                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


FLOYD FRANCIS,                          
                 Plaintiff-Appellant,
                 v.                             No. 00-1667
JENNIE BARRICK INGLES,
                Defendant-Appellee.
                                        
            Appeal from the United States District Court
       for the Western District of Virginia, at Harrisonburg.
              Jackson L. Kiser, Senior District Judge.
                           (CA-99-1-5)

                  Submitted: November 30, 2000

                      Decided: January 9, 2001

    Before WILKINS, TRAXLER, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Daniel M. Press, Angela L. Hart, CHUNG & PRESS, P.C., McLean,
Virginia; Spencer B. Coe, Kenneth Lampe, JAMES W. CHAMBERS
& ASSOCIATES, Louisville, Kentucky, for Appellant. Daniel L.
Fitch, WHARTON, ALDHIZER & WEAVER, P.L.C., Harrisonburg,
Virginia, for Appellee.
2                         FRANCIS v. INGLES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   Floyd Francis, the plaintiff below, appeals a jury verdict in favor
of the defendant, Jenny Ingles, and the district court’s denial of his
motion for a new trial. Finding no error, we affirm.

   On January 9, 1997, Francis was driving a tractor-trailer north on
highway 340 in Warren County, enroute to Winchester, Virginia.
Ingles was driving a passenger car southbound on the same road. At
about 3:45 in the afternoon, Ingles’ car crossed the center line of the
roadway in front of Francis’ truck, and the two vehicles collided.
There were apparently no independent witnesses to the collision.

   Trial on the merits resulted in a defense verdict. Francis moved
post-trial for judgment as a matter of law, or for a new trial, which
the court denied. Francis appeals, alleging several errors by the dis-
trict court.

   Francis first contends that the district court erred in denying his
motion for a voluntary nonsuit, as permitted under Virginia law. The
district court ruled that a nonsuit was not available in federal court.
On appeal, Francis contends that this ruling was erroneous because
Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), requires a federal
court sitting in diversity to apply state law in outcome determinative
matters.

   Francis’ reliance on Erie is misplaced in this case. The Supreme
Court has rejected a strict "outcome determinative" test in deciding
whether a particular state law applies in federal court, particularly
when a Federal Rule of Civil Procedure is applicable. See Hanna v.
Plumer, 380 U.S. 460, 466-67 (1965). In this case, Federal Rule of
Civil Procedure 41 is sufficiently broad to cover the issue of a plain-
tiff’s right to voluntarily dismiss his case. There is no need, or
                           FRANCIS v. INGLES                            3
requirement, to look to state law. See Piedmont Interstate Fair Assoc.
v. Bean, 209 F.2d 942, 945 (4th Cir. 1954); see also Stern v. Inter-
Mountain Tel. Co., 226 F.2d 409, 410 (6th Cir. 1955) (holding that
Rule 41(a)(2), not state nonsuit statute, governs plaintiff’s dismissal
in diversity case); Roth v. Great Atl. & Pac. Tea Co., 2 F.R.D. 182,
183 (S.D. Ohio 1942) (same). Francis’ reliance on this Court’s hold-
ing in Scoggins v. Douglas, 760 F.2d 535 (4th Cir. 1985), that "the
difference in a Rule 41 dismissal and a Virginia nonsuit under § 8.01-
380 goes more to matters of form than substance" is likewise mis-
placed, as it supports application of the federal rule in this case. The
district court correctly held that § 8.01-380 did not apply to this diver-
sity suit.

   Francis next contends that the district court improperly denied his
motion for a voluntary dismissal under Fed. R. Civ. P. 41(a)(2). We
review a district court’s decision on a plaintiff’s motion to dismiss
under Rule 41(a)(2) for abuse of discretion. See Davis v. USX Corp.,
819 F.2d 1270, 1273 (4th Cir. 1987). As a general rule, a plaintiff’s
motion for voluntary dismissal without prejudice should not be denied
absent plain legal prejudice to the defendant. See Ohlander v. Larson,
114 F.3d 1531, 1537 (10th Cir. 1997), cert. denied, 522 U.S. 1052
(1998); Andes v. Versant Corp., 788 F.2d 1033, 1036 (4th Cir. 1986).

   The record discloses that plaintiff’s motion came after a lengthy
discovery period and merely one week before the scheduled trial date.
Moreover, the motivation for the motion appeared to be to circumvent
the court’s decision to exclude one of the plaintiff’s expert witnesses
by deposing the witness after dismissal and then refiling. Counsel
could have obviated the need for this maneuver by deposing the wit-
ness within the discovery period. Considering plaintiff’s lack of dili-
gence, noncompelling reason for the dismissal, and inconvenience
dismissal would have imposed on the defendant in this case, we find
that the district court did not abuse its discretion by denying plain-
tiff’s motion. See Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354,
358 (10th Cir. 1996) (discussing factors relevant to disposition of a
Rule 41(a)(2) motion).

