City of Bedford v. Zimmerman

Present: All the Justices

CITY OF BEDFORD
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 001927 June 8, 2001

GUY DUVALL ZIMMERMAN

FROM THE CIRCUIT COURT OF BEDFORD COUNTY
James W. Updike, Jr., Judge

I.

The primary issue that we consider in this appeal is

whether the plaintiff was guilty of contributory negligence as

a matter of law.

II.

The plaintiff, Guy Duvall Zimmerman, filed a motion for

judgment against the City of Bedford, which operates an

electric power department. He alleged that he was injured as

a result of the City's failure to turn off electrical power to

a temporary power meter base. The City admitted that it was

negligent, but asserted that the plaintiff was guilty of

contributory negligence.

At a jury trial, the circuit court denied the City's

motion to strike the plaintiff's evidence on the basis that

the plaintiff was guilty of contributory negligence as a

matter of law, and the jury returned a verdict in favor of the

plaintiff in the amount of $170,000. The circuit court
entered a judgment confirming the jury's verdict, and the City

appeals.

III.

A.

In accordance with well-established principles, we will

recite the facts in the light most favorable to the plaintiff,

the prevailing party at trial. Rice v. Charles, 260 Va. 157,

161, 532 S.E.2d 318, 320 (2000). "The verdict of the jury in

favor of [Zimmerman], upon which the [circuit] court entered

judgment, settles all conflicts of testimony in [his] favor

and entitles [him] to all just inferences deducible therefrom.

Fortified by the jury's verdict and the judgment of the court,

[Zimmerman] occupies the most favored position known to the

law." Pugsley v. Privette, 220 Va. 892, 901, 263 S.E.2d 69,

76 (1980) (citing Tri-State Coach Corp. v. Walsh, 188 Va. 299,

303-04, 49 S.E.2d 363, 365 (1948)); accord Cooper Industries

v. Melendez, 260 Va. 578, 584, 537 S.E.2d 580, 583 (2000);

Norfolk Beverage Company v. Cho, 259 Va. 348, 350, 525 S.E.2d

287, 288 (2000).

B.

Zimmerman, a Class B electrical subcontractor, installed

electrical wiring at a house under construction at 1405

Jefferson Terrace in Bedford. The City's electric department

supplied electric power to the subdivision where the house was

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located. Zimmerman installed a temporary meter base at the

residential construction site. The temporary meter base was

mounted on a wooden post a few feet away from the City's

transformer box, which is used to transfer electric power from

underground distribution lines to individual residences.

After Zimmerman had installed the post and the temporary

meter base, the City's employees connected the wires from the

temporary meter base to the transformer box. The City's

employees also installed an electric meter which was attached

to the temporary meter base. The meter measured the amount of

electric current used. After Zimmerman had completed the

installation of the electric wiring in the home, the City's

building inspector approved the work, and a work order was

submitted to the City requesting that it change the temporary

electric service to permanent electric service.

In accordance with certain procedures utilized by the

City, its employees were supposed to terminate electric power

to the temporary meter base by disconnecting the wires that

extended from the temporary post to the transformer box. The

City's employees would then remove the meter from the

temporary meter base and place the meter into a permanent

meter base on the house.

Calvin R. Fields, who was the line superintendent in the

City's electric department, testified that if the City failed

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to terminate power to a temporary meter base, the City's

employees would place a plastic cover over the meter base

because it should not be left "opened and energized." When

asked, "[i]s there ever a situation in the City of Bedford in

your experience where you would leave the temporary hooked up,

take the meter out, put it over to the house and leave [the

temporary base] open?," Fields responded, "No." Fields also

stated that he had never seen an "energized" temporary meter

base that did not have either a cover on it or a meter in it.

Fields gave a service order to change the electric

service at the site where Zimmerman was working from temporary

status to permanent status to Dennis Krantz, a City employee.

On the morning of March 14, 1996, Zimmerman spoke to Fields

and asked him whether the electric power that served the

temporary post had been cut off. Fields responded that

electric power to the temporary post "will be unhooked."

"[H]e looked at his watch, [and said], 'It is unhooked.' He

[said], 'You can get it any time you want to.' "

Subsequently, Zimmerman and his grandson, Ronnie A.

