v. MaxYeboah, 267 Va. 682, 686, 594 S.E.2d 908, 911 (2004) 

(“Determining the credibility and the weight of the evidence 

is the province of . . . the jury.”). Second, “[i]f there is 

evidence to sustain the verdict, this [C]ourt should not 

overrule it and substitute its own judgment, even if its 

opinion might differ from that of the jury.” Snyder v. 

Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961). 

Third, a verdict should stand “[w]hen conflicting inferences 

have been resolved by a jury and those necessarily underlying 

the conclusion reflected in the verdict are reasonably 

deducible from the evidence.” Henderson v. Gay, 245 Va. 478, 

481, 429 S.E.2d 14, 16 (1993). Finally, Terry, as the 

prevailing party in the circuit court, is entitled to have the 

evidence and all reasonable inferences viewed in the light 

most favorable to him. Atrium Unit Owners Ass’n v. King, 266 

Va. 288, 293, 585 S.E.2d 545, 547 (2003). 

With these principles in mind, I conclude, unlike the 

majority, that Terry proved how and why the accident happened. 

As the majority tacitly acknowledges, the jury could have 

reasonably inferred from the evidence showing glass and a 

piece of a bottle in close proximity to Terry’s body that the 

object that struck him in the forehead was a bottle. Nor does 
11

the majority dispute that the jury could likewise have 

reasonably inferred that the bottle emanated from the third 

vehicle that passed Terry in the Hampton Roads Bridge Tunnel 

(the Tunnel) on the morning of the accident. Terry 

affirmatively stated that the object did not originate from 

the tractor-trailer because that vehicle had already passed 

him when he was struck, and he testified that the object hit 

him within moments of seeing the third vehicle approaching 

from the bottom of the Tunnel and hearing the “catcalls.” We 

also know the third vehicle was being operated at the time of 

Terry’s accident and the identity of its driver is unknown. 

It is therefore not conjecture or speculation to conclude that 

Doe was present in the Tunnel when the bottle struck Terry. 

 Thus, the primary issue upon which this appeal turns is 

whether the jury could have reasonably inferred from the facts 

presented that Doe threw the bottle, i.e., that he was 

negligent. The majority concludes that Terry’s testimony 

indicated there may have been more than one person in the 

third vehicle and that, since he could not say whether the 

offending object came from the passenger or driver side of the 

vehicle, Terry’s “conclusion that the driver of the 

unidentified vehicle threw the bottle is based on conjecture, 

guess, or random judgment.” I disagree. 
12

In my view, reasonable minds could draw different 

inferences from the evidence in this case, and under such 

circumstances, it is incumbent upon the reviewing court to 

respect the inference actually drawn by the fact finder. See

Hoar v. Great Eastern Resort Mgmt., Inc., 256 Va. 374, 388, 

506 S.E.2d 777, 786 (1998) (“A verdict may be properly based 

upon reasonable inferences drawn from the facts. If facts are 

present from which proper inferences may be drawn this is 

sufficient.”) (quoting Northern Virginia Power Co. v. Bailey, 

194 Va. 464, 470, 73 S.E.2d 425, 429 (1952)); see also Snyder, 

202 Va. at 1016, 121 S.E.2d at 457. Terry testified that just 

prior to something striking the front, right side of his 

forehead, he heard what he described variously as “some people

yelling in the [T]unnel” and “catcalls” like “somebody

whooping it up coming through there.” Thus, while the jury 

could reasonably have inferred from part of Terry’s testimony 

that there was more than one person in the third vehicle, the 

jury also could have reasonably inferred that Terry heard 

“catcalls” from a single occupant of the third vehicle. Our 

prior decisions counsel against disturbing the fact finder’s 

resolution of conflicting inferences in favor of the party 

prevailing at trial. Henderson, 245 Va. at 481, 429 S.E.2d at 

16 (jury is “free to choose among all reasonable inferences” 
13

that can be deduced from the evidence); Lane v. Scott, 220 Va. 

578, 582, 260 S.E.2d 238, 240 (1979).

 Furthermore, I disagree with the majority’s apparent 

belief that Terry’s burden included an obligation to 

affirmatively disprove the presence of a passenger in the 

vehicle driven by Doe. Terry’s inability to say whether the 

bottle came from the driver or passenger side of the third 

vehicle did not reduce the jury’s verdict to speculation. In 

the absence of any affirmative evidence with regard to whether 

there was or was not a passenger in that vehicle, the jury 

could have reasonably inferred that the unknown driver of the 

vehicle threw the bottle. Terry did not have to prove that 

there was not a passenger in the vehicle in order for the jury 

to have drawn that inference. 

 For these reasons, I respectfully dissent and would 

affirm the judgment of the circuit court.∗

 ∗

 I also find no merit in Doe’s second assignment of error 

challenging the timing of the circuit court’s finding that 

Terry’s injuries arose out of the use of a vehicle. Normally, 

the issue of coverage afforded by an insurance policy is 

decided in a motion for declaratory judgment. See Rodgers v. 

Danko, 204 Va. 140, 143, 129 S.E.2d 828, 830 (1963). However, 

based on the record in this case, I cannot say the circuit 

court erred in finding that the parties, prior to the jury 

trial, agreed to submit the coverage issue to it for 

resolution.