Plea in Bar, Demurrer, Grounds of Defense, and Affirmative

Table of Contents

Motion for Judgment filed October 22, 1997 ............................. 1

Plea in Bar, Demurrer, Grounds of Defense, and Affirmative Defenses filed November 17, 1997 ............................................ 9

Transcript of Proceedings before the Honorable James W. Updike, Jr. on April 13, 2000 (excerpts) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Testimony of Calvin R. Fields:

Direct Examination ...................................... 15 Cross Examination ..................................... ~ 30

Testimony of Guy Zimmerman:

Direct Examination ...................................... 33 Cross Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Testimony of Ronnie Angle:

Direct Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 Cross Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

Defendant's Motion to Strike .................................. 130

Testimony of Melvin Douglas Massie:

Direct Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 Cross Examination ..................................... 149

Testimony of Debra Patterson:

Direct Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 Cross Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156

Testimony of Richard Delinger:

D. E · · trect xamtnatton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161

Testimony of Frank Edgar Mitchell:

Direct Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 Cross Examination ..................................... 172 Redirect Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 6 Recross Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 78

Defense Motion to Strike renewed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182

Argument regarding Jury Instructions ........................... 185

Jury Verdict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

Defense Motion to Set Aside the Verdict ......... : ............... 191

Exhibits introduced during Trial Proceedings on April 13, 2000:

Plaintiff's Exhibits:

Exhibit 2B - photograph ................................. 198 Exhibit 2D - photograph ................................. 199 Exhibit 2E - photograph ................................. 200

Jury Instructions filed April13, 2000:

Instruction A - Explanation of issues (given) ...................... 201 Instruction C- Weight given to expert testimony (given) ............ 202 Instruction D - Prior inconsistent statement(s) (given) .............. 203 Instruction J - Contributory negligence (given) .................... 204 Instruction K - Superseding cause (given) ........................ 205 Instruction L- Assumption of risk (given) ........................ 206 Instruction M2- Amount sued for not evidence (given) ............. 207 Instruction N - Verdict based on evidence and instructions (given) . . . . 208

ii

Instruction 0 - Employer liability (given) ........................ 209 Instruction Q - Definition of negligence (given) ................... 210 Instruction S -Elements and defenses (given) ..................... 211 Instruction 1 -Witness credibility (given) ........................ 212 Instruction 2- Admission of negligence (given) ................... 213 Instruction 5 -Burden of proof (given) .......................... 214 Instruction 6 - Definition of contributory negligence (given) . . . . . . . . . 215 Instruction 7- Definition of reasonable care (given) ................ 216 Instruction 8- Burden of proof for contributory negligence (given) .... 217 Instruction 11 -Definition of proximate cause (given) .............. 218 Instruction 14- Damages (given) ............................... 219 Instruction 15- Burden of proof for damages (given) ............... 220 Instruction 16 - Pre-existing condition (given) .................... 221

Instruction I - Evidence of accident alone insufficient for recovery (refused) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222

Instruction P - Plaintiff degree of care (refused) . . . . . . . . . . . . . . . . . . . 222 Instruction R - Duty of Plaintiff (refused) ........................ 223 Instruction 9 - Ordinary care (refused) . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 Instruction 10 - Assumption of ordinary care (refused) . . . . . . . . . . . . . . 226

Final Order entered May 8, 2000 .................................... 227

Notice of Appeal and Notice of Filing of Transcript filed May 24, 2000 ..... 231

Assignments of Error .............................................. 233

111

I· •,

V I R G I N I A:

IN THE CIRCUIT COURT OF BEDFORD COUNTY

GUY DUVALL ZIMMERMAN I

Plaintiff,

v.

CITY OF BEDFORD, a Municipal Corporation,

Serve: Jack A. Gross City Manager 215 E. Main Street Bedford, VA 24523

Defendant.

MOTION FOR JUDGMENT

COMES NOW Plaintiff Guy Duvall Zimmerman, by

undersigned counsel, and as and for his Motion for Judgment

against Defendant City of Bedford, avers and states as follows:

1. Plaintiff Guy Duvall Zimmerman ("Plaintiff'') is a

resident of the County of Bedford residing at 4447 Dickerson Mill

Road, Bedford, Virginia.

2. Defendant City of Bedford ("Defendant") is a

municipal corporation chartered by the Commonwealth of Virginia.

3. The Defendant owns and operates an electrical

system which generates, distributes, and sells electrical power

in the City and County of Bedford, Virginia.

4. The Defendant constructed, owns, and maintains

underground electrical wires and related distribution equipment ~·,~,.. • ..0~~ "1 ~ ,._l_ 91 ~ ~-~ .• ~-:.JI~the?e~Officethe-::!_~ayof N~ 19-

~ \L(...k-3·00 L~aiA1d$ ~'2\~~~ ....._ ~ .~~n Ltbrary ~ Q 6-(!;)C,!;>S .. \~'-'4~ ~~tl- l;M·V" CHMF

~\S~ - fi"O~ Writ Tax -'- _ (':\ tc::r ~~-q"'t-~ Clk's fee ~ 1 ' V

Total $ ti ~ \....~ nJ-_

along and about Jefferson Trail in High Acres Subdivision in the

County of Bedford. The electrical current distributed in said

wires is extremely dangerous and in its transmission requires

great care to avoid injury to persons in the vicinity of such

wires.

5. In March 1996, Plaintiff was in the process of

performing pursuant to a subcontract all wiring and related

electrical work for a residence (the "Residencen) being

constructed by Hogans Construction at 1405 Jefferson Trail in the

County of Bedford. As a part of said work Plaintiff had

previously installed a temporary power meter panel adjacent to

the Residence from wires provided by the City of Bedford which

ran to a transformer box situated near or along Jefferson Trail.

As is customary, said temporary power meter panel was to be

removed by Plaintiff after installation and connection of wires

by the City of Bedford to the permanent power meter panel at the

Residence and disconnection of the wires to the temporary meter

panel.

6. On or about March 14, 1996, Plaintiff was advised

by the City of Bedford that the wires to the permanent meter

panel at the residence had been installed and connected, that the

power to the temporary meter panel had been disconnected at the

transformer box, and that Plaintiff could remove the temporary

meter panel.

2

2

7. It is the custom and practice in residential

construction for the electrical utility to disconnect the power

to the temporary meter panel at the same time that power to the

permanent meter panel is connected and to remove the meter base

from the temporary meter and plug it into the permanent meter

base at that time.

8. When Plaintiff arrived at the Residence on March

14, 1996, the meter had been pulled from the meter base of the

temporary meter panel and installed at the rear of the house in

the permanent meter base.

base was left uncovered.

The opening in the temporary meter

Inspection of the permanent meter

confirmed that electrical power had been connected to the

permanent meter. However, contrary to these appearances and to

Bedford's representations, the power to the temporary meter had

not been properly disconnected and was energized with a high

level of electrical current.

9. As Plaintiff attempted to remove the temporary

power meter panel and related equipment, he received an

electrical shock of great force and violence, causing severe,

painful, debilitating, and permanent injuries.

10. As a result of these severe and debilitating

injuries, Plaintiff has incurred and will continue to incur

substantial sums for medical treatment and care, has suffered and

will continue to suffer great pain, suffering, mental anguish,

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and inconvenience, and has been unable to pursue his livelihood

or engage in gainful employment.

11. Plaintiff at all times exercised due care and

regard for his own safety and did not know nor have reason to

anticipate that the temporary meter was energized and had not

been disconnected at the transformer box as represented by

Bedford.

Count I Negligence

12. The Defendant owed a high degree of care in the

operation and maintenance of its electrical system, which imposed

upon it, inter alia, the duty to exercise reasonable care in

connecting and disconnecting power to meters such as those at the

Residence, the duty to exercise reasonable care in advising

Plaintiff and other electrical contractors whether equipment has

been deenergized and to take reasonable precautions to ensure

that said advice is accurate, and the duty to warn Plaintiff and

other electrical contractors of the hazards when such equipment

has in fact not been deenergized.

13. Bedford breached its duties by, inter alia,

failing to properly disconnect power to the temporary meter at

the Residence, failing to take reasonable precautions to ensure

that said equipment was deenergized, and failing to warn

Plaintiff that said equipment was in fact energized.

14. Bedford's conduct as set forth above was wanton

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4

and wilful, and/or reckless in that, inter alia, Bedford had

specifically represented and assured Plaintiff that the temporary

meter had been disconnected; Bedford's actions in connecting the

power to the permanent meter panel and unplugging the meter from

the temporary meter panel without covering the hole left in same

gave the appearance that the temporary power was deenergized;

Bedford knew or should have known that Plaintiff would rely on

said representations and appearances; and Bedford left the

temporary meter base uncovered in an energized condition, thereby

creating an extremely dangerous hazard and nuisance in an area

frequented by children and others who might be injured thereby.

15. As a direct and proximate cause of Defendant's

negligence and breaches of duty as aforesaid, Plaintiff has

suffered serious, permanent, and debilitating injuries, has

suffered and will continue to suffer great pain, suffering, and

mental anguish, has incurred and will continue to incur

substantial expenses for medical treatment and care, and has

suffered and will continue to suffer a loss of wages and earning

capacity and other damages.

Count II Constructive Fraud

16. The allegations of the preceding paragraphs are

incorporated herein by reference.

17. Defendant made a material false representation of

fact to Plaintiff that the power to the temporary meter had been

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disconnected and that same could be removed.

18. Defendant intended that said representation and

statements be acted upon by Plaintiff and knew or should have

known that Plaintiff would act in reliance on said statements and

representations.

19. Plaintiff believed the statements and

representations to be true and acted on same by attempting to

remove the temporary power meter panel and related equipment.

20. As a direct and proximate cause of his reliance on

Bedford's false representation of material fact, Plaintiff has

been damaged and injured as set forth above.

WHEREFORE, the foregoing considered, Plaintiff demands

judgment against Defendant in the amount of Two Million Dollars

($2,000,000), plus his costs expended and interest as provided by

applicable law and such other and further relief as the Court

deems appropriate under the circumstances.

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... I • ·~

Plaintiff demands trial by jury of his claims.

GUY DUVALL ZIMMERMAN

By Counsel

c~~l~ David B. Bullington Cranwell & Moore, P.L.C. Post Office Box 11804 Roanoke, Virginia 24022

Counsel for Plaintiff

Dated: October 20, 1997

client/zimmerman/mfj.dbb

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Wooten &Hart A Professional Corporation of

Attorneys aC Law

Roanoke, VA

VIRGINIA:

IN THE CIRCUIT COURT FOR THE CITY OF BEDFORD

GUY DUVALL ZIMMERMAN ) )

Plaintiff ) RESPONSIVE PLEADINGS OF ) CITY OF BEDFORD

v. ) ) Case No. CL97009283-00

CITY OF BEDFORD ) )

Defendant }

Comes now the City of Bedford and files this its responsive pleadings to

plaintiff's Motion for Judgment, as follows:

I PLEA IN BAR

Count II of plaintiff's Motion for judgment is barred for the reason that no

notice of the constructive fraud/negligent misrepresentation was timely served on the

City of Bedford pursuant to § 8.01-222 of the Code of Virginia.

II DEMURRER

Count II of plaintiff's Motion for Judgment is not sufficient in law for the

reason that it does not state a claim different from the claim of negligence in Count

I of plaintiff's Motion for judgment.

8


Attorneys at Law

Roanoke, VA

Ill

GROUNDS OF DEFENSE

1. Neither this defendant nor any of its agents, servants, or employees

were guilty of any negligence at the time and place alleged in plaintiff's Motion for

judgment.

2. Neither this defendant nor any of its agents, servants, or employees

were guilty of any negligence at the time and place alleged in plaintiff's Motion for.

judgment which caused or proximately contributed to cause the accident and injuries

complained of.

3. The plaintiff was guilty of negligence, contributory negligence, and

assumption of the risk, and his recovery herein is barred for that reason.

4. Plaintiff was not injured or damaged to the extent alleged in his Motion

for Judgment and strict proof of each and every allegation of damage is called for.

5. All allegations contained in plaintiff's Motion for Judgment not herein

admitted are denied.

6. This defendant is not indebted to the plaintiff for any sums whatever

for any reasons whatever.

IV Affl RMATIVE DEFENSES

1. Plaintiff knew or should have known that the electrical wire which he

cut was charged with electrical current.

2. Plaintiff was warned or cautioned by his grandson, Allen, prior to

cutting the wire that the wire probably was charged or had electrical current in it,

2

9

Wooten & Hart A Professional Corporation of

Attorneys at law

Roanoke, VA

and the plaintiff, in wanton, willful, and reckless disregard for his own safety, cut the

wire anyway.

3. Plaintiff had equipment available to him which he could have used to

determine whether or not the wire was charged or had current in it, and he, in

wanton, willful, and reckless disregard for his own safety, declined to use that '

equipment before cutting the wire.

4. Plaintiff had available to him safety equipment with which he could

have safely cut the wire but plaintiff misused, mishandled, or incorrectly used the

equipment to cut the wire, and that wanton, willful negligence was a proximate

cause of his accident and injuries.

5. Plaintiff improperly attempted to and did improperly cut the wire in

conscious disregard for his own safety.

6. Plaintiff, by cutting the wire, which belonged to the City of Bedford,

was a trespasser, and the City owed him no duty of care for that reason.

7. Plaintiff, a person experienced with electricity, failed to take ordinary

precautions for his own safety.

8. No one from the City of Bedford notified plaintiff that the power had

been disconnected to the wire and, if they had, plaintiff would not have been

justified in relying on that representation.

9. Pursuant to Rule 3:12 of the Rules of the Supreme Court of Virginia,

this defendant expressly requests a reply to all new matter within twenty-one days.

3

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Attorneys at law

Roanoke, VA

CITY OF BEDFORD

By {k.J(J /J;;t Counsel

David B. Hart WOOTEN & HART, P.C. P. 0. Box 12247 Roanoke, VA 24024-2247 (540) 343-2451

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was mailed to

David B. Bullington, Esquire Cranwell & Moore P. 0. Box 11804 Roanoke, VA 24022 Counsel for Plaintiff

this j3 day of November, 1997.

s:\u 1\ 13446\resp-pl.rsp:bg 11/13/9 7

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00(9~

ORiGINAl V I R G I N I A:

IN THE CIRCUIT COURT FOR THE

CITY OF BEDFORD

GUY DUVALL ZIMMERMAN,

Plaintiff

-vs- Case No. 97-9283

CITY OF BEDFORD, ET AL., Volume 1

Defendants

HEARD BEFORE:

April 13, 2000 9:00 a.m.

THE HONORABLE JAMES W. UPDIKE, JR •.

FlLED IN THE CLERK"S OFF,CE BEDFORD COUNTY CIRCUIT COURT

The~davof M~ ,Z<r~ TESTE·---------

(]~g. 14~~~: CENTRAL VIRGINIA REPORTERS

P. 0. Box 1262.8. ·····--··-··Roanoke, Virginia 24027

(540) 380-5017

12

1 APPEARANCES:

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CRANWELL, MOORE & BULLINGTON, ESQS. Vinton, Virginia BY: DAVID B. BULLINGTON, ESQ.

Counsel on Behalf of Plaintiff

WOOTEN & HART, ESQS. Roanoke, Virginia BY: DAVID B. HART, ESQ.

CHRISTOPHER W. STEVENS, ESQ.

Counsel on Behalf of Defendants

INDEX

Witnesses Direct Cross Redirect Recross

14 For the Plaintiff:

15 Calvin R. Fields 42 57

16 Ronnie A. Angle 153 164

17 Guy D. Zimmerman 60 124

18 (Depo. of Cecil B. Knox, M.D. 166)

19 (Depo. of Gregory J. O'Shannick, M.D. 166)

20 Plaintiff rests 171

21

22

23

24

CENTRAL VIRGINIA REPORTERS (540)380-5017

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IN D E X

Witnesses Direct Cross Redirect

For the Defendant:

Melvin D. Massie 186 191

Debra Patterson 192 198

Richard Delinger 203 206

F. Edgar Mitchell 209 214 217

(Depo. of Freeman W. Jenrette, M.D. 221}

Defendants Rest 223

E X H I B I T S

No. Description

For the Plaintiff:

1 Service Order

2 (A-F) Photographs

3 Medicals

4 Letters prepared by Patterson

For the Defendants:

1

2

Copies of building permits fro DZ Electric

Medical Records

CENTRAL VIRGINIA REPORTERS (540} 38.0-5017

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3

Recross

219

52

120

121

200

197

261

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10

MR. BULLINGTON: Do you want me to go

through the formal?

42

MR. HART: It is all right if we can just

stipulate he has the police department's file and

wire cutters.

MR. BULLINGTON: We will stipulate and he

may go.

THE COURT: Thank you, Officer. Come

forward and be sworn, please.

11 CALVIN R. FIELDS

12 was called as a witness and after having first been duly

13 sworn to tell the truth, the whole truth, and nothing but

14 the truth, was examined and testified as follows:

15

16 THE COURT: Have a seat in the witness

17 box. Please speak up as you answer the

18 questions.

19

20 DIRECT EXAMINATION .

21

22 BY MR. BULLINGTON:

23 Q Good morning.

24 A Good morning.


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43 Fields - Direct

Q Could you start by giving us your full name

and address, please.

A Calvin R. Fields, 2363 Bell Town Road,

Bedford.

Q Now, you were formerly employed by the City

of Bedford Electrical Department; is that correct?

A

Q

A

Yes.

And you are now retired?

Yes.

Q When did you retire?

A April, last April.

Q How long had you worked for the City of

Bedford Electrical Department before you retired?

A I think it was 29 years.

Q And when you left, your position was line

superintendent; is that correct?

A Yes.

Q And you, about how many years had you held

that position?

A Probably abou_t seven or eight, I don • t

21 remember exactly.

22 Q You had, I take it, kind of started at the,

23 as a groundsman and worked your way up through the crews?

24 A Yes, that is correct.


16

44 Fields - Direct

1 Q There were, in 1996 when the events we are

2 going to talk about took place, were there two crews that

3 would work for the electrical department?

A

Q

6 each crew?

A

8 Was this a crew foreman or crew chief? Q

A

10 And Dennis Krantz was one of the crew Q

11 chiefs in March of 1996?

12 A Yes.

13 Q You were over the top of these crews; is

14 that correct?

15 A Yes.

16 Q As line superintendent you were sort of the

17 guy with the general responsibility for the field

18 operations?

19 A Yes.

20 Q· There was an electrical director who was

21 the formal head of the department?

22 A Yes.

23 Q Was that Mike Soka in 1996?

24 A Yes.


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45 Fields - Direct

1 Q The electrical director, would I be

2 correct, was more an administrative type position as

3 opposed to the field work kind of work that you did?

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A

Q

Yes.

And your responsibilities were pretty broad

6 as the line superintendent for the field operations; is

7 that correct?

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see

A

Q

A

Q

A

Q

that the

A

Q

Yes.

You were to order materials?

Yes.

Schedule the work and so forth?

Yes.

It was your responsibility, I take it,

work got done?

Yes.

Now, basically, as I understand it, you

17 would, each day you would assign the work to the two

18 d~fferent work crews who would go out in the field; is

19 that correct?

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A

Q

That's correct.

And generally that would be done first

22 thing in the morning?

Yes.

to

23

24

A

Q One of the things that was pretty common to


18

Fields - Direct 46

1 have would be a kind of a service order change; is that

2 correct?

3 A That's correct.

4 Q And a service order change to a residence

5 would include changing a temporary meter connection over

6 to a permanent?

7 A That's correct.

8 Q That was a pretty common thing for you to

9 have your crews do?

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A Yes.

Q And just so we understand the procedure, we

have got some artwork here to kind of have a diagram.

Tell us generally what a changeover from a temporary

service to a permanent service would involve at the City

of Bedford Electrical Department. How would you do it?

A Well, you only had a temporary say to start

with. It would be digging a transformer from the meter

base in the house, installing the wire.

Q The first thing would be to dig a trench

from the transformer?

A To the house.

Q Then he would hook the wires up to the

23 transformer?

24 A Before he hooked them in the meter base, he


19

47 Fields - Direct

1 would hook those up first before he would hook them up in

2 the transformer naturally.

3 Q After they dig the trench they lay an

4 electrical cable?

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base?

A

Q

A

Q

Right.

They make up or put the wiring in the meter

Make a connection in the meter base.

The wires would be connected on the

permanent meter base?

A Yes.

Q

A

When do they on the transformer?

Put them in the lugs on the transformer and

14 energize the line all the way to the meter base.

15

16

Q Wouldn't you turn the temporary power off

first?

17 A Not necessarily. The circumstances are

18 according to the job.

19 Q Let's talk about 95 percent or the great

20 majority situation, would that involve turning the

21 temporary off?

22 A Yes.

23 Q We will talk about other situations in a

24 minute. In those situations you would typically unhook


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48 Fields - Direct

the temporary first and then hook up the permanent?

A That is the norm, yes.

Q And then what is next?

A Well, then when it, before you set that

meter on the house, there are things you got to verify,

that it has been inspected by the officers and his

underground bill has been paid; and thus he would be

verified, then, that it was okay to set the meter from

that location to the house.