Angle, returned to the residence that day to remove the post

and temporary meter base. Zimmerman visually inspected the

temporary meter base. The meter was not in the meter base.

The City had not placed a cover over the meter base. These

facts indicated to Zimmerman that the City had terminated the

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source of electric power that had served the temporary meter

base. Zimmerman had never "seen a situation where [the meter

base] had been left open and it was energized."

Zimmerman had previously removed temporary posts from

residential construction sites in Bedford at least 75 times.

On each prior occasion, the City's employees had removed the

meter from the temporary post after the City's employees had

connected the permanent power to the house. When Zimmerman

approached the post that he had installed at this construction

site, he saw the temporary post without a meter or a cover.

Zimmerman, in his experience as an electrical subcontractor in

the City of Bedford, had never encountered a temporary meter

base which was energized with power that did not have a meter

in it or a cover on it. He testified that "[w]hen they leave

the meter base hot, if they don't leave the meter in it, they

put a plastic cover over it to protect it."

While removing his temporary post and meter base,

Zimmerman cut the wires that extended from the temporary post

to the transformer, "some sparks flew and [his] hands went up

in the air." Zimmerman was injured as a result of an electric

shock.

During cross-examination, in response to the question,

"[d]o you agree that the person who is dealing with the wire

is the one who has the duty to positively know that it is

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energized or de-energized?," Zimmerman responded, "[y]es,

sir." Zimmerman stated, however, "I knew from my experience

with [Fields] I could believe him that he would do what he

told me." Even though Zimmerman had a volt meter which he

could have used to determine whether the electricity had been

disconnected before cutting the wires, he failed to use it.

Fields testified that after the accident, he spoke with

Zimmerman who stated that Angle had warned Zimmerman that he

should not cut the wires because they may "still be hooked up

to the transformer." Fields stated that Zimmerman said, "he

went ahead and cut them anyway." Zimmerman denied making

those statements.

The City's expert witness, Frank E. Mitchell, testified

that an electrical contractor must make an independent

determination whether the source of power to a temporary meter

base has been terminated. However, Mitchell also testified

that in his 43 years as an electrician, he had never

encountered a temporary meter base which was connected to an

electrical source and the meter had been "pulled out and left

open." Mitchell gave the following testimony:

"Q: [T]he superintendent said the service
order was put in, and, in fact, the work was done
that morning and never cut off. You haven't
encountered that situation, have you?

"A: No.

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 "Q: If anything is energized, you expect a
cover to be on it, if it is a meter base?

"A: Yes, if it was, it was hot I would say it
would be, right."

IV.

The City, relying principally upon Kelly v. Virginia

Elec. & Power Co., 238 Va. 32, 381 S.E.2d 219 (1989), and

Watson v. Virginia Elec. & Power Co., 199 Va. 570, 100 S.E.2d

774 (1957), argues that the plaintiff was guilty of

contributory negligence as a matter of law. We disagree with

the City.

The legal principles pertinent to our resolution of this

appeal are well established in our jurisprudence:

"Resolving conflicts in the evidence is a
prerogative of the jury. A court should not
determine as a matter of law that a party is guilty
of or free from negligence unless the evidence is
such that reasonable [persons], after weighing the
evidence and drawing all just inferences therefrom,
could reach but one conclusion."

J & E Express, Inc. v. Hancock Peanut Co., 220 Va. 57, 62, 255

S.E.2d 481, 485 (1979); accord Loving v. Hayden, 245 Va. 441,

444, 429 S.E.2d 8, 10 (1993). Additionally, we have stated

repeatedly that ordinarily, "questions of contributory

negligence must be resolved by the jury." Loving, 245 Va. at

444, 429 S.E.2d at 10; Holland v. Shively, 243 Va. 308, 311,

415 S.E.2d 222, 224 (1992); Artrip v. E.E. Berry Equipment

Co., 240 Va. 354, 358, 397 S.E.2d 821, 823 (1990).

