Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Burden of Proof  Evidence and the related topic of personal injury. For more information about burden of proof issues see the page on Wikipedia.

Burden of Proof Evidence-Cases

 

1992 Rogers v. Marrow, 243 Va. 162, 413 S.E.2d 344.

Burden of proof evidence.Jury verdict for defendant in this medical malpractice case should not have been set aside by trial court. Burden of proof is on plaintiff to prove standard of care, deviation, proximate cause, and damages. Even in absence of defense evidence to contrary, jury could have found simply that plaintiff failed to meet burden of proof.

1991 Greater Richmond Transit Co. v. Wilkerson, 242 Va. 65, 406 S.E.2d 28.

Burden of proof evidence.Plaintiff injured when parked bus began to roll backwards even though operator claimed she had engaged brake and interlock system. Plaintiff did establish prima facie case since circumstantial evidence, if believed, showed lack of any mechanical defect in brake and interlock system and negated inference of unexplained mechanical failure.

1989 Lawson v. Doe, 239 Va. 477, 391 S.E.2d 333.

Burden of proof evidence.Plaintiff who alleges negligence must show why and how accident happened. This cannot be left to conjecture. In this wrongful death case against John Doe, no witnesses to accident and plaintiff unable to establish how accident happened. Judgment for defendant.

1985 Lawrence v. Snyder, 229 Va. 139, 326 S.E.2d 690.

Burden of proof evidence.Water damage case. Plaintiff must show how and why accident occurred. Evidence that defendants knew pipes would freeze unless proper precautions were taken, and evidence they did freeze causing damage and that condition not discovered during two-day period is insufficient to show why accident happened, and therefore insufficient to establish negligence. Evidence must show more than that incident resulted from either of two causes, one of which defendants are responsible.

1984 Culberson v. McCloud, 227 Va. 249, 315 S.E.2d 219.

Burden of proof evidence.To constitute actionable negligence there must be legal duty, breach thereof and injury caused by breach. Plaintiff offered evidence that Chevrolet vehicle that struck her from rear had been repaired two months before accident by defendant, Al’s Brake Service, after codefendant, Alston, owner of another service station, had recommended to car’s previous owner that brakes be repaired. Previous owner could provide no evidence as to what repairs Al’s had made on car. Court held that they could find no proof of legal duty that Alston owed plaintiff, and, as such, motion to strike as to Alston was affirmed. Since record is devoid of any proof as to kind of brake work done by Al’s, motion to strike as to him likewise was properly sustained.

1984 Page v. Arnold, 227 Va. 74, 314 S.E.2d 57.

Burden of proof evidence.Plaintiff alleged that pony jumped fence and as result was standing in middle of road when accident occurred. There was testimony that it was possible that pony could have jumped fence and that she was “a jumper.” Proof of possibility that fact exists is not enough to take issue out of sphere of pure conjecture, and, as such, is not sufficient for jury to be permitted to consider question. Evidence must prove more than probability of negligence. Plaintiff must show why and how accident happened. Although it is true that pony may have jumped fence, it is just as likely that some unknown person opened and then closed gate or that pony became excited by another animal and somehow managed to escape.

1984 Hoffner v. Kreh, 227 Va. 48, 313 S.E.2d 656.

Burden of proof evidence.Negligence cannot be presumed from mere happening of accident. In this instance pedestrian apparently was lying in roadway and he was struck. Plaintiff failed to show why and how accident happened, and, as such, summary judgment was properly entered.

1983 Graves v. National Cellulose Corp., 226 Va. 164, 306 S.E.2d 898.

Burden of proof evidence.In this negligence action involving allegations of improper application of insulation material court held that there was sufficient evidence to create jury issue in part because of apparent discrepancies between how application equipment should have been set and how it in fact was set.

1983 Town of West Point v. Evans, 224 Va. 625, 299 S.E.2d 349.

Negligence cannot be presumed from mere occurrence of damage; burden on plaintiff to produce evidence of preponderating weight from which trier of fact can find that defendant was guilty of negligence that was proximate cause of event resulting in damage. In this sewage backup case plaintiff failed to meet burden of proof.

