Present: All the Justices 

CITY OF BEDFORD 

OPINION BY JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 001927 June 8, 2001 

GUY DUVALL ZIMMERMAN 

FROM THE CIRCUIT COURT OF BEDFORD COUNTY 

James W. Updike, Jr., Judge 

I. 

 The primary issue that we consider in this appeal is 

whether the plaintiff was guilty of contributory negligence as 

a matter of law. 

II. 

 The plaintiff, Guy Duvall Zimmerman, filed a motion for 

judgment against the City of Bedford, which operates an 

electric power department. He alleged that he was injured as 

a result of the City's failure to turn off electrical power to 

a temporary power meter base. The City admitted that it was 

negligent, but asserted that the plaintiff was guilty of 

contributory negligence. 

 At a jury trial, the circuit court denied the City's 

motion to strike the plaintiff's evidence on the basis that 

the plaintiff was guilty of contributory negligence as a 

matter of law, and the jury returned a verdict in favor of the 

plaintiff in the amount of $170,000. The circuit court 
entered a judgment confirming the jury's verdict, and the City 

appeals. 

III. 

A. 

 In accordance with well-established principles, we will 

recite the facts in the light most favorable to the plaintiff, 

the prevailing party at trial. Rice v. Charles, 260 Va. 157, 

161, 532 S.E.2d 318, 320 (2000). "The verdict of the jury in 

favor of [Zimmerman], upon which the [circuit] court entered 

judgment, settles all conflicts of testimony in [his] favor 

and entitles [him] to all just inferences deducible therefrom. 

Fortified by the jury's verdict and the judgment of the court, 

[Zimmerman] occupies the most favored position known to the 

law." Pugsley v. Privette, 220 Va. 892, 901, 263 S.E.2d 69, 

76 (1980) (citing Tri-State Coach Corp. v. Walsh, 188 Va. 299, 

303-04, 49 S.E.2d 363, 365 (1948)); accord Cooper Industries

v. Melendez, 260 Va. 578, 584, 537 S.E.2d 580, 583 (2000); 

Norfolk Beverage Company v. Cho, 259 Va. 348, 350, 525 S.E.2d 

287, 288 (2000). 

B. 

 Zimmerman, a Class B electrical subcontractor, installed 

electrical wiring at a house under construction at 1405 

Jefferson Terrace in Bedford. The City's electric department 

supplied electric power to the subdivision where the house was 

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located. Zimmerman installed a temporary meter base at the 

residential construction site. The temporary meter base was 

mounted on a wooden post a few feet away from the City's 

transformer box, which is used to transfer electric power from 

underground distribution lines to individual residences. 

 After Zimmerman had installed the post and the temporary 

meter base, the City's employees connected the wires from the 

temporary meter base to the transformer box. The City's 

employees also installed an electric meter which was attached 

to the temporary meter base. The meter measured the amount of 

electric current used. After Zimmerman had completed the 

installation of the electric wiring in the home, the City's 

building inspector approved the work, and a work order was 

submitted to the City requesting that it change the temporary 

electric service to permanent electric service. 

 In accordance with certain procedures utilized by the 

City, its employees were supposed to terminate electric power 

to the temporary meter base by disconnecting the wires that 

extended from the temporary post to the transformer box. The 

City's employees would then remove the meter from the 

temporary meter base and place the meter into a permanent 

meter base on the house. 

 Calvin R. Fields, who was the line superintendent in the 

City's electric department, testified that if the City failed 

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to terminate power to a temporary meter base, the City's 

employees would place a plastic cover over the meter base 

because it should not be left "opened and energized." When 

asked, "[i]s there ever a situation in the City of Bedford in 

your experience where you would leave the temporary hooked up, 

take the meter out, put it over to the house and leave [the 

temporary base] open?," Fields responded, "No." Fields also 

stated that he had never seen an "energized" temporary meter 

base that did not have either a cover on it or a meter in it. 

 Fields gave a service order to change the electric 

service at the site where Zimmerman was working from temporary 

status to permanent status to Dennis Krantz, a City employee. 

On the morning of March 14, 1996, Zimmerman spoke to Fields 

and asked him whether the electric power that served the 

temporary post had been cut off. Fields responded that 

electric power to the temporary post "will be unhooked." 

"[H]e looked at his watch, [and said], 'It is unhooked.' He 

[said], 'You can get it any time you want to.' " 

 Subsequently, Zimmerman and his grandson, Ronnie A. 