Q So setting the meter, does that mean you

pull the meter out of that base and take it around to the

back of the house and plug it in the permanent meter base?

A Yes.

Q

A

Does that complete the job?

Providing he had taken his wires out of the

16 transformer to that temporary meter base.

17 Q You say they take the temporary wires out

18 of the transformer?

19

20

A

Q

Yes.

Did you personally inspect that on every

21 situation to see that that was done?

22

23

A

Q

No.

Do you know whether it was not done on

24 certain occasions?


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Fields - Direct

A

Q

49

Well --

Do you know for yourself as a fact whether

3 it was not done on this occasion?

4 A From the evidence here it was not done on

5 that occasion is all I can say.

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1?

Q Now, you mentioned, I think, that there

occasionally can be a situation where the temporary is

left hooked up; is that right?

A Right.

Q As I understand it, would that be if for

some reason you weren't ready to let the folks in the

house to begin using the permanent power?

A Yes.

Q For example, some type of permit might not

be paid or obtained?

A Right.

Q If I understand it, in that situation what

18 you would do is leave the meter in the meter base over

19 there?

20

21

A

Q

Correct.

And you would put a plastic cover over

22 here, you wouldn't want that to be opened and energized?

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A

Q

Correct.

That covers the situation where you might


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50 Fields - Direct

leave the temporary up?

A Yes.

Q Is 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 that open?

A No.

Q Is there ever a situation where you would

hook up the permanent to the house and move the meter over

and even take the cover and put it over that temporary

meter; would that ever be done that you know of?

A If so, rarely you would be expecting

someone; they told you they were going to reapply for

power for a temporary there maybe.

Q If the temporary meter is energized -- how

many years total with Bedford?

A Twenty-nine.

Q Did you ever see a temporary meter

energized that didn't have a cover on it or a meter in it?

A No.

21 Q Now, on March 14, 1996, it was a service

22 order to change the temporary over to the permanent at

23 1405 Jefferson Terrace; is that correct? I will give you

24 a document to refresh your memory.


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51 Fields - Direct

1 A I don't remember the house number but I

2 remember Jefferson Terrace.

3 Q All right. There is a service order that

4 is generated through the City of Bedford; is that correct?

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A Yes.

MR. BULLINGTON: Can I mark this as

Plaintiff's Exhibit Number 1.

(The above-mentioned document was marked.)

BY MR. BULLINGTON:

Q Mr. Fields, is that the service order for

the Jefferson Terrace house for March 14, 1996?

A Yes, it is.

Q That service order tells you, does it not,

that the permanent power is to be hooked up to the house,

correct?

A

Q

be unhooked?

A

Q

Yes.

And it tells you that the temporary is to

Yes.

Now, your typical procedure would be to

23 give that to the work crew in the morning, first thing in

24 the morning?


24

1

2

3

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9

10

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12

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14

15

Fields - Direct 52

A Yes.

Q And I believe that one you gave to Dennis

Krantz at 8:00 that morning; is that correct?

A Yes.

Q Where we see down there 8:00a.m. D.K.,

does that indicate when he started on the job?

A Yes.

Q It doesn't indicate when he finished, but

when you sent him·out?

A Yes.

MR. BULLINGTON: Move for the admission of

Exhibit 1.

MR. HART: No objection.

THE COURT: So admitted.

16 (The above-mentioned document was marked as

17 Plaintiff's Exhibit Number 1 and entered into the

18 Trial.)

19


21 Q Now, it would not be uncommon, it would be

22 pretty common, wouldn't it, for either the contractor to

23 call or the electrician to make arrangements to coordinate

24 that with you or the City of Bedford Electrical


25

53

Fields - Direct

1 Department?

2 A Yes.

3 Q So it wouldn't be unusual for you to have

4 contact with the electrician in terms of coordinating or

5 setting up that power changeover?

6 A That's correct, yes.

7 Q Now, you knew Mr. Zimmerman in March of

a 1996; is that correct?

A 9 Yes.

10 In fact, you have known him, I take it, for Q

11 many years?

A

13 How long had you known each other? Q

A 14 I would say at least 20.

15 You had occasion to work with him as an Q

16 electrician and you through the electrical department?

17 A Yes.

18 Q In particular in your years as line

19 superintendent when you were overseeing the work, did you

20 have occasion to talk to him about various service orders

21 or jobs that he was doing or Bedford was doing?

22 A Oh, yes.

23 Q You were communicating with each other

24 about what was being done; that wasn•t uncommon?


26

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2

3

4

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6

7

54 Fields - Direct

A That's correct.

Q On March 14th after you gave the orders to

Dennis Krantz at 8:00 in the morning, did you remember

going to a house on Burks Hill?

A I can remember being at a house, but I

don't remember that day. I am sorry to say that.

Q You remember a Burks Hill house, you just

8 don't remember the day?

9

10

11

12

A

Q

A

Q

13 recollection.

I can remember doing jobs on Burks Hill.

You do a lot of jobs?

It is continuous.

Let me see if I can refresh your

14 MR. HART: No objection.

15


17 Q Let me show you this document here that I

18 obtained from the City of Bedford in discovery. Does that

19 refresh your recollection as to whether there was a job

20 going.on at 705 Burks Hill Road during this particular

21 March 1996 time frame?

22 A Yes, that date is 3-12-96, so Tommy

23 Reynolds in that area built two or three houses.

24 Q And Mr. Zimmerman was the electrician for


27

55 Fields - Direct

1 that house at 705 Burks Hill Road; is that correct?

2 A Yes.

3 Q Now, you, to skip ahead a little bit, you

4 later learned that there had been an incident where he

5 received an electrical shock out at the Jefferson Terrace

6 house?

7

8

A

Q

Yes.

That is when he came down to the electrical

9 department office?

10

11

A

Q

Yes.

Before that time, after you sent Mr. Krantz

12 out on the job to disconnect the power for the temporary,

13 did you have occasion to tell Mr. Zimmerman that you had

14 the service order and the work was being done that morning

15 so he could get his temporary?

16

17

18

sorry.

A

Q

I do not remember that incident. I am

You don't remember seeing him at Burks Hill

19 Road that morning; is that correct?

20 A I· remember seeing him over there during the

21 construction of those houses. I don't remember what date.

22 Q I take it you do not deny that that

23 conversation took place, you just don't remember whether

24 it did or didn't?


28

1

2

Fields - Direct

I do not remember it, no. A

Q Now, you later determined that the

56

3 temporary had not been disconnected; is that correct?

4

5

6

7

8

A

Q

knowledge?

A

Q

That's correct.

Had that ever occurred before to your

No.

Now, Mr. Zimmerman did come to your office,

9 I believe, after he had, you know, cut the wire and been

10 shocked out there?

11

12

13

14

15

16

17

18

19

20

21

22

23

24

A Yes.

Q And did you, afterwards you sent out

another lineman to the site to disconnect it?

A Yes.

Q And did you, yourself, have a conversation

with Mr. Zimmerman?

A In the office briefly, yes.

Q And I take it that, I assume the City of

Bedford lawyers will ask you about that conversation. Did

your secretary, Ms. Patterson, type any notes from that

conversation?

A

Q

A

Yes, I believe.

Was that at your request?

Yes.


29

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23

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57 Fields - Direct

Q What was the purpose of you doing that?

A It has been our policy city wide any

incident that we have that we make some notation of it so

you can remember the time and people involved.

Q You had a notation of what Mr. Zimmerman

said down at the electrical office that day?

A Yes.

Q That was in accordance with that policy?

A Yes.

Q You did not make any notation of what you

did that morning or what you recalled that day yourself?

A No.

MR. BULLINGTON: Thank you. If you would

answer any questions that Mr. Hart may have.

MR. HART: Judge, can I move this thing? I

can't see.

THE COURT: That would be fine. I think it

would be appropriate.

MR. HART: He is trying to blind me out here.

CROSS EXAMINATION

BY MR. HART:

Q Mr. Fields, did you talk to Mr. Zimmerman


30

58 Fields - Cross

that day, that afternoon?

A Yes, I did.

Q Did he relate to you what happened?

Yes, he did.

What did he tell you?

1

2

3

4

5

6

A

Q

A Well, he came in the office; he was talking

7 to the secretary first.

8 Q Who is the secretary?

9 A Debbie Patterson. And I could tell by his

10 tone of voice, he was kind of upset. I got up and walked

11 out because I knew him for years. And I asked him what

12 the situation was and he told what happened over there.

13 And he said he cut some wires and he says,

14 he didn't say it shocked him, he said it scared him and

15 threw him backwards, and he had hurt his hip a little

16 bit. He was concerned, though, that we get somebody over

17 there now and make that safe. He thought that the wires

18 might be hot and exposed. He mentioned that he burned his

19 wire cutters. I told him that we would buy him a new

20

21

22

23

24

set.

Q Did he say anything to you about whether or

not he knew the wire was hot when he cut it?

A He made the statement that his grandson, I

believe it is his grandson, says, 11 Poppa, you shouldn't

CENTRAL VIRGINIA REPORTERS {540)380-5017

31

59 Fields - Cross

1 cut those wires. They may still be hooked up to the

2 transformer." He said he went ahead and cut them anyway.

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

Q Okay.

MR. HART: No further questions, thank you,

sir.

MR. BULLINGTON: Nothing further.

THE COURT: All right. Counsel, I will

excuse witnesses after they testify unless there

is a request that I do otherwise.

MR. HART: Be where I can reach you later

on.

(The witness was excused.)

MR. BULLINGTON: Judge, my next witness was

going to be the plaintiff, Mr. Zimmerman, who may

take a few minutes.

THE COURT: It would seem this might be a

convenient stopping point for the morning recess.

Ladies and gentlemen, let's take a 15-minute

recess. If you will go back to the jury room,

please, and we will resume after 15 minutes.


32

1

2

3

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7

8

9

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11

12

60 Zimmerman - Direct

(A Recess was taken. Following the Recess,

the Parties and the Jury returned to the courtroom

and the Trial continued.)

MR. BULLINGTON: Plaintiff is ready.

THE COURT: All members of the jury are

present. You may be seated, thank you. Next

witness for the plaintiff.

MR. BULLINGTON: Plaintiff calls Guy Duvall

Zimmerman.

THE COURT: Step forward and be sworn,

please.

13 GUY D. ZIMMERMAN




17

18

19

20

21

22

23

24

THE COURT: Have a seat in the witness

box. Please speak up and answer the question.

DIRECT EXAMINATION

BY MR. BULLINGTON:

Q Could you start by giving us your full name


33


1 and address, please.

2 A Guy Duvall Zimmerman, 4447 Dickerson Mill

3 Road, Bedford, Virginia.

4

5

6

7

8

9

How old are you, Mr. Zimmerman?

Sixty-six.

Where were you born?

Bedford County.

Where did you grow up?

In Bedford County.

10

11

12

13

14

Q

A

Q

A

Q

A

Q

A

Q

A

Q

Did you go to school in Bedford County?

Yes, sir.

What level of education did you complete?

Eighth grade.

What did you do when you, after you had

15 completed the eighth grade?

16 A I went to work at Bunker Hill Packing.

17 Q Had you worked at Bunker Hill Packing

18 before that time?

19 A Yes, sir, I worked there on some Saturdays

20 and a few hours of afternoon before I went there

21

22

full-time.

Q All right. And what kind of facility was

23 Bunker Hill Packing?

24 A A meat packing plant that packed meat.


34


1 Q What size operation was it; was it large,

2 small, medium?

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

A When I went there first, I would say it

probably had about 15 employees.

Q What did you do when you started to work

there full-time after eighth grade?

A I was working back in the meat room, just

big chunks of meat, just cutting them up in small pieces.

Q How long did you work there?

A I worked there around 18 and a half years.

Q All right. Help me, about what time would

that have been when you left there after 18 years?

A I left there in 1966, around 1966.

Q Okay. Now, what were you doing, what was

your position there in the years before you left?

A In the mid '60s, when I left, I was a

foreman over maintenance and over the truck work.

Q Did you have occasion to be involved with

any electrical kind of work during those years?

A Yes, sir, my uncle was Charlie Wi~kerson,

he was an electrician there. I helped him with the

electrical work.

Q Just give us a sense of what kind of work

it is you would help him with.


35

63

Zimmerman - Direct

1 A We had several, say I believe around 15

2 pieces of electrical equipment that we run. And we had a

3 lot of water there and water was always deteriorating the

4 disconnect boxes and like that. And we had compressors

5 that had disconnect boxes on them, fusses and things that

6 had to be replaced. That was the things that I just

7 helped him with. Two, we run new lines to put new outlets

8 into various different places.

9 Q Would you do any of that work by yourself

10 as opposed to working with --

11 A No, I just worked with him.

12 Q Did he give you some on-the-job training in

13 electrical work?

14

15

16

17

18

19

20

21

22

23

24

A I think that is where I really decided I

wanted to get into electrical work was working with him.

Q What kind of electrical kinds of things had

you done by yourself at Bunker Hill without Charlie

Wilkerson?

A All of our equipment had what we call SJ

cord, a rubber cord running from the equipment over to the

receptacle. That was always giving out. We would replace

those cords and inside we had disconnect boxes that come

over to a little transformer. When the machine snapped

on, it would pull in. It had little heaters in it that we


36

Zimmerman - Direct 64

1 would cut our disconnects off and change those little

2 heaters when they burned out.

3

4

5

6

7

8

Q What kind of voltage would you have been

working with there?

A Just 220. And we had a lot of 110, we

didn't have a lot of 220 on the equipment. It was mostly

110.

Q In a standard house when you go plug

9 something in an outlet, is that 110?

10

11

12

13

14

A

Q

A

Q

A

Sir?

I can plug something in my house -

That is 110.

Is there any 220 in the house?

You have hot water tanks and heat pump

15 systems and things like that on your 220.

16

17 220?

18

19

20

21

22

23

24

Q

A

Q

A

Q

A

Q

A

So the bigger pieces in the home might be

Yes_, sir.

Did you work any wires hot?

·No, si~.

At Bunker Hill?

No, sir.

Work in hot wires means what?

Well, working in hot wires it means always


37


1 cut the disconnects off. If you cut your disconnects off,

2 you should have your disconnects cut off.

3 Q Did you do that yourself at Bunker Hill?

4 A Yes, sir.

5 Q Did you have occasion to work with

6 Mr. Wilkerson I guess you said his name was, in terms of

7 doing any testing to see about de-energized lines?

A 8 Yes, he would check the 220 lines, he did

9 it himself.

10 Q Is that something that he did?

11 A Yes, sir.

12 Q And you observed him doing that?

13 A Yes, sir.

14 Q What was the procedure you observed him do?

15 A With his hand. He had bolt meters that he

16 used a lot of times, too. It depended on which boxes he

17 was in. He knew which boxes to get in.

18 Q Now, you left Bunker Hill sometime in the

19 late 1960s, I think you said?

20 A Yes, sir.

21 Q What did you do after that?

22 A I went to veal farming. I went to a

23 manager of a farm for a gentleman that raised kosher veal

24 calves. I traveled the stock markets right a bit.

CENTRAL VIRGINIA REPORTERS (540}380-5017

38


1 Q When you say 11 Stock markets," you mean

2 cattle markets?

3

4

5

6

7

8

9

10

11

A

Q

different

you do the

A

Q

A

little bit

putting in

Cattle markets, yes.

People these days think of something

when you say stock market. How many years did

veal cattle farming?

I stayed in there about five years.

What did you do then?

I went into electrical work. I did a

of electrical work, small line receptacles and

receptacles while I was in farming. It never

12 got out of my system with working with Uncle Charlie at

13 Bunker Hill, when I just decided that I wanted to get into

14 it myself. In 1972 I decided I wanted to get into

15 electrical work.

16 Q Did you start doing electrical work in, as

17 a business in 1972?

18

19

·20

21

22

23

24 class

A Yes, sir.

Q What did you call yourself?

A DZ Electric.

Q DZ, is that a corporation or --

A No, just wrote down my initials.

Q Did you get any formal training, I mean

work kind of stuff for doing that kind of work?


39


1 A Yes, I went to over at the elementary

2 school, Mr. Patterson, he had a class over there in

3 National Electric Code. I had to take a class in it and

4 take a test.

5

6

7

8

Q

A

Q

A

Where was this, was this in Bedford?

That was in Bedford.

Where was it, what building?

It is the educational center, Bedford

9 Educational Center I believe it is now.

10 Q And you said you, how long was the course;

11 are we talking days, weeks, months, give me an idea.

I believe it was ten weeks. 12

13

A

Q Okay. Would you go every day or just how

14 often would you go?

A That was two nights a week.

Q Now, you say you looked at the NEC; is that

right?

A Yes.

Q That is what you now --

A National Electric Code.

Q Did you cover anything on testing

de-energized lines?

A No.

15

16

17

18

19

20

21

22

23

24 Q Are you familiar with the National Electric


40


1 Safety Code?

2

3

4

5

A

Q

A

Q

No, sir.

Have you ever studied it or utilized it?

No, sir.

Did you, to do work at DZ Electric, did you

6 get a license?

7

8

9

A

Q

A

Yes.

What kind of license do you have?

I got my state license and I got a city

10 license for doing work in Bedford City.

11 Q Now city license, is that, do you have to

12 do anything to get the city license?

13 A

14 pay the fee.

15

16

17

18

19

20

21

22

Q

contractor's

A

Q

A

Q

or are they

A

Not if you have your state license you just

Are there different classes of electrical

license?

There is Class A and B.

Which are you?

Class B.

Are the tests different for Class A and B

the same?

Class A, to my knowledge, is a little

23 different; but what the Class A verifies that you can be

24 at larger jobs than what you can on a Class B.


41


1

2

3

Class B?

4 Class B.

Q What limits do you have, for example, on

A Seventy thousand is all you can bid on

5 Q Now, you, since 1972, have you worked at DZ

6 Electric doing electrical work?

7 A Yes, and residential work. I worked

8 Bedford County and Franklin County and most of my work was

9 around Smith Mountain Lake.

10 Q Did you also have occasion to do work in

11 Bedford City or Bedford County in areas where the City of

12 Bedford Electrical Department was the power supply?

13 A Yes, sir. I did, in the last few years

14 before the accident, I did a considerable bit more work in

15 Bedford City than I had in the past. I worked with

16 Bedford City Electrical Department and I knew all the boys

17 real well and we just worked real close together.

18 Q Now, you said you did residential. Tell us

19 what you did residential, what kind of work.

20

21

A

Q

A regular home like the rest of us live in.

Would it include wiring new homes?

22 A Yes, it would include new homes. You go in

23 after the contractor builds a house and he gets it up

24 under roof, we go in it and put our boxes, our outlet box,


42


1 receptacle box on the wall and our switch boxes up and

2 light outlet that we pull our wire to them in. After the

3 drywall goes up, we go back and put her service box in,

4 our panel box, and make that hookup.

5 Q Did you also do any jobs at existing homes?

6 A Yes, sir, I put in outlets and switches and

7 home ceiling fans and various things like that that people

8 want to add in their home.

Q 9 Did you do commercial or business kind of

10 work?

11 A I didn•t do any commercial work.

12 Q Did you do any plain or industrial kind of

13 work?

A

Q 15 What in your experience or training is high

16 voltage, what do you consider high voltage?

17 A I think when you get up in the three-phase

18 and 440 and figures like that to me you are getting into

19 high voltage. Low voltage would be 220, 110. That is

20 what I normally work.

21 Q What experience do you have with high

22 voltage work?

23 A I didn•t get into them.

24 Q What experience do you have working wires


43


1 hot or energized?

2 A When I was working the hot lines I always

3 had to disconnect that. I cut my disconnects off and how

4 I knew my disconnects were off, when you cut a disconnect

5 off, you will hear the little click in your disconnect.

6 Q Let me ask you, first of all, let me break

7 it down and ask you about new construction. Would new

8 construction involve working wires hot or energized?

9 A Everything is not hot in new construction.

10 Q When you are working inside the house, is

11 there power coming inside the house?

12

13

14

15

16

17

18

19

20

A

temporary.

Q

A

Q

coming in?

A

cord.

Q

Power coming in on a drop cord from the

Is that an extension cord?

Coming to the house for you to work with.

Is there anything coming in on the wires

No hot lines in the house except your drop

I think you were talking about breakers.

21 Did you have occasion to do anything hot when you were

22 working on the existing homes? You said you might add a

23 circuit or rec.eptacle.

24 A Sometimes we would go back to the home and


44


1 add something for the customer or go to an older horne and

2 add an outlet or something like that to the horne. We just

3 used our, our disconnect to cut the line off.

4

5

6

7

8

9

Q

disconnect?

was off?

A

Q

A

So you cut the line off with the

Yes, sir.

What would you do to verify that the line

Well, how I verified that made me feel

10 comfortable. When I cut my disconnect off, you have your

11 breaker that you cut that circuit off. If you feel maybe

12 not on the right circuit, you cut the whole main off on

13 the panel box.

14 Q Let me make sure I understand the

15 terminology you are using. If go down in my basement

16 there is a metal box with the circuit breaker?

17 A Yes, that is the breaker box.

18

19

20

21

22

23

24

Q And you say you cut off a breaker?

