Virginia Elec. and Power Co. v. Winesett

• Decision Date: 17 June 1983
• Docket Number: No. 801872,801872
• Citation: 225 Va. 459,303 S.E.2d 868
• Court: Virginia Supreme Court
• Parties: VIRGINIA ELECTRIC AND POWER COMPANY v. Anna Ruth WINESETT, Administratrix, etc. Record

Page 868

303 S.E.2d 868

225 Va. 459

VIRGINIA ELECTRIC AND POWER COMPANY v. Anna Ruth WINESETT, Administratrix, etc.

Record No. 801872.

Supreme Court of Virginia.

June 17, 1983.

G.H. Gromel, Jr., Richmond (Matthew J. Calvert, Hunton & Williams, Richmond, on briefs), for appellant.

Harvey B. Cohen, Arlington (Joanne F. Alper, Thomas W. Williamson, Jr., Emanuel Emroch, Cohen, Gettings & Sher, Emanuel Emroch & Associates, Richmond, on brief), for appellee.

Before CARRICO, C.J., COCHRAN, POFF, COMPTON and STEPHENSON, JJ., and HARRISON, Retired Justice.

COCHRAN, Justice.

Anna Ruth Winesett, Administratrix of the Estate of James Woodrow Winesett, deceased, filed a motion for judgment for damages against Virginia Electric and Power Company (Vepco). The administratrix alleged that Vepco's negligent operation and maintenance of certain electric distribution wires had caused the death by electrocution of her husband while he was trimming a tree on private property. In a jury trial, a verdict was returned in favor of the administratrix in the amount of $182,796, to be apportioned as therein specified; the trial court entered judgment on the verdict.

We granted Vepco an appeal limited to three questions: whether the decedent was contributorily negligent as a matter of law, whether there was evidence that any negligence of Vepco was the proximate cause of his death, and whether Vepco was entitled to have the jury given an instruction on assumption of risk. According to established principles, the administratrix, with a verdict approved by the trial court, is entitled to have the evidence viewed in the light most favorable to her in our consideration of the first two questions. The evidence is to be viewed in the light most favorable to Vepco, however, in determining whether the trial court erred in refusing to grant the proffered instruction on assumption of risk.

In October of 1976 a maple tree was growing in the front yard of Robert W. Carl's residence in Arlington. Three utility lines, strung above a grassy walkway between the street and the front wall of the yard, extended between two poles belonging to the telephone company. The bottom line was an insulated telephone cable. The second line, 25 feet 4 inches above the ground, was a secondary Vepco line, a configuration of three wires, known as a triplex, consisting of two insulated ¹ "hot" wires intertwined with a bare, shiny, neutral wire. The highest line, 30 feet 8 inches above the ground, was a primary Vepco line, a bare, dark-colored uninsulated copper wire about two-tenths of an inch in diameter carrying 7,200 volts of electricity. This top wire was the smallest in diameter of all the wires.

The Carls' yard sloped from the house to the wall at the street; the base of the maple tree was more than four feet higher than the ground directly underneath the service wires. Branches of the tree had grown through the wires and protruded on the other side a distance of as much as two or three feet. One night in February or March of 1976 when freezing rain had fallen a neighbor observed the tree branches tapping on the electric wires in 10 to 14 places within the space of six feet. Each contact caused a white spark and a popping sound.

Carl became concerned about the branches touching the wires. In August of 1976 he telephoned the Vepco offices and reported to three employees the problem of the branches possibly causing an "electrical hazard" by touching the wires in wind or snow. When no action was taken by Vepco, Carl decided in October to have the maple tree removed at his own expense. He telephoned Winesett, who had painted the Carls' house inside and out and had done general work for them, and "explained the problem" about the limbs touching the wires. Winesett "felt sure that he could handle it." Carl did not discuss directly with Winesett the existence of the power lines or tell him about the "sparking." Winesett, who had never done any tree work for Carl, gave assurances that he could take down the maple tree, agreed to do so, and Carl had "complete faith" in his ability to do the job.

On October 4, a clear, dry day, Winesett and a helper, Thomas P. McClennan, arrived with a rented electric chain saw to cut down the tree. McClennan had no knowledge that the top wire was an uninsulated high-voltage line, nor did Winesett say anything to indicate that he had such knowledge. McClennan did not know what the wires were. He "knew they were wires of some kind carrying something," but he did not know whether they were telephone wires. If there was any "big power being carried in these lines," McClennan testified, he "would assume it was being carried in the big lines, the two bottom ones," because they appeared to be insulated. The principal concern of Winesett and McClennan was that some of the wires might be broken; a broken wire would hit the ground, set off sparks, and endanger persons. For this reason the two men planned to cut the tree so that the limbs would not hit the wires.