  Francis moved for judgment as a matter of law at the close of the
evidence, contending that there was no evidence that the defendant’s
vehicle slid on an icy road surface or that the collision resulted from
4                          FRANCIS v. INGLES
any cause other than defendant’s negligence. The court denied the
motion, stating that "I think under the evidence in the case the jury
can find most any road condition they choose to." On appeal, Francis
alleges that this denial was erroneous because there was no evidence
of contributory negligence by Francis, nor any evidence to rebut the
evidence of Ingles’ negligence in crossing the centerline of the road.

   "Judgment as a matter of law is proper when, without weighing the
credibility of the evidence, there can be but one reasonable conclusion
as to the proper judgment." Singer v. Duncan, 45 F.3d 823, 826 (4th
Cir. 1995) (internal quotation marks and citations omitted). We con-
duct a plenary review of the district court’s decision, considering the
evidence in the light most favorable to Ingles, the nonmovant. Id. at
827.

   The evidence of the road conditions existing at the time of the col-
lision, or shortly thereafter, was conflicting and clearly presented a
question for the jury. Based upon the testimony of Ingles and Charles
Cheeks, the chief of a volunteer fire department who arrived at the
scene of the accident within minutes of its occurrence, the jury could
have concluded that the road was icy or slippery at the time of the col-
lision; and that Ingles’ loss of control was not the result of any negli-
gence on her part. Under Virginia law, the presence of a vehicle in
the wrong lane of a roadway is prima facie evidence of negligence,
see Hemming v. Hutchinson, 277 S.E.2d 230, 233 (Va. 1981), but
"mere skidding of a motor vehicle on a slippery roadway does not
establish negligence on the part of its operator." Whitley v. Patterson,
129 S.E.2d 19, 21 (Va. 1963). The district court correctly concluded
that the conditions of the road and Ingles’ actions prior to the collision
were questions for the jury.

   Under Virginia law, contributory negligence exists when "a plain-
tiff fails to act as a reasonable person would have acted for his own
safety under the circumstances." Artrip v. E.E. Berry Equip. Co., 397
S.E.2d 821, 823-24 (Va. 1990). If the plaintiff was contributorily neg-
ligent, Virginia law bars recovery in a negligence action if the plain-
tiff’s contributory negligence proximately caused the injury. See
Litchford v. Hancock, 352 S.E.2d 335, 337 (Va. 1987). Federal dis-
trict courts operate under a federal standard when determining the suf-
ficiency of the evidence for submission of the issue of contributory
                           FRANCIS v. INGLES                            5
negligence to a jury. See Jones v. Meat Packers Equip. Co., 723 F.2d
370, 372 (4th Cir. 1983). In the absence of evidence, or reasonable
inferences that can be drawn from the evidence, disclosing that a
plaintiff was negligent, the issue of contributory negligence should
not go to the jury. Id.

   In this case, the evidence established that Francis was driving his
tractor-trailer at approximately forty to fifty miles per hour on a
downhill grade, where the speed limit was fifty five miles per hour,
just prior to the collision. Although Francis’ speed would appear rea-
sonable in most weather and road conditions, the evidence of the con-
ditions existing at the time of the accident varied in important details
and was appropriately a question for the jury to resolve. Depending
upon the jury’s determinations of the weather conditions, they could
have found that Francis’ speed was unreasonable under the prevailing
circumstances and prevented him from slowing or stopping to avoid
the collision after Ingles’ car entered his lane of travel, and was there-
fore a proximate cause of the collision. Whether Francis acted as a
reasonable person under the circumstances obviously depends upon
what the jury determined to be the circumstances at the time of the
collision. The district court did not err in finding that the evidence
was sufficient to submit contributory negligence to the jury.

   In a closely related argument, Francis contends there was no evi-
dence of any negligence on his part, and therefore the district court
erred in giving an instruction on contributory negligence. As we have
already found that the evidence was sufficient to support a finding of
contributory negligence, it follows that evidence was sufficient to
instruct the jury regarding this affirmative defense.

   Francis next contends that the district court erred in giving an "un-
avoidable accident" instruction. Francis alleges there was no evidence
to support such an instruction, because no evidence indicated that
Ingles’ car slipped on a wet or slippery road surface. As discussed
above, the condition of the road surface was a fact in dispute in the
trial, and therefore for the jury to determine.

