Virginia Electric & Power Co. v. Winesett , 225 Va. 459 ( 1983 )

COMPTON, J.,

dissenting.

Confronted by a glistening, bare power line, plaintiff’s decedent, an adult of average intelligence who was perched on a metal ladder on a clear day, undertook to cut with an electric saw a limb overhanging the exposed wire. The majority has decided this is not contributory negligence as a matter of law which proximately caused Winesett’s death. I cannot agree.

“It has long been recognized that the danger of electrical energy is a matter of common knowledge to all persons of ordinary intelligence and experience.” Watson v. Virginia Electric & Power Co., 199 Va. 570, 575, 100 S.E.2d 774, 778 (1957). The use of electricity has been so widespread for years that “all competent persons” are deemed to be acquainted “with the fact that any line carrying electricity is dangerous.” Id. One need not be an electrical engineer to appreciate the danger inherent in a bare power line in plain view, and the law does not require a defendant to establish sophisticated “special” knowledge, to use the majority’s term, in order for a plaintiff to be found contributorily negligent as a matter of law.

Here, the evidence conclusively shows that Winesett possessed intelligence and common sense, had experience with electricity as an electrical appliance repairman, and should have been cognizant of the open and obvious danger presented by the wires intermixed with the tree limbs.

I am not persuaded that VEPCO v. Mabin, 203 Va. 490, 125 S.E.2d 145 (1962), is controlling. Under the evidence in Mabin, this Court held the plaintiff had the right to assume the power company had not placed a dangerous wire close to the roof on which Mabin was repairing a gutter. In the present case, in contrast, the very reason Winesett was hired to do the work was to alleviate an electrical hazard caused by the wires mixing with the tree limbs. Thus, he was not justified in assuming that the entangled wires presented no danger.

Accordingly, I would reverse the judgment below and enter final judgment for the defendant.

HARRISON, R.J., joins in this dissent.