A Just a single pole breaker, just a little

breaker in your breaker box that feeds out to so many

outlets per room. And you got a big main that cuts the

whole house off.

Q Does it have an indication for on and off?

A Yes, it has an indication on and off; your


45


breakers have an indication of on and off. 1

2

3

4

5

6

Q If you felt it necessary the main circuit

is off, to test that the permanent was off?

A I would cut my main breaker off coming into

the house so everything would be off.

Q Did you do anything else to test or confirm

7 before you went to work on that circuit?

8

9

A

Q

10 anything?

No, because I cut my main breaker off.

Did you use the volt meter to test or

11 A No, sir, I felt comfortable with my main

12 breaker cut off that everything was cut off.

13 Q Now, you said you had done work where the

14 City of Bedford Electrical Department was the power

15 supplier; is that correct?

16

17 too.

A Yes, sir, done several underground jobs,

And I mean, how many jobs did -- I don't really

18 know. It probably runs into the hundreds over the years.

19 Q With the City of Bedford Electrical

20 Department?

21

22

23

A

Q

A

24 with them.

Yes.

How about underground?

Underground, I had six underground services


46

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17


Q Was this new house?

A That was all new houses, yes, sir.

Q Underground is when the grounds are buried

underground to the transformer?

A Just like you go there, goes from the

transformer over. My temporary where what you have drawn

there. Come down, going out under the transformer. Then

when they come and made the switchover to put the power

line into the house --

Q Don't get ahead of me. Other than

underground would be overhead lines on poles; is that

correct?

A Yes, sir.

Q And over the, how many years is it DZ, was

that 1972, 20 some years?

A

Q

Yes, sir.

Did you have occasion to talk to other

18 residential electrical contractors?

19 A Oh, we always conferred with each other.

20 And we had to have times that we worke.d together on jobs.

21 Q Were you familiar with what the customs or

22 practices were for doing the kind of residential wiring

23 you were doing?

24 A We all in my opinion did, had the same


47

1

2

Zimmerman - Direct

practice.

Q That you are familiar?

75

3 A Yes, I am familiar, yes, that they did the

4 same thing that I did, as far as disconnecting and all.

5 MR. BULLINGTON: I would like at this

6 point, Judge, to move the admission of

7 Mr. Zimmerman as an expert witness in the field of

8 Class B electrical residential contracting work,

9 to that area.

10

11

12

13

14

THE COURT: Any objections?

MR. HART: Let me ask him a few questions.

VOIR DIRE EXAMINATION

15 BY MR. HART:

16

17

18

19

20

21

22

23

24

Q Now, Mr. Zimmerman --

A Could I have a drink of water first?

Q Oh, sure. Mr. Zimmerman, you hold a Class

B electrical contractor license that is issued by the

Commonwealth of Virginia; is that correct?

A Yes, sir.

Q And I think that you told this jury that

the only difference between a Class A license and a Class

B license is the dollar amount that you can bid; is that


48

1

2

Zimmerman - Direct

correct?

A To my knowledge. I am not really that

76

3 familiar with the Class A. I mean, I know that you can

4 bid an unlimited bid on a Class A from what I am told by

5 one of the contractors that has a Class A. But I don't

6 know what the rest of it is involved in the Class A.

7 Q Now, as I understand, I think I understood

8 what your testimony was that as a Class B electrical

9 contractor on residential construction you never dealt

10 with hot lines?

11

12

13

14

15

16

17

18

19

A I had no, on the residential house, all

during your time of work, they didn't give you no power on

the house. You couldn't have nothing but your drop cord

going to it.

Q I guess I am confused as to what your

testimony is as to why you are being offered as an

expert. You put the temporary into the house, the house

is hot, right.?

A No, we don't put the temporary. What do

20 you mean by tempqrary? The temporary service, the

21 temporary service is planted out there and then you carry

22 your drop cord into the house. But your outlets and light

23 and stuff does not have any power until the house is

24 totally completed and you have the power on.


49


1 Q As part of the expertise that you have as a

2 licensed electrician in the Commonwealth of Virginia, does

3 that include expertise in safety measures?

4 A I didn't take any course of safety measures

5 and all like that, but I always intended to be safe.

6 Q So you don't say that you are an expert on

7 safety measures; is that what I understand?

8

9

A

Q

Yes, I think I am. Yes.

You think that you are an expert on safety

10 measures relating to hot wires?

11

12 220.

13

14

15 no.

16

A

Q

A

Q

Well, on the residential house, just on the

That is what we are dealing with.

But nothing is hot, no. But not the hots,

You are not an expert on safety matters

17 relating to hot wires?

18

19

20

21

22

23

24

A No, sir.

Q Not at all?

A No, sir.

MR. HART: Then with that, if he wants to

talk about installing outlets and things of that

nature, I guess he is an expert, but I would

object to any safety.


50


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THE COURT: All right. The witness 1 s

qualification is accepted as an expert in the

stated field. When any particula~ area or

questioning exceeds the realm of expertise that

will be addressed as objections are made.

Proceed.

MR. BULLINGTON: Now, counsel and the Court

and Mr. Zimmerman, if there is no objection with

anybody, during the course of testimony I may have

to ask for him to be an expert witness. I will

specifically ask for an opinion, expert opinion,

if I intend to elicit his expert opinion.

MR. HART: Yes.

DIRECT EXAMINATION, CONTINUED


18 Q Now, let 1 s talk about 1405 Jefferson

19 Terrace. Were you an electrical contractor for the home

20 in 1405?

21

22

A

Q

Yes, sir.

What was the scope of the work you were

23 going to do there?

24 A It was a new home. I was going to do light


51


1 outlets, switches, light fixtures. That particular house

2 we put a 200 amp power box in it.

3 What is that for? Q

A 4 We pulled all the wiring in it, in the

5 horne.

6 Q What is the 200 amp service for?

7 A That is the panel box, the 200 amp panel

8 box.

9 That is the circuit breaker box? Q

10 That is the breaker box. A

Q 11 Was there anything different about this job

12 from your customary kind of new construction?

13 A No different, just a residential house like

14 any other residential house.

15 Q Who was working with you?

16 A Alan Angle, my grandson.

17 Q How long had Alan worked with you at DZ

18 Electric?

19 A Well, when he was in high school he worked

20 with me on evenings, when he was in high school a couple

21 of three days a week. When he even went to college on

22 Saturday he would help me a lot of times. When he

23 finished his college, he went to work for me full-time

24 because he was studying to be an architect. When he


52


1 finished school there wasn 1 t any jobs available. He went

2

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to work for me.

Q Was he working for you full-time in March

1996 when this accident happened?

A Yes, he was working full-time.

Q How long did he continue working for you?

A Until the middle of March of 1997.

Q Did he go on to be an architect?

A Yes, sir, he got him a job as an

architect. He actually got it in the last part of January

or first part of February, but he stayed on until, to get

some things we had closed down, a little bit closer to

finishing up some houses we had, so he stayed until the

middle of March of 1997.

Q Now, did you have a temporary meter set up

at the 1405 Jefferson house?

A Yes, I had a temporary set up just exactly

like you have drawn up there.

Q And was this an underground service?

20 A Yes, sir, this was an underground service

21 at 1405 Jefferson Terrace. My temporary was setting

22 approximately five foot, I would say, away from the

23 transformer.

24 Q When you bring it out to the site, do you


53


1 supply the meter itself?

2 A I supply the meter and the disconnect just

3 like you have on your picture there and the post and plant

4 it beside of the, about five feet of the transformer is

5 where that one is planted.

6 Q Let me make sure I understand you. Let me

7 show you what is marked as Plaintiff's Exhibit 2A or maybe

8 I will use 2B. Is this one of your temporaries?

9 A Yes, sir; that is the temporary that was

10 planted there.

11 Q It doesn't have anything to do with this

12 case, just an example?

13 A Yes.

14 Q The metal part is called what?

15

16

17

18

19

A

Q

A

Q

A

Meter base.

And then on a post, you said?

Yes, it goes on the post.·

You supplied that?

I supply the post and the meter base and

20 the line going down to it or goes over to the transformer

21 for the hookup. I supply all of that.

22 Q Who connects it to the transformer?

23 A The utility company hooks it to the

24 transformer.


54

1

2

3

Zimmerman - Direct

Do you have access to the transformer?

No.

82

Q

A

Q The glass part with the wheel that spins

4 around, whose is that?

5 A The utility company has that

6 responsibility.

7

8

9

10

11

12

Q Who provided it on this job?

A I provided the temporary service there and

the utility provided the meter.

Q

A

Q

What we have marked as -

And a hookup.

What we marked here as Exhibit 2F, did you

13 take this picture?

14

15

16

17

18

19

20

21

22

23

24

A Yes.

Q That doesn't have anything to do, that is

not the temporary --

A That is not the temporary, no.

Q -- in this case?

A But my temporary was the temporary you just

had; that's the one I had at the job site.

Q This one, 2B, is actually the one you would

have had up at Burks Hill?

A Yes, sir.

Q It is leaning up against where?


55

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6

7

8


A Just leaning up against the cabin. I took

a picture of it after it was taken down.

Q So this picture 2F shows what the temporary

meter looks like, underground setting?

A Yes, over the transformer through the

pedestal to inside of the transformer and is hooked on,

there are lugs that they hook on to.

Q Exhibit 2E, is that a photograph that you

9 recently took?

10 A Yes, sir, that•s the home that the accident

11 happened. That is the transformer and looking at the

12

13

14

15

16

17

18

19

20

21

22

23

24

picture, the temporary was sitting on the right of it,

about five foot away from it.

Q All right. Now, did you do the electrical

wiring inside the house in the spring of 1996?

A Yes, sir, Alan and I we, we did the wiring

inside the house and we did the completion of it on the

inside of the house, too.

Q Did there come a time when the temporary

power connection was going to be changed over to a

permanent power connection?

A Yes, sir; after we got all of that switches

and receptacles, about 90 percent of our light fixtures

hung, the home owner•s wife called for an inspection to


56


1 the home. The building inspector come out and inspected

2

3

4

5

6

7

8

9

10

the home. He put his seal on the meter that everything

was okay for permanent power.

So when he gets back into his office that

afternoon, he calls it in and writes up a work order to

the utility company that they can go over and put the

power in.

Q Let me ask you, how many, just give me an

estimate, if you would, how many times in residential new

construction did you have opportunity to change a

11 temporary to permanent, more than 20, more than 50? Give

12 me a rough idea.

13 A How many times I have had the temporary

14 changed over?

15 Q Yes, sir, over to permanent?

16 A I have had several hundred.

17 Q What is --

18 A Not only the Bedford line, I am talk~ng

19 about all in general.

20 Q What is, and how many in Bedford had you

21 had in general, whether above ground or below ground where

22 the City of Bedford is the power provider. Again an

23 estimate; more than ten, can you give me a general idea?

24 A Probably 75, at least.


57


1 Q Wh~t was the practice and procedure as you

2 had come to know it, let's just limit to the City of

3 Bedford where they are the electrical provider, what was

4 the procedure, as you understand, from changing the

5 temporary to permanent?

6 A The procedure was after we got the

7 inspection, the inspection was turned in and the

8 superintendent would come out and merge the line from the

9 transformer -- if he had already done it we could couple

10 and merge the transformer to the meter base on the home

11 and then he would --

12 Q Let me stop you for a second if I can.

13 This picture here that we have marked as 2D, was this

14 taken from the back of the Jefferson Terrace horne at about

15 the time of the incident or after the incident?

A Yes, sir.

Q Can you see the transformer box in there?

A Yes, sir.

Q Is the permanent power meter base there?

A I can't see the meter base. Yes, sir, it

16

17

18

19

20

21

22

looks like the meter socket is in there from what I see.

Q Is that the measurement that I would take

23 from the transformer to the meter base?

24 A Yes.


58

1

2


Q

A

What is next after that measurement is met?

The home owner or contractor is

3 responsible, pays their fee for the underground service,

4 and then they come out and ditch it from the transformer

5 over to the meter base and then they lay their wire in it

6 and --

7

8

9

Q

dig a ditch.

A

Hold on; you are getting ahead of me. You

From the transformer to the meter base at

10 the house, right.

11 Q What is the purpose of the ditch?

12 A To lay their cable in it. They lay their

13 cable from the transformer to the meter base.

14

15

16

17

18

19

20

21

Q All right. They lay the cable. What do

they do after that?

A They will cover it up a lot of times; first

sometimes they don't. Then they will go back to the meter

base and hook up their meter base first at the house.

Q When you say "hook up the meter base"?

A They put the wires in the meter base.

Q Two A, does that show the wires in the

22 meter base?

23

24

A

Q

Yes.

Just out of curiosity, there are some


59


1 coming out of the bottom. Where do they go to?

2 A The panel box. The wires coming in·the top

3 are the utility company's responsibility.

4

5

6

7

8

9

10

11

12

13

14

15

16

Q

A

Q

A

That is the outside power source?

Yes, comes from the transformer.

What do you call that, making up the meter?

Making up the meter base.

Q What is next?

A After they make up the meter base, they go

back to the transformer and they turned it on. They hook

it up in the transformer, in other words.

house.

Q They hook up the permanent?

A

Q

A

They hook up the permanent power to the

What happens with the temporary?

Then they will, when they hook up the

17 permanent power, from what I see them do, but just before

18 they hook up the pe~manent power, they always unhook that

19 temporary service first.

20 Q What do ~hey do ·after they unhook the

21 A After the temporary service they hook the

22 permanent power to the house. Then they take that meter

23 socket out and carry it to the house and put it in the

24 socket at the house.


60


Do they put it in --

Put it in the socket at the house.

1

2

3

4

5

6

7

8

9

Q

A

Q And if that had been done, are you going to

10

see, where are you going to see the meter itself, the part

with the pin spinning?

A The meter at the house.

Q What do you see at the temporary?

A Nothing but the open meter base; you see

the open meter base.

Q Let me ask you because I think this came up

11 earlier: Has there ever been a situation where the

12 temporary would stay up when the permanent power was

13 hooked up?

14 A I don't, I have never had one myself.

15 Q Had there been ever a situation from either

16 what you personally know or what you are familiar where

17 the temporary might be used by the builder for another

18 house?

19 A Yes, sir, it is possible that the builder

20 might want to build another house on another lot. He

21 normally would just leave the temporary hooked up and just

22 leave the meter in it.

23 Q Has that happened to you or you just know

24 that?


61


1

2

3

4

5

6

A I just know it from seeing it at other job

sites.

Q

A

Q

A

Have you ever seen plastic covers on?

Yes, sir. ·

What are they for?

When they leave the meter base hot, if they

7 don't leave the meter in it, they put a plastic cover over

8 it to protect it.

9 Q In your experience working with the City of

10 Bedford as an electrical provider, have you ever had a

11 temporary meter energized where there wasn't a base in it

12 or cover on it?

13 A No, sir.

14 Q Let me broaden it. When you do work at the

15 lake, is it a different utility provider?

16 A Different utility provider.

17 Q Even in your experience with those, have

18 you had it where the meter is left open and energized?

19 A No, sir.

20 Q How is it that you first became aware that.

21 the permanent was, that the temporary was going to be

22 switched over to permanent at this house?

23 A Alan, my grandson, and I were coming down

24 Burks Hill. We had a house at 705 Burks Hill that we were


62


1 working on a new house. And we stopped there and Calvin

2 was there.

3

4

Q

A

Hold on, you say Calvin Fields?

Calvin Fields, the superintendent of the

5 electrical department.

6 Q Let me just ask you if I can for a minute,

7 how do you know Calvin Fields?

8 A Calvin and I have been friends for over 20

9 some years.

10 Q Was this a personal or something through

11 work?

12 A No, we worked together all the time that I

13 was in business even; I knew him as a close friend even

14 before he came to the superintendent.

15

16

17

18

19

20

21

22

23

Q Did you have occasion to see or talk to

Calvin from time to time in your business?

A Almost every week.

Q What kinds of things would come up?

A From the business standpoint. Most of the

time I was always at the home when they put the power on,

so that way I would always call Calvin after the

arrangements for the power to cut on, I would check with

Calvin to see what day they were going to put the power

24 on. They would give me a date.


63


1 If it was raining or something, they

2 wouldn't get there to do it. I would check with them on

3 the morning that he was going to put the power on that

4 day, I would check with him to see if it was still on

5 schedule to do it that day.

6 Q Did you have occasion talk to Calvin about

7 various matters in person, talk about your work schedule

8 or City of Bedford's work schedule?

9

10

11

12

13

14

15

16

17

18

19

20

21

22

A He had a normal procedure that he told me

that he scheduled his work out for the morning, each

morning for that day. He would schedule his work orders

out for that day.

Q But I mean, did you ever talk to him, was

it common or uncommon for you to ever talk to him about

scheduling issues?

A Yes, sir, because that way when I called

him in the morning, I knew whether my work order was still

on schedule for that day or not.

Q How would you characterize your working

relationship with Calvin; was it good or bad?

A Very good.

Q Did he, did you ever have any problems with

23 working with him?

24 A Never had any problems.


64

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20

21

22

23

24


Q Did you have a, did you, if Calvin was

telling you that the work was done, did you have occasion

to be suspicious of what he tells you?

A No, sir, I had no reason not to believe

anything that Calvin told me.

Q

A

Q

A

Q

A

Now, you said you saw Calvin where?

At 705 Burks Hill.

Was that also in the Bedford area?

Sir?

Was that also in the Bedford area?

That was in Bedford City, it is.

Q What were you doing at Burks Hill?

A We had a new residential house there that

we were working on, we were completing it.

Q Now, you said you talked to Calvin over

there that morning?

A Yes, we stopped there because we had like

two more light fixtures to hang in that house. We stopped

to see if the home owner brought the right fixtures.

Q what time of the day would this have been,

best you can remember?

A About 10:00 or 10:30.

Q

A

In the morning?

10:30. Calvin and I were discussing some


65


1 guide wires coming from the light pole where the bulldozer

2 men has been bulldozing the yard. They cut around --

Was this over in Burks Hill?

Over at Burks Hills.

There is something about Burks Hills?

3

4

5

6

Q

A

Q

A We were talking about Burks Hills. Calvin

7 and I were talking about the excavating being so close.

8 At that time he mentioned that he was over on Jefferson,

9 1405 Jefferson Terrace hooking up my house over there. I

10 asked him about my temporary. I said I would like to move

11 my temporary today.

12

13

Q

A

Why would you move your temporary?

I wanted to go to another job with it.

14 Q You had another job to take it?

15 A We had another job to take that underground

16 temporary to. He says, 11 It will be unhooked. 11 And he

17 looked at his watch, he says, 11 It is unhooked. 11 He says,

18 "You can get it any time you want to."

19 I told him, I said, We have a little job to

20 do and we'll eat· lunch and come over after lunch and pick

21 it up.

22

23

24

Q

A

Q

Is that what you did?

Yes, sir.

You went to lunch first?


66


1

2

A We went to another little job and then we

come back and had lunch and then we went over to Jefferson

3 Terrace. And when we pulled into the driveway, the meter

4 was sitting right on, the temporary was sitting on the

5 right of the driveway, the meter base was gone out of it.

6 Q What time was it, roughly, after lunch that

7 you got over to the Jefferson Terrace house?

8 A I would say about 1:30.

been?

Q

A

Q

That is in the afternoon, correct?

Yes, sir.

Where would your other little job have

9

10

11

12

13 A Out towards Big Island; we had a little

14 addition on the house. We wanted to check it to see if

15 there was any

16 Q Where did you eat lunch, what area?

17 A There at Forks Restaurant.

18 Q Is that Bedford?

19 A Yes.

20 Q Was Alan Angle with you?

21 A Yes, Alan was with me all the time.

22 Q Had he been with you that morning at the

23 Burks Hill job?

24 A Yes, Alan was with we at Burks Hills and


67

1

2

3

4

5

6


he was with me when Calvin told me about the temporary

being off.

Q You pulled in the driveway of the Jefferson

Terrace home with Alan, you said?

A

Q

Yes, sir.

What did you do?

7 A Well, we seen the temporary setting there

8 with no meter base in it. When we pulled up towards the

9 garage, the meter base on the house was around the back.

10 Alan went around to see if the meter socket was in.

11

12

13

14

15

16

17

18

19

20

21

Q

meter base?

A

Q

A

Q

A

Q

A

Q

A

22 dead.

Did you visually look at the temporary

Yes, sir.

Was the meter in the meter base?

No, sir.

Was there a cover on it?

No, sir.

Was it open like you show in 2C?

Just open.

What did that indicate to you?

That indicated to me the meter socket was

23 Q Had you ever seen a situation where that

24 had been left open and it was --


68

1

2

Zimmerman - Direct

A

Q

No, sir.

-- energized?

3 A And no, sir, and not left energized.

96

4 Q You said the meter had been taken around to

5 the back of the house and put in.

6 A Yes, sir.

7

8

9

10

11

house.

Q

A

Q

A

What did that indicate to you?

That indicated to me the power was on the

All right. What did you do then?

Well, Alan and I went in the house and I

12 went downstairs to the panel box, the breaker box. I

13 check~d all of that to see if the power was connected on

14 the panel box. Alan, he had another meter that you check

15 upstairs, so he went to the receptacles and checked all of

16 them to see if they had power on them.

