Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Stephenson, S.J.

JOHN DOE
                  OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
v.   Record No. 052137              January 12, 2007

RUSSELL M. TERRY, ET AL.

            FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                        Joseph A. Leafe, Judge

      In this appeal, we consider whether the plaintiff

established by a preponderance of the evidence that the

defendant, John Doe, was negligent.

      Plaintiff, Russell M. Terry, filed his motion for

judgment against John Doe, an unknown driver of an automobile.

Plaintiff alleged that he was injured as a result of John

Doe's negligence.    At the conclusion of a jury trial, the jury

returned a verdict in favor of the plaintiff in the amount of

$175,000.    The circuit court reduced the verdict from $175,000

to the amount of the ad damnum, $100,000, and the court

entered a judgment confirming the verdict.    The defendant,

John Doe, appeals.

      Terry is armed with a jury verdict and, thus, "occupies

the most favored position known to the law."    Pugsley v.

Privette, 220 Va. 892, 901, 263 S.E.2d 69, 76 (1980); accord

Atrium Unit Owners Ass'n v. King, 266 Va. 288, 293, 585 S.E.2d

545, 547 (2003).    Additionally, we will recite the facts and

all reasonable inferences therefrom in favor of Terry, the
prevailing party in the circuit court.   Atrium Unit Owners

Ass'n, 266 Va. at 293, 585 S.E.2d at 547.

     Terry was employed as a safety service patrolman for the

Virginia Department of Transportation and stationed at the

Hampton Roads Bridge Tunnel.    On June 1, 2002, about 3:00

a.m., Terry entered the tunnel and began to walk towards the

bottom of the tunnel to clean camera lenses on equipment used

to monitor vehicular traffic.   He was walking on a "catwalk"

in the direction of oncoming traffic.    The "catwalk" is 46

inches above the tunnel's traffic lanes.    The posted speed

limit in the tunnel is 55 miles per hour.

     After Terry had cleaned three camera lenses, he observed

three approaching vehicles.    Terry testified as follows:

"[O]ne [vehicle] was a car followed by a tractor-trailer.

When the tractor-trailer came by, I nodded my head down so not

to be hit with the debris that comes with it.   And I picked my

head back up and started walking again, and that's when I was

struck in my right forehead."

     Terry further testified during his direct examination:

          "Q: All right. When the truck – during the
     time frame when there is the three vehicles, there's
     the truck, where was the third vehicle?
          "A: I hadn't yet seen the third vehicle
     coming. When the truck come by, like I said, they
     travel 55 miles an hour, so everything was like
     within split seconds of one another. Once the
     tractor-trailer came by I raised my head, and that's
                                 2
     when I noticed another vehicle had come down from
     the bottom of the tunnel and was working its way
     towards me.
           "Q: All right. And at any time while you were
     walking that tunnel, did you hear anything in the
     tunnel, other than the sound of traffic?
           "A: Yes. After the tractor-trailer had
     practically gotten by me and my head was still down
     I heard some people yelling in the tunnel.
           "Q: What kind of yelling did you hear?
           "A: Like catcalls. Just somebody whooping it
     up coming through there.
           "Q: All right. And tell us, from the time
     period of hearing the whooping it up until the time
     that something happened to you how much time passed?
           "A: It's hard to say. Maybe two to three
     seconds. It was – it was that fast.
           "Q: All right. And what if anything happened
     during those two to three seconds? What did you –
     what did you see, hear, feel, anything about that?
     Tell us what –
           "A: Just after I heard the voices I lift my
     head, started walking. The car was approaching and
     then I was hit with something, and that's it.
           "Q: Do you have any idea what you were hit
     with?
           "A: At the time, no.
           "Q: At the time did you have any idea? Did
     you see –
           "A: No, I didn't. Once it hit me I was out
     cold."

     During cross-examination at trial, Terry gave the

following testimony about the accident:

          "Q: All right. Now, you say . . . that you
     were aware of three vehicles?
          "A: I was –
          "Q: Is that my understanding?
          "A: Not necessarily that area. I was aware of
     three vehicles that had come my direction in my
     approach down to the bottom of the tunnel.
          "Q: The first one was an automobile, right?
          "A: Yes.
          "Q: The second one was a tractor-trailer?
                               3
     "A: Yes.
     "Q: And when the tractor-trailer passed you,
you were not aware of the third one?
     "Q: Not at that -- no.
     "A: All right. And you have indicated that
you got -- thought something happened just
milliseconds after the tractor-trailer had passed
you, right?
     "A: Yes.
     "Q: And in those milliseconds, you had lifted
your head and had observed that there was another
automobile approaching from the bottom of the
tunnel, right?
     "A: Yes.
     "Q: Okay. So, there was no vehicle right
there behind the tractor-trailer, correct?
     "A: Not that I'm aware of, no.