   Francis also complains that the district court improperly instructed
the jury that "the fact that there was an accident and that the plaintiff
was injured does not in and of itself entitle the plaintiff to recover."
6                          FRANCIS v. INGLES
This instruction, however, correctly states the law of Virginia that
negligence cannot be presumed simply because an accident occurred.
See Sneed v. Sneed, 244 S.E.2d 754, 755 (Va. 1978); Murphy v. J.L.
Saunders, Inc., 121 S.E.2d 375, 378 (Va. 1961). This instruction was
not erroneous.

   Francis requested the following instruction: "A driver of a vehicle
has a duty to maintain the vehicle with tires with sufficient tread. If
you find that Defendant’s tires had insufficient tread and that the
insufficiency of the tread was a proximate cause of the accident, you
shall find that the Defendant was negligent." The court denied this
request, noting that the testimony established that the defendant’s tire
tread depth met the requirements of the applicable Virginia statute,
and that a proper evidentiary foundation had not been provided for the
requested instruction, in the absence of a violation of the statute. On
appeal, Francis argues this denial was erroneous, citing Holmes v.
Doe, 515 S.E.2d 117 (Va. 1999).

   The district court properly refused Francis’ requested instruction
because a proper foundation had not been established. See United
States v. Horton, 921 F.2d 540, 543 (4th Cir. 1990). Virginia law pro-
hibits operation of a motor vehicle with less than 2/32 of an inch tire
tread depth. See Va. Code Ann. § 46.2-1043 (Michie 1998). The testi-
mony in this case indicated that the tread depth of the tires on Ingles’
car ranged from 2/32 to 5/32 of an inch, with a wear bar indicator
showing on the right rear tire. No expert testimony was introduced as
to whether tread of this depth was safe on wet or snowy roads.

   In Holmes, the Virginia Supreme Court approved the admission of
expert testimony regarding tire tread depth and hydroplaning. Holmes,
515 S.E.2d at 120. In that case, the expert opined that tire tread meet-
ing the 2/32 inch minimum under Virginia law was unsafe on wet sur-
faces. Id. at 119. In this case, however, Francis offered no expert
testimony concerning the safety, or lack thereof, of tires with tread
depth similar to those on Ingles’ car. Contrary to Francis’ assertions,
we believe this issue was beyond the common knowledge of the ordi-
nary juror, and required expert testimony to provide context for the
requested instruction. See id. at 120.

   The district court correctly concluded that the tread depth was "suf-
ficient" under Virginia law; and that, without expert testimony or
                           FRANCIS v. INGLES                            7
other evidence to provide a foundation that tread of this depth would
be unsafe on wet or snowy roads, the instruction was not warranted.

   In his final assignment of error, Francis contends that the district
court improperly denied his motion for a new trial because the verdict
was against the weight of the evidence and that there were factors
present suggesting that the court should carefully scrutinize against
jury bias. These factors arose from what Francis characterizes as Ms.
Ingles’ appeals "to the jury’s fears of large trucks, and to their sympa-
thy, with testimony about seeing a large red object bearing down on
her."

   A district court’s denial of a Rule 59 motion for a new trial is
reviewed for abuse of discretion. See Cline v. Wal-Mart Stores, Inc.,
144 F.3d 294, 301 (4th Cir. 1998). Applying this standard of review,
"[t]he verdict is permitted to stand unless, . . . under Rule 59, the ver-
dict is against the clear weight of the evidence, or is based upon evi-
dence which is false, or will result in a miscarriage of justice."
Mattison v. Dallas Carrier Corp., 947 F.2d 95, 100 (4th Cir. 1991)
(internal citation and quotation marks omitted).

   The evidence presented at trial clearly showed that the collision
occurred when Ingles’ car crossed into Francis’ lane. What caused
this event, however, was vigorously disputed. The evidence in this
case supported a defense verdict based upon a finding that Ingles was
not negligent and the accident occurred because of the road condi-
tions; or that Francis was contributorily negligent and, under Virginia
law, barred from recovery. Our review of the record convinces us that
the verdict is not against the clear weight of the evidence.

   Finally, the district court instructed the jury in compliance with
Virginia law, and included a specific instruction that the jurors were
not to be governed by prejudice or sympathy for either party. Jurors
are presumed to follow the court’s instructions. See Weeks v. Ange-
lone, 120 S. Ct. 727, 733 (2000). Other than one brief statement by
Ms. Ingles during her testimony, which the court directed the jury to
disregard, the record contains no evidence of appeals to fear or sym-
pathy, and fails to support Francis’ allegation of possible juror bias.
The district court did not abuse its discretion in denying Francis’
motion for a new trial.
8                         FRANCIS v. INGLES
   Accordingly, we affirm the district court’s judgment order entered
pursuant to the jury’s verdict in favor of defendant Ingles, and which
denies Francis’ motion for a new trial. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

                                                         AFFIRMED