Angle, returned to the residence that day to remove the post 

and temporary meter base. Zimmerman visually inspected the 

temporary meter base. The meter was not in the meter base. 

The City had not placed a cover over the meter base. These 

facts indicated to Zimmerman that the City had terminated the 

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source of electric power that had served the temporary meter 

base. Zimmerman had never "seen a situation where [the meter 

base] had been left open and it was energized." 

 Zimmerman had previously removed temporary posts from 

residential construction sites in Bedford at least 75 times. 

On each prior occasion, the City's employees had removed the 

meter from the temporary post after the City's employees had 

connected the permanent power to the house. When Zimmerman 

approached the post that he had installed at this construction 

site, he saw the temporary post without a meter or a cover. 

Zimmerman, in his experience as an electrical subcontractor in 

the City of Bedford, had never encountered a temporary meter 

base which was energized with power that did not have a meter 

in it or a cover on it. He testified that "[w]hen they leave 

the meter base hot, if they don't leave the meter in it, they 

put a plastic cover over it to protect it." 

 While removing his temporary post and meter base, 

Zimmerman cut the wires that extended from the temporary post 

to the transformer, "some sparks flew and [his] hands went up 

in the air." Zimmerman was injured as a result of an electric 

shock. 

 During cross-examination, in response to the question, 

"[d]o you agree that the person who is dealing with the wire 

is the one who has the duty to positively know that it is 

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energized or de-energized?," Zimmerman responded, "[y]es, 

sir." Zimmerman stated, however, "I knew from my experience 

with [Fields] I could believe him that he would do what he 

told me." Even though Zimmerman had a volt meter which he 

could have used to determine whether the electricity had been 

disconnected before cutting the wires, he failed to use it. 

 Fields testified that after the accident, he spoke with 

Zimmerman who stated that Angle had warned Zimmerman that he 

should not cut the wires because they may "still be hooked up 

to the transformer." Fields stated that Zimmerman said, "he 

went ahead and cut them anyway." Zimmerman denied making 

those statements. 

 The City's expert witness, Frank E. Mitchell, testified 

that an electrical contractor must make an independent 

determination whether the source of power to a temporary meter 

base has been terminated. However, Mitchell also testified 

that in his 43 years as an electrician, he had never 

encountered a temporary meter base which was connected to an 

electrical source and the meter had been "pulled out and left 

open." Mitchell gave the following testimony: 

 "Q: [T]he superintendent said the service 

order was put in, and, in fact, the work was done 

that morning and never cut off. You haven't 

encountered that situation, have you? 

 "A: No. 

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 "Q: If anything is energized, you expect a 

cover to be on it, if it is a meter base? 

 "A: Yes, if it was, it was hot I would say it 

would be, right." 

IV. 

 The City, relying principally upon Kelly v. Virginia 

Elec. & Power Co., 238 Va. 32, 381 S.E.2d 219 (1989), and 

Watson v. Virginia Elec. & Power Co., 199 Va. 570, 100 S.E.2d 

774 (1957), argues that the plaintiff was guilty of 

contributory negligence as a matter of law. We disagree with 

the City. 

 The legal principles pertinent to our resolution of this 

appeal are well established in our jurisprudence: 

 "Resolving conflicts in the evidence is a 

prerogative of the jury. A court should not 

determine as a matter of law that a party is guilty 

of or free from negligence unless the evidence is 

such that reasonable [persons], after weighing the 

evidence and drawing all just inferences therefrom, 

could reach but one conclusion." 

J & E Express, Inc. v. Hancock Peanut Co., 220 Va. 57, 62, 255 

S.E.2d 481, 485 (1979); accord Loving v. Hayden, 245 Va. 441, 

444, 429 S.E.2d 8, 10 (1993). Additionally, we have stated 

repeatedly that ordinarily, "questions of contributory 

negligence must be resolved by the jury." Loving, 245 Va. at 

444, 429 S.E.2d at 10; Holland v. Shively, 243 Va. 308, 311, 

415 S.E.2d 222, 224 (1992); Artrip v. E.E. Berry Equipment 

Co., 240 Va. 354, 358, 397 S.E.2d 821, 823 (1990). 

