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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