Virginia Elec. & Power Co. v. Daniel

Decision Date24 April 1961
Docket NumberNo. 5209,5209
Citation202 Va. 731,119 S.E.2d 246
PartiesVIRGINIA ELECTRIC AND POWER COMPANY v. LONEY L. DANIEL. Record
CourtVirginia Supreme Court

Ralph H. Ferrell, Jr. and E. Milton Farley, III (George D. Gibson; Hunton, Williams, Gay, Powell and Gibson, on brief), for the plaintiff in error.

G. Kenneth Miller and Nicholas A. Spinella (May, Garrett, Miller and Newman; Spinella and Spinella, on brief), for the defendant in error.

JUDGE: BUCHANAN

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

Loney L. Daniel, the appellee (plaintiff), brought this action against Virginia Electric and Power Company, appellant, and the City of Richmond, to recover damages for injuries suffered by him when his hand came in contact with an electric wire. The city was dismissed as a defendant because the plaintiff failed to give it the requires statutory notice of his claim. Daniel v. City of Richmond, 199 Va. 490, 100 S.E.2d 763. The plaintiff afterwards prosecuted the action against the Power Company and obtained a verdict against it for $37,500, on which the court entered the judgment from which this appeal was allowed.

Under its assignments of error the Power Company contends that the evidence failed to show that it was guilty of negligence; that as a matter of law the plaintiff was guilty of contributory negligence; that the jury was improperly instructed, and that the verdict was excessive.

There is no material conflict in the evidence as to the essential facts. Daniel, the plaintiff, who was twenty-four years old, was employed by Fibre Board Container Corporation and worked in its building on the north side of Williamsburg avenue in the 3200 block in the city of Richmond. He had been employed there since January 7, 1954. On May 17, 1954, the date of the accident, he was working on the 3:30 p.m. shift, his job being to operate a hand truck and bring material to and remove finished stock from a press located on the second floor of the building. Around 10:30 p.m. the press broke down and Daniel, with two fellow workers, stepped out of a door onto the second floor landing of a metal fire escape attached to the south side of the building above the sidewalk on the north side of the avenue. Their purpose was to take a smoke. It was drizzling rain and the night was dark. Daniel was standing with his back to the outside rail of the fire escape landing. He finished his cigarette, then turned and flipped it into the street. In doing so his hand struck the electric wire and was badly burned, resulting in painful and permanent injury.

The wire with which his hand came in contact was owned and operated by the City of Richmond and carried 30 amperes during nighttime operation and from 2,000 to 5,000 volts of electricity, which was used by the city to serve its street lighting system. The wire was not insulated but had only a weatherproof covering. It ran parallel to the side of the building, was 22 inches from the fire escape, measured horizontally, and five feet above the extended level of the floor of the fire escape landing. The minimum for these distances was three feet and eight feet respectively, according to the National Electrical Safety Code.

This wire, along with two other street lighting wires of the city spaced farther away from the fire escape, stretched from a pole owned by the city standing some distance east of the fire escape to a crossarm on two poles owned by the Power Company, which stood west of the fire escape, and about nine feet apart with a connection between them forming an H-frame and supporting three transformers. Electric lines of the Power Company coming from the west led into these transformers, from which electric current was carried into the building to serve the Fibre Board plant. The nearest of these two poles was 30 feet to the west of the fire escape, and the Power Company's lines ended at that point. The city wires, including the one which the plaintiff touched, were not connected or associated in any way with these Power Company wires and transformers, but proceeded on west past the Fibre Board building.

The crossarm on the Power Company pole, which carried the city wires past the Fibre Board building, was placed there by the city pursuant to a joint use agreement between it and the Power Company, as referred to below.

