*1 Richmond Company Electric Power Willie O. Mabin. 23, 1962. April Record No. 5387.
Present, All the Justices. G. Robertson Lewis T. Booker Lanier Archibald (T. Sawyer; Hollis; Williams, M. Powell & Hunton, Willcox, Gay, Gibson; John & Lawrence, Cooke, Savage brief), on for the in error. Davis and Robert Friend (Wilson L. Randolph Boyd Rivers; J. & Davis brief), error. Boyd, delivered of the court. J., Carrico, opinion Mabin, Willie O. filed a motion for judgment defendant, Electric and Power to recover Company, *2 sustained he came into contact damages personal injuries with an electric the The wire owned defendant. motion alleged that the defendant was in the installation and maintenance of the wire. $50,000.00
A trial resulted in a verdict of favor which was the The defendant plaintiff, approved by sought, judge. a writ of error. granted, The has filed a motion to dismiss the of error. writ plaintiff merit, will, therefore, This motion is without and be denied.
The error of the sole the of whether assignments present was of as a matter of law. plaintiff The who the accident, was 71 at time of the plaintiff, years age retired in as a machinist’s at the Norfolk May, helper Navy Yard. Prior to his retirement he had been aas part-time employed roofer, and he continued in this work his retirement. type following accident, 17,.1959,
On the the was on the day July plaintiff of a at the roof corner of Avenue and O’Keefe Johnson dwelling Norfolk, the Street in city purpose making repairs the roof.
The defendant a 2300 electric volt distribution line which operated O’Keefe Street from ran at the One corner. of the wires along pole the was installed over roof which the was over working, feet 1 the roof 6 inch and 1 foot 10 inches hori hanging vertically the at the front of house and feet inches zontally and vertically 5/2 at the inches rear. horizontally 41/2
The a leak in the attempting repair gutter house, the Street side of crawled under the at O’Keefe wire a point from house, one-third of the distance the rear of the the where 2j4 the roof feet above and little than wire was more one foot behind him. The wire came into contact with the burned him and he was back and thrown tiff’s ground, below. feet suffered severe from his contact with the injuries have resulted in one and the fall. hundred cent
wire injuries per that the verdict No contention made is excessive. disability. wire, the said defendant to be
A similar the one sample was introduced into caused evidence. It injuries, is an encrusted old uninsulated but corrosion. copper green conflict, however, defendant’s was in witnesses as whether the wire that installed over was roof was green brown color. That it uninsulated at time of the accident can there be no real The crucial dispute. question concerning knew it high voltage therefore, and, uninsulated dangerous.
There was uncontradicted
at the
trial that
safety
standards
the electrical
be
industry required
fully
8 feet
insulated or be installed
3 feet
vertically
horizontally
roof. The defendant’s
thus
from its
clearly appears
roof,
maintenance of
uninsulated wire
installation and
over
so close thereto.
comes before us as the successful
in the court
below,
with the
armed with
stamped
approval
He thus
and is entitled to
trial
occupies
strong position
judge.
most
All
have the evidence viewed
favorable to him.
light
all
in the evidence and
the fair inferences that
be drawn
conflicts
may
*3
resolved,
verdict, in
the
his favor. We can-
have been
therefrom
unless it
the
without
not disturb
credible
clearly wrong
941, 945,
Adams v.
202 Va.
121 E. 2d
it.
S.
