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

SHELBY INSURANCE COMPANY
                                        OPINION BY
v.   Record No. 971275         SENIOR JUSTICE RICHARD H. POFF
                                     February 27, 1998
EDWARD A. KOZAK, ET AL.

           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                      James B. Wilkinson, Judge

      In this appeal from a judgment for the plaintiff in a

second jury trial, the principal issue is whether the trial

court erred in limiting that trial to the issue of damages.

      Edward A. Kozak (the plaintiff) filed a motion for judgment

against Eyad Bn-Khalifa (the defendant) claiming $1.5 million in

damages for personal injuries sustained in an automobile

collision.   The plaintiff served the motion upon both the

defendant and Shelby Insurance Company (Shelby), which provided

uninsured motorist coverage to the plaintiff’s employer, Daniel

& Osborne Irrigation.

      The accident occurred in Richmond near the middle of the

intersection of Augusta Avenue and Kent Road.   The speed limit

on each road is 25 m.p.h.   Traffic running east and west on

Augusta is controlled by stop signs erected at the intersection.

The defendant was driving a passenger car east on Augusta

approaching Kent.   The plaintiff was operating his employer’s

pickup truck north on Kent approaching Augusta.
     The investigating officer testified that the damage to the

pickup was “to the full front of it”; that the damage to the car

was “[t]o the right side, the right side, all to the right

side”; and that the defendant’s east-bound car had come to rest

on the curb at the corner opposite the point of collision,

facing in a westerly direction.   The officer said that the

defendant estimated his speed approaching the intersection at 25

m.p.h. and that he said he “never saw the sign.”   In answer to

the officer’s inquiry, the plaintiff said that he had approached

the intersection at 20 m.p.h.

     The plaintiff testified at trial that his speed was

“twenty-five miles per hour tops”; that, when he was “2 car

lengths” from the intersection, he saw the defendant’s car

“[m]aybe 6 car lengths back”; and that he had “seen the stop

sign” on Augusta but did “not know for sure” whether the

defendant had stopped before he entered the intersection.     Asked

by his counsel if he had testified earlier that he had been “hit

right in front of the driver’s door on your truck”, the

plaintiff said that “the impact was on the left front of my car.

I don’t say it was in my door.    If I did, that was a mistake.”

     The plaintiff then described the injuries he had sustained

in the collision, the medical treatment he had received, the

suffering he had endured, the medical expenses he had incurred,

and the wages he had lost during his convalescence.   He had


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received $75,925.93 in medical bills, and he claimed $42,240 in

lost wages.

     The defendant testified that he was travelling at a speed

of 25 m.p.h. approaching the intersection.      Asked to explain his

“version of the story of this accident”, the defendant said:

          Okay. Before I get to that intersection there is a
     lot of cars parked on my right. So I stop at the stop
     sign. I looked to the left, then to the right, then to the
     left again. Both was clear for me, then I moved to the
     middle of the street. Before I get to the middle, . . . my
     friend was shouting my name and the accident happened.

     Aiman Al-Ammir, a passenger in the front seat of the

defendant’s car, testified that the defendant “stopped at the

stop sign”; that both the defendant and he “looked both ways”;

and that he “didn’t see any cars.”      He said that, when they had

“almost passed the middle of the intersection”, he saw the

pickup “coming fast”; that he “yelled” out the defendant’s name;

that “the collision took place”; and that “[o]ur car was turned

like 180 degrees.”

     At the conclusion of all the evidence, the plaintiff moved

to strike the defendant’s evidence and submit the case to the

jury limited to the question of damages.      The trial court

overruled that motion and instructed the jury on all issues

related to both liability and damages.

     The jury returned a verdict awarding the plaintiff “damages

at $50,000.00 with no interest.”       The plaintiff moved the court



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to set the verdict aside as inadequate and to limit a new trial

to the issue of damages.   The defendant asked the court to set

aside the verdict and grant a new trial on all issues.   The

trial court granted the plaintiff’s motion.   The second jury

returned a verdict awarding the plaintiff $400,000 in damages,

and we awarded Shelby an appeal.