The electric current carried over the city wire, which the plaintiff touched, was generated by the Power Company and by it sold and delivered to the city at 13,200 volts at the city's Fulton Gas Works Substation east of the Fibfre Board building, pursuant to an interchange agreement between the city and the Power Company made in 1941. There the city, through transformers owned, operated and controlled by it, reduces the voltage down to the different voltages required for the city's uses, one of which is to operate a street light substation which operates the lights on the city streets. Practically all of the street lighting system in the city is constructed, operated and maintained by the city.

The joint use agreement between the city and the Power Company, referred to above, was made November 19, 1913, and provided for the use by the one of the poles of the other to the extent and on the terms stated in the agreement, which included the provision that upon receipt of a written application the owner would grant to the applicant permission to occupy a portion of the owner's pole, stating how much, for the attachment of crossarms and fixtures to support wires, etc., in consideration of a stated rental. Upon the granting of permission the applicant would have the right to use such portion of the pole for any number of fixtures, attachments and devices, to be arranged in a manner satisfactory to the owner, the arrangement to be outlined in the application and approved in the permit. If the owner objected to the proposed attachments, then the applicant could apply to the city engineer to grant the desired right and he would determine the question.

The plaintiff argues that by the force of this agreement the Power Company must be taken to have approved the location of the wire with which the plaintiff's hand came in contact. The evidence does not support that contention. To the contrary, the chief electrical engineer of the city, a witness for the Power Company, testified that in operating under the agreement the city sends a written application to the Power Company requesting certain space on the latter's pole, and if it is the customary space normally used the Power Company signs the permit and returns it 'and that was usually the end of it'; that it was usually a matter of routine to use one another's poles; that details of construction other than the assignment of space on the pole was usually not involved; that the city would merely ask for space on the pole, the first, second or third gain (ordinarily a space of 24 inches) and that was all. He testified that after the city got the use of the space the city decided where to put the wire. As noted, the agreement itself provides that if there is any objection to the proposed attachment the city engineer decides the question. This witness was...

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7 cases
  • Johnson v. Monongahela Power Co.
    • United States
    • West Virginia Supreme Court
    • December 12, 1961
    ...Power Co., 75 W.Va. 676, 84 S.E. 617; Staunton Mut. Telephone Co. v. Buchanan, 108 Va. 810, 62 S.E. 928; Virginia Electric and Power Company v. Daniel, 202 Va. 731, 119 S.E.2d 246. The defendant had a duty to protect or guard its service lines from any danger that the messenger cable might ......
  • Rodriguez v. Schlittenhart, F
    • United States
    • Arizona Court of Appeals
    • May 9, 1989
    ...to terminate electrical service. Ianire v. University of Delaware, 244 A.2d 427, 428 (Del.1968); Virginia Electric and Power Co. v. Daniel, 202 Va. 731, 733, 119 S.E.2d 246, 249 (1961); Oesterreich v. Claas, 237 Wis. 343, 344, 295 N.W. 766, 768 (1941). This view is far more restrictive than......
  • New Mexico Elec. Service Co. v. Montanez
    • United States
    • New Mexico Supreme Court
    • June 23, 1976
    ...(Del.Super.Ct.1968); Hoffmann v. Leavenworth Light, Heat & Power Co., 91 Kan. 450, 138 P. 632 (1914); Virginia Electric and Power Company v. Daniel, 202 Va. 731, 119 S.E.2d 246 (1961); Oesterreich v. Claas, 237 Wis. 343, 295 N.W. 766 (1941); 26 Am.Jur.2d Electricity, Gas, and Steam § 105 (1......
  • Ianire v. University of Delaware
    • United States
    • Delaware Superior Court
    • June 26, 1968
    ...595 (1904); Fowler v. Tennessee Valley Authority, 321 F.2d 566 (C.A.6th, 1963) (applying Tennessee law); Virginia Electric and Power Co. v. Daniel, 202 Va. 731, 119 S.E.2d 246 (1961); Oesterreich v. Claas, 237 Wis. 343, 295 N.W. 766 (1941). The record contains no evidence that the City had ......
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