17

18

Q

A

What is the kind that Alan was using?

Just a little socket ~ith three little

19 lights. You plug it into the socket and it tells you if

20 that socket is wired correct or if it has got the right

21 wiring to it there.

22 Q Can you test other stuff other than just

23 plugging it into outlets?

24 A That one is for outlets.


69


1 Q You said you tested the breaker box?

2 A I tested the breaker box with another

3 meter.

4 Q Now, what is the purpose of testing there?

5 A Well, I want to see if everything is

6 working. You want to make sure you have the right amount

7

8

9

10

11

12

13

14

15

16

of power coming into the house, so you want your 220

coming into your house and you also want your 110 coming

into your house. I checked each individual breaker to see

if the power is going out through each individual breaker _

into the house.

Q Are you essentially checking to see what

you have done is working correctly?

A To see if everything is working correctly.

Q

A

Is that your practice to do that?

Yes, sir, my practice and other

17 electricians I am sure it is theirs, as to --

18 Q Were you ~oing any testing with that meter

19 to see whether anything was de-energized?

20 A No, I was checking to see if power was

21 going through. Of course, I would cut the breaker off, to

22 make sure that the breaker was de-energized.

23

24

Q

A

You were testing your work?

To see if everything was working according


70


1 to what it was supposed to work.

2 Q After you had done that, what did you do?

3 A After I checked that out, I went out to the

4 truck and put my tools up. And I went over to the

5 temporary service and I pulled on it a little bit. The

6 post was in the ground pretty tight on that. So Mr. Hogan

7 is the contractor and the homeowner, he was there with his

8 front-end loader.

9 And he just comes over and sticks his

10 forklift right under the board part you see on here and

11 just eases it up out of the ground for me. He then just

12 sets it right back down. I told him ease it right back

13 down in the hole so we could pick it up.

14 I started pulling the wire up because it is

15 very shallow in the ground. I pulled it on over to the

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

17 little stuck. So I, with

18 Q Go ahead.

19 A With the experience that Calvin had told me

20 that it was off and no socket in the. meter, Alan come down

21 about that time. I just told him to go ahead and get me

22 my cutters and I could cut the wire off.

23 Q Let me confirm that the wire, from the

24 temporary to the transformer, is underground; is that


71


1 correct?

2

3

4

5

A

.Q

A

Q

Yes, sir.

Is that done by the City of Bedford?

Yes, sir.

Now, you, when you got there, you did not

6 see the wire pulled out of the transformer?

7 A No, sir, I didn't see that. The wire

8 pulled out of the transformer, that was no, nothing that

9 surprised me because I had five others that, in fact, I

10 had never had an underground service of theirs pulled out

11 from under the transformer or knew any knowledge of them

12 pulling it out.

13

14

15

Q

A

Q

16 house?

17

18

19

20

21

22

23

24

A

Q

temporary

·hooked up?

A

Q

situation

meter had

would

with

been,

What did you say, you had five or how many?

Five others.

So it would be six totally counting this

Total of six, yes, sir.

In those houses had you occasions where the

be disconnected and the permanent power

Yes, sir.

What was done in those five other than this

the temporary wires after the temporary

all of that had been unhooked?


72

1

2

3

4

5

6

7

8

9

10

11

12


A Well, they unhooked the temporary and

hooked up the house. They unhooked the temporary and

hooked the house to the permanent, just like they did this

one here, but failed to unhook the temporary.

Q This is a transformer box, this green, big,

square metal box?

A Yes, sir.

Q On those other five instances after the

temporary power had been unhooked, where were the ends of

the wire?

A

Q

They were all left under the transformer.

All right.

13 A Coming from the temporary over to the

14 transformer, they didn't pull any out, they didn't dig

15 them up. They didn't do anything at all. They were just

16 left in the transformer.

17 Q Let me, exercising some more arithmetic

18 skills, what is on the bottom of the transformer box?

19 A A square pedestal down there.

20 Q What is it made out of?

21 A Some out of fiberglass, some of them

22 concrete years ago. I don•t know exactly what they are

23 made out of now, I have a feeling all fiberglass.

24 Q What are the wires hooked up to in the


73


1 transformer?

2 A They have a bar in there, I called it a hot

3 bar like that (indicating.) It has little lugs on it

4 sticking out, little bolts.

5 Q Are they just where wires essentially

6 fasten on?

7 A With nuts on it in your pedestals that you

8 have a hole in it.

9

10

Q

A

It is on the bottom where, middle?

Just different places or where they want to

11 put it. The most I have seen kind of to the side.

12 Q In any event, is it that the wires go

13 through the hole to get out?

14 A Wires come under the transformer, come up

15 through that hole and hooked on those lugs.

16

17

18

19

Q

A

Q

A

And they would come out underground?

Yes, sir.

And the five were left inside?

Left inside or stuck down in that hole, I

20 don't know which, I couldn't see it. I would just pull

21 them out, and the one before, I had one before it, one of

22 them to hang. I had them on three strands and they was

23 individual strands, so when I was pulling it, one of them

24 get a little stuck so I cut it off with my cutters and


74


1 taped it up.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

Q In that other instance what caused it to

hang?

A It could have hung coming down through that

hole, it is a lug about two and a half inches long, and it

is not quite as big as a nickel. It has a hole in it. It

was just stuck back down in that hole and the transformer

packed down in there, it could have hung on the side of

the pedestal or hung on a rock underneath of it. It is,

either coming outside of it.

Q Okay. Now, did you say, I think when I

interrupted you you were talking about something hanging

up on this one that day.

A Yes, sir. When I was pulling that one out,

it just got a little stuck. Since I had the experience

before of, with it hanging, I just cut it off. I told

Alan just to go get the cutters. I said, "We have enough

wire to reach it without any problem to another one when

we replant it.n He went and got my cutters, I just

reached down and cut it off.

Q Did your grandson say anything to you to

22 lead you to believe it was energized?

23

24

A

Q

No, sir, he didn't say anything.

Did you believe you needed to test the


75


1 wire? Did you think you had to confirm that was

2 de-energized?

3 A No, sir, what I have been told and what I

4 had seen, I couldn't see any reason. Everything showed it

5 was de-energized, and Calvin said it was de-energized.

6 That was my experience with them. I had no reason to

7 doubt Calvin.

8

9

10

Q

A

Q

Now, Alan got your cutters, you said?

Yes, sir.

I don't think we are going to mark these as

11 an exhibit, but are these cutters?

12

13

14

15

16

17

A

Q

A

Q

A

Q

Yes.

These were yours?

Yes, sir, they were mine.

Is this what you went to cut the wire with?

Yes, sir.

Now, this, I think we have stipulated is

18 the wire we got from the scene that day. Does that looks

19 like the wire?

20

21

22

23

24

A

Q

about this

A

the wire.

That

Well,

wire than

This

It looks

wire had lugs on it on the ends of it.

let me understand what is different

what you cut.

is the wire. I couldn't say this is

like the wire. This is where I cut


76


1 it. This one here that has normally got lugs on it so

2

3

4

5

lug?

Q

A

Q

Let me make sure I understand. What is a

It is about two and a half inches long.

Is it a piece of metal or something?

6 A It is a piece of metal, yes, piece of round

7 metal smaller than a nickel, and got a hole in it.

8 Q Is that what you put --

9

10

11

12

13

14

A

Q

like that?

A

Q

A

Put- on the bolt to bolt it down.

I am just, does it looks like something

Yes, that is what it looks like.

And then the wire would be there?

And they crimp, they crimp it onto the

15 wire.

16

17

18

19

20

21

22

23

24

it?

that?

Q

A

Q

So you think that yours had those lugs on

Yes, sir, I think mine had the lugs on it.

But other than that, the wire looks like

A The wire was in a twist like that.

Q Tell us what you did after your grandson

got the cutters.

A I just bent over and reached down and


77


1 opened up my cutters and reached down and cut them off.

2 At that time some sparks flew and my hands went up in the

3 air. I made a step back. That is about it that I

4 remember that because he said there was a little bit of

5 fire in the grass.

Did you remember that?

I don't remember that.

Do you remember --

6

7

8

9

Q

A

Q

A For just a few minutes things would just, I

10 just didn't remember anything for just a few minutes. I

11 mean, from my understanding from him and one of the

12 workers there that I stomped some of the fire out. And

13 after he got that done, he loaded up, I think he loaded

14 up, I can't remember helping him load the temporary into

15 the truck, into the van. But anyway, it was loaded into

16 the van and we stayed around there a few minutes.

17

18

19

20

21

22

23

24

walked

of the

leave

I was beginning to come back around. I

around a little bit. Just in general talked to

contractors that was there at the building.

Q You remember that?

A Yes, I remember that.

Q Then what did you do after you; did you

the site?

A I went and got in the truck and carried


78

two

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Alan home. He lives up, just a few blocks up the street

at Elm Street, and I dropped him off. At that time I was

having some tingling and hurting in my right leg. But I

didn't pay that much attention to it because I wanted to

go over and talk to Calvin about what happened because the

lines were left over there.

So I went over to the electrical department

and I walked into the door. I had my cutters.

Ms. Patterson was sitting at the desk and I asked her was

Calvin in. I was holding the cutters. And Calvin's

office is right next to Debbie's.

Q Did you essentially tell Mr. Fields what

happened down at the site?

A Yes, sir, I told him what happened out at

the site, showed him the cutters. And the service truck

was immediately called to go over to 1405 and check it out

to see what the problem was.

Q I take it at this point you _remember this

happening in your memory?

A Yes, sir.

Q Did you say anything to Calvin about

whether you thought the line was energized?

A Yes, I told Calvin, well, what I told him,

I held up the cutters, I said, "1405, who made the boobie


79


1 today?" He told me Dennis and Rick were over there.

2 Q Is this the condition of what the cutters

3 were before you cut?

4 A Yes, sir -- no. After I cut, no. I had

5 smooth edges.

6 Q Was there any damage?

7 A All the damage done around the burned spot

8 around them there.

9 Q Well, let me j~st narrow this question down

10 for you. Did you tell Calvin that day that you thought

11 the line was energized or that your grandson had told you

12 the line was energized?

13

14

15

16

17

18

A No, sir, I didn't tell Calvin anything like

that.

Q Now, what did you do?

A Because immediately as soon as I told

Calvin he told Debbie to call the boy on the service truck

to go to 1405 to check the transformer out I just left.

19 There was no discussion. I just handed him the cutters

20 and I walked out the door. And I got in my van and went

21 back over to 1405, and we both pulled in about the same

22 time, the service truck and myself pulled in. Garf cut

23 the lock on the temporary.

24 Q Yes.


80


1 A He was the linesman on the service truck

2 that day. So he opens up the transformer, and then he

3 opens up the transformer.

4 Q Just tell me what you saw.

5 A I see that the wires are still hooked up.

6 Q Okay. Now, what did you do after, is that

7 basically what you did out there at the site?

8 A I stood there for a few minutes until he

9 unhooked one of them, and then I just got in my truck and

10 left. At that time I was having a considerable bit of

11 pain out of my back and corning into this muscle in my

12 neck.

13 Q You are pointing to the right side?

14 A Yes, sir, all in my right side, nothing in

15 the left. It just runs from the tip of my toe to the end

16 of the fingers, up the side of my head, into my ear, into

17 my eye. But I went on over because Physicians Associates

18 is just within seeing distance across the hill.

19 Q Is that your family doctor?

20 A That is my family doctor. So I went over

21 there and when I went in the door, I told the secretary

22 that I had an electrical shock. And I was really feeling

23 quite swimmy, headache and woozy at that time.

24 Q Where did you go after the physician?


81


1 A Ms. Ferguson, she was Dr. Hutchinson's

2 nurse. She come and got me in the wheelchair. After

3 that, everything kind of went on me. I remember

4 Dr. Hutchinson checking me some and then I remember

5 Ms. Ferguson going across the street with me in a

6 wheelchair. Somewhere along the line I was sure I told

7 her to call Alan because -- I don•t know. For some reason

8 I didn't want my wife called. I wanted Alan called.

9 Q Do you lose some memory for some period of

10 time?

11 A Yes, when I woke up, it was that night. I

12 was hooked up to a little bit of everything it seems to me

13 like.

14

15

16

Q

A

Q

Were you in the hospital?

Intensive care unit.

Let me hold you there and take you back for

17 just a minute to 1405 Jefferson Terrace. Do you know

18 whether you~ hands were on the rubber handles or not?

19 A Yes, I think my hands were on the rubber

20 handles,. yes. Because I mean, that would be the

21 experience to have the hands on the rubber handles whether

22 you were cutting it dead or cutting any other way.

23 Q Do you have occasion to use these cutters

24 in your practice?


82


1 A Yes, sir.

2 Q Let me ask you this question as an expert.

3 What are the possible ways that the current could get to

4 your body that you know of from the wire and metal into

5

6

7

8

9

10

your body?

A Well, after it happened, I went back to the

company that I bought them from to see.

Q Don't tell us, tell us what you know about

what the --

A Well, my experience would be that the

11 handles wouldn't be heavy enough to carry the load that

12 come in on them at the time.

13 Q Is that something you know or just a

14 possibility?

15 A I know that, the handles are not heavy

16 enough that that could feed through.

17 Q All right. That is one possibility. What

18 else?

19

·20

21

22

23

24

A You.could have a leak, a little crack in

one of those handles that hadn't been noticed. It woulQ

leak through and hit your hand.

Q Are you going to see a crack in that

situation, can I look at this thing and see?

A With that, you might see it and might not


83

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see it. That was one thing I had been hoping I could see

them. I am very interested in finding out what did

happen.

Q Crack or leak in the handles. What else?

A They sat in the back of my van, it is a

possibility they could have been damp.

MR. HART: Could have been what?

THE WITNESS: Wet, the handles could have

been wet because they sat in the corner of my van

and sometimes I throw the water hose in there and

wash the van out. And there is a possibility of

it even when the door is --

BY MR. BULLINGTON:

Q Does water conduct electricity?

A Yes.

Q Rubber does not conduct electricity?

18 A It could have been, very easily been the

19 handles were damp and it fed straight on up to me there.

20 .

21

22

23

24

Q

possibility?

A

Now, about your fingers, is that also a

Another possibility that a finger could

have touched it but

Q Now, do you know, I am not asking you this


84


1 as an expert, I am asking you based on what you know and

2 what you remember, do you know which of those four things

3 it was?

4

5

6

7

point?

A

Q

A

No, sir, I don•t. I wished I did.

Now, you talked to Mr. Massie at some

Yes, sir, Mr. Massie, he·was an

8 investigator for the city. He called me and I talked with

9 him.

10

11

12 Monday.

Q

A

Q 13

14

15

16

17

happened?

A

Q

A

How soon after the accident was it?

I talked with him, I believe it was on

What day was this when the accident

It happened on the 14th.

Are we talking a day later to a week later?

It was Thursday, Friday, Saturday, Sunday,

18 Monday; it would have been four days later.

19 Q How long had you been back from the

20

21

22

hospital?

A

Q

I come back on Saturday afternoon.

And did he, did you tell him that your

23 finger, something about your finger being on metal?

24 A We were discussing the possibility. He


85


1 asked me possibilities of something that could have

2 happened. He says, "Is it possible that you could have

3 had a finger on the cutters?"

4 I said, "I don't know but I don't believe I

5 did." Then he went to something else. He just left it.

6 Q Did he ask you specifically if that was a

possibility?

Yes, sir.

7

8

9

A

Q Did he ask you about other possibilities?

10 A No, sir, he didn't ask me anything else.

11 He went to something else and left it at a possibly.

12 Q All right. Now, you had a testing device

13 in your truck, correct?

14

15

A

Q

Yes, sir.

And that testing device, is that, was that

16 something you could have used to test to see if the line

17 de-energized?

18 A Yes, sir, I could have checked it to see

19 whether it was de-energized, but I felt very comfortable

20 with what I heard and what I seen from --

21 Q Let me, hold on a minute now. You used

22 that volt meter to test to see if your work was working

23 properly, you said?

24 A Yes, sir, at the house.


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Q Did you use that voltage meter in your

practice also to test to see if lines are de-energized?

A It can be used for it.

Q

A

Q

Do you use it for that?

No, sir, I don't use it.

In those situations, I believe you said the

only time you work wires hot generally is when you are

adding a circuit in an existing house?

A An existing house, all breaker systems in

and you cut your breakers off.

Q Would you use it to test when you had a

line you just de-energized then?

A No.

Q Did you think you needed to test that day?

A No, sir, I didn't feel that I needed to

test that day. Like I say, what Calvin had told me that

it was off and my, from what I seen and my experience with

knowing that the meter is out it is de-energized.

19 Q I am going to ask you a question as an

20 expert. Are you familiar with the custom and practice as

21 a residential Class B electrician?

22

23

A

Q

24 familiar with?

Yes, sir.

Doing the kind of low voltage work you are


87

1

2


Yes, sir. A

Q Is it, what you have told me, for example,

3 in the breaker where you turn a breaker off and you don't

4 use a voltage meter, that is customary?

5

6

7

8

9

10

click,

sir. I

A

you

Q

A

do

Q

If your breaker cuts off and you hear it

know it is de-energized.

You test it?

I do not feel you need to test it, no,

not feel you need to test.

And do you know from the custom in the

11 industry whether that is something --

12 A I am sure, I have seen other electricians

13 do the same thing.

14 Q Now, after you got out of the hospital,

15 tell us briefly what kind of symptoms or problems you were

16 having?

17 A I have pain, it goes down my neck, comes

18 down in my arm, comes, the muscle all the way down my

19 back, all the way down my leg, all the way down my foot

20 into my toe and.then under the bottom of my foot. I have

21 a spot in it, about a 50-cent piece, that just burns,

22 going down my groin. The muscle down there hurts and then

23 I have no feeling in my penis and I have no sexual

24 activity. It is just --


88


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2

3

4

5

6

Q Are you describing your current symptoms

for me?

A These are my current symptoms.

Q That is fine.

A See, I had the same thing when I come out

of the hospital. After a few days, I just begin to get a

7 little worse and get a little worse. I just, over the

8 period of time, instead of getting better, it just gets a

9 little worse.

10 Q Are there any other physical symptoms that

11 are particularly problematic for you?

12 A I have problems with my memory. That's the

13 problem we have at home. My wife will be talking to me

14 and I don't answer a lot of times and it,· I seem to not

15 store what someone is telling me a lot of times, or it

16 will come into me a little different and I answer it a

17 little bit different. We sit and watch TV, my wife will

18 say, "What's going on? 11

19 I say, "What do you mean? 11

20 She said, "What was the weather, you were

21 watching the weather."

22 I say, "Oh, I don't know. 11 I just turned

23 to another channel and catch it there. I didn't see it.

24 But I can watch a whole other channel I wanted, whatever I


89


1 was watching, and wouldn't remember anything about it.

2 There is times I head outside to do something and by the

3 time I get outside I've forget what I was going out to

4 do. Half of the times I was going out to mow the yard and

5 I would come back in. She said, "I thought you were going

6 to mow the yard. 11 I had come back into the house.

7 Q How about have you had any emotional

8 problems or depression or anything as a result?

9 A Depression, I think, has been an awful big

10 thing in it. I just stayed depressed. The pain just

11 makes me so depressed and I'm just happy to stay at the

12 house. I stay, my wife, she is very concerned about me.

13 I have to stay close. I don't want to get too far out of

14 sight, but just having to stay in, as much as I have to

15 stay in depresses me so.

16 I was just telling her a couple of days ago

17 that going to the dump is quite a joy to me. I get my

18 little dogs and I look forward once a week gqing to the

19 dump. And it is, I don't get out a lot by myself because

20 my wife goes with me. We still do a little receptacles

21 and we do various different things for people. She helps

22 me because I enjoy it. It was my work.

23 Q Now, well, that is a good question, I was

24 going to ask you. You were working full-time before this?


90


A Yes, sir, I was working full-time.

Q Have you been working full-time?

A No, sir.

1

2

3

4

5

6

7

8

Q AAd you are, how old are you now, sir?

A I am 66.

Q And have you had, have you done, did you

have other jobs going at the time of this accident?

A We had quite a few new homes going at the

9 time. AAd Alan, because he was experienced enough with me

10 going out with him and I would stay, we would stay

11 sometimes four hours a day. And Alan, he did the biggest

12 majority of the work because switches or something like

13 that I might be able to put switches in, but I had

14 problems holding the screwdriver. I had an electric

15 screwdriver and it would turn in my hands.

16 Alan, he did the biggest part of the work.

17 And even after we finished up what we had to finish up, I

18 still was taking more work because Alan didn't have

19 anything to do. He was married and had house payments,

20 not house payments, but rent and stuff like that. I took

21 on other jobs and let him do them. But I would still go

22 with him and watch, oversee the jobs.

23 Q Now, Alan left, I think you said, March

24 1997?


91


1 A Yes, he left in March of 1997. We still

2 had some work left in and I just, I took on some jobs

3 after that, and I still enjoy taking on some little small

4 jobs where somebody puts an addition on the house that you

5 put half a dozen receptacles in it or lights or something

6 like that.

7

8

9

Q

A

Q

What was your big hobby?

