Present: All the Justices 

LOIS EVONE CHERRY 

v. Record No. 951876 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 September 13, 1996 

D.S. NASH CONSTRUCTION 

COMPANY 

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY 

H. Selwyn Smith, Judge Designate 

 In this appeal, we consider the admissibility of (1) a state 

trooper's field notes made during his investigation of a motor 

vehicle accident, and (2) a report made by the Virginia 

Department of Transportation (VDOT) evaluating a contractor's 

performance of a highway construction contract. 

 On October 9, 1991, a vehicle driven by Lois E. Cherry 

collided "head-on" with a pickup truck driven by Larry W. Nash, a 

project superintendent for D.S. Nash Construction Company (Nash 

Construction). The accident occurred in Campbell County on Route 

501 near its intersection with Route 670. At the time of the 

accident, Nash Construction was under contract with VDOT to build 

two new lanes of Route 501 parallel to the existing two lanes. 

 Cherry filed a motion for judgment alleging both gross and 

ordinary negligence against Nash Construction for failing to warn 

drivers of the change in the traffic pattern when it opened the 

two new highway lanes. Cherry contended that Nash Construction 

failed to remove construction barrels, which were erected along 

the "crossover" area of the median strip at the intersection of 

Routes 501 and 670 (the intersection), when the new lanes were 

opened to traffic. She asserted that the absence of this and 

other safety measures caused her to conclude that the new portion 
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of the roadway was not open for traffic, and that traffic in both 

directions was proceeding on the original portion of the roadway. 

 Cherry sustained severe injuries as a result of the collision. 

 At trial, the evidence showed that during the afternoon 

hours of October 8, 1991, VDOT and Nash Construction opened the 

two new lanes of Route 501 to northbound traffic and made both 

the original lanes open to southbound traffic. Larry Nash was 

the project superintendent who directed all aspects of the 

construction, including project safety. He testified that Nash 

Construction was responsible for removing the construction 

barrels when the new traffic lanes were opened. 

 The parties presented conflicting evidence on the issue 

whether Nash Construction removed the construction barrels from 

the median crossover before the accident happened. The evidence 

also was conflicting on the issue whether "wrong way" and "do not 

enter" signs were placed on the original roadway several days 

before the traffic pattern actually changed, causing motorists to 

disregard the signs. 

 Cherry attempted to introduce in evidence a statement 

contained in the field notes made by State Trooper Colin E. 

Davidson at the accident scene. The statement, purportedly made 

by State Trooper C. Bruce Stauffer, was recorded by Trooper 

Davidson as follows: "Do Not Enter [and] Wrong Way signs put up 

over two weeks prior to road being opened (per Bruce Stauffer)." 

 Trooper Stauffer testified by deposition that he could not 
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remember when the signs were erected, but stated that he had been 

familiar with the condition of Route 501 during the construction 

period. The trial court ruled that, under Code § 46.2-379, the 

field notes were inadmissible because they were incorporated into 

the accident report that Trooper Davidson prepared and filed with 

the Department of Motor Vehicles (DMV). 

 During the testimony of Vester Clifton, a VDOT construction 

inspector, Nash Construction offered in evidence a VDOT 

"Contractor's Past Performance Report," which Clifton had 

prepared. The report included Clifton's assessment of Nash 

Construction's attitude and cooperation, equipment, organization 

and management, and use of "disadvantaged/women" business 

enterprises. The report also noted that Nash Construction had 

not been cited for any safety violations over the course of the 

entire 18-month project. 

 Cherry objected to the admission of Clifton's report on the 

grounds that it was irrelevant and constituted prejudicial "good 

character" evidence. The trial court overruled the objection and 

admitted the report in evidence. 

 The trial court struck the gross negligence claim and 

instructed the jury on ordinary negligence. The jury returned a 

verdict in favor of Nash Construction, and the trial court 

confirmed the verdict. This appeal followed. 

 Cherry first argues that the trial court erred in admitting 

in evidence the VDOT report prepared by Clifton. Cherry asserts 
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that the VDOT report contained impermissible evidence of 

collateral facts purporting to show that Nash Construction was 

not negligent on other occasions. 

 In response, Nash Construction asserts that the information 

in the report concerning its safety record was relevant to the 

claims of both gross and ordinary negligence. Nash Construction 

also contends that the report was admissible because it provided 

circumstantial evidence corroborating other testimony that the 

barrels had been removed from the construction site on the day 

before the accident occurred. We disagree with Nash 

Construction. 

