September 18, 1998
Record No. 972102




James L. Berry, Judge

Present: All the Justices

In this appeal, we consider whether the trial court erred in
striking the plaintiff’s evidence and entering summary judgment
in favor of the defendant on the ground that the evidence showed,
as a matter of law, that the plaintiff was contributorily
negligent because he failed to keep a proper lookout.


"When summary judgment is based upon the granting of a
motion to strike a party’s evidence, we view the evidence and the
inferences reasonably raised thereby in the light most favorable
to the party whose evidence has been stricken." Griffin
v. The Spacemaker Group, Inc.
, 254 Va. 141, 142, 486 S.E.2d
541, 542 (1997).
This case involves a two-vehicle accident that occurred on U.S.
Route 50 in Frederick County during the pre-dawn hours of
December 20, 1993. At the location of the accident, Route 50 is a
four-lane highway divided by a grass median strip. The accident
occurred in the right-hand eastbound lane of Route 50 a short
distance beyond a cut-through in the median that permitted
vehicles to enter and exit Perry Engineering Company, located on
the north side of Route 50.
According to his testimony at trial, Mark A. Claycomb was
travelling eastbound on Route 50 in the right-hand lane within
the posted speed limit. As Claycomb approached the cut-through,
he noticed a truck stopped in the entrance to Perry Engineering
Company. Donald Glenn Didawick was the operator of that truck.
Claycomb testified that, after he observed the truck, a
tractor-trailer travelling in the eastbound left-hand lane pulled
abreast of his vehicle so that just before reaching the
cut-through the tractor-trailer and Claycomb’s vehicle were
"side by side."
Claycomb next observed that the truck he had seen on the opposite
side of Route 50 was now travelling directly ahead of him in the
eastbound right-hand lane. Claycomb testified that he "had
nowhere to go, because the [tractor-trailer was passing him] on
the [left] side." As the tractor-trailer pulled ahead,
Claycomb attempted to swerve to the left, but "ended up
catching the end of [the truck] with my car." Claycomb’s
vehicle was heavily damaged and spun into the median strip.
Claycomb was severely injured as a result of the accident and
testified that he could recall nothing that occurred thereafter.
Ron Kendra, a Virginia State Trooper, testified that he arrived
at the accident scene at approximately 6:09 a.m. on December 20,
1993. Kendra further testified that he took a statement from
Didawick in which Didawick asserted that he had observed both the
tractor-trailer and Claycomb’s vehicle in the right-hand lane of
eastbound Route 50 before beginning his left turn out of the
Perry Engineering Company entrance. Didawick told Kendra that he
believed both vehicles "had plenty of time" to change
lanes, and that after he moved into the right-hand lane the
tractor-trailer "moved over, but the car didn’t."
Trooper Mark F. Quince, a member of the Safety Division in Motor
Carrier Safety for the Virginia State Police, testified that he
investigated the accident later on the morning of December 20,
1993. Quince testified that Didawick’s truck was equipped with a
five-foot long rollback gate in violation of state regulations.
Quince further testified that the rollback gate had no lights or
reflectors, thus leaving the rear five feet of the truck in
darkness. In addition, he testified that the left rear marker
lamp on the main body of the truck was inoperable and the rear
side reflectors were also missing.
At the conclusion of the plaintiff’s evidence on liability and
before any evidence on damages had been received, Didawick moved
to strike Claycomb’s evidence and for summary judgment on the
ground that Claycomb had been contributorily negligent in failing
to keep a proper lookout. In a ruling subsequently incorporated
in the final order, the trial court sustained the motion to
strike the evidence and granted summary judgment to Didawick. The
trial court expressly ruled that Claycomb’s "view of the
truck was never obscured by the tractor[-]trailer. That [vehicle] was never in front of him," and, thus, Claycomb would have
been able to observe Didawick turn onto the highway in front of
Claycomb had he maintained a proper lookout. We awarded Claycomb
this appeal.


The standard under which a trial court should review the
evidence adduced at trial before granting a motion to strike the
case at the end of a plaintiff’s evidence is well settled under
prior decisions of this Court. That standard requires the trial
court to accept as true all the evidence favorable to the
plaintiff as well as any reasonable inference a jury might draw
therefrom which would sustain the plaintiff’s cause of action.
The trial court is not to judge the weight and credibility of the
evidence, and may not reject any inference from the evidence
favorable to the plaintiff unless it would defy logic and common

Austin v. Shoney’s, Inc., 254 Va. 134, 138, 486 S.E.2d
285, 287 (1997); see also Rule 3:18. This same
standard applies to our review of the evidence when a trial
court’s decision to strike the evidence in a bench trial is
challenged on appeal. Warehouse v.
Prudential Storage
, 208 Va. 784, 790, 161 S.E.2d 86, 90
(1968)(in a bench trial, court erred in sustaining a motion to
strike plaintiff’s evidence when evidence, viewed in light most
favorable to plaintiff, was not insufficient as a matter of law
to support a recovery).
Under this well established standard, we reject the trial
court’s finding that Claycomb’s "view of the truck was never
obscured by the tractor[-]trailer." Viewed in the light most
favorable to Claycomb, his testimony shows that after Claycomb
observed Didawick’s truck in the Perry Engineering Company
entrance, the tractor-trailer pulled abreast of Claycomb’s
vehicle and remained there until it passed him after Didawick’s
truck had already turned into the highway in front of him. The
inference that the tractor-trailer blocked Claycomb’s view to his
left and ahead is neither unreasonable nor contrary to common
sense. Similarly, the lack of adequate lighting and reflectors on
the rear of Didawick’s truck supports the reasonable inference
that Claycomb would not have been able to see Didawick’s truck
pull in front of him in the darkness. Accordingly, this evidence
did not establish as a matter of law that Claycomb was
contributorily negligent.
Didawick contends, however, that since this was a bench trial,
the trial court’s ruling is presumed to be correct and should be
given the deference afforded to a jury verdict. Didawick reasons
that since the trial court would ultimately rule on the factual
issues of the case, its determination that Claycomb’s view was
not obscured and that he failed to keep a proper lookout should
be sustained. We disagree.
Didawick’s contention fails to recognize the significance of the
posture of the case when the motion to strike was granted. At
that time, "the trial court was not sitting as the fact
finder but was ruling on a matter of law to determine whether
[Claycomb] had made out a prima facie case." Costner v. Lackey, 223 Va. 377, 382, 290
S.E.2d 818, 820 (1982). As we have shown, at that time the
evidence, when viewed in the light most favorable to Claycomb,
was not insufficient as a matter of law to support a recovery.
Accordingly, as we stated in Costner, "[i]n this
posture . . . the case was not ripe for disposition on
a motion to strike," id., and the trial court’s
ruling on that motion does not equate with a factual
determination at the close of the evidence on an issue, such as
contributory negligence, which Didawick had the burden of proving
by the greater weight of the evidence.
See Franconia
Associates v. Clark
, 250 Va. 444, 448, 463 S.E.2d 670, 673
(1995)(plaintiff’s contributory negligence is an issue to be
determined at conclusion of all evidence unless reasonable minds
could not differ); see also Karim v. Grover, 235
Va. 550, 552, 369 S.E.2d 185, 186 (1988)(defendant has burden of
proving plaintiff’s contributory negligence by greater weight of
the evidence).
For these reasons, we will reverse the judgment of the trial
court and remand the case for a new trial.
Reversed and remanded.