Work.

Now, you saw, a number of physicians after

10 the accident; is that correct?

11 A . Yes, sir; I have seen Dr. Knox and

12 Dr. Harrison and in Blacksburg, I believe it was. And

13 then I have seen, of course I seen Dr. Hutchison and

14 Dr. O'Shannick in Richmond.

15 Q Let me ask you about Dr. Knox; how is it

16 that you got to Dr. Knox?

17 A Well, he was my wife's doctor and I went up

18 to see him through her.

19 Q We are going to read the depositions of

20 some of your health care providers. I will ask you rather

21 than have you go over that, is this summary of medical

22 expenses, what we marked as Exhibit Number 3, that you

23 incurred in treating the injuries you received in the

24 accident?


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A Yes, sir.

MR. BULLINGTON: I would move the admission

of several photographs premarked by agreement as 2A.

MR. HART: The photographs, yes.

MR. BULLINGTON: And then Exhibit 3.

MR. HART: With respect to Exhibit 3,

Judge, we agree that the expenses were incurred

and that they were reasonable, but we are

contesting the necessity for them. In other

words, we don't think all of this is related to

the accident.

THE COURT: All right. With that, let me

first of all, let's return to the exhibits. I

would like to keep this in order. There were some

photographs offered, is that right? We had pre

marked them by agreement as 2A through, I want the

record to reflect, any objection to Plaintiff's

Exhibits 2A through 2F?

MR. HART: No objection to the

photographs.

THE COURT: So admitted.

(The above-mentioned photographs was marked

as Plaintiff's Exhibit Numbers 2A - F and entered

into the Trial.)


93


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12

THE COURT: I understand that what,

Mr. Hart, you are maintaining as to the exhibit,

but do you object to the admissibility based upon

that of this particular document?

MR. HART: Not with that understanding that

we do not agree that the medical expenses that he

is showing here are related to this electrical

incident he had. We agree that they were incurred

and we agree they were reasonable.

THE COURT: Okay, incurred and reasonable.

MR. HART: But not related.

THE COURT: With that Plaintiff's Exhibit 3

13 is admitted.

14

15 (The above-mentioned document was marked as

16 Plaintiff's Exhibit Number 3 and entered into the

17 Trial.)

18


20 Q Mr. Zimmerman, you had something at some

21 point in your past called polymyalgia rheumatica; is that

22 right?

23 A Yes, sir, I called it PMR because I could

24 pronounce it better.


94


1 Q When did you have that?

2 A In the middle of the 1980s, it started

3 around 1986.

Q 4 Who treated you for that?

A

Q 6 Family doctor?

A 7 Family doctor, yes, sir.

Q 8 And did there come a point in time when you

9 got over the PMR?

10 A Sir?

11 Q Did there come a time when you felt you

12 were over the PMR?

13 A Yes, sir; in late 1989 that I was off of my

14 medicine. It might have went into the first part of 1990.

15 Q Did you have muscle aches or pains or

16 things of that nature?

17 A It was every muscle in your body. You

18 couldn't, you didn't even want to move a finger or you

19 didn't want to move your arm. On a morning when I go to

20 get out of my bed, my wife was always there to help me get ·

21 out of bed. I was in so much pain, and if I could get to

22 the shower and get a good, hot shower that would help me

23 start the morning out.

24 Q How did the problems you were having back


95


1 in the 1980s, I guess you said with the PMR that's

2 A Your sed rate, your red and white

3 corpuscles are out of balance.

4

5

6

Q

symptoms?

A

I mean from what you have experienced, the

Just totally different. I had pain all

7 over my body. I had pain from my neck all the way down to

8 the tip of my toes to the tip of my fingers. It was all,

9 it just wasn't in my left side. It wasn't just in my

10 right side; it .wa~ all over my body. When that sed rate

11 would get up, I would just get in more pain~

12 MR. BULLINGTON: If you will answer any

13 questions that Mr. Hart may have.

14

15

16

17

18

19

20

21

22

23

24

THE WITNESS: If I could have some water

first.

THE COURT: I am just wondering Mr. Hart, I

would expect that you would have some questions,

of course, and wondering if this might be a

convenient stopping point for the lunch recess.

MR. HART: It doesn't ·matter to me. I

don't think my cross examination will be as

extensive as the direct examination was. Just

concerned that Mr. Zimmerman would like to take a

little break.


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124 Zimmerman - Cross

THE COURT: I am just, well, it is just

12:15. Perhaps start and see how we go.

THE WITNESS: Could I stand up for a

moment?

MR. BULLINGTON: Stretch your legs.

CROSS EXAMINATION

BY MR. HART:

Q Mr. Zimmerman, you have been an electrical

contractor for 26 years. Mr. Bullington has asked the

Court to acknowledge that you can offer some expert

testimony?

A Yes, sir.

Q And you say that you have some expertise in

safety; is that correct?

case.

A

Q

A

Q

In the low voltage and residential wiring.

That is what we are dealing with on this

Yes, sir.

We are not dealing with 7,500 volt lines or

22 things of that nature, right?

23 A That's true.

24 Q We are dealing with low voltage in which


97

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2

3


you have some expertise; is that right?

A Yes, sir.

Q Do you agree that the person who is dealing

4 with the wire is the one who has the duty to positively

5 know that it is energized or de-energized?

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

A

Q

A

Q

Yes, sir.

That is correct?

Yes.

Now, when you got over there, you said you

had a conversation with Calvin Fields?

A Yes, sir.

Q Correct. As I understood your testimony

here this morning, you said to Calvin something like, "Are

you going to unhook it?" He said, "Yes, your temporary is

going to be unhooked. 11 Correct?

A Yes, sir, and he looked at his watch.

Q I will ask you about that. But he said,

"Your temporary is going to be unhooked"?

A

Q

Yes, sir.

And then your testimony here this morning

21 was that he looked at his watch, and this is over on Burks

22 Hill somewhere?

23

24

A

Q

Yes, sir.

And said, 11 It is unhooked."


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11

Zimmerman - Cross

A

Q

A

Yes, sir.

Is that correct?

Yes, sir.

126

Q Do you recall when I took your deposition

on August the 28th, 1998 in my office; do you recall being

there?

A Yes, sir.

Q I asked you the following, let me find it,

"And your testimony or your grandson" --

MR. BULLINGTON: Page what?

12 BY MR. HART:

13

14

15

16

17

18

19

20

21

22

23

24

Q Page 13. "And your testimony -- or your

grandson, at least, said 11 -- excuse me. 11 And your

testimony or your grandson, at least, said that you-all

had talked to somebody that morning."

And your answer was, "We had talked to

Calvin Fields on 705 Burks Hill Road."

A Yes, sir.

_Q "Calvin was there, and Calvin was looking

at some guide wires, and we were discussing some guide

wires off a pole there."

A

Q

Yes, sir.

Okay. "And I asked him was it working on


99


1 house over on 1405 Jefferson Terrace, and he said yeah. I

2 said What about my temporary? Are you going to unhook

3 it? And he said, Yes. Your temporary is going to be

4 unhooked. 11

5 MR. BULLINGTON: I object. Are you

6 continuing to read?

7 MR. HART: I am going to continue to read.

8

9 BY MR. HART:

10 Q "I said, Well, I really want to move that

11 temporary after lunch if it can be done. He said, The

12 temporary he looked at his watch. He says, They should

13 be done now. So he said, It will be unhooked."

14 Now, that is a little different from what

15 you told us this morning, isn•t it?

16 MR. BULLINGTON: Object to the

17

18

19

20

21

characterization. That•s argumentative.

MR. HART: This is cross examination,

Judge.

THE COURT: Overruled, proceed.

22 BY MR. HART:

23 Q Then you testified, and you told me under

24 oath he said: It is going to be unhooked. That means in


100


1 the future, doesn•t it?

2

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18

19

A

Q

A

Well

Answer my question.

Yes, sir.

MR. BULLINGTON: Judge, I would ask that he

ask the Court for instructions on the witness and

not to instruct the witness directly. I don•t

think it is appropriate for him to tell the

witness directly.

THE COURT: I agree with that in a way.

But I need to instruct the witness just answer the

question. Respond to the question and nothing

further. As long as you are responding to the

question you will be allowed to answer that. If

you go beyond the scope of the question, then that

can be and should be interrupted. But I can

address if asked by counsel. With that, I think

we can proceed.

20 BY MR. HART:

21 Q And you said, "He says, They should be done

22 now. 11 Is that what he said?

23 MR. BULLINGTON: Where are you now; are you

24 reading the same thing?


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7

8

MR. HART: I am asking him questions about

specific items.

THE WITNESS: Yes, sir, if that is what I

have in my deposition.

BY MR. HART:

Q And he said, 11 It will be unhooked."

MR. BULLINGTON: Objection, asked and

9 answered. He already read it once.

10 THE COURT: I will allow some

11 clarification; proceed.

12

13 BY MR. HART:

14

15

Q

A

11 He says, It will be unhooked 11 ?

Yes, sir.

16 Q Now, did he, Mr. Zimmerman, ever tell you:

17 It is right now unhooked?

18 A No, sir.

19 Q Now, when you got, after you talked to him,

20 then, and he never told you it had ·been unhooked, then you

21 did not know for sure if it had been unhooked or not, did

22 you?

23 A I knew from my experience with Calvin I

24 could believe him that he would do what he told me.


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Q He said he was going to unhook it, didn't

he?

A Yes, sir.

Q Did you know when you got to that job site

as a fact and positively that that wire was unhooked from

the power source?

A With what he told me and what I seen when I

got to the job site, I had no other reason to believe

nothing else.

Q You had no other reason to believe it, but

that was not my question. Did you positively know that

the wire was unhooked?

A I felt with the meter base out that it was

unhooked, yes, sir.

Q It wasn't though, was it?

A No, sir.

Q And you were not positively sure that it

18 was unhooked, were you?

19 A Not until I cut the line.

20 Q How could you have determined that that

21 wire was hot?

22

23

24

A

Q

A

I could have tested it.

With the volt meter?

With the volt meter.


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5


Q You had a volt meter in your truck?

A Yes, sir.

Q Ap.d the truck was 10 to 15 feet away?

A Somewhere in that vicinity.

Q And with the volt meter you simply get it

6 and you get it near the wire and it makes some indication

7 that there is a charge on it, doesn't it?

8

9

A

Q

Yes, sir.

Very simple test, not a complicated thing

10 to do, right?

11

12

A

Q

Yes, sir.

And certainly as an expert electrician, you

13 knew how to do it?

14

15

16

17

18

19

A Yes, sir, but I still relate to --

THE COURT: Sir, as I said a moment ago,

answer the question. Your attorney will have the

opportunity to ask further questions if he

wishes.

20 BY MR. HART:

21 Q So your testimony then and your grandson

22 got there, went in the house, checked out the house?

23

24

A

Q

Yes, sir. ·

And you had some kind of meter you were


104


1 using and he had some little thing he was sticking in

2 sockets that was lighting up?

3

4

A

Q

Yes, sir.

You then came out and Mr. Hogan took his

5 backhoe and lifted the post out of the hole?

6

7

A

Q

Yes, sir.

At that point you personally started taking

8 the wire and taking it out of the ground because I think

9 you said it was shallow?

10

11

12

13

14

15

16

17

18

up to

A

Q

the

A

Q

A

Q

A

Q

Yes, sir.

And you got the wire and you got it right

pedestal?

Yes, sir.

And it wouldn't go any further, would it?

No, sir.

And you pulled on it?

I pulled very lightly on it.

Why did you pull lightly on it; why didn't

19 you try to pull it out of there?

20 A If.it were stuck in the transformer, I

21 wasn't taking a chance on hitting hot lines or something.

22 Q You said you pulled lightly on it. You

23 didn't make any good effort to pull it out of there, did

24 you?


105


1 No, sir.

2 So then did your grandson say anything to

3

5 Let me finish.

7 Did your grandson say anything to you at

8 all about whether or not that line may have been hot?

9 A No, sir.

10 Q So here we are, you have got the line tight

11 going up into the transformer, correct?

12 A Correct.

13 Q And I think we have established that you

14 did not know positively whether or not it was still hooked

15 up; is that correct?

16 That's correct. A

17 Now, this is the line; is that correct? Q

18 A Yes, sir, it looks like the line.

19 Q It is three lines, one is positive, I

20 guess?

21 A Yes, sir.

22 Q And one is a negative and one is a ground,

23 correct?

24 A Yes, sir.


106

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3

Zimmerman - Cross

And you had these wire cutters?

Yes, sir.

134

Q

A

Q And if you had cut this line first and this

4 line second and this line third --

5

6

7

8

9

10

A

Q

A

Q

A

Q

Yes, sir.

-- there would have been no shock --

No, sir.

-- would there?

No, sir.

There would not have been. on March the

11 14th, 1996, you knew that if you cut each line separately

12 you will totally eliminate the danger of shock?

13

14

A

Q

Yes, sir.

But what you did is you took these wire

15 cutters and enclosed them around the entire three lines?

16

17

18

19

20

21

A

Q

A

Q

A

Q

Yes, sir.

And then you cut it?

Yes, sir.

And that's when the shock was?

Yes, sir.

Now, you have testified here today that you

22 think that the grips on this wire cutter were too thin to

23 withstand the 220-volt shock; is that correct?

24 A Yes, sir.


107

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6


Q Sir?

A I said it was a possibility.

Q Okay. Is that your testimony as an expert?

A Yes, sir.

Q When did you become an expert?

A Well, when I become an electrician, I tried

7 to consider myself to be alert of things and know things

8 about the electrical wiring.

9 Q Do you recall when I took your deposition

10 in August of 1998 in my office?

11

12

13

14

A

Q

A

Q

Yes, sir.

Do you recall being under oath?

Yes, sir.

I am on page 23. And I asked you, "So now

15 what kind of wire cutters were you using?"

16 And you said, "I was using regular wire

17 cutters that you-- like linesmen use." Do you remember

18 saying that?

19

20

21

22

23

24

yes,

A

Q

A

Q

sir. rr

Yes, sir.

"Did they have rubber grips on them"?

Yes, sir.

You sa;i.d, "They had rubber grips on them,

And then I said, 11 Let's assume that you


108


1 intentionally cut that wire with those wire cutters and

2 had hold of the rubber grips only and were not touching

3 any part of the wire cutter itself, would you have

4 received a shock through that? 11

5

6 A

And your answer was, "I shouldn't have."

That is what I said.

7 Q Is that what your testimony today is or are

8 you telling, now telling this jury under oath the grips on

9 this were not sufficient to withstand the shock?

10

11 grips.

12

13

14

A

Q

A

Q

It is depending on the rate and on the

Well, what does that mean?

What voltage they will take.

Well, if you didn't know the answer to that

15 question in August of 1998, why did you tell me you

16 shouldn't have received a shock with those wire cutters?

17 A If those grips, the rating will take that

18 amount, you won't receive a shock. But if they have a

19 smaller rating there is a possibility that you could get a

20 shock from it.

21

22

23

Q

A

Q

So when you --

A light shock, I do not mean a heavy shock.

I understand. Is it your testimony today

24 that you don't know what the rating on these wire cutters


109


1 were?

2 A No, ·Sir.

3 Q You do not know?

4 A I don't know what the rating on the handles

5 was.

6 Q But nevertheless, without knowing, you went

7 ahead and cut this line?

8 A Yes, because I thought it was dead.

9 Q And you have indicated dead. When the

10 handle is not heavy enough or there could be a crack in

11 the handle, did you ever examine these things to make sure

12 that they were safe and

A 13 Not that day.

Q

A 15 Not that day.

Q 16 Did you ever examine them to make sure they

17 are safe?

18 A Yes, I check all of my tools.

19 Q Did you see a crack in them?

20 A No, sir,·I haven't looked at them.today.

21 Q While you are looking, let me ask you

22 this: You have indicated that you could have received a

23 shock because the handles were wet; is that correct?

24 A Yes, sir.


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20


Q When you picked them up, would you have not

known that the handles were wet?

A I don't think if they were damp I would

have paid any attention to them, no, sir.

Q Even though damp handles could cause a

shock?

A Yes, sir.

Q You would have paid no attention to that?

A Not if they would have had some water here

in the end of them.

Q Or I think you have indicated you could

have had your finger on the metal?

A I don't think I had my finger on the metal.

Q You told Sergeant Massie that was a

possibility or probability?

A No, sir, Mr. Massie asked me was that a

possibility.

Q You told him yes, didn't you?

A I told him it was a possibility, but we

didn't go to any other possibilities. There were other

21 possibilities that it could have been. I mean just

22 because he asked me was it a possibility that my finger

23 could have been on it. I didn't mean my finger was on it.

24 Q You said that one other time that you had


111

Zimmerman - Cross

1

2

3

4

5

6

pulled a

hung up

wire

in it;

A

Q

A

Q

from a transformer and one of the wires

is that correct?

Yes, sir.

Could you see the other two wires?

Yes, this was a different wire.

You had never attempted to cut a wire

7 was in a transformer like this one was, have you?

8

9

A

Q

Yes, sir.

When it was stuck up in there and you

10 couldn't see whether it was connected or not?

11

12

13 exposed?

A

Q

Yes, that is what I was referring to.

You just said two of the wires were

139

got

that

14 A Two of the wires come out. There are three

15 individual wires going into it. It wasn't rolled like

16 this one here.

17 Q

18 transformer?

19

20

A

Q

21 transformer?

22

23

24

A

Q

A

This one, all three wires were up in the

Yes, sir.

And the other one one wire was up in the

Yes, sir.

You cut that?

Yes, sir.


112

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11


Q Because you just told us you could cut them

one at a time and it is not a problem, correct?

A Yes, sir.

Q You did nothing while you were there to

determine whether or not the wire was hot, independent of

looking at the faceplate which was missing, correct?

A Correct.

MR. HART: If I could have a second, I may

be close to being through here.

THE COURT: All right, sir.

12 BY MR. HART:

13 Q I know what I wanted to ask you, sir. When

14 you worked at Bunker Hill?

15

16

17

18

19

20

21

22

23

24

A Yes, sir.

Q You testified that you had cut wires, but

first you would hit the disconnects?

A Yes, sir.

Q When you worked at Bunker Hill, would you

· rely on what someone else told you before y~u cut the

wire?

A Yes, sir, if I was working with my uncle,

if my uncle told me it was safe to cut the wire, I would

cut the wire.


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.12

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24


Q All right.

MR. HART: That is all the questions I have

for this witness.

THE COURT: Any redirect?

MR. BULLINGTON: No, Your Honor.

THE COURT: All right, sir, you may step

down.


THE COURT: Ladies and gentlemen of the

jury, this is a good time for us to stop for the

lunch recess. Now, today you all will be on your

own as far as going to get your lunch. We are

going to recess an hour for lunch.

So we can reconvene at 1:30 or so, I would

ask within reason that we do what we can for all

of us.to be back within an hour so we can get

started again. So let's all try to limit the

lunch recess to an hour so that we can get started

back at 1:30.

During the recess, of course, I remind you

of all of my earlier instructions and particularly

emphasize again don•t discuss this case with


114

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3

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5

6

7

8

9

10

153

{The Jury returns to the courtroom.)

THE COURT: All right. All members of the

jury are present. Thank you, you may be seated.

Next witness.

MR. BULLINGTON: Plaintiff calls Ronnie

Alan Angle.

THE COURT: Come forward and be sworn,

please.

11 RONNIE ALAN ANGLE




15

16

17

18

19

20

THE COURT: Have a seat, please. Speak up

when you answer the questions.

DIRECT EXAMINATION


22 Q Would you give us your full name and

23 address, please.

24 A Ronnie Alan Angle, Jr. 1001 Elm Street,


115

154 Angle - Direct

1 Bedford, Virginia.

2 Q Is your current address about to change?

3 A Yes, it is.

4 Q And what is it going to change to?

5 A 5106 E Strawberry Hill Drive, Charlotte,

6 North Carolina.

7 Q When is your address going to change?

8 A Saturday.

9 Q What takes you to Charlotte?

10 A I am going for a better position, a

11 different and more diverse firm in Charlotte.

12 Q What kind of work are you presently doing?

A

Q

I am an architect.

What firm were you most recently working

13

14

15

16

for in the area?

A Craddock Cunningham Architectural Partners

17 in Lynchburg.

18 Q Another firm is what you are going to work

19 for?

20

21

22

23

24

A

Q

A

Q

A

Yes.

Do you have a degree in architecture?

Yes, sir.

When did you attain your degree?

My undergraduate degree. in 1995 and my


116

Angle - Direct

1 graduate degree in 1996.

2

3

4

Q

A

Q

Where did you grow up?

Here in Bedford.

And Guy Duvall Zimmerman is your

5 grandfather; is that correct?

6 A Yes, sir.

155

7 Q Did you have occasion to work with him at

8 DZ Electric during the time that you were growing up?

9 A Yes, sir.

10 Q Tell us when it was you would work with

11 him.

12 A When I was little I know I used to go out

13 and I have seen pictures of me playing in the dirt pile

14 with trucks. Probably actually doing, helping him would

15 be around eight or nine years old, actually pulling some

16 wire with him or really staying out on the job site with

17

18

him some.

Q Did you work on any basis part-time or.