1982 Farren v. Gilbert, 224 Va. 407, 297 S.E.2d 668.

Burden of proof evidence.Negligence constitutes actionable tort only when it is shown to be proximate cause of injury. For circumstantial evidence to establish prima facie case of negligence and causation it must show more than that accident resulted from one of two causes. Plaintiff did not meet burden in this case where plaintiff run over by backing truck.

1981 McManama v. Wilhelm, 222 Va. 335, 281 S.E.2d 813.

Burden of proof evidence.Plaintiff has burden of showing how accident happened. Plaintiff failed to show where, when and how decedent entered intersection.

1981 Virginia Heart Inst. v. Northside Elec. Co., 221 Va. 1119, 277 S.E.2d 216.

Burden of proof evidence.Negligent installation of fire alarm system. It is not necessary that circumstances establish negligence with such certainty as to exclude every other possible conclusion.

1980 Newton v. Veney & Raines, 220 Va. 947, 265 S.E.2d 707.

Burden of proof evidence.Plaintiff did not know which of two defendants caused accident but it was evident that accident not unavoidable. Jury issue presented.

1978 Sneed v. Sneed, 219 Va. 15, 244 S.E.2d 754.

Burden of proof evidence.Negligence cannot be presumed from mere happening of accident. Burden is on plaintiff to produce evidence of preponderating weight from which trier of fact can find that defendant was guilty of negligence that was proximate cause of accident. Plaintiff must show how and why accident happened.

1976 Duffer v. Newman, 217 Va. 415, 229 S.E.2d 860.

Burden of proof evidence.Defendant’s vehicle left highway without explanation. No evidence as to what caused defendant to lose control. Cannot presume negligence from mere happening of accident. Action of trial court in setting aside jury verdict affirmed.

1976 Waters v. Holloman, 216 Va. 726, 222 S.E.2d 549.

Plaintiff’s evidence that he was driving at lawful speed, in proper lane, and that he had neither stopped, slowed, applied his brakes nor turned from his lane did not establish how and why accident occurred.

1976 Colonial Motor Freight v. Nance, 216 Va. 552, 221 S.E.2d 132.

Plaintiff passed by tractor-trailer and thereafter lost control. No evidence of how or why accident happened.

1975 Clark v. Clark, 216 Va. 539, 221 S.E.2d 123.

Evidence showed disregard of warning signs, speed and consumption of alcohol. This was sufficient along with other physical evidence to establish how and why accident happened.

1975 Surface v. Johnson, 215 Va. 777, 214 S.E.2d 152.

Airplane crash. Res ipsa loquitur not applicable. Although precise reason for crash not established, fact that defendant was unlicensed inexperienced student pilot flying in adverse weather in rugged territory created jury issue.

1973 Williams v. Peters, 213 Va. 652, 194 S.E.2d 713.

Burden of proof evidence.Motor vehicle case; defendant’s testimony exonerated him. Testimony of plaintiff’s witnesses was vague, rambling and contradictory. Plaintiff was left with no evidence as to what caused collision.

1973 John Doe v. Houser, 213 Va. 617, 194 S.E.2d 754.

Burden of proof evidence.Plaintiff rear-ended by unknown uninsured motorist; plaintiff failed to prove negligence and causation. Verdict cannot rest upon speculation and conjecture. Negligence cannot be presumed from mere happening of accident.

1972 Myers v. Sutton, 213 Va. 59, 189 S.E.2d 336.

Burden of proof in negligence case is always on plaintiff and this burden of proof never shifts. When plaintiff makes out prima facie case, it is defendant’s duty to go forward with evidence.

1972 Brennan v. Kaylor, 213 Va. 33, 189 S.E.2d 371.

Burden of proof evidence.Vehicle left highway and crashed into field. Plaintiff failed to show how and why accident occurred. Guest action; gross negligence definitely not shown. Plaintiff argued that since defendant claimed no physical injury, vehicle was in good mechanical condition and highway was free from defect, evidence negated all external factors that might have caused accident and eliminated all possibility except driver error.