Allen,
evidence to support
142, 147,
194 Va.
told up further such a statement doctor and denied the making contact the wire. before he came into he stood that denied the examination, said that he knew of direct The plaintiff, hurt could be and knew that he over the roof wire presence did not stated that he it it but he further if had no insulation on uninsulated; and was know that it carried high voltage electricity it he saw wire and as he wind was blowing approached careful, in move, that he was but did not feel there was any danger; it; contact with under the come into crawling as he from the him under the wire a co-worker spoke stooped and when he turned and he felt the wire hit him in the back ground him to him and caused to look the wire struck him and burned again him. fall; and that the wind had blown wire against On cross-examination the to impute sought because of his tiff an knowledge employ- extraordinary denied ment at the but the knowing steadfastly navy yard, he, “must further stated anything electricity. me bit that wire to have hit have a little remembered, the wire was I and that he “that distance was from it” there, because I knocked to did not “raise ground;” that he did not know whether the wire into wire on purpose; up” was insulated or not and that he knew voltage electricity. examination, that he
On did not re-direct plaintiff explained uninsulated learn that the wire carried high voltage electricity him He also said until someone so told after he was hospital. that he motionless “raised about 6 inches and that he only up” him. wind blew him Does convict this as a matter of law? that, rule in followed the “where a We have long testifies to facts within his knowledge unequivocally turns, he bound Crew v. Nelson, which his case thereby.” 108, 113, 326; E. 2d Massie Va. Firmstone, S. R. & P. Co. v. Godsey, *4 1072. 171, 83 S.E. case, if shows his a
In a plaintiff clearly by testimony injury personal he is such bound he is that contributory negligence, Crew v. barred Nelson, supra, and is recovery. testimony Va., 114. at p. be to a so must, of rule
But this necessity, subject qualification, claim or defense will not be cast out meritorious litigant which, isolated statement when taken some because court single, out of context and cold, record on pointed printed appeal, to be conclusive him. appears against
This to the rule that a be qualification requires litigant’s testimony read as a whole. A statement made in one of his testi damaging part must be considered of an state such mony ment made light explanation ain later of his A harmful admission made part testimony. in the course aof should cross-examination be balanced rigorous a clarification of admission, offered is when the on re direct examination. And it is determine generally jury it will such v. or clarification. Tignor accept explanation E. & P. 284, 290, 291, 166 Va. Co., S. E. Hancock v. 225, 237, 160 Va. Anderson, 168 E.S. when the If, is taken in its it does not party’s testimony entirety merit, that his case is without
clearly
unequivocally appear
if the minds of reasonable men would differ as to
effect
of his
he has not
his case.
circumstances,
In such
testimony,
fatally damaged
must be
and the effect
jury
permitted
pass upon
thereof,
taken
with all the other evidence in the case.
together
Clayton v. Taylor,
555, 561,
562, 69
2d 424;
S. E.
Am.Nat.
v.
Ins.Co.
Branch,
488, 489,
In the case us, before while it is true that certain statements alone and without to con plaintiff, standing explanation, appear him of vict when his is con contributory negligence yet, whole, sidered no such conclusive result is warranted. did,
We think it was trial as he proper judge, permit evidence, Under the pass upon could have found that the did not have any special know, that he did not and should not have knowledge electricity; known, that the wire carried necessarily wás high voltage electricity uninsulated, until he so informed after the accident; that his contact with the wire did not result from his voluntary act, but from his unintentional combined with “raising up” wind the wire; the effect of the used care for due own near the wire. If the found, as safety working did, establishes that it it cannot be said that the clearly finding or without credible evidence to it. plainly wrong support decision in our the case of Adm'x Watson, says Co., Elec., supra, of the decision in Etc., controlling us. case the case before In that we ruled Watson was guilty as a matter of law when he permitted him, handled metal while well, being pipe engaged digging
495. wire, come uninsulated, into contact with an tension causing high his death. Watson
But the facts there difference between is marked case, consideration, case and the Watson those in In the case under of, Watson, evidence showed “had knowledge experi- clearly ence with, that of the far average person,” electricity beyond had worked beneath the four five hours to yet dangerous directly wire, water, metal flexible covered with ground long pipe which extended above the wire.
Mr. said: for the Court Spratley, speaking Justice “The that there was no was danger justifica- reasonably apparent tion for Watson to nor was there excusing disregard any his lack of care. The facts and all reasonable inferences from ordinary them lead us the definite that Watson was conclusion unfortunately the victim of his own use due and care under the failure to ordinary circumstances. In the face of such facts and inferences the presump-. tion of his freedom from does not negligence prevail. did not with the care on Vepco dispense requirement ordinary 576, of the decedent.” Va. (199 577.) at part pp.
The defendant also relies on the case
Power
Co. v.