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 In the present case, whether Zimmerman's conduct was 

reasonable is a question of fact which was resolved by the 

jury. Even though Zimmerman testified that a Class B 

electrical contractor has a duty to ascertain whether the 

supply of electricity to wires has been terminated, the jury 

could have found that Zimmerman complied with this duty 

because the City's line superintendent had informed him that 

the source of power had been terminated. The jury could have 

also concluded that the fact that the meter base was uncovered 

and the meter removed from the temporary base and affixed to 

the permanent meter base led Zimmerman to conclude that the 

power source to the temporary meter base had been 

disconnected. Furthermore, the jury was entitled to consider 

the testimony of the City's own expert witness who had never 

encountered a temporary meter base with an electrical source 

of power where the meter had been "pulled out and left open." 

And, we note that the jury was free to reject Fields' 

statement that Angle had warned Zimmerman that the power 

source to the temporary meter base may not have been 

disconnected. 

 We also observe that our decisions in Watson and Kelly

are not dispositive of this appeal. In Watson, we held that a 

decedent, who was electrocuted when his metal pipe made 

contact with high voltage electric wires, was guilty of 

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contributory negligence as a matter of law. 199 Va. at 576, 

100 S.E.2d at 779. We noted in Watson that there were no 

obstructions which would have prevented the decedent from 

viewing the overhead electric wires. In Kelly, we held that a 

plaintiff, who was injured when his aluminum ladder made 

contact with a high voltage uninsulated overhead wire, was 

guilty of contributory negligence as a matter of law. 238 Va. 

at 41, 381 S.E.2d at 224. We pointed out that the presence of 

a large transformer with wires attached to it, which were 

open, obvious, and in plain view, should have alerted the 

plaintiff that he ought not manipulate an aluminum ladder 

within three feet of a wire that transmitted electricity. 238 

Va. at 40, 381 S.E.2d at 223. 

 Unlike the facts in Watson and Kelly, the plaintiff in 

this case was specifically informed by the supplier of the 

source of electricity that the electricity had been 

terminated, and the jury was entitled to conclude, in view of 

the facts in this record, that the plaintiff's conduct was 

reasonable. 

 Next, the City argues that the circuit court erred in 

failing to grant certain jury instructions. The City 

requested that the circuit court grant the following proposed 

jury instructions which state: 

P. 

9
 "The Court instructs the jury that the 

plaintiff, before he cut the line that he claims 

shocked him, had a duty to exercise that degree of 

care and skill that reasonably prudent electrical 

contractors and others who work regularly with 

electrical distribution lines would exercise, to 

determine whether or not the line was charged with 

electricity before he cut it. 

 "If you find from the greater weight of the 

evidence that the plaintiff failed to perform this 

duty, then he was negligent." 

R. 

 "The Court instructs the jury that when the 

plaintiff cut the line charged with electricity, he 

had a duty to do so in a manner that was not 

dangerous to himself if he did not know whether the 

line was hot or not when he cut it. 

 "If you find from the greater weight of the 

evidence that the plaintiff failed to perform this 

duty, then he was negligent." 

 In refusing the proffered instructions, the circuit court 

stated: 

"It is the Court's feeling that this jury needs to 

be instructed and will be instructed with other 

instructions on negligence, contributory negligence, 

assumption of the risk and all of those matters are 

covered in other instructions. P therefore becomes 

argumentative. 

. . . . 

 "R is unnecessary in view of other 

instructions; refused, covered in other instructions 

and argumentative." 

 We agree that the circuit court did not err in failing to 

grant the City's proposed instructions. We have reviewed the 

jury instructions which were granted, and we hold that the 

refused instructions were duplicative of other instructions. 

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V. 

 In view of our holdings, we need not consider the 

parties' remaining arguments. Accordingly, we will affirm the 

judgment of the circuit court. 

Affirmed. 

JUSTICE KOONTZ, with whom CHIEF JUSTICE CARRICO and JUSTICE 

KINSER join, dissenting. 

 I respectfully dissent. In this appeal, the City of 

Bedford has the burden to show “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 [Guy Duvall 

Zimmerman] was free of contributory negligence.” Virginia 

Electric and Power Co. v. Wright, 170 Va. 442, 448-49, 196 

S.E. 580, 582 (1938). In my view, the City has met that 

burden. 