19 otherwise during high school, for example?

20 A Yes, I would help him during the summer and

21 on the weekend if he needed or in the afternoons if

22 needed.

23 Q Now, what year did you graduate high

24 school?


117

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20

21

22

23

24

Angle - Direct

A

Q

A

1989.

Was that from the Bedford area?

Yes, that was from Liberty.

156

Q Did you go to Catholic University for your

architectural work after that time?

A Yes, sir.

Q Did you work for your grandfather after you

had gone to school at Catholic?

A I worked with him full-time my, the year I

was doing my thesis in 1996 because I was home here.

Q So in March of 1996, were you working

full-time for your grandfather?

A Yes.

Q How long after March of 1996 did you

continue working for him?

A I worked with him until March 10, 1997.

Q What did you do that at that point?

A I went to work for Hayes, Seay, Mattern &

Mattern in Roanoke.

Q Is that an architectural firm?

A Yes.

Q What, did you have any electrical, formal

electrical training or course work or anything of that

nature?


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157 Angle - Direct

MR. HART: Your Honor, please. I have an

objection to state.

THE COURT: All right, sir.

MR. HART: As to relevance. All of this is

interesting, but I don•t think it is relevant for

anything that we are doing here today. I am

objecting to it on the ground of relevance.

THE COURT: Is this witness to be qualified

as an expert or --

MR. BULLINGTON: No, Your Honor. If I

could address it, I think what I understood it was

that there was some mention made of the statement

that this individual told Mr. Zimmerman that the

wire was hot. And I think I am allowed, I wanted

to into what basis or training or understanding he

would have to, that might go to that issue.

MR. HART: I object to that. That is

really far afield.

THE COURT: Well, again, is this witness

going to be asked an ·opinion?

MR. BULLINGTON: No, sir.

THE COURT: Then if he is not going to be

asked an opinion, no reason to try to qualify him

to provide basis. I think we need to get on to


119

158

Angle - Direct

1 the substance of it, please, as far as his actual

2 testimony. I will allow what has been stated thus

3 far, but please proceed on to the substance of

4 it.

5


7 Q Did you work with wiring on new houses with

8 your grandfather?

9 A Yes, sir.

10

11

12

13

14

Q

supervision?

A

Q

A

Did you work by yourself or with his

With his supervision.

Did you do the work by yourself?

No, sir.

15 Q Were you familiar with the procedure in

16 Bedford for changing over temporary to permanent?

17 A Just what I had been accustomed to working

18 with him and seeing h~m do.

19 Q If a temporary had been changed over to

20 permanent, what,· in your experience, would you see?

21 A The meter would be taken out of the

22 temporary and put into the new meter on the house. And if

23 it was still hot they would put a plastic plug or sleeve

24 in it so you couldn't stick your hand into the meter.


120

Angle - Direct

1 Q You were, were you working with your

2 grandfather at 1405 Jefferson Terrace doing new house

3 wiring?

A Yes, sir.

Q And did there come a time when the

temporary there was going to be changed over to the

permanent?

Yes.

159

4

5

6

7

8

9

A

Q Tell us how it is that you learned about

10

11

that.

A We were going to pick up some supplies that

12 morning and saw Calvin on Burks Hill checking out guide

13 wire or something with one of the city poles there. We

14 wanted to pick up the temporary that day to take to

15 another job, my granddad needed it. He didn't have that

16 many of them, but he needed that one to take to another

17 job.

18 He stopped to ask Calvin if he could pick

19 up that temporary that day. We asked him if power was

20 going to be on .the house that day. Calvin.said yes, they

21 are over there now unhooking. It will be done and we

22 could pick up the temporary that afternoon.

23 We went from there to Big Island to do an

24 addition we were doing there, working there. Came back


121

160 Angle - Direct

1 into town, had lunch, and then went over to the house to

2 pick, pull the temporary that afternoon.

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

Q Now, what time did you get over to the

house that afternoon?

A It was probably 1:00 because we had just

eaten lunch.

Q Now, what did you see when you got to the

house with respect to the condition of the temporary?

A When we first got to the house, I noticed

the meter had been taken out of the temporary, which would

tell me they had been there and unhooked the temporary. I

went to the back of the house to see if the meter had been

put in the house, it has been put in the meter there. So

I told my granddad that power seemed to be on the house, I

was going to go check out the receptacles in the house.

I proceeded to go to the house and checked

to see if the light fixtures worked and if the receptacles

were on. He said he was going to proceed to do what he

needed to get the temporary so we could take it with us

when we left.

Q Did you finish doing the testing in there

22 at some point?

23

24

A

Q

Yes, then I came outside to help him.

Just tell us what happened when you got


122

Angle - Direct 161

1 back out.

2 A When I came outside, he was, they had

3 pulled up the temporary from the ground and he was at the

4 transformer with the wire to get it out from under the

5 transformer. He was pulling on it a little bit. It

6 wouldn't come out. I walked on over and pulled on it a

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

little and it wouldn't come out. I asked him, "Are you

sure it is unhooked?" He said yes. The ones we have done

before, they leave the wire rolled up there underneath

there and we have to pull it out.

Q You asked him if he was sure it was

unhooked?

A I asked him, well, yes, if it was unhooked.

Q Did you, yourself, have any reason to

believe it was hooked up at that point in time?

A No, because Calvin had told us it wouldn't

and all the signs showed it had been unhooked with the

meter being pulled.

Q

A

Q

A

You are not licensed as an electrician?

No.

What happened then?

So by him saying that they rolled it up

23 under there, it did feel like it was pulling back like a

24 knot or whatever. So he just said to go to the truck, and


123

162 Angle - Direct

1 go to the truck and get cutters. "I will cut it and leave

2 the excess underneath there and we will take it with us. 11

3 I went to the truck, got the cutters for

4 him and brought it back and gave it to him. He cut the

5 line and sparks flew. And he jumped back and threw his

6 hands up and some sparks caught some of the dead grass on

7 fire. We stomped that out with our feet. I asked him if

8 he was okay. He said, "I seem to be. 11

9 I said, 11 What is going on? 11

10 He said, "I guess it is not unhooked."

11 Q Is this the cutters he used?

12 A Yes, sir.

13 Q Does this look like wire that was out there

14 that he was cutting?

A 15 That is what it would look like, yes.

Q 16 This kind of wire is twisted; do you see

17 that?

18 A Yes.

19 Q These ends are not?

20 A Correct.

21 Q Down the width there of the wire?

22 A It was twisted all together.

23 Q Similar to this?

24 A Twisted like that.


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23

163 Angle - Direct

Q Now, what did he, did he, what did you and

he do after that point?

A He seemed okay. He said, "Let's load up

the temporary and I want to go by the city office and tell

them that's what happened. And that someone needs to come

out there and fix it before someone else gets hurt."

He tied up the ends to make it as safe as

possible until the city could get back over there. He

took me home and dropped me off. I said, "Are you sure

you are okay? Are you sure there is nothing wrong?"

He said, "Yes, I am going to go by the

office and go back home." I proceeded to go to the post

office and run some errands I had to. When I got back

there was some message on the answering machine from a

nurse saying he had been admitted to the hospital.

Q Did you see him later?

A I immediately ran to the hospital to see

what was going on.

Q Now, let me ask you generally in the period

of time after this accident in March of 1996, did your

grandfather continue to do some work at DZ Electric?

A He had contracts he had signed with

building contractors in the city, he had to fulfill those

24 contracts. I did most of the work on those houses with


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164 Angle - Direct

1 his supervision. He would come out with me, we would

2 usually work only four hours a day. He was too weak and

3 too tired to stay out longer.

4 Q What kind of physical limitations did you

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observe?

A He couldn't squeeze things tight. He

7 didn't have the strength to move around and stay out

8 there.

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MR. BULLINGTON: Thank you, if you would

answer any questions Mr. Hart may have.

CROSS EXAMINATION

BY MR. HART:

Q Mr. Angle, you saw Calvin Fields one time

that day, is that correct, on the 14th?

A Yes, sir.

Q In the morning. And I think you just

testified that you talked about the temporary, and Calvin

·said, "They are over there now unhooking. It will be

done." Is that correct?

A

Q

Yes, sir.

That was the only conversation you had with

24 Calvin?


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165 Angle - Cross

Yes, sir. A

Q Or that your grandfather had as far as you

know?

Yes, sir. A

Q You told your grandfather, you said to your

grandfather when you-all were pulling on the line,

you sure it's unhooked?"

A Yes, sir.

"Are

Q And he said yes. You had doubts as to

whether or not it was charged, didn't you?

A I had never worked on an underground

service before so I didn't know.

Q I thought you just told the jury you-all

14 had worked on four or five and they always left the lines

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up in them.

A

Q

A

He said they left the lines under there.

Who said that?

My grandfather did.

MR. HART: Thank you, no further

questions.

MR. BULLINGTON: That is all.

THE COURT: All right, sir. You may step

down. You are welcome to stay if you wish.


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THE COURT: Next witness.

MR. BULLINGTON: Plaintiff would call by

deposition at this point Dr. Cecil Knox.

THE COURT: All right. Ladies and

gentlemen of the jury, this is prior sworn

testimony. It is evidence in the case to be

considered by you along with all other evidence

presented.

(The deposition of Cecil Knox, M.D. was

read to the jury.)

THE COURT: All right, next witness.

MR. BULLINGTON: Plaintiff, Your Honor,

would also call by deposition Dr. Gregory

O'Shannick.


jury, this is prior sworn testimony and it is

evidence in the case and it will be considered by

you as such along with all other evidence

presented.


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MR. BULLINGTON: I think I probably should

have withdrawn the objection, Your Honor.

THE COURT: If I let it in fine or if I had

excluded it, regardless. I don't see where it

made much difference. With that, the jury,

please.

(The jury returned to the Courtroom.)

THE COURT: Thank you, all members of the

jury are presented. Please be seated. We will

proceed with the cross examination portion of the

deposition of this witness.

(The remaining portion of Dr. O'Shannick•s

deposition was read.)

Honor.

MR. BULLINGTON: That is all.

THE COURT: All right. Next witness.

MR. BULLINGTON: Plaintiff rests, Your

(The plaintiff rests.)

MR. HART: I have a motion.

THE COURT: All right, ladies and gentlemen


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of the jury, if you would return to the jury room

briefly, please.

(The jury left the Courtroom.)

THE COURT: All right; the jury has left

the courtroom.

MR. HART: On behalf of the City of Bedford

I move to strike the plaintiff's evidence. I

would like the Court to read, you can read it now

or read it whenever it suits the Court, of

course. I think that this case which I will

identify for the record as Kelly v. Virginia

Electric Power Company 238 Virginia 32 compels the

motion that the Court should strike the evidence.

If you would like to read it I will wait.

THE COURT: Maybe if I could just take a

moment to review portions of it, then I will hear

your arguments in that regard.

All right. I've briefly reviewed the case

and will hear your argument.

MR. HART: All right, sir, thank you.

Judge, on behalf of the defendant, City of

Bedford, I move to strike the plaintiff's evidence


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on the following basis: As the Court well knows,

generally the issues of negligence and

contributory negligence and proximate cause are

issues for the jury.

It is this case, the Kelly case, however,

indicates at least in that case which I think is

somewhat analogous to this that using the prudent

man test the Court could not deny that reasonable

men could not differ as to whether or not the

plaintiff in this case was guilty of contributory

negligence.

I think that is what we have in this case.

The plaintiff was qualified as an expert witness.

As the Court knows, an expert has a higher

standard of care than an ordinary layman as the

plaintiff was in the VEPCO case. The expert who

testified this morning, the plaintiff, testified

that it is the duty of the person dealing with the

hot wire or the line to positively determine

whether there is energy on that line or not. That

was his testimony. He didn't try to change it

from that, when I asked him that in his

deposition. That is what he testified here to

this morning unequivocally.


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The testimony further is that he took

absolutely no steps once he got there and saw that

the faceplate was out of the temporary meter box

but that the line was hung up or tied in or

something under the pedestal. He took absolutely

no steps to determine positively that the line was

not energized before he took the wire cutters to

it and cut it.

Now, I know that Mr. Bullington will make a

big thing of he was told, but he was not, he was

not told that line was de-energized. But that is

not what the evidence was here today. The

evidence was that he was told that it would be

de-energized. There is no evidence here today

before this Court and this jury to the effect that

he was told it was off.

He was told that something would happen in

the future. And when he got there, I don't know

if he relied on that or not, but he certainly

wasn't entitled to rely on it, particularly in

view of his testimony that he is the man who had

to positively determine that the power was off.

He should have known it was on.

He should have known because one, he


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couldn't get it out from underneath the pedestal.

Number two, he had a voltage meter in his truck

which he could have used to determine whether or

not the line was energized. And number three, he

was warned, warned or put on notice by his own

grandson who was there who said, "Grandpa, are you

sure this line is de-energized or hot" or whatever

the language was.

At that point he had an absolute duty to

determine whether or not there was energy on that

line. He did not do it and there was no question

that his failure to do so was a proximate cause or

probably the sole proximate cause of this accident

and his injuries.

But it goes further than that. If he had a

suspicion, which he should have had, then he

should have cut that line differently than he

did. He freely admitted here this morning, if you

cut one of the three lines separately, one at a

time, there is no danger of electrical shock.

Instead he freely admitted that not knowing that

there was energy on the line, he cut all three at

the same time.

I think that those facts clearly establish


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that he was guilty of negligence. He was on

notice that there was a problem, he was on notice

that that line may have been charged, he had an

absolute duty to positively determine whether or

not there was energy on that line by his own

testimony. He knew that.

He had the ability to determine whether or

not that line was charged and he didn't do it; and

the result was he was electrocuted.

The VEPCO case, the Supreme Court in

affirming, the Supreme Court in this case did not

affirm the Court's ruling on a motion to strike.

The Court set aside the verdict. But essentially

it is the same thing. You are still, in this

instance you review the evidence and in the light

most favorable to the plaintiff.

When you do that, you still come up with

the conclusion he should have known, he should

have taken some steps, and he was under an

absolute duty to determine that it was safe to do

what he did. The Supreme Court has, the Court has

recognized for years that the danger of electrical

energy is a matter of common knowledge to all

persons of ordinary intelligence and experience.


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It is certainly common knowledge to an electrician

who is held to a much higher standard of care in

dealing with electrical matters than the average

person.

I just don't think, I think his evidence

clearly establishes that he is guilty of

contributory negligence as a matter of law.

The Court in the VEPCO case stated in sum,

We hold there is no conflict in the evidence that

the plaintiff, who in this case was not an expert,

judged by the prudent man standard should have

known of the potential danger of a situation; and

further, that no direct or reasonable inferences

may properly be draw from the evidence as a whole

sustaining the conclusion that the plaintiff was

free of contributory negligence.

That is what we have here. You can't look

at this evidence in any other light, I don't

believe, and conclude anything other than by his

own testimony and by his own actions, he was

guilty of contrib, and that bars his recovery in

this case. I ask the Court to sustain the motion

to strike.

THE COURT: All right, Mr. Bullington.


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MR. BULLINGTON: Thank you, Judge. I

think, Judge, that there is no question in

hindsight if you look back that there might have

been safer ways for him to do the work. That in

hindsight the injury could have been avoided by

doing A, B or C, the things Mr. Hart suggested,

getting the volt meter, cutting one at a time.

The issue is what he did that day, was it

reasonable under the circumstances then and there

existing.

I think in this case clearly that is a jury

issue. And obviously the Court I think

understands that our position is essentially what

makes that reasonable under the circumstances are

that the line superintendent for the electrical

system had told him that it was being cut off.

I don't think it's particularly important

in a negligence theory to quibble words about

whether that had been complete or not. We know it

had been·started.at B:OOin the morning from

Calvin Fields' testimony. We know it was, in

fact, completed that morning. Whether it was in

process and hadn't been completed or not, I don't

think was material. We know that service order


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had been made.

If this gentleman's testimony is believed,

he is entitled to the reasonable inferences at

this point of the testimony that, you know,

clearly that was, what Calvin Fields told him was

that that, that power was going to be off. And

then, of course, what he saw. There was a unique

situation for him for it had been energized. He

had never encountered that before. It never

occurred before.

Those facts and circumstances raise a jury

issue. I think if he had come up to a site

without any of those kinds of facts in his

possession and had gone up and just cut the wire

that may be a different situation.

In terms of a couple of the specific things

that Mr. Hart had mentioned, pulling it out from

the pedestal, I think he indicated he had them

hang before, it could have been a rock, it could

have gotten up underneath there. That was his

testimony on that point.

The voltage meter, he had not, it had been

his custom to use that to test for de-energized

lines. He had relied on seeing the breaker cut


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180

off when he had been working on de-energized

lines. He did not visually go behind the breaker

box, he couldn't physically see that the circuit

had been open at that point.

He had a reasonable assurance from flipping

the breaker switch that the circuit was off. By

the same token here, at the site he had reasonable

assurance that the current was off by what he

visually saw and what he was told. I think it is

no different from what he said in the situation

where he is inside the residence, he can't

physically see the wires disconnected. He relies

on what the breaker box tells him.

But with respect to what his grandson

allegedly said, he did not recall that statement

on the stand being said, so that information he

did not say on the stand was available to him at

that time. I understand his grandson did say

that.

Judge, the Kelly case, I don't think is

particularly instructive here. That· was a power

line case where a painter, I think, had struck a

line with an aluminum ladder. If in the Kelly

case that individual, somebody from the power


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company had told him that the power was off and he

had visual indicators that indicated to him that

the power was off, I think that may have made it a

little more applicable to our facts.

He was touching, at that point as I

understand it, what was known to be a high

voltage, energized un-insulated line where there

were no indicia that touching that would be cause

for electrical shock.

I think, Judge, that the facts and

circumstances of this case raise a jury issue

about based on what he saw and wh~t he was told

and what his familiarity as a Class B residential

electrical contractor, what the custom and

practice was, what he was familiar with.

I think that raises a jury issue as to

whether what he did that day was reasonable under

those circumstances. I would ask that the motion

be overruled.

THE COURT: Mr. Hart, anything further?

MR. HART: Just one short thing further.

The grandson testified, "I said, 'Are you sure it

is unhooked? • 11 And he said, "Yes," he referring

to grandpa, said yes. So the evidence, I think,


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is uncontroverted that he was aware that the

grandson had a problem with the fact that thing

might be hooked up and communicated that to him

and he responded to it.

I don't think there is a jury issue,

Judge. I don't think reasonable men can differ in

this case. That is all I have to say about it.

THE COURT: All right. I wanted to

consider this issue, and I paused to do so. It is

not on my part what can be just a general response

of denying the motion to strike at the conclusion

of the plaintiff's evidence because, as stated as

we all know the evidence is viewed in the light

most favorable to the plaintiff at this point in

the proceedings. But so I wanted to consider this

matter at more length, because there are some

points that Mr. Hart has made that warrant such

consideration in ~y view.

Now, as far as the Kelly case is concerned,

and I will rule as I understand the law to be at

this point. I will observe that the circuit judge

presiding, it doesn't matter who he was, I don't

know the person. I am just making the observation

that the judge followed what has been set forth in


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our bench book as one of the preferred practices

as far as he let it go to the jury and as I

believe.he came along and set it aside. There can

be a debate about this. This won't have any

bearing on my opinion at this point to the

proceeding.

The relevant thing to that approach is if

the Supreme Court hadn't agreed with the trial

court's rulings of setting aside, the Supreme

Court can just reinstate the verdict, and it

doesn't have to be retried. That is neither here

or there. Viewing the evidence here in the light

most favorable to the Commonwealth, excuse me, the

plaintiff -- we tried a criminal case yesterday at

length -- the plaintiff did testify as an expert

that it was a duty of the person handling the wire

to determine whether or not there was energy on

the line.

And the issue therefore becomes when

viewing the evidence most favorable to the

plaintiff whether or not he did what a reasonably

prudent person would do under those circumstances,

and such person takes on the characteristics of

the plaintiff at this point, that being an


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electrician. He mostly certainly could have used

the meter, volt meter; that would have been the

most prudent fashion.

But he had been told that, as I understand,

that the electricity would be essentially

transferred from the temporary pole to the

permanent location at the house. The issue

becomes again, when viewing the evidence in the

light most favorable to the plaintiff, whether he

did what could be viewed as sufficient

investigation to qualify as a reasonable effort

under the circumstances.

He did have information that the meter had

been moved. It had been taken out, the meter base

on the temporary pole. It had been put on the

side of the house and installed there in terms of

permanent service. He had indication therefore

that the Bedford Electrical Department had done

something there before his arrival.

.Because according to the evidence, and only

the electrical company can do that. But at any

rate, there was power on inside the house, they

had determined that. And he, the.refore there had

been a transfer. What he needed to know, however,


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before he cut into that line is whether or not

there was still energy on the temporary line.

Now, in that regard, as far as the meter

base is concerned on the transfer on the temporary

pole, not only was the meter gone, there is no

cover over the hole in which the meter itself is

inserted. Therefore Bedford Electric had left the

inside of that meter base energized and exposed.

All a person had to do was to come along

and get inside that meter base and would have been

subjected to the electricity, whatever voltage was

coming in.