Appalachian
747,
Matthews,
case,
The evidence in the case before us does not lead us to such definite as conclusion the evidence the Watson and required by Matthews cases. and lawful of his duties discharge necessary roofer, which, himself in a because required place position installation, defendant’s him in close brought improper proximity not, itself, so was
to the wire. action Until doing negligence. known, knew, should have he had the contrary right that the defendant assume negligently placed dangerous so close the roof. Power Co. v. Va. Appalachian Hale, 133 427, 711; Thomas v. Electrical 416, Wheeling Co., 54 W. 217, § 221; 97, 18 Am. 491, S. E. Jur., Electricity, pp. § C.J.S., Electricity, p. (cid:127) evidence, know, did Under should known, was a to answer. have danger saw and heard him observed his demeanor and testify, intelligence and was able to his state of and nervous health appraise physical
as it have affected his may give ability From all of this the has answered that the was not We will not disturb that negligent. finding. Accordingly, judg- ment is
Affirmed. and Whittle, JJ., dissenting. Spratley, J., dissenting: Whittle,
I cannot evidence shows with agree majority opinion. that Mabin was of beyond peradventure contributory negli- which bars his gence recovery. first not
In the his own that was evidence shows he place, ignorant had in around of He worked regarding danger electricity. account His a number of machinery operated years. by electricity was well he circumstances discloses leading up injury accident. aware of the of his work on danger day roof; he he went shows that saw the wire when wire; that he and had seen the had been on this roof previously he could he that he knew knew it carried voltage high electricity; he did it; hurt insulation on wire if it had no get not know Notwithstand- on it or the wire insulation not. whether under and close went work in proximity ing, immediately the wire.
Plaintiff was asked on direct examination: “Q. to come in under not Were careful the wire getting you in contact with it? Yes, I
“A. was that.” care for and without Nevertheless, exercising negligently the wire in contact with raised and came his own safety, him. He and was he knew voltage immediately than his can rise no His case his own is bound higher 462, 450, Firmstone, Massie the facts. statement E. 652. S. case and the record to read for one seems It impossible work his entered that Mabin the conclusion come little “this that he do could he was feeling injured day he knew was (which under
job” dangerous), immediately his without safety, undertaking job to his his own contributed proper precaution safety injury. § Mich. 545, Jur., Negligence, pp. the weakness of his Sensing negli- regarding contributory position it is brief gence, argued “momentary theory should save his case. There counsel forgetfulness” says: “Whether recovery, momentary forgetfulness negligence barring under a facts, set of fact given ordinarily Plaintiff Tom testified Morris called to him and jury. some, about six inches. It was the we sub- jury, province mit, to consider his whole and consider whether the distraction caus'ed him to raise involuntarily up, and whether under the doing forgot momentarily evidence this was contributory negligence barring recovery.” The brief then cites the case of Charlottesville v. City Jones, and, continuing, says: “(W)here knew of a absence hand rail along
foot but off of the bridge, momentarily forgot stepped the court said: ‘This is a situation in which bridge, injured,' *7 it was a of fact for the to determine whether question in his inattention to or of the absence of forgetfulness the hand rail if believed from the evidence he had knowl- they prior of its absence.’ edge
“The court said is excusable under certain circum- forgetfulness stances, as held as authorities, where has his expressly attention distracted or diverted such a or cause causes as would induce such or inattention in an ordinarily forgetfulness ordinarily * * * in the same or similar situation. prudent person “The as set forth in this annotation A.L.R. weight [74 authority, 2d 958-966], is that to not is forget unless it shows a want negligence, * * * care, this, is a for the ordinary ordinarily, jury. “In the case at bar the that Tom Morris called to the from the ground, inches, some six to look at and talk to Morris on the presumably Whether this ground. distraction and the action in involuntary raising up amounts to con- is, submit, we for the under the tributory negligence, facts.” the brief, is the foregoing, quoted which theory upon relies in an effort to avoid his plaintiff substantially contributory negligence. makes no reference to majority opinion momentary forgetful-
ness, which I submit is the under which only theory possible tiff can avoid his proven contributory negligence. take the (with view which I majority agree) evidently is not tenable for the reasons theory momentary forgetfulness that (1) Mabin insisted, cross-examination, under vigorous never that the wire was in- him; (2) no forgot immediately struction was requested given theory momentary forget- fulness; and (3) there time Mabin raised was no distraction at the and came in contact with the wire.
Mabin was asked times several on cross-examination whether knew the wire was above him he raised he had or whether up, and each time he either answered forgotten positively he remembered the wire was there denied that had forgotten about it.
There or instruction no being regarding momentary could have based its forgetfulness, possibly on that which was not relied in the trial court. It is theory submitted that this is the could recover only theory as, this absent theory, conclusively shown.
I would reverse the and enter final judgment judgment defendant. in this dissent. J., joins
Spratley,