Stephens v. Va. Electric &

• Decision Date: 06 June 1945
• Court: Virginia Supreme Court
• Parties: STEPHENS . v. VIRGINIA ELECTRIC & POWER CO.

34 S.E.2d 374

184 Va. 94

STEPHENS .

v.VIRGINIA ELECTRIC &

POWER CO.

Supreme Court of Appeals of Virginia.

June 6, 1945.

Error to Circuit Court of City of Norfolk; R. B. Spindle, Acting Judge.

Action by notice of motion for judgment by Chessie Stephens against the Virginia Electric & Power Company for personal injuries, alleged to have been caused by electricity which escaped from a switch box. Judgment for defendant notwithstanding verdict for plaintiff, and plaintiff brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Louis B. Fine, of Norfolk, for plaintiff in error.

T. Justin Moore and Archibald G. Robertson, both of Richmond, for defendant in error.

GREGORY, Justice.

Chessie Stephens, the plaintiff in error, instituted an action at law against Virginia Electric and Power Company for personal injuries sustained by her and a jury found a verdict in her favor for $2,000. Upon motion of the defendant, the trial court set the verdict aside and entered final judgment in its favor, on the ground that no actionable negligence of the defendant had been disclosed by the evidence.

Mrs. Stephens, who will be referred to as the plaintiff, and her husband, operated a cafe at the corner of 25th and Granby streets in the City of Norfolk. On April 1, 1943, after having finished her work at the cafe, she left and walked across the sidewalk to her automobile, which was parked parallel to the curb on Granby street. The defendant maintained an electric pole located in front of the cafe, about sixty feet from the corner, and the car was parked beside the pole. On the pole the defendant maintained a switch box about, ten feet above the ground, which housed a switch. Through its underground connections, the switching device automatically threw the switching rails at the intersection of 25th street in order that street cars might proceed either on 25th street or upon Granby street without having to throw them manually. As the plaintiff attempted to get into her car, she claims to have been injured by electricity which escaped from the switch box. Her version of what occurred is as follows: "Gentlemen of the jury, and Judge, your Honor, when I came out of the cafe to catch hold of the door to my car that was parked under the pole, I opened the door and put my foot up on the curb and that time a street car came up and then all at once something exploded on top of myhead--fire--and struck me in my ear, and that is the last thing I remember."

The plaintiff was largely corroborated in her statement by another witness who was with her at the time. He said: "And when she got near the car she was close to the pole and I was approximately about four or five feet from her, and I saw the light of the electricity and it hit right in the back of her ear--somewhere over here, anyway (indicating), and at the minute I got scared, I didn't know what happened--I run right over to help her * * *. That is what happened in the whole thing."

The expert witnesses and the preponderance of the testimony from all of those familiar with the operation of this particular appliance shows that it was impossible for the plaintiff to have been injured in the manner described by her. However, upon this writ of error, she having recovered a verdict, and her version having been corroborated by another witness, under well settled principles, we must accept her statement even though it is against the decided preponderance of evidence.

The notice of motion for judgment which was filed by the plaintiff alleged that "through the carelessness and negligence of the defendant in and about the operation and maintenance of a certain switch box located on the south east corner of 25th and Granby streets in the City of Norfolk, Virginia, caused a bolt of electricity to strike the undersigned plaintiff all over her person, and particularly to her head, eye, cheek, nerves, arm and ear, and as a consequence of said bolt striking the plaintiff as aforesaid, she sustained much pain, etc."

It is conceded that in order for the plaintiff to have sustained a recovery she necessarily was compelled to rely upon the doctrine of res ipsa loquitur. If she is entitled to recover her recovery must be based upon presumed negligence, for no actual negligence was disclosed.

All of the evidence discloses that the defendant exercised proper care in the acquisition of the switch, that it properly installed it, and that it properly inspected it.

The evidence discloses that the coil in the switch had burned out causing a gap of almost an "inch or a little wider." An inspection of the switch an hour after the accident disclosed that nothing else was out of order. The coil was immediately replaced and the device thereafter worked perfectly. It appears that there are no moving parts in the device and there is no friction or wear and tear on it as usually is the case where there are moving parts. The coil in this type of switch seldom burns out, and its life is indefinite. Some of them have been in operation by the defendant for fifteen or twenty years without being replaced. However, infrequently, they do burn out. As expressed by a witness, "those coils are sort of like your street lamps or your fuses in your home; there is no regular time for them to burn out." When a coil burns out an arc occurs which occasions a flare from the switch box, but every expert testified that there was no danger when the coil burns out because the current automatically is cut off.

The switch is constructed to carry the necessary voltage required to throw the switch rails. This required voltage is from a maximum of 600 volts down to 550 volts. A direct current of electricity, as distinguished from an alternating current, flows into the switch from an auxiliary overhead wire strung from the trolley wire to the switch. As the street car passes the switch box at from three to four miles per hour the switch rails at the corner are thrown automatically. One characteristic of the direct current is that it does not build up an excess of electricity. It is uncontradicted that there was a proper ground wire, properly...