Watson v. Virginia Elec. & Power Co., 4704

• Decision Date: 02 December 1957
• Docket Number: No. 4704,4704
• Citation: 69 A.L.R.2d 1,100 S.E.2d 774,199 Va. 570
• Court: Virginia Supreme Court
• Parties: , 69 A.L.R.2d 1 JACQUELINE P. WATSON, ADMINISTRATRIX, ETC. v. VIRGINIA ELECTRIC AND POWER COMPANY. Record

Page 774

100 S.E.2d 774

199 Va. 570, 69 A.L.R.2d 1

JACQUELINE P. WATSON, ADMINISTRATRIX, ETC. v. VIRGINIA ELECTRIC AND POWER COMPANY.

Record No. 4704.

Supreme Court of Appeals of Virginia

December 2, 1957.

Charles E. Ford and Daniel W. Wilkinson, Jr. (Murray, Ford, West & Wilkinson, on brief), for the plaintiff in error.

Archibald G. Robertson and Harry Frazier, III (T. Justin Moore; William McL. Ferguson; Hunton, Williams, Gay, Moore & Powell; Ferguson, Yates & Stephens, on brief), for the defendant in error.

JUDGE: SPRATLEY

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

On March 26, 1955, William McGinley Watson met instant death by electrocution while engaged in digging a well when a metal pipe, used by him and a fellow employee in connection with the digging, came in contact with an uninsulated high voltage electric wire. The electric wire was owned and controlled by the Virginia Electric and Power Company, hereinafter sometimes referred to as Vepco or the Power Company.

Jacqueline P. Watson, administratrix of the estate of her deceased husband, William McGinley Watson, brought this action against Vepco to recover damages for the wrongful death of her husband. The negligence alleged against Vepco was its failure to properly construct, insulate, operate and maintain the wire. Vepco denied that it was guilty of any negligence, and alleged on the other hand that Watson's death was due to his own negligence.

The case was tried before a jury on April 23-24, 1956; but the jurors were unable to agree upon a verdict, and a mistrial was declared. It came on again for trial on May 28-29, 1956, and the jury returned a verdict for the plaintiff in the sum of $20,000.

At the conclusion of the plaintiff's evidence, Vepco moved to strike it on the ground that no negligence of the defendant had been shown, and that it disclosed that Watson was guilty of contributory negligence as a matter of law. The motion was overruled. Again, at the conclusion of all the evidence, Vepco repeated its motion to strike upon the same grounds. The trial court took this motion under advisement, but allowed the case to go to the jury. The trial judge clearly indicated to counsel for the parties, out of the presence of the jury, that he was of opinion that Watson was guilty of contributory negligence as a matter of law, and said to them: 'If we don't get a verdict, I am going to dispose of it myself.' *

After return of the verdict, Vepco moved to set it aside upon the grounds assigned in its former motions to strike the evidence. The court, after hearing argument, and considering the briefs of the parties, thereafter filed a written opinion sustaining the motion, and accordingly the verdict in favor of the plaintiff was set aside and judgment entered for the defendant, Vepco.

On appeal, Vepco concedes that the evidence was sufficient to justify the jury's finding of its negligence in constructing and maintaining the uninsulated high voltage wire involved. The jury's finding and that concession removed from consideration all issues, save the question whether the court erred in setting aside the verdict upon the ground that Watson was guilty of contributory negligence as a matter of law.

Watson and Roosevelt Mosley were employees of Charles M. King, who owned a small machine shop in the City of Newport News, Virginia. On Saturday morning, March 26, 1955, they were engaged in sinking a well on the rear of the premises of their employer, 312 - 72nd Street, in the City of Warwick. King gave them instructions as to where he wanted the well dug, and thereupon left them on the premises engaged in and about the construction of the well. The point where Watson and Mosley were sinking the well was approximately two feet from a wire fence along the rear property line of King, and two feet, six inches from a point directly under a line of electric wires maintained by Vepco. These wires ran in an east-west direction on Vepco's easement along the rear property line of King's lot. The point where the accident occurred is in a thickly settled residential area, with apartment buildings and residences. On the top cross arm of the power line in question, there were four uninsulated wires, making up four separate circuits. The two exterior wires carried 3,450 volts, and the two interior wires served as a street lighting circuit. Below the cross arm, there was a three-wire secondary circuit for local service to residences and buildings, and below that was a telephone cable. The uninsulated high tension wires were twenty-six and one-half feet above the ground at the point where the accident occurred, and lower at this point than they were at any other point in the neighborhood. According to the uncontradicted testimony and the photographic exhibits, there was a clear view of the overhead electric wires from the ground where the well was being sunk. One could stand at the fence line and see the wires directly overhead. There was nothing to obstruct the view of the decedent, Watson, and his fellow worker.

