427 S.E.2d 724 (Va. 1993)
PROCEDURAL POSTURE: Plaintiff truckdriver challenged the judgment of the Circuit Court of Campbell County (Virginia) that set aside the jury verdict in his favor and entered judgment for defendant railroad upon a finding that truckdriver was contributorily negligent as a matter of law.
-Truckdriver was injured when a train at a crossing struck him.
-The trial judge set aside the jury verdict for truckdriver and entered judgment for railroad based on truckdriver's contributory negligence as a matter of law.
-The court affirmed finding that railroad did not waive the defense of contributory negligence as a matter of law by failing to object to jury instructions where it pled the affirmative defense, and consistently maintained that no jury issue was presented on that question.
-The court agreed that truckdriver was given adequate opportunity to address the issue, and the trial judge was afforded the opportunity to rule intelligently on the issue where it was spoken to at every meaningful stage of the trial.
-The court held that the verdict was properly set aside on the ground that truckdriver was guilty of contributory negligence as a matter of law because although he was very familiar with the hazards of the crossing, he failed to look and listen with reasonable care by leaving his window rolled up and his air conditioning and radio on, and failed to discover the presence of the train when its engine was less than 10 feet away.
-At trial, a defendant has the burden to prove by the greater weight of the evidence that the plaintiff was negligent and that such negligence was a proximate cause of the plaintiff's injuries. Contributory negligence, however, may be shown by the defendant's evidence or by the plaintiff's own evidence. -On appeal, a defendant's burden is heavier; the defendant must show that there is no conflict in the evidence on contributory negligence, and that there is no direct and reasonable inference to be drawn from the evidence as a whole to sustain a conclusion that the plaintiff was free from contributory negligence.
OUTCOME: The order setting aside the jury verdict in truckdriver's favor and entering judgment for railroad was affirmed because the defense was not waived for failure to object to jury instructions where the issue was spoken to at every meaningful stage of the trial, and truckdriver was guilty of contributory negligence as a matter of law because he failed to look and listen with reasonable care and failed to discover the immediate presence of the train.
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