                       . . . .

      "Q: Other than the automobile approaching from
the bottom of the tunnel? But you didn't see
anything airborne coming towards your body, true?
      "A: No, I did not.
      "Q: You don't know what struck you, if
anything, true?
      "A: Yes, that's true.
      "Q: All right. You don't know if there was
something that came towards you and struck you? You
don't know where it came from, true?
      "A: Well, no. Whatever struck me come from my
front, because it hit me on my head on my right
side.

                       . . . .

     "Q: All right. And you can't tell us whether
it came from a vehicle's passenger side or the
driver's side, true?
     "A: That's true.
     "Q: The catcalls, the yell or what have you,
was something that you heard, but couldn't identify
where it came from; is that true?
     "A: Well, it's something I heard. It came
from inside the tunnel."

                          4
     Raymond R. Gray, Jr., who was also a safety service

patrolman at the Hampton Roads Bridge Tunnel, responded to the

accident scene.   He found Terry unconscious, lying in one of

the eastbound traffic lanes of the tunnel.   Terry had a "huge

knot" that looked like a "golf ball" on the side of his head.

Gray found "pieces of glass all around" Terry.

     Robert Mauldin, a traffic control supervisor at the

Hampton Roads Bridge Tunnel, also responded to the accident

location.   He also found broken glass in the vicinity where

Terry was injured.

     Doe argues that Terry failed to establish that the

defendant was negligent.   Continuing, Doe asserts that Terry

did not present evidence that Doe was the individual who threw

the object that injured the plaintiff.   Responding, Terry

contends that he presented evidence that would permit the jury

to infer that Doe was the individual who threw the bottle that

injured the plaintiff.   We disagree with Terry.

     This Court has repeatedly held that a plaintiff in a tort

action must establish negligence by a preponderance of the

evidence.   For example, over 100 years ago, we stated in

Chesapeake & O. Ry. Co. v. Heath, 103 Va. 64, 66-67, 48 S.E.

508, 508-09 (1904):

          "The party who affirms negligence must
     establish it by proof sufficient to satisfy
                                5
     reasonable and well balanced minds. The evidence
     must show more than a probability of a negligent
     act. An inference cannot be drawn from a
     presumption, but must be founded upon some fact
     legally established. This Court has repeatedly held
     that when liability depends upon carelessness or
     fault of a person, or his agents, the right of
     recovery depends upon the same being shown by
     competent evidence, and it is incumbent upon such a
     plaintiff to furnish evidence to show how and why
     the accident occurred – some fact or facts by which
     it can be determined by the jury, and not be left
     entirely to conjecture, guess or random judgment,
     upon mere supposition, without a single known fact.
     C. & O. Ry. Co. v. Sparrow, 98 Va. 630-641, 37 S.E.
     302; N. & W. R. R. Co. v. Cromer's Adm'x., 99 Va.
     763-765, 40 S.E. 54; Southern R. R. Co. v. Hall's
     Adm'r., 102 Va. 135, 45 S.E. 867."

Accord Virginia Ry. & P. Co. v. Winstead, 119 Va. 326, 333, 89

S.E. 83, 85 (1916).

     This basic tort principle has remained intact, without

equivocation, and we restated this rule in Waters v. Holloman,

216 Va. 726, 730, 222 S.E.2d 549, 552-53 (1976) (quoting

Weddle v. Draper, 204 Va. 319, 322, 130 S.E.2d 462, 465

(1963)):

          "Negligence cannot be presumed from the mere
     happening of an accident. The burden is on the
     plaintiff who alleges negligence to produce evidence
     of preponderating weight from which the jury can
     find that the defendant was guilty of negligence
     which was a proximate cause of the accident. The
     evidence produced must prove more than a probability
     of negligence and any inferences therefrom must be
     based on facts, not on presumptions. It is
     incumbent on the plaintiff who alleges negligence to
     show why and how the accident happened, and if that
     is left to conjecture, guess or random judgment, he
     cannot recover."
                               6
We recently reaffirmed this fundamental precept in Blue Ridge

Service Corp. v. Saxon Shoes, 271 Va. 206, 218, 624 S.E.2d 55,

62 (2006):    "It is incumbent on the plaintiff who alleges

negligence to show why and how the accident happened, and if

that is left to conjecture, guess or random judgment, he

cannot recover."

