UNPUBLISHED

UNITED STATES COURT OF APPEALS
                  FOR THE FOURTH CIRCUIT


FRANK J. LAMPE,                           
                   Plaintiff-Appellant,
                  and
NANCY L. LAMPE,
                             Plaintiff,         No. 03-2084
                  v.
YOO SUN KIM; ALLSTATE INDEMNITY
COMPANY,
             Defendants-Appellees.
                                          
           Appeal from the United States District Court
            for the District of Maryland, at Greenbelt.
              William D. Quarles, Jr., District Judge.
                       (CA-02-2648-WDQ)

                        Argued: June 3, 2004

                        Decided: July 22, 2004

      Before WIDENER and DUNCAN, Circuit Judges, and
   Louise W. FLANAGAN, United States District Judge for the
     Eastern District of North Carolina, sitting by designation.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

ARGUED: Louis Fireison, LOUIS FIREISON & ASSOCIATES,
P.A., Bethesda, Maryland, for Appellant. James Stephen Wilson,
2                            LAMPE v. KIM
BRAULT, GRAHAM, SCOTT & BRAULT, Rockville, Maryland;
Jonathan Rand Clark, MCCARTHY WILSON, Rockville, Maryland,
for Appellees. ON BRIEF: Darin L. Rumer, LOUIS FIREISON &
ASSOCIATES, P.A., Bethesda, Maryland, for Appellant. Joan F.
Brault, BRAULT, GRAHAM, SCOTT & BRAULT, Rockville,
Maryland, for Appellee Kim.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   In this diversity case, Frank Lampe sued Yoo Sun Kim for injuries
resulting when their respective vehicles collided at the intersection of
John Marr Drive and a service road in Fairfax, Virginia. At trial, the
jury found that both Kim and Lampe had acted in a negligent manner.
Accordingly, the court entered judgment in favor of Kim and the
insurer. On appeal, we are confronted with two issues: (1) whether the
district court erred by refusing Lampe’s motion for directed verdict
under Federal Rule of Civil Procedure 50; and (2) whether the district
court erred by instructing the jury regarding contributory negligence.
Finding no error by the district court, we affirm.

                                   I.

   On October 8, 2000, Frank Lampe, driving a motorcycle, turned
from Little River Turnpike (also known as Route 236) onto John Marr
Drive. Yoo Sun Kim, driving a car, entered John Marr Drive from an
intersecting service road, running parallel to Little River Turnpike.
Kim intended to travel straight through the intersection and continue
on the service road. The two vehicles collided when Lampe’s motor-
cycle impacted with the passenger side of Kim’s car. Lampe claims
that he was thrown into the air, suffering considerable bodily injuries
and property damage to his motorcycle. Lampe was rendered uncon-
                             LAMPE v. KIM                              3
scious briefly after the accident, during which time several witnesses
gathered at the scene, and emergency officials were notified. When
police arrived, Kim was cited with "failure to yield to the right of
way," a charge to which he later pled guilty.

                                   II.

  On the basis of diversity of citizenship, Lampe filed suit in the
United States District Court for the District of Maryland seeking dam-
ages as a result of Kim’s negligence. Lampe also named his insurer,
Allstate Indemnity Company, as a defendant in the action, seeking
damages for breach of the underinsured motorist clause of his insur-
ance policy.

   At trial, Lampe presented evidence that Kim negligently entered
the intersection when Lampe had the right of way. Lampe relied upon
the testimony of Officer Eduardo J. Azcarate, who cited Kim for fail-
ure to yield, and Patricia Rusnack, an eyewitness who stated that Kim
was traveling at an excessive speed and accelerated at the stop sign.
Lampe testified at trial that he turned right onto John Marr Drive,
rather than left, as alleged in the amended complaint. At the conclu-
sion of his case-in-chief, Lampe moved for directed verdict. His
motion was denied. Kim presented testimony that he stopped at the
intersection, then approached slowly while looking in every direction.
Kim testified that when he entered the intersection, there were no
other vehicles in that area.