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 In the present case, whether Zimmerman's conduct was

reasonable is a question of fact which was resolved by the

jury. Even though Zimmerman testified that a Class B

electrical contractor has a duty to ascertain whether the

supply of electricity to wires has been terminated, the jury

could have found that Zimmerman complied with this duty

because the City's line superintendent had informed him that

the source of power had been terminated. The jury could have

also concluded that the fact that the meter base was uncovered

and the meter removed from the temporary base and affixed to

the permanent meter base led Zimmerman to conclude that the

power source to the temporary meter base had been

disconnected. Furthermore, the jury was entitled to consider

the testimony of the City's own expert witness who had never

encountered a temporary meter base with an electrical source

of power where the meter had been "pulled out and left open."

And, we note that the jury was free to reject Fields'

statement that Angle had warned Zimmerman that the power

source to the temporary meter base may not have been

disconnected.

We also observe that our decisions in Watson and Kelly

are not dispositive of this appeal. In Watson, we held that a

decedent, who was electrocuted when his metal pipe made

contact with high voltage electric wires, was guilty of

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contributory negligence as a matter of law. 199 Va. at 576,

100 S.E.2d at 779. We noted in Watson that there were no

obstructions which would have prevented the decedent from

viewing the overhead electric wires. In Kelly, we held that a

plaintiff, who was injured when his aluminum ladder made

contact with a high voltage uninsulated overhead wire, was

guilty of contributory negligence as a matter of law. 238 Va.

at 41, 381 S.E.2d at 224. We pointed out that the presence of

a large transformer with wires attached to it, which were

open, obvious, and in plain view, should have alerted the

plaintiff that he ought not manipulate an aluminum ladder

within three feet of a wire that transmitted electricity. 238

Va. at 40, 381 S.E.2d at 223.

Unlike the facts in Watson and Kelly, the plaintiff in

this case was specifically informed by the supplier of the

source of electricity that the electricity had been

terminated, and the jury was entitled to conclude, in view of

the facts in this record, that the plaintiff's conduct was

reasonable.

Next, the City argues that the circuit court erred in

failing to grant certain jury instructions. The City

requested that the circuit court grant the following proposed

jury instructions which state:

P.

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 "The Court instructs the jury that the
plaintiff, before he cut the line that he claims
shocked him, had a duty to exercise that degree of
care and skill that reasonably prudent electrical
contractors and others who work regularly with
electrical distribution lines would exercise, to
determine whether or not the line was charged with
electricity before he cut it.
"If you find from the greater weight of the
evidence that the plaintiff failed to perform this
duty, then he was negligent."

R.

"The Court instructs the jury that when the
plaintiff cut the line charged with electricity, he
had a duty to do so in a manner that was not
dangerous to himself if he did not know whether the
line was hot or not when he cut it.
"If you find from the greater weight of the
evidence that the plaintiff failed to perform this
duty, then he was negligent."

In refusing the proffered instructions, the circuit court

stated:

"It is the Court's feeling that this jury needs to
be instructed and will be instructed with other
instructions on negligence, contributory negligence,
assumption of the risk and all of those matters are
covered in other instructions. P therefore becomes
argumentative.
. . . .

"R is unnecessary in view of other
instructions; refused, covered in other instructions
and argumentative."

We agree that the circuit court did not err in failing to

grant the City's proposed instructions. We have reviewed the

jury instructions which were granted, and we hold that the

refused instructions were duplicative of other instructions.

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 V.

In view of our holdings, we need not consider the

parties' remaining arguments. Accordingly, we will affirm the

judgment of the circuit court.

Affirmed.

JUSTICE KOONTZ, with whom CHIEF JUSTICE CARRICO and JUSTICE
KINSER join, dissenting.

I respectfully dissent. In this appeal, the City of

Bedford has the burden to show “that there is no conflict in

the evidence of contributory negligence, and that there is no

direct and reasonable inference to be drawn from the evidence

as a whole, sustaining the conclusion that [Guy Duvall

Zimmerman] was free of contributory negligence.” Virginia

Electric and Power Co. v. Wright, 170 Va. 442, 448-49, 196

S.E. 580, 582 (1938). In my view, the City has met that

burden.