     When a plaintiff files a negligence action against an

unidentified motorist, the plaintiff has the burden of proof

to establish by a preponderance of the evidence that the

unknown driver of the motor vehicle was guilty of negligence.

See e.g., Lawson v. Doe, 239 Va. 477, 481-82, 391 S.E.2d 333,

335 (1990).   And, as we have already stated, the plaintiff

must produce evidence that proves more than a probability of

the unknown driver's negligence and any inferences therefrom

must be based on facts, not presumptions.   Weddle, 204 Va. at

322, 130 S.E.2d at 465.

     The plaintiff in this case, Terry, failed to establish by

a preponderance of the evidence that John Doe, the driver of

the unknown vehicle, was negligent.   There is no evidence in

the record that would permit a finder of fact to infer that

the driver of the unknown vehicle was the individual who threw

the bottle that struck Terry.   The plaintiff, who was the only

witness to the accident who testified at trial, stated that
                                 7
there were three vehicles in the tunnel, and that he was

injured after two of the vehicles passed him.    After the

tractor-trailer passed the plaintiff, he heard someone

"yelling" and "voices."   The plaintiff testified:   "Just after

I heard the voices I lift [sic] my head, started walking.    The

car was approaching and then I was hit with something, and

that's it."    The plaintiff's own testimony demonstrates that

there may have been more than one person in the vehicle from

which the plaintiff alleges someone threw the bottle that

injured him.

     The plaintiff does not know whether the unknown driver of

the car threw the bottle or whether a passenger threw the

bottle.   He has no idea who threw the bottle.   In response to

the question, "And you can't tell us whether it [the object

that struck you] came from a vehicle's passenger side or the

driver's side, true?," the plaintiff responded, "That's true."

The plaintiff's conclusion that the driver of the unidentified

vehicle threw the bottle is based on conjecture, guess, or

random judgment.   This conclusion is not based upon any fact

in the record before this Court.

     Terry testified that he heard voices in the tunnel.     We

are compelled to infer from Terry's direct testimony that

those voices emanated from the car that the unknown driver was

                                 8
operating.   Even if the voices did not emanate from the car

that the unknown driver was operating, Terry's testimony that

he heard voices indicated that other persons were in the

tunnel, and one of those persons may have thrown the bottle

that injured Terry.   Terry has the responsibility to present

evidence from which the jury could infer the driver of the

unknown vehicle threw the bottle.   The plaintiff failed to

present such evidence.*

     For the foregoing reasons, we will reverse the judgment

of the circuit court and enter final judgment on behalf of

John Doe.

                                      Reversed and final judgment.


JUSTICE KINSER, with whom JUSTICE LACY and JUSTICE LEMONS
join, dissenting.


     I respectfully dissent because, in my view, the jury

could have reasonably inferred from the evidence that John Doe

was negligent.   I would therefore affirm the circuit court’s

judgment in favor of Russell Terry.

     The majority’s holding today departs from several well-

established principles.   First, the jury, not this Court,

determines the credibility of the witnesses and the weight of


     *
       In view of our holding, we need not consider the
litigants' remaining arguments.
                                9
the evidence.   See Southern Floors & Acoustics, Inc. v. Max-

Yeboah, 267 Va. 682, 686, 594 S.E.2d 908, 911 (2004)

(“Determining the credibility and the weight of the evidence

is the province of . . . the jury.”).   Second, “[i]f there is

evidence to sustain the verdict, this [C]ourt should not

overrule it and substitute its own judgment, even if its

opinion might differ from that of the jury.”   Snyder v.

Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 (1961).

Third, a verdict should stand “[w]hen conflicting inferences

have been resolved by a jury and those necessarily underlying

the conclusion reflected in the verdict are reasonably

deducible from the evidence.”    Henderson v. Gay, 245 Va. 478,

481, 429 S.E.2d 14, 16 (1993).    Finally, Terry, as the

prevailing party in the circuit court, is entitled to have the

evidence and all reasonable inferences viewed in the light

most favorable to him.   Atrium Unit Owners Ass’n v. King, 266

Va. 288, 293, 585 S.E.2d 545, 547 (2003).