   After presentation of Kim’s evidence, Lampe argued to the court
that Kim presented no evidence of contributory negligence. He there-
fore objected to a jury instruction on that issue. The trial court denied
that objection and instructed the jury, "The next question is do you
find that Plaintiff, Mr. Lampe, was negligent in operating his motor-
cycle? Did his negligence contribute to the accident? Mr. Kim has the
burden of proving that Mr. Lampe was negligent." The court also
stated, "On the issue of contributory negligence, if your mind is in
even balance as to whether Mr. Lampe’s conduct contributed to the
accident, then you have to decide against Mr. Kim, because he has the
burden of proving that Mr. Lampe’s conduct contributed to the acci-
dent." The final portion of the court’s jury instructions was as fol-
lows:
4                           LAMPE v. KIM
    One thing I wanted to tell you, in the instructions, you will
    note and I have referred to them, I have talked to someone
    who drives a motor vehicle, and one of the lawyers men-
    tioned, I think correctly, sometimes you think of that as just
    someone’s driving a car. When I refer to the instructions in
    driving a motor vehicle, that means operating a motorcycle
    as well as driving a car or driving a van. Anyone who oper-
    ates a vehicle has the same responsibilities and has to follow
    the law carefully. So, the instructions speak in terms of driv-
    ing a motor vehicle, but that also means operating or driving
    or riding a motorcycle as well.

  Upon return of a jury verdict finding both Kim and Lampe negli-
gent, and entry of judgment in favor of defendants, this appeal by
Lampe followed.

                                 III.

                                  A.

   Lampe contends that the district court erred by denying his motion
for directed verdict. Denial of a motion for directed verdict, synony-
mous to a motion for judgment as a matter of law under Federal Rule
of Civil Procedure 50, is reviewed de novo, viewing the evidence in
the light most favorable to the non-movants. Chaudhry v. Gallerizzo,

, 404-405 (4th Cir. 1999); Malone v. Microdyne Corp.,

, 475 (4th Cir. 1994). A grant of judgment as a matter of
law is only proper "when, without weighing the credibility of the evi-
dence, there can be but one reasonable conclusion as to the proper
judgment." Price v. City of Charlotte, 

, 1249 (4th Cir.
1996) (internal quotation omitted). The movant is entitled to judgment
as a matter of law if the nonmoving party failed to make a showing
on an essential element of his case with respect to which he had the
burden of proof. 

"mere scintilla" of evidence is neces-
sary to defeat the motion. Persinger v. Norfolk & W. Ry. Co., 

, 1189 (4th Cir. 1990).

   In a diversity action, state law of the forum court governs the sub-
stantive issues, and federal law governs the procedural issues. Dixon
v. Edwards, 

, 710 (4th Cir. 2002). As a federal court sit-
                             LAMPE v. KIM                              5
ting in diversity, this court must apply the choice-of-law rules of the
forum state, Maryland. Wells v. Liddy, 

, 521 (4th Cir.
1999); Liberty Mutual Ins. Co. v. Triangle Indus., Inc., 

, 1156 (4th Cir. 1992). Maryland choice of law rules provide that
when analyzing tort actions, the law of the "place of the wrong" con-
trols. Sherrod v. Achir, 

, 956 (Md. App. 2003). Since the
accident in this case occurred in Virginia, this court applies Virginia
law to substantive issues. Under Virginia law, contributory negligence
exists when "a plaintiff fails to act as a reasonable person would have
acted for his own safety under the circumstances." Artrip v. E.E.
Berry Equip. Co., 

, 824 (Va. 1990). Contributory neg-
ligence is an issue of fact for the jury unless reasonable minds could
not differ on the issue. 

v. Virginia Elec. & Power
Co., 

, 222 (Va. 1989).

   A review of the evidence in this case, without considering the cred-
ibility of the evidence presented, reveals that more than one reason-
able conclusion as to the proper judgment could exist. Viewing the
evidence in the light most favorable to Kim, Lampe’s negligence rea-
sonably could be inferred from evidence in the case that Kim was not
negligent. Kim testified that he stopped at the stop sign, carefully
checked for traffic entering the intersection, then slowly proceeded.
Under Medlar v. Mohan, Lampe’s evidence that he was the favored
driver is not sufficient to establish that he was not negligent. 