                                   I

     In one of three assignments of error, Shelby contends that

the trial court erred in limiting the second trial to the issue

of damages.

     In support of a motion to set aside the first verdict, the

plaintiff’s counsel argued in the trial court that “it’s a

compromise verdict” and that “[a] verdict of less than the

specials, by our Supreme Court, cannot stand.”   Responding to

that argument, the trial court said, “My rulings have been if

the special damage is uncontested and [the verdict] is way below

the special damages, the Court sets the verdict aside and only

set [sic] the case for retrial on damages”.

     We find no error in the trial court’s denial of the

plaintiff’s motion to submit the case to the jury at the first

trial limited to the question of damages and in granting the

defendant’s instruction on the definition and effect of a

plaintiff’s contributory negligence.   Nor do we find error in

the court’s decision to set aside the verdict in the first


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trial.   But we are of opinion the court erred in limiting the

issue in the second trial to damages.

     The trial court apparently applies its rulings with respect

to setting aside verdicts and limiting the retrial to damages

only to cases in which “the special damage is uncontested and

[the verdict] is way below the special damages”.   However, those

rulings overlook the decisions of this Court in cases in which

it appears that the inadequacy of the damage award was the

result of a compromise reached by the jury.

     In Rawle v. McIlhenny, 163 Va. 735, 177 S.E. 214 (1934), we

defined the rules with respect to setting aside verdicts in five

classes of cases.   Concerning the class relevant here, we said:

          In the fifth class of cases where . . . the evidence
     with reference to liability has probably exerted a material
     influence upon the jury in determining the amount of the
     verdict, or the evidence warrants the inference that,
     instead of deciding the question of liability, the jury has
     arbitrarily determined to make both parties bear a part of
     the burden of the injury, . . . [and] the court sets aside
     a verdict of this class, it should grant a new trial on all
     issues.

          In all five classes a sound discretion is vested in
     the trial court as to whether . . . a new trial should be
     granted upon all issues, or limited to the question of
     damages . . . . However, in the exercise of this
     discretion it is always to be borne in mind that, before a
     new trial should be limited to the amount of damages, it
     should be reasonably clear that the misconduct or
     misconception of the jury from which the inadequacy of the
     verdict has resulted, has not extended to its determination
     of the question of liability as well as to its
     determination of the amount of damages.

163 Va. at 750-51, 177 S.E. at 221.


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     The issue of liability at the first trial was contested.

The jury may have accorded the recollection of the investigating

officer that the defendant said at the time of the accident that

he had not seen the stop sign greater weight than the testimony

of the defendant and his friend.       And, considering the testimony

concerning the location of the damage to the respective vehicles

and the force of an impact sufficient to turn the defendant’s

car from an eastward course to a westward heading, the jury

could have rejected the plaintiff’s testimony that he was not

exceeding the 25 m.p.h. speed limit as he approached and entered

the intersection.

     Applying the principles defined in Rawle, we will reverse

the ruling limiting the issue in the second trial to damages and

remand the case for a new trial on all the issues.

                                II

     In another assignment of error, Shelby contends that the

trial court “erred in the first trial by refusing to admit the

estimate of the Plaintiff’s speed by [the defendant’s]

passenger.”   Because that question may arise in a new trial on

remand, we will consider it now.

     Al-Ammir, the passenger in the defendant’s car, testified

that, when he first saw the pickup, it was “two and a half car

lengths away from the middle of the intersection where we were”;

that it was “coming fast”; and that he “yelled” out the


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defendant’s name, and “the collision took place.”   Asked if he

could “make an estimate of the speed of the truck”, Al-Ammir

replied, “[y]es, 45 to 50.”   The trial court sustained the

plaintiff’s objection to the answer.

     In Moore v. Lewis, 201 Va. 522, 111 S.E.2d 788 (1960), we

applied the rule that, “[i]n order to be competent to testify on

the [speed of an automobile] the witness must have had a

reasonable opportunity to judge the speed of the automobile.”

