Smith v. Virginia Elec. & Power Co.

• Decision Date: 04 March 1963
• Docket Number: No. 5532,5532
• Citation: Smith v. Virginia Elec. & Power Co., 129 S.E.2d 655, 204 Va. 128 (1963)
• Parties: CHARLES MELVIN SMITH v. VIRGINIA ELECTRIC AND POWER COMPANY. Record
• Court: Virginia Supreme Court

Page 655

129 S.E.2d 655

204 Va. 128

CHARLES MELVIN SMITH v.VIRGINIA ELECTRIC AND POWER COMPANY.

Record No. 5532.

Supreme Court of Appeals of Virginia

March 4, 1963.

R. B. Stephenson, Jr.(J. W. C. Johnson, on brief), for the plaintiff in error.

Archibald G. Robertson and Lewis T. Booker(Hunton, Williams, Gay, Powell and Gibson, on brief), for the defendant in error.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

Charles Melvin Smith, the plaintiff, was seriously injured when a current of electricity was transmitted to him from an uninsulated high tension electric wire through a metallic rod he was using in connection with a land survey.The wire was owned and operated by the Virginia Electric and Power Company, hereinafter referred to as Vepco.

Smith filed a motion for judgment against Vepco to recover damages for his injuries.He alleged that the defendant had negligently constructed, maintained and operated its wires at a height which was dangerously unsafe for persons on or about the land over which the wires ran, and had negligently failed to warn plaintiff of the dangerous condition when it knew he would be working near the said lines.Vepco denied that it was guilty of any negligence and averred that the injuries to Smith were due to his own negligence.

The case was called for trial before a jury and, at the conclusion of plaintiff's evidence, the court, on motion of the defendant, struck the evidence on the ground it established that plaintiff's injuries were caused solely by his own negligence.Summary judgment was entered for the defendant.Plaintiff excepted and we granted this writ of error.

The evidence presented by the plaintiff is without substantial dispute.The accident occurred on May 28, 1959, at approximately 9:30 o'clock a.m. Smith, then twenty-one years of age, was born and reared in Lexington, Virginia.He was employed as a rod man on a survey crew by the Virginia State Highway Department in June, 1958.He first worked with such a crew near Natural Bridge, Virginia, and was then transferred to the Fredericksburg area, where he worked with a crew on Interstate RouteNo. 95.In March, 1959, he was transferred to the Lexington area, and on May 25, 1959, his crew began surveying alone a mountainside for bridge sites for proposed Interstate RouteNo. 64 in the Dunlap Beach area of Alleghany county, about five miles west of Covington, Virginia.

On the morning of May 28, Smith was near the top of the mountain when a metallic surveyor's rod he was handling came in contact with a 44,000 volt electric transmission line of the defendant.He and several others were taking elevations and surveying contour lines.They descended the mountain along a footpath which they cut through the brush and vegetation at right angles to the proposed highway center line.Jim McCrowell, a member of the crew, went ahead carrying a tape measure.Smith, the rod man, facing backward up the slope, followed a few feet behind McCrowell, and Donald Floyd, the level man, followed Smith at a distance of about 10 to 15 feet.The mountain in the area where Smith was working rises steeply above Dunlap Beach, the terrain is rocky, and covered with thick scrubby brush and heavy foliage.The rise is so steep along the line traveled by Smith that elevation increases 59 feet in a horizontal distance of 72 feet.The thick brush arose high enough at some places to be over a man's head and at other places is chest-high.On the right-of-way under the power line, the brush was lower.It had been formerly cut but had grown back somewhat.One witness said that the brush on the right-of-way was thinner than that on each side of the center for a distance of 20 or 30 feet therefrom.Where the accident occurred, the electric wires crossed a narrow ridge and the wires were closer to the ground there than they were at any point distant 10 feet on each side of the ridge.There was no evidence as to their exact height above the ground at any particular point.

The rod Smith carried was 13.8 feet long.It showed burn marks at its top where contact was made with the electric wire and marks on its lower end where it had been held by the hands of Smith.This establishes the height of the wires from the ground at the least as being as much as the distance from the burn marks at the top of the rod to the point on its lower end where it was held by Smith, plus the distance from the latter point to the ground below.

Mrs. Vada Myers, who lived in the area involved, said that the transmission line had five wires, which were attached to small insulators on a crossbar attached to poles, and that they sagged somewhat between the poles.

E. H. Richardson, the owner of the property over which the right-of-way ran, and who lived at the foot of the mountain, said that the transmission line had a few years earlier been raised, at his request, about 7 feet above its former height of 7 feet, and that the new elevation was satisfactory to him.He testified that he remembered seeing two ladies on the mountain during the fall before the trial; but they were the last peoplehe had seen there.He also said that children sometimes played on the mountain; but that it had been 4 or 5 years since he had seen any children there.Moreover, he'wouldn't say that people frequented the ridge' where the accident occurred.

Floyd Lane testified that he had been living at the bottom of the hill where the accident occurred about 6 years; that he had seen hunters go up there during the hunting season; that his boy and other boys were seen sometimes 'swinging on grapevines' and cutting the tops of trees that had blown down; and that he thought the children climbed up on the rocks as a challenge.The testimony about the children related to occurrences about 2 years before the accident.

There was evidence that before the accident, Vepco was given notice that surveying parties of the Virginia Department of Highways would be working in the area in connection with the location and design of the new highway.

It was stipulated that 'The National Electrical Safety Code in effect when plaintiff was injured recommended a minimum vertical clearance above ground of 17 feet where wires of 15,000 to 50,000 volts cross over spaces or ways accessible to pedestrians only.'

Smith testified that when he went to the top of the mountain on Monday, May 25, he saw the transmission line where it crossed a ridge about 75 feet from the place where he was injured.He recalled that on the same day there was some conversation among the crew about what type of line it was.He said that he had talked with the men in his party about electric wires and the possible danger, and that he knew 'if you get the rod up in them, you knew it would be dangerous there, and everybody looked out.'

Smith described the slope he was descending on the morning of May 28, as 'very steep, practically, in places straight up and down, just to steep it was all you could do to stay on the side of it,' and slippery because of a rain the night before.He said he had to be very careful with his footing and watch his steps as he descended.Sometimes he had to walk 'straddle-legged' across ridges, and to stand in that position when he stopped to hold up his rod so that measurements could be taken by Donald Floyd, the level man.While performing his duties, continuing his descent, holding up his rod, and looking backward toward Floyd, he was suddenly injured.On the witness stand, he said he had no recollection as to just what happened at that immediate time.However, in giving a medical history to three physicians after the accident, he told each of them that his rod came in contact with the electric line.

Floyd, the level man, who was reading the elevations from Smith's rod, said he had noticed the transmission line before Smith was injured; but did not recall where or when.He had heard other members of the crew talking about the line as carrying high voltage, either the evening before or the morning of Smith's injury; but he had no idea what the voltage was.He did not see Smith when the latter's rod came in contact with the line.He was looking in another direction, and his attention was attracted to the accident by a fiash of fire and 'a loud noise sounding something like a pistol shot. 'He then saw Smith falling, and immediately thought that Smith 'had been electrocuted.'

Kenneth Hostetter, a member of the surveying party, who was not present at the time of the accident, but later went to the scene, said he had no difficulty in seeing the line at the point where Smith was injured, and in realizing it was an electric transmission line.

Smith claims that the trial court erred in striking the evidence on the ground that it was sufficient to...