, 126 (Va. 1991). He was also under a duty to keep a
proper lookout when entering an intersection. 

Lampe
testified that his view was partially impaired by other vehicles. From
these facts, a reasonable individual could infer that Lampe was negli-
gent by failing to keep a proper lookout, and the testimony at trial
warranted putting the question of contributory negligence before the
jury. 

. See also Virginia Electric & Power
Co. v. Winesett, 

, 872 (Va. 1983) ("As a general rule,
contributory negligence is a jury issue."). Therefore, the district court
properly denied Lampe’s motion for directed verdict.

                                   B.

   Lampe next contends that the district court erred by instructing the
jury with regard to contributory negligence. Jury instructions are
reviewed for abuse of discretion. In reviewing the propriety of the dis-
6                            LAMPE v. KIM
trict court’s choice of jury instructions, "we accord the District Court
much discretion and will not reverse provided that the instructions,
taken as a whole, adequately state the controlling law." Teague v.
Bakker, 

, 985 (4th Cir. 1994). Jury instructions are proper
where the jury charge, construed as a whole, adequately states the
controlling legal principles without misleading or confusing the jury.
Bank of Montreal v. Signet Bank, 

, 832 (4th Cir. 1999).
Federal district courts operate under a federal standard when deter-
mining the sufficiency of the evidence for submission of the issue of
contributory negligence to a jury. See Jones v. Meat Packers Equip.
Co., 

, 372 (4th Cir. 1983). In the absence of evidence,
or reasonable inferences that can be drawn from the evidence disclos-
ing that a plaintiff was negligent, the issue of contributory negligence
should not go to the jury. 

contributory negligence exists in Virginia
when "a plaintiff fails to act as a reasonable person would have acted
for his own safety under the circumstances." 

. With regard to the general instructions of contributory negli-
gence, it appears that the court adequately stated the controlling legal
principles without confusing or misleading the jury. Contributory
negligence is generally a question for the jury under Virginia law.
Virginia Elec. & Power 

. The court correctly
noted that the defendant has the burden of showing contributory neg-
ligence. See Commonwealth v. Coolidge, 

, 341 (Va.
1989). As discussed, the jurors could infer contributory negligence
from the evidence presented at trial. Because there was sufficient evi-
dence upon which to send the issue of contributory negligence to the
jury, the court did not abuse its discretion by instructing the jurors
regarding that issue.

   Turning to the specific instruction that a motorcycle is a motor
vehicle, appellees argue that appellant did not properly object to the
instruction under Federal Rule of Civil Procedure 51. Regardless of
the propriety of appellant’s objection, the district court did not abuse
its discretion by giving the final instruction. The court correctly stated
the law that a motorcycle is considered a motor vehicle in Virginia.
USAA Cas. Ins. Co. v. Yaconiello, 

, 324 (Va. 1983)
(the term "motor vehicle" in the Virginia Code carries a statutory defi-
nition sufficiently broad to include motorcycle). Rather than confus-
                              LAMPE v. KIM                               7
ing or misleading the jury, this instruction served to clarify previous
instructions regarding "motor vehicles." Although Lampe argues that
this instruction improperly indicates that he was negligent, contribu-
tory negligence was properly at issue in the case. Therefore, the dis-
trict court did not abuse its discretion by its final statement in the jury
instructions regarding motor vehicles.

                                   IV.

   After considering the record, the briefs, and the applicable law, and
having the benefit of oral argument from the parties, we conclude that
the district court properly denied Lampe’s motion for directed verdict,
and it also properly instructed the jury regarding contributory negli-
gence. Where reasonable minds could disagree on the existence of
contributory negligence, that question was proper for the jury’s con-
sideration. The district court’s jury instructions adequately stated the
controlling law and did not confuse or mislead the jury. The judgment
of the district court is accordingly

                                                             AFFIRMED.