Watson was engaged in sinking the well by a common method of using city water pressure. A two-inch casing was being sunk in the ground. A three-quarter inch pipe was connected by a hose to the city water supply and water forced into the two-inch pipe to aid in working the latter pipe into the ground. The three-quarter inch pipe was capable of being used in sections, so that its length could be increased as the larger pipe was sunk into the ground. As obstacles were encountered, or as the depth increased, it was necessary to withdraw the three-quarter inch pipe and reinsert it, with or without additional sections. At the time of the accident, it had been extended to thirty-two feet, two and one-quarter inches. As stated in the written opinion of the trial judge, and as shown by the exhibit of the pipe in evidence before us, it was 'cumbersome and to some extent flexible.'

About two p.m., four or five hours after Watson had started to work, the three-quarter inch pipe came in contact with one of the high tension wires overhead about twenty-six and one-half feet above the ground. Both Watson and Mosley were killed by transmission of the electric current through the metal pipe to them.

There are no living witnesses to the tragedy. Mrs. C. M. King said she was attracted to the scene of the accident by the screams of her young son. She and her husband rushed to the back door of the house. She said that when she looked out of the door, Watson's back was to the rear fence and Mosley's back was to the garage, near the rear of the lot. They were on opposite sides of the pipe, facing each other and appeared to be glued to the pipe, and looking up 'just like statutes.' She further said that each of them had both hands on the upright small pipe, one end of which was in the ground, and the other end against the electric wire, and that they were motionless. She and several other witnesses testified that the ground was covered with water, and there were arcs of fire as contact with the pipe was made and broken with the overhead electric wire. King picked up a hoe and 'began to chop,' trying to free Watson and Mosley from the pipe. As he advanced and entered the charged water area, he too was instantly killed.

Another witness, R. L. Gungle, who lived next door to the King home, came up almost immediately after King had fallen to the ground. Gungle said that Watson and Mosley were 'leaning up against the fence, approximately at the fence post and either one or both of them had their left arm outstretched holding on the three-quarter inch pipe,' which was in contact with the overhead electric wire. He was not sure which one of them had his hand on the pipe.

Police Officer Walter A. Thon, who also arrived shortly thereafter, found the whole area charged with electricity, the smaller pipe against the high tension wire, and standing near the hole in which the larger pipe had been set. He said electricity was still flowing through the smaller pipe into the ground, accompanied by smoke, and that Watson's body was touching the two-inch pipe which was in the ground. The smaller pipe was bent over the wire before the current was cut off, and bent back and forth when the current was cut off.

Watson was twenty-nine years of age, a high school graduate, married, and the father of two children. Mrs. Watson said her husband never discussed anything with her that led her to believe that he knew anything about electricity. David Watkins, a fellow employee at King's Machine Shop, said Watson was an outside salesman, and he was unable to state whether or not Watson had any experience or particular knowledge of electricity. However, Watson's employment record, introduced in evidence, showed he had received considerable radio training while in the Army four years, that he had worked as a handyman, a semi-skilled occupation, in the electrical department of the Newport News Shipbuilding and Dry Dock Company, had worked at a Naval Supply Center where he operated electrically driven power machinery, and had attended regular periods of safety instruction where the dangers of electricity were discussed.

There is no dispute as to the principles of law involved. The only difficulty is applying the accepted principles to the facts before us.

Plaintiff vigorously argues that Watson had no particular knowledge of electricity, and did not know that the overhead wires carried high voltage. She says that the jury having rejected evidence that he had such knowledge and having found that he was not negligent in handling the pipe, the trial court was not justified in substituting its own conclusion and inferences for those of the jury. Thress v. Hackler, 155 Va. 389, 399, 154 S.E. 502; Ellett v. Carpenter, 173 Va. 191. 197, 3 S.E.2d 370.

The legal presumption...