 In a negligence action, evidence is inadmissible to show 

that a defendant was not negligent on other occasions or was in 

the habit of conducting itself in a safe and careful manner. 

Jackson v. Chesapeake & Ohio Ry., 179 Va. 642, 648, 20 S.E.2d 

489, 491 (1942). This rule is designed to ensure that evidence 

is relevant to the issues presented, namely, whether the 

defendant was negligent at the time of the acts complained of and 

whether any such negligence was a proximate cause of the 

plaintiff's injury. See Jackson at 649, 20 S.E.2d at 492. 

Evidence of collateral facts, from which no fair inferences can 

be drawn, tends to divert the jury from the issues before the 

court, to mislead the jury, and to excite prejudice. See Spurlin 

v. Richardson, 203 Va. 984, 990, 128 S.E.2d 273, 278 (1962). 

 Here, the VDOT report was irrelevant to the issue whether 
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Nash Construction was negligent on the date the accident 

occurred. Nash Construction's overall performance record, as 

well as the fact that it had not been cited by VDOT for safety 

violations on the job, had no probative value regarding the 

question whether Nash Construction had removed the barrels prior 

to the accident, or whether Nash Construction should have used 

flagpersons to direct traffic or taken other safety measures on 

the date of the accident. The admission of the report was also 

prejudicial because it invited the jury to speculate and to 

conclude improperly that Nash Construction could not have been 

negligent in this case, because it was not cited for any safety 

violations over the 18-month duration of the project. 

 Cherry next argues that the trial court erred in refusing to 

allow Trooper Davidson to testify about the statement in his 

field notes attributed to Trooper Stauffer. Cherry contends that 

Code § 46.2-379 only bars use of the actual accident report filed 

with the DMV, not the investigating officer's field notes made at 

the accident scene. 

 In response, Nash Construction asserts that Trooper 

Davidson's field notes were inadmissible, because they were 

incorporated into the DMV accident report and became a part of 

the report within the meaning of Code § 46.2-379. We disagree 

with Nash Construction. 

 Code § 46.2-379 provides, in relevant part, that "[a]ll 

[motor vehicle] accident reports made by investigating officers 
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. . . shall not be used as evidence in any trial, civil or 

criminal, arising out of any accident." This statute prohibits 

any such use of the report itself, but does not proscribe the use 

of otherwise admissible evidence contained in the report as long 

as the report itself, or a portion thereof, is not the evidence 

sought to be admitted. See Moore v. Warren, 203 Va. 117, 124, 

122 S.E.2d 879, 885 (1961). 

 In Moore, we held that admission of a diagram made by the 

investigating officer at the scene of a motor vehicle accident 

was not barred by the predecessor statute to Code § 46.2-379, 

even though the diagram was identical to the one filed in the 

officer's official accident report. Id. By contrast, in 

Galbraith v. Fleming, 245 Va. 173, 174-75, 427 S.E.2d 187, 188 

(1993), we held inadmissible a portion of an accident report, 

which contained a diagram of the accident made by the 

investigating officer, although the jury was not informed that 

the exhibit was part of the actual report. 

 The rationale underlying this distinction is plain. Code 

§ 46.2-379 bars any use of the accident report itself because 

there is a danger that the jury could attach more weight to it, 

as an official report, than is properly due. Davis v. Colgin, 

219 Va. 5, 7, 244 S.E.2d 750, 751 (1978). To prevent such 

improper assessment, no portion of the actual report will be 

admitted, even though any references to its official nature have 

been deleted. 
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 Here, Cherry did not offer in evidence a portion of the 

report itself. Rather, she sought to introduce in evidence the 

statement recorded by Trooper Davidson in his field notes. Thus, 

admission of the statement was not barred by Code § 46.2-379, 

even though the statement later appeared in the accident report.1

See Moore, 203 Va. at 124, 122 S.E.2d at 885. 

 For these reasons, we will reverse the trial court's 

judgment and remand the case for a new trial consistent with the 

principles expressed in this opinion. 

Reversed and remanded.

 

 1We do not consider the issue whether the statement was 

admissible under the past recollection recorded exception to the 

hearsay rule, because the trial court did not rule on this 

question.