1972 Layne v. Boyd, 212 Va. 751, 188 S.E.2d 86.

Burden of proof evidence.Plaintiffs evidence failed to show how accident occurred and will not support plaintiff’s verdict.

1971 McFadden v. Garrett, 211 Va. 680, 179 S.E.2d 482.

Burden of proof evidence.Negligence cannot be presumed from mere happening of accident. Car in which plaintiff was passenger left highway and struck tree for unexplained reason.

1970 Riley v. Harris, 211 Va. 359, 177 S.E.2d 630.

Burden of proof evidence.Plaintiff struck head-on by defendant while defendant, in plaintiff’s lane of travel, passed truck. Plaintiff made out prima facie case. Burden shifted to defendant to explain her presence.

1970 Sykes v. Langley Cabs, Inc., 211 Va. 202, 176 S.E.2d 417.

Burden of proof evidence.Negligence cannot be presumed from mere happening of accident. It is incumbent on plaintiff to show how and why accident happened. If that is left to conjecture, guess, or random judgment, he cannot recover. Not necessary for plaintiff to negate every theory or possibility that accident occurred in some manner that would relieve defendant of liability.

1970 Foster v. Wilhite, 210 Va. 589, 172 S.E.2d 745.

Burden of proof evidence.No explanation provided as to why defendant’s vehicle left his lane of travel and skidded 175 feet. Plaintiff eliminated all reasonable causes of accident except defendant’s negligence.

1970 Lumpkin v. Doe, 210 Va. 571, 172 S.E.2d 790.

Burden of proof evidence.Although plaintiff had amnesia as to how accident happened, physical evidence and plaintiff’s recall of his location just before accident were sufficient to establish how and why accident happened.

1968 Virginia Stage Lines v. Brockman Chevrolet, Inc., 209 Va. 188, 163 S.E.2d 148.

Burden of proof evidence.Mere happening of accident will not be basis for presumption of negligence, nor can verdict be based on conjecture or random judgment. Plaintiff established negligence per se on part of defendant but failed to show proximate cause.

1968 Jordan v. Taylor, 209 Va. 43, 161 S.E.2d 790.

Burden of proof evidence.Improper to instruct jury that evidence must show more than possibility of negligence. Possibility should be replaced with probability.

1968 Elliott v. Anderson, 208 Va. 753, 160 S.E.2d 775.

Burden on plaintiff to establish how and why accident happened. Plaintiff pedestrian struck. Defendant’s testimony uncontradicted as adverse witness. Judgment for defendant.

1968 Hicks v. Cassidy, 208 Va. 610, 159 S.E.2d 827.

Burden of proof evidence.One vehicle accident. No survivors or eyewitnesses. Plaintiff failed to show how and why accident happened.

1966 Pepsi-Cola Bottling Co. v. Yeatts, 207 Va. 534, 151 S.E.2d 400.

Burden of proof evidence.Exploding bottle case. Negligence not shown. Negligence cannot be presumed from mere happening of accident.

1966 Carolina, C. & O.R.R. v. Mullins, 207 Va. 207, 148 S.E.2d 752.

Negligence will never be presumed. In absence of evidence on question, actor will be presumed free from negligence.

1966 Bridgeforth v. Gibbs, 207 Va. 127, 148 S.E.2d 763.

Negligence cannot be presumed from mere happening of accident. Plaintiff must show where, how and why accident happened.

1966 Bare v. Jones, 206 Va. 848, 147 S.E.2d 145.

Auto accident. Burden on plaintiff to show how and why accident happened.

1965 Canupp v. Wade, 205 Va. 850, 140 S.E.2d 659.

Intersection accident. Negligence not presumed from mere accident.

1963 Weddle v. Draper, 204 Va. 319, 130 S.E.2d 462.

Negligence cannot be presumed from happening of accident. It is incumbent on plaintiff to show how and why accident happened. Plaintiff’s evidence failed to show position of plaintiffs car when defendant entered intersection, point of collision, and how and why accident occurred and, as such, was insufficient.

