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ROBERTS, et al.

September 17, 1999

Record No. 982556







James A. Luke, Judge

PRESENT: Carrico, C.J., Compton, Lacy, Keenan,
Koontz, and Kinser, JJ., and Stephenson, Senior Justice


The principal issue in this appeal is whether
the trial court erred in excluding certain expert opinion

James R. Roberts sued Timothy Paul Breeden,
seeking damages for personal injuries Roberts sustained in an
automobile collision that occurred in the City of Hopewell.
Roberts alleged that Breeden’s negligent operation of a motor
vehicle proximately caused his injuries. The case was tried to a
jury, which returned a verdict in favor of Roberts in the amount
of $30,000. The trial court entered judgment on the verdict, and
Breeden appeals.

On the morning of January 2, 1996, Roberts, a
police officer for the City of Hopewell, was operating a city
police car on Mesa Drive, a four-lane street divided by double
yellow lines. Roberts was proceeding in the far-right northbound
lane of travel. At the time, the roadway was wet from a recent

Roberts testified that, as he approached a
railroad crossing, he observed a pickup truck travelling in the
far-right southbound lane of the street and also approaching the
railroad crossing. Roberts thought the truck was exceeding the
35-mile-per-hour speed limit, and he planned to make a U-turn and
stop the truck. As Roberts slowed his vehicle, preparing to turn,
the truck crossed the railroad tracks, began to
"fishtail," crossed the double yellow lines, and
collided with Roberts’ patrol car. The truck’s rear bumper and
left rear tire struck the front of the police vehicle.

Breeden, the operator of the truck, testified
that, when he applied the truck’s brakes as he approached the
railroad tracks, the rear of his truck "slipped out to the
right." He then "countersteered" and reapplied the
brakes. At that point, however, the brakes locked, and the rear
end of the truck "swung . . . out to the
left," causing the truck to cross the double yellow lines
and collide with the police car.

A city police sergeant investigated the
accident. After Breeden mentioned the alleged brake problem to
the sergeant, the sergeant suggested that Breeden have a mechanic
examine the truck’s braking system.

Two days after the accident, Breeden’s truck
was towed to an automobile mechanic’s shop, owned and operated by
Chester Leroy Damron, a mechanic with 40 years’ experience.
Damron examined the truck’s braking system and found that the
left rear brake adjuster was "froze[n]."

At trial, Breeden sought to have Damron explain
to the jury how a frozen brake adjuster would affect the
operation and performance of a motor vehicle. The trial court,
however, sustained Roberts’ objection and refused to allow this

According to Breeden’s proffer, Damron would
have testified that a frozen brake adjuster prevents a vehicle’s
brakes from "working together." When the brakes are not
working together, one side of the vehicle "is going to want
to stop faster than the other side." This will cause the
vehicle to slide and "fishtail," especially when the
road’s surface is wet.

Roberts contends that the trial court properly
excluded Damron’s testimony because Damron could not say that the
frozen brake adjuster caused the accident. Damron’s testimony,
however, was not offered to prove the cause of the accident;
rather, it was offered merely to explain the effect a frozen
brake adjuster has on the operation and performance of a vehicle.

In Holmes v. Doe, 257 Va. 573,
578, 515 S.E.2d 117, 120 (1999) (decided after the trial court
ruled in the present case), we held that the trial court properly
allowed an expert witness to explain the principles of
hydroplaning and how a tire tread’s depth affects the operation
and performance of a vehicle under certain conditions. In Holmes,
we noted that the expert "never opined what the conditions
at the time and place of the accident were, nor did he offer an
opinion as to the cause of [the] accident. Rather, [the expert’s] testimony was limited to explaining the general relationship of
hydroplaning to wet road conditions, tire tread depth, and
speed." Id. We think the Holmes rationale
applies in the present case.