Now, when viewing the evidence most

favorable to the plaintiff, is that sufficient to

put him on notice that if the electrical

department came out and moved that meter and left

it like that, then as far as however the wires are

going into the bottom of the transformer, two

interpretations there. One, that the line was

hung up under the transformer. He said he had

seen that before. Or secondly, that the wire was

still connected, not in evidence, but I think it

might be called a bus bar. But at any rate, still

connected to the transformer. Two possible


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interpretations at this point in the proceeding.

He is entitled to the one most favorable to

him. For those reasons and others, generally

stated, viewing the evidence in light most

favorable to the plaintiff, the issue is denied.

All right. We are ready to proceed, then.

I am just wondering to say something to the jury

at this point or just proceed or how we go.

MR. HART: I have four fast witnesses and

we may be able to get Mr. Mitchell here, I don't

know. We may be able to conclude our evidence

today.

THE COURT: Let•s, I think perhaps at this

point let's just ask the jury to return and we

will proceed.

(The jury returned to the courtroom.)

THE COURT: All members of the jury are

present, be seated. Swear the next witness,

please.


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187

1 M. D. ~SIE

2 was.called as a witness and after having first been duly



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jury, before proceeding with the next witness,

what we are going to do at this point, no

decision, we are just going to see how we are

going to proceed. I want to ask, go ahead and ask

if we develop a situation where, as I stated

earlier and described, that it just seems we

cannot finish today, is there anything I know

that would be unplanned for you -- but is there

anything of essential importance that would

prevent any of you from returning tomorrow if we

have to do that?

I am not saying at this point we will.

Just for our planning purposes. All right. I

know what your preferences may be in that regard.

We will see what that situation is.


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188 Massie - Direct

1 DIRECT EXAMINATION

2

3 BY MR. HART:

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Q State your name for the record, please.

A Melvin Douglas Massie.

Q Mr. Massie, were you formerly with the

Bedford City Police Department?

A Yes, I was.

Q And how many years did you work for the

Bedford City Police Department?

A Eighteen years.

Q Did you, when there were accidents

involving city vehicles or city personnel or the electric

company, conduct investigations into the cause of those

accidents?

A

Q

Yes, sir, I did.

Were you asked to investigate an accident

18 that occurred involving Mr. Zimmerman here on March the

19 14th, 1996?

20 A No, sir, it was March the 15th, 1996 at

21 2:30 hours in the afternoon I was notified of it.

22 Q You were asked to investigate the accident

23 that happened the day before?

24 A That is correct, sir.


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189 Massie - Direct

Q Just tell the ladies and gentlemen of the

jury basically what your investigation consisted of.

A Basically what I did was go to the scene,

take photographs, I interviewed the electrical department

personnel that was involved in it. I got the bolt cutters

and the wire and secured them in the evidence room for a

civil trial or whatever might come out of it.

Q Did you interview Mr. Zimmerman?

A Mr. Zimmerman contacted me at my residence

on the 18th at 2:41 hours in the afternoon. He talked to

11 me, he identified himself as Mr. Zimmerman. He told me

12 his side of the story.

13 Q What did he tell you about how this

14 accident happened?

15 A Mr. Zimmerman stated that he had gone to

16 the scene and he didn't observe the lines sticking out

17 from under the transformer, nor did he check the lines

18 with a voltage meter. But rather, took out his bolt

19 cutters and cut the lines at which time he received a

20 shock. Initially he felt there was not a severe shock.

21 However as the day progressed, proceeded on, he began to

22 lose feeling in his right foot.

23 Q All right. Now, I want to know about the

24 accident, not about the effects, okay?


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190

Massie - Direct

A Okay.

Q Now, what are you reading from?

A I am reading from my notes that I kept in

my case file with the Bedford City Police Department.

Q Did Mr. Zimmerman at that time say anything

to you about being informed by another person about

electricity on that temporary? I think it will help you,

if you don't find it move along, look along in here,

Mr. Massie, see where I am talking about? Start reading

right here at the top.

A Mr. Zimmerman stated to me that he had gone

to the job site and after arriving began to get his

equipment ready to move the temporary pole, and had been

informed by another person that he didn't know but

believed worked on placing the vinyl siding on the

residence. That he had been near the temporary pole and

had received what he called a slight shock as if from

static electricity.

Q Did you discuss with Mr. Zimmerman at all

his use of these wire cutters?

A I discussed with him, he stated that the

only thing he could think that could have caused it to

travel right side was possibly one finger on his right

hand had come in contact with the metal portion of the


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191 Massie - Direct

1 bolt cutters.

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4

Q

A

Q

What does the rest of that sentence -

And not been totally on the rubber grips.

And it refers to the electricity; is that

5 correct?


7 MR. HART: You may answer any questions

8 this gentleman has for you.

9 THE COURT: Mr. Bullington.

10

11 CROSS EXAMINATION

12


14 Q Mr. Massie, you investigated this accident

15 on behalf of the City of Bedford; is that correct?


17 Q You weren't acting on behalf of

18 Mr. Zimmerman when you did that?

19

20

A

Q

No, sir, I was not.

The incident that you mentioned here about

21 the static electricity from a vinyl siding contractor, he

22 told you that was something that happened about a week

23 earlier, didn't he?

24 A Sir, all I have in my notes is that he said


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192 Massie - Cross

1 that he received that information. I do not have when he

2 was told that. I don•t have it.

3

4

5

6

7

8

9

MR. BULLINGTON: Thank you, that•s all I

have.

THE COURT: All right, thank you, sir. You

are free to go, welcome to stay if you wish.

{The witness was excused.)

10 MR. BULLINGTON: Take the witness stand,

11 please.

12 MR. HART: Excuse me, Judge, I am in a

13 state of confusion here. I have so many

14 documents.

15

16 DEBRA PATTERSON


18 sworn to tell the truth, the whole truth, .and no~hing but


20

21 DIRECT EXAMINATION

22

23 BY MR. HART:

24 Q State your name, please.


150

Patterson - Direct

A

Q

A

Q

A

Q

1996?

A

Debra Patterson.

And Ms. Patterson, are you employed?

Yes.

By whom are you employed?

City of Bedford Electric Department.

Were you employed there on March 14th,

Yes, sir, I was.

193

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7

8

9 Q Did you have occasion to see Mr. Zimmerman

10

11

12

13

on that day?

A

Q

A

Yes, sir.

And what was that occasion?

He came in that afternoon and he was real

14 upset when he come through the door. You can tell. He

15 used to come in a lot; we were always glad to see DZ. He

16 was very upset. He was carrying the wire cutters. He said,

17 "Debbie, which crew is working on Jefferson Terrace? 11

18

19

I said, 11 Dennis•s crew."

He said, 11 You need to go over there. I was

20 over there and working and cut the temporary. It was

21 still hot. It threw me back a little. It hurt my back

22 only. 11 He said there were children there playing all the

23 time. He said one of them could have got hurt or

24 something. He was really upset.


151

194 Patterson - Direct

1 Calvin talked to him and he said, 11 0kay, we

2 will talk to Dennis and go over there and get those."

3 He said, 11 When I did it, my grandson told

4 me, 'You might want to check, that looks hot.' But me

5 being stubborn-headed, I just went ahead and cut the

6 wires." Like I said, he said it didn•t hurt him that bad

7 but it could have really hurt a child. His main concern

8 that day was the children.

9 Q I have, and I sure Mr. Bullington will ask

10 you about this, we will try to head him off at the pass --

11 MR. HART: You have this, Mr. Bullington?

12 MR. BULLINGTON: Yes.

13

14 BY MR. HART:

15

16

Q

A

Let me show you a document.

Right.

17 Q I don't intend to introduce, let me show

18 you two documents, in fact, dated March 14th. The

19 statement relating to the grandson telling him that the

20 meter, the line was hot is not on the first document?

21

22

23

A

Q

A

Right.

Is that correct?

That•s correct, I typed that up that

24 afternoon because it was a standard procedure for us to do


152


that. And the next morning when I come in, Mike Soka, who 1

2

3

4

5

6

was my boss at that time, he said, "I need a copy of the

statement you typed up. It He said, "I need it now."

I said, "I need to read over it." I had

been thinking about what had been going on.

He said, 11 I need it now. 11 He took it. I

7 read it over, I said, "I left out what was said. I

8 thought that was in there. 11 I added it to this

9 initially. When Mike come back I added to it. Mike said,

10 "I already turned that in to the police. Don't put it in

11 here. Just put it in down here as an addendum that you

12 remembered it."

13 Q What was the addendum, just read the

14 addendum for the jury.

15 A "On the same day as above DZ said that

16 before he cut the wires, his grandson, who works with him,

17 told him that it looked like the meter base was still hot,

18 but being.hardheaded he cut the wires anyway."

19 Q Thank you. Have you gotten together some

20 documents for. us?

21

22

23

24

MR. BULLINGTON: You don 1 t need a custodian

for documents.

MR • HART : Thank you .


153


1 BY MR. HART:

2

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7

8

9

us?

Q

A

Q

A

Have you gotten together some documents for

Yes, sir.

And what are these documents?

These are copies of building permits that

are given out by the county or the city, part of the

county and part of the city.

Q Who did that indicate that the electrical

10 contractor is?

11 A DZ Electric.

12

13

14

15

16

Q And when, when do they start?

A Let's see, I had some, I had them in order

here. Some of them I was thinking started in June of

1996, but I thought I had some sooner.

Q Can you tell us approximately how many

17 there are there?

18

19

20

21

A There was, I believe I had 14 in all that

was some that they found.

Q In June of 1996?

A Yes, that is the later one I can find

22 here. Like I said, I had mine in order. I am not sure.

23

24

Q,

A

Those are from the city?

Half are from the city and half are from


154


1 the county because

2 Q All right.

3 MR. HART: We would like to introduce these

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documents as a package as Defendant's Exhibit

Number 1. I will borrow your clip if you don't

mind, please.

MR. BULLINGTON: I have no objection.

THE COURT: All right, so admitted.

(The above-mentioned document was marked as

Defendant's Exhibit Number 1 and entered into the

Trial.)

BY MR. HART:

Q When was the last time that Mr. Zimmerman

came in and was doing electrical work for anyone, to your

knowledge?

A I can't say the date. It hasn't, it has

been a while since I seen him, maybe. I think he has been

in times when I was off, probably about a year ago since I

have seen him.

Q

A

And what was he doing?

Getting a meter base, picking up a meter

24 base from me.


155

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7


sure.

Q

A

That would have been in 1999?

Somewhere along that range; I am not real

MR. HART: Thank you, you may step down. I

am sorry. I wish you could step down.

THE WITNESS: Me, too.

8 CROSS EXAMINATION

9


11 Q Ms. Patterson, you don't see nearly as much

12 of Mr. Zimmerman as you did before that accident?

13

14

15

16

17

18

19

20

A That is correct.

Q Now, the letters that Mr. Hart showed you,

these are letters that you prepared, correct?

A Yes, sir.

MR. BULLINGTON: Can I mark these as an

exhibit?

THE COURT: Plaintiff's 4.


22 Q Now, one of the letters is on a City of

23 Bedford letterhead; is that right?

24 A All of the letters I did was a City of


156

199 Patterson - Cross

1 Bedford letterhead, yes.

2

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24

Q Well, one of these is on letterhead,

correct?

A

Q

A

Right.

The other two are not on letterhead?

They must have gotten printed without the

letterhead.

Q One of the ones without the letterhead has

the addendum on it about what the grandson allegedly said

when he came in?

that?

A

Q

Right.

The one on the letterhead doesn't have

A The other one got printed out on letterhead

but evidently not copies.

Q Who is it that asked you to type that up;

is that Calvin Fields?

A No, the whole thing?

Q The addendum.

A The ad9endum, I asked Mike Soka, my

director at that time. I told him that I had remembered

that. I added that without asking anybody in the letter.

And then he advised that I not add it to the letter, add

it at the bottom.


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Q Who would ask you to type the letter,

anybody?

A That is the standard procedure; that is not

the first time I have done that.

Q Procedure for what?

A When we have a problem or anything out of

the ordinary from a contractor home builder we type that up.

Q You did that on behalf of the City of

Bedford?

A Yes.

11 Q You did not, as standard procedure, go to

12 Calvin Fields and take down anything that he understood or

13 said about what happened that day?

14 A No, sir, this is just my hearsay when I was

15 there that time.

16 MR. BULLINGTON: I move for the admission

17

18

19

20

21

22

23

24

of Exhibit 4.

MR. HART: No objection.

THB COURT: So admitted.

(The above-mentioned document was marked as

Plaintiff's Exhibit Number 4 and entered into the

Trial.)


158

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7


BY MR. BULLINGTON:

Q These are some building permits, you said;

is that correct?

A

Q

A

Q

Yes, sir, copies of.

Copies, yes. May I approach?

Certainly.

On a number of these instances it kind of

8 tells you what is being done; is that correct?

9 A Right, it does.

10

11

Q

A

A lot of these are small jobs, correct?

But a lot of them are not. I would say

12 maybe about half and half.

13

14

15

16

17

18

19

·2o

21

Q

A

Q

A

Q

A

Q

A

Q

Relating service?

There are some new houses, duplexes.

During 1997?

New garage, yes, I believe so.

Service for a garage was -

Right.

If we look on here, we could see the -

Add new service.

Was that just adding an additional circuit?

22 A I don•t know, these are copies that come

23 from the building inspector's office. That is a dwelling.

24 Q But generally from the comments you can


159

202

Patterson - Cross

1 tell what is being done; is that correct?

2

3

4

5

6

A

Q

Urn-urn.

One of these is for a house, 705 Burks Hill

Road; is that right?

A I don't remember the addresses on there.

Q Let's see if we can take a look real

7 quick. Did you put the Burks Hill Road in here?

8 MR. HART: I think these are all after the

9 accident. Burks Hill Road, I think that is, here

10

11

12

it is.

MR. BULLINGTON: Here it is, excuse me.


14

15

16

17

18

19

20.

21

22

23

24

Q

A

Q

A

have.

One of them 705 Burks Hill Road?

Yes.

That is February or March of 1996?

That was before the accident.

MR. BULLINGTON: Thank you, that is all I

THE COURT: Unless there is something

further of this witness?

MR. HART: No.

THE COURT: All right, you are free to go,

welcome to stay if you wish.


160

1

2

203 Delinger - Direct


3 RICHARD DELINGER




7

8

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20

21

22

BY MR.

THE COURT: Have a seat in the witness

box. Please speak up as you answer the

questions.

HART:

Q

A

Q

A

Q

A

Q

A

DIRECT EXAMINATION

State your name for the record, please.

Richard Delinger.

Are you employed, Mr. Delinger?

Yes, sir.

By whom are you employed?

City of Bedford Electric Department.

How long have you been employed there?

I have actually been there twice. First

23 time I was employed from, I think 1981 until about 1985

24 for not quite five years or so, somewhere along in that


161


1 area. Then I was gone for two years and I have been back

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3

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8

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10

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13

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18

19

20

21

22

since the fall of 1987 until present time, I think about

11 years or something.

Q You were one of the linemen that were

working on March 14, 1996 when Mr. Zimmerman was shocked;

is that correct?

A Yes, sir.

Q Let me ask you -- before I ask you about

that day, what the procedure is when you disconnect

temporary lines from the transformers in the Bedford City

Electrical Department. What do you do with the temporary

lines?

A Well, normally if it is a disconnect from a

temporary service we would disconnect from the transformer

itself. And normally because the contractor would be

coming to remove his temporary service, most of the time

they are not buried very deep in the ground. So it

wouldn't really be like a p~ysical dig up, but you would

usually grab this and pull them up to expose the wires.

Q

A

Q

To expose· the ends of the wire?

Yes, sir.

So the contractor would see something like

23 this sticking up out of the ground?

24 A Yes, sir, that is correct.


162


1

2

3

4

5

6

Q That is on underground faci~ities; is that

correct?

A Yes, sir.

Q Did you happen to see Mr. Zimmerman on

March 14th, 1996?

A That was the day of the accident?

7 Q Yes, sir.

8 A No, sir.

9 Q Did you happen to see him in the hospital?

10 A On March the 14th?

11 Q Whenever.

12 A March the 15th, yes, sir, I did.

13 Q Did you see him in the hospital?

14 A Yes, sir, I did.

15 Q Did you have a conversation with

16 Mr. Zimmerman?

17 A Yes, sir.

18 Q And what was the conversation about?

19

20

21

22

23

24

A We talked about a lot of things. The main

reason I went·to the .hospital was to express concern and

offer my apologies because he was in the hospital. And we

talked about numerous things but, you know, it was a very

cordial visit.

Mr. Zimmerman and his wife were present.


163


1 And he was very much beside himself that the accident had

2 happened. He said, "Well, don't feel bad, don't feel like

3 that it is your fault because it is just as much my fault

4 as it is yours."

5

6

7

8

9

10

11

12

13

14

Q

A

Do you know what he meant by that?

Well, I sort of.

MR. BULLINGTON: Objection.

THE COURT: Sustained.

THE WITNESS: No, sir.

MR. HART: That is all. You may answer

Mr. Bullington's questions.

CROSS EXAMINATION


16 Q Mr. Delinger, you were the Class A lineman

17 at 1405 Jefferson Terrace on March 14th that was doing the

18 tem~orary to permanent switchover?

19

20

21

A

Q

transformer?

Yes, sir.

You were the one that worked in the

22 A Yes, sir.

23 Q You were the one responsible for unhooking

24 the temporary, correct?


164


1 A If I would have been in command to do so,

2 yes, sir, I would have.

Q Well, the reason you went down to see

Mr. Zimmerman in the hospital, you felt very bad about the

fact that you hadn't unhooked it, correct?

A No, sir, that is not true.

3

4

5

6

7

8

9

Q Do you deny that you were upset and crying

10

when you went

A

Q

down to see him?

I wasn't crying, no, sir.

And you, do you deny that you were so upset

11 that Mr. Zimmerman told you some things to try to make

12 your feel better?

13

14

A

Q

No, sir, I don't deny that.

And you, in fact, have, you accepted full

15 responsibility for what happened out there that day,

16 didn't you?

17

18

A

Q

I don't understand what you mean, sir.

It was fully your responsibility that the

19 power wasn't unhooked that day; is that correct?

20

21

A

Q

No, sir.

And do you remember giving a written

22 statement to Mr. Soka shortly after the accident?

23

24

A

Q

Yes, sir.

And in that written statement you told him


165

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you fully accepted responsibility for the accident; is

that correct?

A Yes, sir, I did.

Q And you told Mr. Zimmerman that morning at

the hospital about your concerns about your job, didn•t

you?

A Yes, sir, I did.

MR. BULLINGTON: That is all the questions

I have.

THE COURT: All right, no further

questions, sir. You are free to go. You are

welcome to stay if you wish.


MR. HART: I call Harry Garrett to the

witness stand. We have one more witness if I may

go look.

MR. GARRETT: Edgar Mitchell is here, he

came in with me.

THE COURT: Come forward and be sworn,

please.

MR. HART: Come up, Mr. Mitchell.


166

209 Mitchell - Direct

1 FRANK EDGAR MITCHELL




5

6 DIRECT E~INATION

7

8

10 Frank Edgar Mitchell.

11 And where do you live, Mr. Mitchell?

12 I live there at next to Northside Supply.

13 Is that in Bedford?

15 The City of Bedford?

16 Bedford County.

17 How long have you lived in Bedford?

18 All of my life.

19 Are you in business in Bedford?

21 And what kind of business are you in?

22 Electrical business.

23 When you say "electrical business," would

24 you just be a little bit more expansive on what you do?


167


1 A Well, we are a contracting business is what

2 we are, electrical contractors.

3

4

Q

A

5 residential.

Yes, sir.

Work on industrial, commercial and

Do you do residential?

Right.

6

7

8

Q

A

Q How many residential homes have you done?

9 I don't want an exact number, how many residentials have

10 you done since you have been doing this work in the

11 Bedford area?

12 A I don't know, two or three hundred,

13 probably. That is just a rough figure.

14 Q All right, sir. What tickets or licenses

15 do you hold?

16 A I got a master electrician's license and we

17 are Class A contractors.

18

19

20

21

22

23

24

Q What is a master electrician's license, how

do you get that?

A Well, you have to take a test for the

state. You have to do that now. But when I got mine, I

took it up here in Bedford.

Q Did you have to study for it?

A A little bit, yes.


168

1

2

3


Q And did you have to study anything about

safety around electricity?

A Well, most of that's,· how ·to say this, it

4 is experience.

5 Q All right, sir.

6 MR. HART: Judge, I would offer this

7

8

9

gentleman as an expert witness on matters of

electrical contracting.

THE COURT: Any objection?

MR. BULLINGTON: No objection.

THE COURT: Qualifications as an expert in

the stated field.

10

11

12

13

14

15

BY MR. HART:

Q All right, sir. Mr. Mitchell, you have now

16 been qualified as an expert. Let me ask you a question:

17 What is the basic cardinal safety rule for electrical

18 contractors or anyone else working around electricity?

19 A Well, I tell my men that you don't trust

20 nobody.

21

22

Q

A

What do you mean by that?

What I'm saying that is if somebody tells

23 you the power is off, you got a meter of your own, you

24 check it.