We explained that when a witness has only a brief opportunity or

interval of time to observe the speed of the vehicle, that fact

affects only the weight of his testimony and not its competency.

201 Va. at 525, 111 S.E.2d at 791.   In further explanation of

the rule, we noted that

     “[a]n estimate of the speed at which an automobile was
     moving at a given time is generally viewed as a matter of
     common observation rather than expert opinion, and it is
     accordingly well settled that any person of ordinary
     experience, ability, and intelligence having the means or
     opportunity of observation, whether an expert or nonexpert,
     and without proof of further qualification may express an
     opinion as to how fast an automobile which came under his
     observation was going at a particular time. The fact that
     the witness had not owned or operated an automobile does
     not preclude him from so testifying. Speed of an
     automobile is not a matter of exclusive knowledge or skill,
     but anyone with a knowledge of time and distance is a
     competent witness to give an estimate; the opportunity and
     extent of observation goes to the weight of the testimony.”

Id. at 525, 111 S.E.2d at 790 (citation omitted); see also

Greenway v. Commonwealth, 254 Va. 147, 151-52; 487 S.E.2d 224,

227 (1997).


                                 7
     The plaintiff argues that the trial court properly found

that Al-Ammir was not competent to estimate the speed of the

pickup truck because he had only “a momentary glimpse of [the

truck] some two car lengths away.”

     In response, Shelby contends that, because Al-Ammir

testified that he saw the truck at a specific distance prior to

impact and that he could provide an estimate of speed, the trial

court should have admitted his estimate and allowed the jury to

determine what weight to accord the testimony.   We agree.

     The witness testified that he observed the automobile when

it was two and a half car lengths away and that, moments later,

the collision occurred.   We think this testimony was sufficient

to show that he was a person “with a knowledge of time and

distance” and competent “to give an estimate” of the vehicle’s

speed.   Al-Ammir’s “opportunity and extent of observation” was a

factor for the jury to consider in determining the weight to be

accorded evidence relevant to the issue of liability.   We hold,

therefore, that the trial court erred in ruling that this

testimony was inadmissible.

                                III

     In support of a third assignment of error, Shelby argues

that the trial court erred in the conduct of the first trial by

refusing to admit its proffer of a “Petition to Grant a

Restricted Permit to Drive a Motor Vehicle” filed by the


                                 8
plaintiff pursuant to Code § 46.2-391.   The petition reported

that the plaintiff had been “addicted to and psychologically

dependent upon the use of alcohol”; that he had incurred prior

convictions for driving under the influence of alcohol; and that

his driver’s license had been suspended for a period of three

years.   The petition also stated that the plaintiff had

“presented himself for an evaluation by the John Tyler Alcohol

Safety Action Program” and that he “is no longer addicted to

. . . the use of alcohol . . . and he does not constitute a

threat to . . . others with regards to the driving of a motor

vehicle . . . .”

     Counsel for Shelby acknowledged at trial that he had “no

evidence that drinking played any role in this accident.”   We

find none of record.   Hence, the petition was inadmissible as

irrelevant and prejudicial, see DeWald v. King, 233 Va. 140,

146, 354 S.E.2d 60, 63 (1987), and we will uphold the trial

court’s ruling in the first trial excluding Shelby’s proffer.

     Shelby also contends that the trial court “prevented Shelby

from proving that the plaintiff’s job required him to possess a

license and that he was claiming lost wages during a time he did

not possess a license.”   We find no merit in that contention.

The record of the second trial shows that the trial court

allowed just such testimony delivered by Patrick Conner and

Charles Osborne, respectively, the operations manager and


                                 9
president of the plaintiff’s employer, witnesses called and

interrogated by Shelby’s counsel.

     In summary, we will reverse the ruling of the trial court

in the first trial limiting the second trial to the issue of

damages, annul the judgment entered in the second trial, and

remand the case for a new trial on all the issues.

                                           Reversed and remanded.




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