1962 Spurlin v. Richardson, 203 Va. 984, 128 S.E.2d 273.

Plaintiff injured while playing on tractor. Tractor lunged forward for unknown reason. Motion to strike granted.

1961 Safeway v. Tolson, 203 Va. 13, 121 S.E.2d 751.

Where evidence shows that one of several things may have caused injury, only some of which defendant is responsible for, then plaintiff has failed to prove case.

1961 Murphy v. Saunders, 202 Va. 913, 121 S.E.2d 375.

Negligence is not presumed from mere happening of accident. What is proved must establish more than probability of negligence. It is incumbent on plaintiff to show why and how accident happened. Plaintiff unable to establish why can fell off shelf in store.

1961 Dishman v. Pitts, 202 Va. 548, 118 S.E.2d 509.

Mere happening of accident creates no inference of negligence. Mere fact that collision occurred on plaintiff’s side of road creates no inference of gross negligence.

1961 Bedget v. Lewin, 202 Va. 535, 118 S.E.2d 650.

Statement within instruction which says that burden on plaintiff is to convince jury by greater weight of evidence is improper. Use of word convince increases burden.

1960 Newton v. Carpenter, 202 Va. 347, 117 S.E.2d 109.

Burden of proof evidence.Mere happening of accident raises no presumption of negligence.

1960 Pickett v. Cooper, 202 Va. 60, 116 S.E.2d 48.

Burden of proof evidence.Use of words “as likely as not” in instruction as to burden of proof is incorrect.

1959 Brooks v. Hufham, 200 Va. 488, 106 S.E.2d 631.

Burden of proof evidence.One who alleges negligence must show more than probability of negligent act. It is incumbent on plaintiff to show how and why accident occurred.

1958 Barnes v. Barnes, 199 Va. 903, 103 S.E.2d 199.

Motor vehicle left road and crashed. No presumption of negligence can be gained from mere happening of accident.

1957 Burks v. Webb, 199 Va. 296, 99 S.E.2d 629.

Discussion of phrases “preponderance of evidence” and “to the satisfaction of the jury.” Use of latter in instructions is not reversible error but it is not preferred.

1957 Hoier v. Noel, 199 Va. 151, 98 S.E.2d 673.

Happening of accident does not establish negligence. Dart out case.

1957 Collins v. Smith, 198 Va. 778, 96 S.E.2d 818.

Verdict may be properly based on reasonable inferences drawn from facts. Frequently, material facts are not proved by direct evidence.

1956 Ward v. Lewis, 197 Va. 811, 91 S.E.2d 893.

Burden is on plaintiff to prove not only that defendant was negligent, but that his negligence was proximate cause of accident. Mere inference of possibility of defendant’s negligence was not sufficient to establish his liability.

1956 Pike v. Eubank, 197 Va. 692, 90 S.E.2d 821.

Burden of proof was on plaintiff to prove all essential particulars of his case. He cannot recover if evidence is evenly balanced. To go further in instructing jury is objectionable because it overstrengthens defendant’s position.

1955 Edmonds v. Mecklenburg Elec. Coop., 197 Va. 540, 90 S.E.2d 188.

Plaintiff fell into unguarded hole dug by defendant. Plaintiff unconscious and did not know how accident occurred. Jury issue as to causation.

1955 Short v. Lang, 197 Va. 104, 87 S.E.2d 776.

Where there is credible evidence to support either litigant’s version, finding of jury settles issue of whose negligence caused mishap.

1955 Olds v. Wood, 196 Va. 960, 86 S.E.2d 32.

Shampoo ignited by match. Mere happening of accident not sufficient to allow recovery.

1954 Tolbert v. Gillespie, 195 Va. 647, 79 S.E.2d 670.

Head-on collision at curve. Negligence cannot be presumed from mere happening of accident. Burden is on plaintiff to prove it was due to negligence of defendant as proximate cause. Must prove more than probability of negligence.