Roberts further contends that Damron’s
testimony was properly excluded because Damron "was unable
to testify as to the condition of the brake at the time of the
accident." Additionally, Roberts observes that "the
vehicle had experienced an impact in the area of the left rear
wheel in the . . . accident." The record shows
that Damron examined the truck’s braking system a mere two days
after the accident, and there is no indication or suggestion that
a change in the condition of the braking system had occurred
during the two-day period. Moreover, Damron stated that the
impact from the accident would not have caused the brake adjuster
to freeze. Therefore, we think these assertions by Roberts go
only to the weight to be given to Damron’s testimony and not to
its admissibility.

In sum, we conclude that Damron’s excluded
testimony was relevant because it tended to support Breeden’s
contention about why he lost control of his truck. The proffered
testimony was based upon the knowledge and experience of a
qualified mechanic and was not speculative. Moreover, Damron’s
opinion testimony related to a matter of inquiry that was beyond
the ordinary knowledge, intelligence, and experience of a jury. See,
e.g., Compton v. Commonwealth, 219 Va. 716,
726, 250 S.E.2d 749, 755-56 (1979); Neblett v. Hunter,
207 Va. 335, 339-40, 150 S.E.2d 115, 118 (1966). Therefore, we
hold that the trial court erred in excluding Damron’s proferred

A second issue is whether the trial court erred
in excluding the testimony of Edith Winters. During Roberts’
cross-examination, Breeden’s counsel asked him whether, on a
specific occasion, he had bragged to some police officers
"about how much money [he was] going to get out of this
lawsuit." Roberts denied making the statement, and he
neither objected to the question nor moved to have it and the
answer stricken.

When, however, Breeden’s counsel endeavored to
pursue the subject further by identifying Winters as the person
who heard Roberts’ alleged statement, Roberts’ counsel interposed
an objection. Roberts’ counsel argued that "to bring in
somebody . . . to contradict the statements is
improper." Counsel also asserted that Winters had not been
subpoenaed, put on the witness list, or "identified in
discovery as a witness."

The trial court sustained Roberts’ objection
and refused to allow Winters to testify. The record suggests that
the trial court determined that Winters’ testimony was not
relevant. Thereafter, Breeden proffered that Winters would have
testified that she "heard [Roberts], following the accident,
. . . talking to several police officers, bragging that
he was buying a new home and that he was going to get as much
money as he could out of the lawsuit."

On appeal, Roberts contends that Winters’
testimony was properly excluded because it was irrelevant on the
issues of credibility and damages. He also contends that the
exclusion was proper "to avoid the unfair surprise of an
undisclosed witness." We do not agree.

Generally, after a proper foundation has been
laid, the credibility of a witness may be impeached by showing
that the witness, on a prior occasion, made statements that were
inconsistent with or contradictory of the witness’ evidence at
trial. Cassady v. Martin, 220 Va. 1093, 1099, 266
S.E.2d 104, 107 (1980); Neblett, 207 Va. at 340, 150
S.E.2d at 119. Thus, in the present case, Winters’ testimony was
proper because it impeached Roberts’ credibility. Having allowed
Breeden to lay a foundation for Roberts’ statement, the trial
court erred in excluding evidence that contradicted the

Testimony is relevant, and should be considered
by a jury, if, when considered in relation to other evidence in
the case, it tends to establish a party’s claim or defense or
adds force and strength to other evidence bearing upon an issue
in the case. McNeir v. Greer-Hale Chinchilla Ranch,
194 Va. 623, 628, 74 S.E.2d 165, 169 (1953). "The criterion
of relevancy is whether or not the evidence tends to cast any
light upon the subject of the inquiry." Id. at 629,
74 S.E.2d at 169. Therefore, in the present case, Winters’
testimony also was admissible to prove an admission by Roberts on
the merits of the case. See, e.g., Tyree v. Lariew,
208 Va. 382, 385, 158 S.E.2d 140, 143 (1967), and cases cited
therein. Roberts’ statement related to and tended to cast light
upon the issue of his injuries and the extent of his damages.

Accordingly, we will reverse the trial court’s
judgment and remand the case for a new trial.

Reversed and remanded.


We also conclude that, because Winters was offered in
rebuttal, Breeden was not required to have disclosed her as a
witness. Whether she became a witness depended upon Roberts’
testimony at trial.