Winesett, using the chain saw plugged into an outlet in the house and an aluminum ladder of Carl's, did the cutting. McClennan, who remained on the ground, stacked the cut branches. They used no ropes on the job and wore no protective clothing. During the cutting, one branch that had been cut brushed the top wire before falling to the ground, but nothing happened. After they had been working about half an hour, McClennan heard Winesett scream, "Unplug the saw." McClennan did so, then went up the ladder twice to assist Winesett. McClennan received shocks from the ladder and from Winesett when he grasped him by the legs. Winesett fell from the tree. Wherever McClennan moved in the tree, he received an electric shock; he was unable to descend until Vepco personnel rescued him.

The last branch Winesett cut remained partially attached to the tree; the base of the branch "hinged" at the cut mark, and the upper portion of the branch came to rest upon the high-voltage wire, thereby conducting electric current from the wire through the branch, the rest of the tree, Winesett, and the ladder. Winesett died from cardiac arrest caused by electrocution; he was survived by his widow (the administratrix), and three infant children.

McClennan estimated that before the branch was cut it was "about five feet or more" from the line at the closest point. As it lay across the top wire and parallel to the ground the branch was smoking. Measurements taken after the accident revealed that the trunk of the tree was 11 feet 6 inches from the closest point directly under the wires; a charred mark made where the ladder rested against the tree trunk was 21 feet 8 inches above the ground; a charred mark on the branch made where it touched the top wire was about 9 feet 5 inches from the point where the branch had been cut; the distance from the ground to the cut mark was 26 feet 8 inches; and the cut mark was approximately the same height as or a few inches higher than the top wire. The portion of the branch still attached to the tree was pointed in the direction of the top wire; and the cut portion of the branch was 17 feet 3 inches in length.

I. Contributory Negligence.

Vepco's primary negligence is not an issue on appeal. Vepco argues, however, that the evidence shows conclusively that Winesett was negligent, and that his negligence was a proximate cause of the fatal accident and therefore requires reversal of the judgment of the trial court and entry of judgment in favor of Vepco.

As a general rule, contributory negligence is a jury issue. See Coleman v. Blankenship Oil Corp., 221 Va. 124, 129, 267 S.E.2d 143, 146 (1980). At trial, Vepco had the burden of showing by a preponderance of evidence contributory negligence on the part of Winesett. On appeal, however, Vepco has the heavier burden of showing "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 ... [plaintiff's decedent] was free of contributory negligence." Va. Elec. & Power Co. v. Wright, 170 Va. 442, 448-49, 196 S.E. 580, 582 (1938), quoted with approval in Virginia E. & P. Co. v. Whitehurst, 175 Va. 339, 346, 8 S.E.2d 296, 299 (1940).

Relying principally on Smith v. Vepco, 204 Va. 128, 129 S.E.2d 655 (1963), and Watson, Adm'x v. Virginia Elec., etc., Co., 199 Va. 570, 100 S.E.2d 774 (1957), Vepco contends that it carried its burden of proving contributory negligence as a matter of law. We disagree.

Smith and Watson are distinguishable. In each case, we affirmed the finding of contributory negligence as a matter of law made by the trial court. The plaintiff in Smith was a rod man on a surveying team. Smith testified that he was looking backward toward another member of the team and descending the side of a mountain when he was injured. His rod came in contact with an overhead electric transmission line carrying 44,000 volts. He admitted that he had seen the line and remembered that there was some conversation that day about what kind of line it was. He also recalled that he had talked with the men in his party about the danger of getting a rod into electric wires. In Watson, the plaintiff's decedent was electrocuted when a metal pipe that he was using to dig a well struck an uninsulated high-voltage power line almost directly overhead. The evidence showed that he had greater familiarity with electricity and its potential danger than the average person.

Vepco says that in the present case Winesett, as an intelligent person, was charged with the knowledge "that any line carrying electricity is dangerous." Watson, 199 Va. at 575, 100 S.E.2d at 778. Nevertheless, Vepco asserts, Winesett ignored the danger posed by the wires and proceeded to trim the maple tree in a negligent manner. Vepco presented evidence to show that professional tree trimmers in the exercise of reasonable care would...