     With these principles in mind, I conclude, unlike the

majority, that Terry proved how and why the accident happened.

As the majority tacitly acknowledges, the jury could have

reasonably inferred from the evidence showing glass and a

piece of a bottle in close proximity to Terry’s body that the

object that struck him in the forehead was a bottle.   Nor does

                                 10
the majority dispute that the jury could likewise have

reasonably inferred that the bottle emanated from the third

vehicle that passed Terry in the Hampton Roads Bridge Tunnel

(the Tunnel) on the morning of the accident.   Terry

affirmatively stated that the object did not originate from

the tractor-trailer because that vehicle had already passed

him when he was struck, and he testified that the object hit

him within moments of seeing the third vehicle approaching

from the bottom of the Tunnel and hearing the “catcalls.”    We

also know the third vehicle was being operated at the time of

Terry’s accident and the identity of its driver is unknown.

It is therefore not conjecture or speculation to conclude that

Doe was present in the Tunnel when the bottle struck Terry.

     Thus, the primary issue upon which this appeal turns is

whether the jury could have reasonably inferred from the facts

presented that Doe threw the bottle, i.e., that he was

negligent.   The majority concludes that Terry’s testimony

indicated there may have been more than one person in the

third vehicle and that, since he could not say whether the

offending object came from the passenger or driver side of the

vehicle, Terry’s “conclusion that the driver of the

unidentified vehicle threw the bottle is based on conjecture,

guess, or random judgment.”   I disagree.

                               11
     In my view, reasonable minds could draw different

inferences from the evidence in this case, and under such

circumstances, it is incumbent upon the reviewing court to

respect the inference actually drawn by the fact finder.    See

Hoar v. Great Eastern Resort Mgmt., Inc., 256 Va. 374, 388,

506 S.E.2d 777, 786 (1998) (“A verdict may be properly based

upon reasonable inferences drawn from the facts. If facts are

present from which proper inferences may be drawn this is

sufficient.”) (quoting Northern Virginia Power Co. v. Bailey,

194 Va. 464, 470, 73 S.E.2d 425, 429 (1952)); see also Snyder,

202 Va. at 1016, 121 S.E.2d at 457.   Terry testified that just

prior to something striking the front, right side of his

forehead, he heard what he described variously as “some people

yelling in the [T]unnel” and “catcalls” like “somebody

whooping it up coming through there.”   Thus, while the jury

could reasonably have inferred from part of Terry’s testimony

that there was more than one person in the third vehicle, the

jury also could have reasonably inferred that Terry heard

“catcalls” from a single occupant of the third vehicle.    Our

prior decisions counsel against disturbing the fact finder’s

resolution of conflicting inferences in favor of the party

prevailing at trial.   Henderson, 245 Va. at 481, 429 S.E.2d at

16 (jury is “free to choose among all reasonable inferences”

                               12
that can be deduced from the evidence); Lane v. Scott, 220 Va.

578, 582, 260 S.E.2d 238, 240 (1979).

     Furthermore, I disagree with the majority’s apparent

belief that Terry’s burden included an obligation to

affirmatively disprove the presence of a passenger in the

vehicle driven by Doe.   Terry’s inability to say whether the

bottle came from the driver or passenger side of the third

vehicle did not reduce the jury’s verdict to speculation.    In

the absence of any affirmative evidence with regard to whether

there was or was not a passenger in that vehicle, the jury

could have reasonably inferred that the unknown driver of the

vehicle threw the bottle.   Terry did not have to prove that

there was not a passenger in the vehicle in order for the jury

to have drawn that inference.

     For these reasons, I respectfully dissent and would

affirm the judgment of the circuit court.∗




     ∗
       I also find no merit in Doe’s second assignment of error
challenging the timing of the circuit court’s finding that
Terry’s injuries arose out of the use of a vehicle. Normally,
the issue of coverage afforded by an insurance policy is
decided in a motion for declaratory judgment. See Rodgers v.
Danko, 204 Va. 140, 143, 129 S.E.2d 828, 830 (1963). However,
based on the record in this case, I cannot say the circuit
court erred in finding that the parties, prior to the jury
trial, agreed to submit the coverage issue to it for
resolution.
                               13