1953 Kidd & Taylor v. Little, 194 Va. 692, 74 S.E.2d 787.

Plaintiff must recover, if at all, on strength of his own case not on weakness or falsity of defense.

1953 Worrell v. Winstead, 194 Va. 597, 74 S.E.2d 62.

Negligence cannot be presumed from mere happening of accident. Plaintiff’s testimony is that defendant was exceeding speed limit; no evidence of what actual speed or speed limit was and plaintiff further testified that defendant was weaving in and out of traffic and suddenly applied brakes with result that plaintiff was thrown about; this is not sufficient to allow case to go to jury.

1952 Northern Va. Power Co. v. Bailey, 194 Va. 464, 73 S.E.2d 425.

Decedent electrocuted. All that is required to justify jury verdict for plaintiff is proof that leads to conclusion with probable certainty where absolute logical certainty is impossible.

1952 Pioneer Constr. Co. v. Hambrick, 193 Va. 685, 70 S.E.2d 302.

If fair-minded men may honestly differ from proofs submitted as to negligence or contributory negligence charged, question is not one of law, but one of fact for jury under proper instructions from court.

1951 Dudley v. Guthrie, 192 Va. 1, 63 S.E.2d 737.

Evidence must show more than probability of negligence exists. Plaintiff must show how and why accident occurred.

1951 Tri-State Coach Corp. v. Stidham, 191 Va. 790, 62 S.E.2d 894.

Defendant’s proposed instruction telling jury that plaintiff could not recover if occurrence was mere accident could have been understood by jury to mean that plaintiff could not recover if act was unintentional. There was no good reason for requiring instruction to be given which, though technically correct, might have been misleading if same principle was made clear by other instructions. Instructions properly refused.

1950 Beer Distribs., Inc. v. Winfree, 190 Va. 521, 57 S.E.2d 902.

Where there are two possible causes of accident and preponderance of evidence does not point to either one, then to allow matter to go to jury would allow them to speculate.

1950 Guthrie v. Carter, 190 Va. 354, 57 S.E.2d 45.

Negligence cannot be presumed from mere happening of accident; plaintiff struck while walking either on roadway or shoulder.

1949 Keith v. Clinchfield Coal Corp., 189 Va. 592, 54 S.E.2d 126.

Plaintiff claimed negligence on part of his employer for his contracting silicosis. Held: for defendant employer. Negligence is not to be presumed, burden rests upon plaintiff to prove facts from which it can reasonably be inferred.

1949 Hall v. Payne, 189 Va. 140, 52 S.E.2d 76.

Airplane crash. Cause of accident must not be left to conjecture.

1947 Vaughn & Spears v. Huff, 186 Va. 144, 41 S.E.2d 482.

Burden is on plaintiff to present evidence that establishes more than mere probability of negligence. It is not sufficient that evidence is consistent equally with existence or nonexistence of negligence.

1946 Clark v. Hodges, 185 Va. 431, 39 S.E.2d 252.

Burden of proof in civil case is preponderance of evidence.

1945 Keen v. Harmon, 183 Va. 670, 33 S.E.2d 197.

Mere fact that vehicle went out of control is not sufficient to establish negligence.

1944 Richter v. Seawell, 183 Va. 379, 32 S.E.2d 62.

Evidence must show more than probability of negligent act.

1944 Bly v. Southern Ry., 183 Va. 162, 31 S.E.2d 564.

There are cases in which no witness disputes another in any material respect yet question of fact arises whenever men of good judgment and honest intention may differ as to legitimate conclusion. Plaintiff rear trainman fell off bridge when train stopped on bridge. There was no clear showing as to why he fell. Jury issue presented as to causation.

1943 Beamer v. Virginian Ry., 181 Va. 650, 26 S.E.2d 43.

FELA suit. Plaintiff died as result of excessive heat in area where he was working. Mere happening of accident is not grounds for establishing negligence.

1943 Willard Stores, Inc., v. Cornell, 181 Va. 143, 23 S.E.2d 761.

Burden on plaintiff to show that defendant’s primary negligence was proximate cause of accident.