 The pertinent facts are not complicated or materially in 

dispute. Beyond question, the City’s employees negligently 

failed to disconnect the original underground power line that 

supplied electric energy from its nearby transformer box to 

the temporary meter base which had been installed by Zimmerman 

at a construction site for a new house. The City’s employees 

also negligently failed to cover the temporary meter base 

after removing the meter, placing it into a permanent meter 

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base on the house, and energizing the new underground power 

line from the transformer box to the meter. Moreover, another 

City employee verbally assured Zimmerman that the power line 

in question was “unhooked,” or no longer energized. Upon 

these facts, at trial the City admitted that it was negligent. 

 The critical facts regarding the issue of contributory 

negligence, however, were established by Zimmerman’s 

testimony. Upon direct examination, Zimmerman testified that 

he was a licensed Class B electrical contractor with over 

twenty-five years of experience in residential electrical 

contracting. With regard to the power line in question, he 

testified that “I started pulling the [power line] up because 

it [was] very shallow in the ground. I pulled it on over to 

the transformer. I pulled on it a little bit and it was a 

little stuck.” Zimmerman testified that he then cut the power 

line with his “cutters” without first testing the line with 

his available voltage meter. Upon cutting the power line, 

Zimmerman received an electrical shock that resulted in his 

personal injuries. This testimony shows that Zimmerman failed 

to act as a reasonable person with his knowledge of 

electricity would have acted for his own safety under the 

circumstances. But Zimmerman’s testimony on cross-examination 

is even more conclusive on that issue. 

12
 Zimmerman conceded that “the person who is dealing with 

the wire is the one who has the duty to positively know that 

it is energized or de-energized.” He testified, however, that 

he was not “positively sure” that the power line was unhooked 

and that he could have tested it with his voltage meter. 

Moreover, when he pulled on the line he did so lightly because 

“[i]f it [was] stuck in the transformer, I wasn’t taking a 

chance on hitting hot lines or something.” Finally, Zimmerman 

testified that if he had cut each of the three wires in the 

power line separately, rather than cutting all three at the 

same time, he could have “totally eliminate[d] the danger of 

shock.” 

 “[T]he danger of electrical energy is a matter of common 

knowledge to all persons of ordinary intelligence and 

experience.” Watson v. Virginia Electric and Power Co., 199 

Va. 570, 575, 100 S.E.2d 774, 778 (1957). Here, Zimmerman not 

only knew of that danger, but he admittedly adopted a careless 

course of conduct that unnecessarily exposed him to injury 

from that danger. A reasonable, prudent person would not fail 

to test a power line before cutting it. An energized power 

line is unforgiving; it affords only one opportunity to test 

it to avoid an electrical shock. Moreover, a reasonable, 

prudent person knowing, as Zimmerman did, that cutting each 

wire in the power line separately would totally eliminate the 

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danger of shock if the line happened to be energized would not 

cut the line in any other way. Surely, an experienced 

electrician concerned with his safety would act in accord with 

that knowledge. 

 Contrary to the view taken by the majority in this case, 

whether Zimmerman’s conduct was reasonable is not a question 

that should have been resolved by the jury. Rather, “when 

persons of reasonable minds could not differ upon the 

conclusion that [contributory] negligence has been 

established, it is the duty of the trial court to so rule.” 

Kelly v. Virginia Power, 238 Va. 32, 39, 381 S.E.2d 219, 222 

(1989). Zimmerman’s testimony established his careless, if 

not reckless, conduct. There is no conflict in that evidence 

and no direct and reasonable inference to be drawn from the 

evidence as a whole, sustaining a conclusion that he was free 

of contributory negligence. Regardless of the negligence of 

the City, Zimmerman knew that the power line might still be 

connected to the transformer box and energized when he elected 

to cut it without first testing it. 

 It is well settled that the issue of contributory 

negligence is generally a question for the jury to determine. 

The prerogative of the jury in doing so is to resolve 

conflicts in the evidence. That prerogative, however, does 

not permit the jury to weigh the evidence and assign degrees 

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of negligence between the defendant and the plaintiff in a 

personal injury suit. In the present case, the evidence shows 

that both the City and Zimmerman were negligent and that the 

negligence of both efficiently contributed to Zimmerman’s 

injuries. Comparative negligence is not the law of this 

Commonwealth; contributory negligence is an absolute bar to 

recovery. 

 For these reasons, I would hold that the trial court 

erred in submitting the issue of Zimmerman’s contributory 

negligence to the jury. Thus, I would reverse the judgment in 

favor of Zimmerman and enter final judgment in favor of the 

City. 

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