The pertinent facts are not complicated or materially in

dispute. Beyond question, the City’s employees negligently

failed to disconnect the original underground power line that

supplied electric energy from its nearby transformer box to

the temporary meter base which had been installed by Zimmerman

at a construction site for a new house. The City’s employees

also negligently failed to cover the temporary meter base

after removing the meter, placing it into a permanent meter

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base on the house, and energizing the new underground power

line from the transformer box to the meter. Moreover, another

City employee verbally assured Zimmerman that the power line

in question was “unhooked,” or no longer energized. Upon

these facts, at trial the City admitted that it was negligent.

The critical facts regarding the issue of contributory

negligence, however, were established by Zimmerman’s

testimony. Upon direct examination, Zimmerman testified that

he was a licensed Class B electrical contractor with over

twenty-five years of experience in residential electrical

contracting. With regard to the power line in question, he

testified that “I started pulling the [power line] up because

it [was] very shallow in the ground. I pulled it on over to

the transformer. I pulled on it a little bit and it was a

little stuck.” Zimmerman testified that he then cut the power

line with his “cutters” without first testing the line with

his available voltage meter. Upon cutting the power line,

Zimmerman received an electrical shock that resulted in his

personal injuries. This testimony shows that Zimmerman failed

to act as a reasonable person with his knowledge of

electricity would have acted for his own safety under the

circumstances. But Zimmerman’s testimony on cross-examination

is even more conclusive on that issue.

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 Zimmerman conceded that “the person who is dealing with

the wire is the one who has the duty to positively know that

it is energized or de-energized.” He testified, however, that

he was not “positively sure” that the power line was unhooked

and that he could have tested it with his voltage meter.

Moreover, when he pulled on the line he did so lightly because

“[i]f it [was] stuck in the transformer, I wasn’t taking a

chance on hitting hot lines or something.” Finally, Zimmerman

testified that if he had cut each of the three wires in the

power line separately, rather than cutting all three at the

same time, he could have “totally eliminate[d] the danger of

shock.”

“[T]he danger of electrical energy is a matter of common

knowledge to all persons of ordinary intelligence and

experience.” Watson v. Virginia Electric and Power Co., 199

Va. 570, 575, 100 S.E.2d 774, 778 (1957). Here, Zimmerman not

only knew of that danger, but he admittedly adopted a careless

course of conduct that unnecessarily exposed him to injury

from that danger. A reasonable, prudent person would not fail

to test a power line before cutting it. An energized power

line is unforgiving; it affords only one opportunity to test

it to avoid an electrical shock. Moreover, a reasonable,

prudent person knowing, as Zimmerman did, that cutting each

wire in the power line separately would totally eliminate the

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danger of shock if the line happened to be energized would not

cut the line in any other way. Surely, an experienced

electrician concerned with his safety would act in accord with

that knowledge.

Contrary to the view taken by the majority in this case,

whether Zimmerman’s conduct was reasonable is not a question

that should have been resolved by the jury. Rather, “when

persons of reasonable minds could not differ upon the

conclusion that [contributory] negligence has been

established, it is the duty of the trial court to so rule.”

Kelly v. Virginia Power, 238 Va. 32, 39, 381 S.E.2d 219, 222

(1989). Zimmerman’s testimony established his careless, if

not reckless, conduct. There is no conflict in that evidence

and no direct and reasonable inference to be drawn from the

evidence as a whole, sustaining a conclusion that he was free

of contributory negligence. Regardless of the negligence of

the City, Zimmerman knew that the power line might still be

connected to the transformer box and energized when he elected

to cut it without first testing it.

It is well settled that the issue of contributory

negligence is generally a question for the jury to determine.

The prerogative of the jury in doing so is to resolve

conflicts in the evidence. That prerogative, however, does

not permit the jury to weigh the evidence and assign degrees

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of negligence between the defendant and the plaintiff in a

personal injury suit. In the present case, the evidence shows

that both the City and Zimmerman were negligent and that the

negligence of both efficiently contributed to Zimmerman’s

injuries. Comparative negligence is not the law of this

Commonwealth; contributory negligence is an absolute bar to

recovery.

For these reasons, I would hold that the trial court

erred in submitting the issue of Zimmerman’s contributory

negligence to the jury. Thus, I would reverse the judgment in

favor of Zimmerman and enter final judgment in favor of the

City.

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