169


1 Q Do you have an opinion, sir, as to whether

2 or not if an electrical contractor has been told the power

3 is off and that he doesn't check it himself, that he has

4 fallen below the standard of care for electricians in this

5

6

area?

A Yes, sir. That is the reason they got the

7 meters, volt meters.

8 Q All right, sir. Have you had experience

9 with underground wiring?

10 A Yes, sir.

11 Q And have you had experience with Bedford

12 City in the way they handle the wires from the temporary

13 service when they disconnect from the transformers?

14

15

16 does?

A

Q

Yes, sir.

Would you tell the jury what Bedford City

17 A Well, most of the time Bedford City, when

18 they unhook an overhead cable, they will roll it up and

19 set it on top of the pole. And when they, it comes in

20 underground for a temporary, they will unhook it from the

21 transformer and roll it up beside the pole and tape it up.

22 Q Have you ever in all your experience with

23 Bedford City with the Bedford Electrical Department, known

24 them to leave wire stuck up in under the pedestal under


170

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17


the transformer after they have been disconnected?

A No; no, I take that back. If they are

going to leave them in there like an underground cable

going to a house or something like that, most of the time

they will cut them off the top of the ground and leave the

cable in there.

Q I am not sure I follow you now. Run that

by me again.

A Well, what I am trying to say the cable bed

goes underground from the transformer to the house. They

are to cut them off the top of the ground inside that

transformer and just leave them and run another new cable

in there.

here?

Q

A

Q

I see. That is what we are talking about

Okay.

Let me ask you if this, with these wire

18 cutters, if this line is hot, is there a way to be able to

19 cut that line and not receive a shock?

·20

21

22

23

24

A Um-um.

Q How do you do that?

A CUt them one at a time and tape them up.

MR. HART: I believe that is all the

questions I have for this witness.


171

214 Mitchell - Cross

1 THE COURT: Mr. Bullington.

2

3 CROSS EXAMINATION

4


6 Mr. Mitchell, you are a master electrician?

8 That is the highest grade of electrician,

9

10 Yes, sir.

11 You are a Class A electrician?

12 Yes.

13 That is different than Class B?

14 Correct.

15 Different tests?

16 The whole bit.

17 Q Different licensing, different

18 requirements?

19 A Right.

20 Q And you do, you said, industrial and

21 commercial work?

22 A Yes.

23 Q That involves high-voltage work; is that

24 correct?


172


1 A Well, the most I ever worked on is up to

2 2,300.

3

4

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10

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17

18

19

20

21

22

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24

Q That•s a lot higher than 220 and 110

residential, isn't it?

A Right.

Q You, you are probably familiar with the

NESC as a master electrician; is that correct? Are you

familiar with the NESC, the National Electric Safety Code?

A I am a little bit familiar with it, right.

Q Is that something you do for your master

electrician's training?

A

Q

No.

Well, the National Electric Code doesn•t

have the safety stuff in it; is that correct, that is the

NESC?

A Not that I know of, no.

Q

A

Q

A

Q

A

Q

A

That is NESC?

Right.

You are familiar with that?

What, the National Safety Code?

Yes, sir.

No, I am not that familiar.

Are you familiar with it at all?

No.


173

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24


Q Now, you said you are familiar with

practices in the City of Bedford?

A Urn-urn.

Q And you have had occasion, I take it, you

do residential work as well?

A Right.

Q You have had occasion where temporary power

has been changed over to permanent?

A Yes.

Q And generally when they do that, they cut

the temporary off; is that correct?

A Right.

Q And they move the meter; is that right?

A Right.

Q

electrician?

How many years have you been an

A

Q

About 43 years.

And in your 43 years you have never

encountered a temporary meter energized with the meter

pulled out-and left open, have you?

A Not that far, no.

Q That would be a new, unique situation for

you?

A Yes.


174


1 Q And you certainly never encountered a

2 situation like that where the superintendent of the

3 electrical department told you it had been de-energized?

4 MR. HART: Objection, he is misstating the

5 evidence. The superintendent did not, there is no

6 evidence that the superintendent said that the

7 line had been de-energized.

8 MR. BULLINGTON: I withdraw the question.

9

10

11

12

13

14

15

16

BY MR. BULLINGTON:

Q The superintendent said, the 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.

Q If anything is energized, you expect a

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

18 A Yes, if it was, it was hot I would say it

19 would be, right.

20

21

22

23

24

Q Sure.

MR. BULLINGTON: That is all I have.


175

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7

218 Mitchell - Redirect

REDIRECT EXAMINATION

BY MR. HART:

Q Let me ask you a question, I want you to

assume some facts for me.

A

Q

Right.

I want you to assume that you have been

8 told that the temporary service, your temporary service to

9 a house would be disconnected.

10

11

12

13

14

15

16

17

18

19

20

21

A

Q

Right.

That it was underground, assume it was an

underground service.

A Um-um.

Q And assume that you went to the job site,

and when you got to the job site what you saw was a

temporary meter on a post without a faceplate on it.

A Right.

Q And the line running down to the ground

under the ground and into the transformer.

A Um-um.

Q Okay. And that you tried to pull the line

22 and you couldn't pull the line out. But you saw that

23 there was no faceplate. Under those circumstances, in

24 your opinion, would a reasonably prudent electrician cut


176

219 Mitchell - Redirect

1 those wires without putting a voltage meter on them or

2 otherwise determining whether or not they were hot?

3 MR. BULLINGTON: Judge, can I note an

4 objection? It doesn't need to be phrased as what

5 a reasonably prudent person, rather what the

6 standard is as he understands it as an

7 electrician.

8

9

10

11

MR. HART: We are talking about

electricians.

THE COURT: I will allow the question.

12 BY MR. HART:

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thing.

Q

A

What was your answer?

My answer be it me, I would check that

Q Have you initially said no, that you, the

reasonably prudent electrician, would not cut it without

checking?

A He wouldn't cut it; he would cut it one

cable at a time.

MR. HART: Thank you, that is all the

questions I have.


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Mitchell - Recross 220

RECROSS EXAMINATION


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Q That is what you do, sir, I take it, that

is what you would do, correct?

A CUt them one at a time?

Q Yes, sir.

A But if I couldn't get it out from under the

transformer I would call the city and tell them to come

out there and unhook it. I wouldn't even fool with it.

MR. BULLINGTON: That's right, thank you.

That is all I have.

MR. HART: May he be excused?

THE COURT: No further questions, you are

free to go.


MR. HART: May I have one minute with my

co-counsel? We may be finished. We have one

medical deposition to read but I don't think it is

anywhere near the length of the others.

MR. STEVENS: Well, I hope not. Certainly

not as long.


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MR. HART: Can you talk faster?

MR. STEVENS: I can talk faster. Before I

read the deposition, I would move to introduce

some medical records that were admitted as

business records.

MR. BULLINGTON: You never showed those to

me. I will need to look at them while you read

the deposition.

THE COURT: All right. Ladies and

gentlemen of the jury, this is prior sworn

testimony. It is evidence in the case and should

be viewed by you as such along with all the other

evidence presented.

(The deposition of Freeman W. Jenrette,

M.D. was read to the jury.)

THE COURT: All right, sir. You may step

down. Any further evidence from the defense?

MR. STEVENS : Yes, Your Honor, the records,

we want to move to introduce the records.

MR. BULLINGTON: He just banded these to

me. I think we can take it up with the Judge when

we are doing the instructions. I have a couple of


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objections, Your Honor.

THE COURT: Well, then, I will rule on

those and the defense's right to introduce them is

preserved subject to objections. Other than

that, is there any further evidence?

MR. HART: I want to read a very short

p.ortion of the plaintiff • s deposition into

evidence.

THE COURT: All right. This is pr~viously

sworn testimony. It is evidence in the case to be

considered by you as such with all other evidence.

MR. HART: Beginning at page 15, "Did you

dig up --" this is Mr. Zimmerman's being

questioned by deposition, "Did you dig up

you then start to dig up the line from the

temporary meter to the transformer 11 ?

did

Answer: Well, the first thing we done was

Ronnie pulled his front-end loader up and lifted

my post up out of the ground and set it back down

in the hole. And then I started pulling the wire,

because I was in about five -- five to six foot

from the transformer, and it is shallow in the

ground, so I just started pulling the wire. 11

Question: 11 tmd the wire started coming up


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out of the ground?"

Answer: "Yes, sir, the wire started coming

out of the ground. I pulled out approximately

three foot of wire from under the transformer, and

it got tight. And by that time Alan done got

there. So I told him, I said, Go get my cutters.

I was going to cut it off, because I got plenty of

wire here to hook back up another service."

Question: "Were you in such a hurry that

you could not dig up the rest of the wire? Assume

that the wire had been unhooked. Were you in such

a hurry that you could not take the time to dig up

the remaining wire?"

Answer: "Oh, I was up to the transformer.

There wasn't no other wires to dig up."

We rest subject to these records.

(The defendants rest.)

THE COURT: Any rebuttal from the

plaintiff?


THE COURT: Ladies and gentlemen, that

concludes the evidence in the case. I would ask


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* * * THE COURT: Who is going to go through

records then and find out? I am most certainly

not.

MR. HART: Let Mr. Bullington do it.

MR. STEVENS: I am more than happy to make

it easy as possible on anybody any way I can.

THE COURT: I understand we will have to

have, we will allow Mr. Bullington then to go

through the records, allow that opportunity.

First of all, I want to see where we are as far as

the jury and I want to see where we are as far as

where we are going this evening. Any motion at

the conclusion of all the evidence?

MR. HART: Yes, sir, I have a motion to

strike the plaintiff's evidence at the conclusion

of all the evidence for the reasons heretofore

stated to the Court and for the additional reason

as to now an expert who has testified and said

that he absolutely should not have cut that wire

the way it was done and without checking.

And for the further reason that the

plaintiff was put on notice, this evidence is

uncontroverted, Mr. Massie said, and I had the

court reporter type this up, 11 Mr. Zimmerman stated


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to me that he had gone to the job site and after

arriving began to get his equipment ready to move

the temporary pole, and had been informed by

another person that he didn't know but believed

worked on placing the vinyl siding on the

residence. That he had been near the temporary

pole and had received what he called a slight

shock as if from stat.ic electricity. "

So he was not only told by his grandson,

Are you sure that the pole is de-energized? He

was told by a third party before he cut the thing

that he had been near the wire or near the pole

and had received a shock. Now, if that isn't

notice to him, if that doesn't put him on notice

that there is a problem, I don't know what does.

Judge, I think the evidence is overwhelming

of contributory negligence in this case. I don't

believe there is any inference that can be made

that can you avoid that fact. I ask the Court to

strike the evidence now at the conclusion of all

the evidence. If the case goes up to the Supreme

Court, they have a complete record.

THE COURT: Mr. Bullington?

MR. BULLINGTON: I apologize; it is for the


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same reasons as before, without reiterating all of

those reasons, I still believe it is a jury

issue. His expert was a different type of expert

with commercial and industrial and master

electrician and other kinds of qualifications. I

think it simply goes to the j~ry to determine the

weight that that testimony should be given~

With respect to the statement about the

static electricity shock, I believe Mr. Massie

also said that he didn•t know whether

Mr. Zimmerman told him that that occurred with

that contractor that day or whether it had been a

week earlier as I suggested to him.

THE COURT: Anything further on the

motion?

MR. BULLINGTON: No.

THE COURT: Motion is denied. This case is

going to the jury. All right, I want us to get an

idea of the instructions and how long it will take

· to address ·the inst-ructions and whether it can be

done this evening and the case argued this evening

and submitted to the jury this evening.

If the matter of the instructions is going

to become lengthy and the review of these records,

* * * CENTRAL VIRGINIA REPORTERS (540)380-5017

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* THE COURT: 0 is given. P, Q and R.

MR. BULLINGTON: Where do these come from,

are there any citations?

MR. HART: There are no citations for

them.

MR. BULLINGTON: The first one I object

to.

MR. HART: The evidence is that the

electrician says he has a duty to absolutely see

what is going on and his own testimony was he had

an absolute duty to determine whether the line was

charged.

THE COURT: All right. Counsel, I have

looked at these. I will allow you all to be heard

or I will rule on them. I have already read them,

have been aware of them since this morning.

MR. HART: Go ahead and rule as far as I am

concerned.

THE COURT: Unless there is something

further P is refused. 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


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instructions. P therefore becomes argumentative.

As far as Q is concerned, Q will be given.

It is the Court's feeling concerning that although

it states and sets forth the exercise of the

degree of care which is covered in other

instructions, I however, this instruction covers

the point not otherwise covered and that is that a

person engaged in a particular profession, whether

it is the defendant as to negligence or the

plaintiff as to contributory negligence assumes

the character of the situation. This points out

prudent electrical contracting. Therefore Q is

given.

R is unnecessary in view of other

instructions; refused, covered in other

instructions and argumentative. S has been given

already without objections.

Those are the instructions there I have as

far as ones I didn't rule on. Let's go to the

.Plaintiff's, I have 7, 9 and 10 not ruled on.

MR. HART: What is 7, now reasonable care

or ordinary care is a relative term. It varies

with the nature and character of the situation. I

take it this came out of the Doubles book?


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* * In hindsight every accident can be

prevented, and you don't have to take the safest

or most perfect course of action. Under the case

law in the model instruction we proposed I think

that is appropriate. I would cite Ewell v.

Elliott 203 Virginia 201, 1962 and the other case

Doubles 201 instruction.

I would also object to the Court's refusal

of instruction number 10, which is the right to

assume ordinary care, while I acknowledge in

certain automobile accident cases I think it is

the general negligence principle which is

applicable to what duty he would have to have with

respect to investigation. We would object to that

refusal or ask the Court to note our objections.

THE COURT: All right, duly noted and

preserved.

MR. HART: Counsel for defendant objects to

refusal of instruction I. I believe it accurately

states the law~ that the fact that there is an

accident does not entitled the plaintiff to

recover. And that the burden is on the plaintiff

to show that negligence of the defendant, not that

the defendant was negligent, caused the accident.


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So I object for that reason.

I object to the refusal of instruction P

because it is a negligence instruction to a theory

that we have and that we have developed that and

the evidence is they have a duty to determine

whether or not a line is charged before it is

cut. I believe that I would instruct -- to

instruct the jury on that based on the evidence is

improper.

With respect to R, the point of theory is

the plaintiff negligently handled equipment and he

cut the line and that that negligence, and that

when he improperly cut the line that he was

negligent. I think that we are entitled to an

instruction to that theory of the case to that

effect. The instruction that the Court gave us

relates to whether plaintiff should have known

that the line was charged.

This instruction deals with negligence in

the execution of the cutting of the line. There

is ample evidence to support that. We object on

that basis. One more question where we are as far

as your records are concerned, if I could just

have a moment, Judge.


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* * * THE COURT: Thank you, you may be seated.

THE CLERK: Ms. Slocum, have the members of

the jury reached a verdict?

MS. SLOCUM: Yes, we have.

THE CLERK: We, the jury, on the issues

joined unanimously find our verdict in favor of

the plaintiff and award him damages in the sum of

$170,000. Juanita Slocum, foreperson.

THE COURT: Okay. Counsel, is there

anything further concerning the jury before I

discharge them?

MR. HART: Please poll the jury.


jury, this is a procedure that is called polling

the jury. What it means is simply this. Your

names will be called individually. And when your

name is called individually you are being asked if

the verdict as read by the clerk is your .

individual verdict. If it is, you answer yes. If

it is not, you answer no. All right. ·

THE CLERK: Ms. Slocum?

MS. SLOCUM: Yes.

THE CLERK: Shirley Amos?

MS. AMOS: Yes.


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THE CLERK: Philip Snow?

MR. SNOW: Yes.

THE CLERK: Nancy Garrabrant?

MS. GARRABRANT : Yes.

THE CLERK: Bobby Karnes?

MS. KARNES: Yes.

THE CLERK: And Dana Manley?

MS. MANLEY: Yes.

THE CLERK: And Diane Morris?

MS. MORRIS: Yes.

THE COURT: Let the record reflect that

the, upon polling of the jury that the Court finds

that the verdict of the jury is unanimous.

Anything further concerning the jury?


MR. HART: No,. sir.

THE COURT: If not, ladies and gentlemen of

the jury, that concludes you~ duties in this

case. As I am sure you are aware, or recall, I

should say, we don•t need· a jury on Monday. So

you can take that off your list. And the next day

seems to be Wednesday, April 19th. Now, that is

criminal day. I am not sure, I have to take a

count whether I can excuse some jurors for the


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days, for criminal trial or not. I can and will

keep in consideration as far as our civil days.

But before you leave, I would like to ask

this question: I think I know the answer. But

has any juror this week served both on this case

and the case on Wednesday? None of you. All

right. That's helpful. I remind you Tuesday

night call the number to see whether there has

been any change. Unless I have excused you

otherwise or there is a message indicating

otherwise on the service, if you would be back

here next Wednesday. Be excused and you are free

to go at this time.

(The jury was excused.)

THE COURT: The jury has left the

courtroom. Couns.el, any motions?

MR. HART: Yes, Judge, I have a motion to

set aside the verdict in this case as being

contrary to the law and to the evidence. I will

be glad to go over it, you know, the deal or you

know what the motion is relating to the motion to

strike at the close of the plaintiff's evidence,


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at the close of all the evidence and now the jury

has come back and in my judgment have totally

disregarded the facts of this case which clearly

established contributory negligence as a matter of

law, disregarded the instructions of this Court. I

will be happy to brief this for you or to have a

transcript prepared. I don't know that we need

that.

The evidence is fresh in our minds, but I

do move to set this aside as clearly contrary to

the evidence and contrary to the law.

THE COURT: All right, Mr. Bullington?

MR. BULLINGTON: Judge, we, of course,

oppose the motion and essentially for the same

reason that we argued with respect to the motion

to strike the evidence in this case was not so

clear that it was no reasonable juror could

disagree as to conclusions to draw from the

evidence as to whether he exercised reasonable

care under the circumstances.

And in fact, these circumstances, the

evidence indicated were very unique and based on

what he had been told and understood and on his

experience and what we saw I think what he did at


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the time, whether he exercised reasonable care

under those circumstances, was a jury issue. We

oppose the motion.

THE COURT: All right. And Mr. Hart,

anything further? And as far as any additional

information for the Court, I will state that I

will hear you in that regard. But if there is

nothing further I am in a position to rule today.

MR. HART: Go ahead, rule, Judge.

THE COURT: All right, sir. I do want to

state for the record several things because as I

indicated earlier, after the plaintiff's evidence,

this was a matter that I considered and considered

carefully. And I'm very aware of the arguments

Mr. Hart has made concerning contributory

negligence and whether or not that is a matter

that should be determined as a matter of law.

Since then, I made my statements earlier,

since I have given this matter even further

consideration and upon doing so, I don't wish to

make this a suspenseful situation, I will state

the motion to set aside is denied.

I do wish to briefly state for the record

some of the reasons previously stated. The issue


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to the Court at this· point is not what I

personally may have done or not done, if I had

been in the position of the plaintiff, but the

issue is not what I may or may not have done if I

had heard this case as presiding judge without a

jury.

The issue is simply whether or not there

was sufficient evidence to make out a jury issue

concerning contributory negligence. And as I

stated earlier, there was evidence that weighed

against the plaintiff in this matter. But as far

as what he knew or should have known, when I

reflect upon that there was a request for Bedford

Electrical Department to come to this residence

and to disconnect the temporary service, and

connect the permanent electrical service to the

house, that request was made.

When the plaintiff then spoke to an

employee of Bedford's electrical department, that

person being in a supervisory position, he stated

that it would be done. Then when the plaintiff

comes to this residence later in the day, he sees

that the temporary meter has been removed from the

temporary meter base, that is an indication to him


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that the electrical department had been there.

Furthermore, the meter had been moved and

installed in its permanent meter base location and

that the permanent electrical service to 'the house

had been connected. Because of the very dangerous

situation resulting from the negligence of

Bedford•s Electrical Department, which negligence

they have admitted, but the situation of leaving

that meter base without a meter and without a

cover was not only unusual, but very dangerous.

And as to whether or not there is a jury

issue, I find that these circumstances and others

presented present a sufficient basis for the

plaintiff, for a jury to find that the plaintiff

had a reasonable basis for believing that

Bedford•s electrical department had, in fact, come

there and done what they were requested to do,

that is not only connect the permanent service but

to disconnect the temporary service.

So now the situation as far as the

plaintiff•s conduct there at the transformer, that

weighs against him. But that becomes a matter of

determination, weight for the jury. As far as the

law is concerned, gentlemen, there were


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instructions I refused on both sides. Both of

that is on record.

. To me from a legal standpoint this was a

very simple issue legally. ·Was the defendant, was

the plaintiff contributorily negligent or not.

And that the Court had to and did instruct the

jury as far as contributory negligence,

negligence, burden of proof, causation, those

factors I think that we got into areas that were

done without objection and that was fine.

But assumption of the risk and superceding

cause, I don't know that we have to get into

that. As Mr. Hart stated in his opening

statement, he stated contributory negligence, and

that's what this case was all about. As to

instructions finally, if they are supported by the

evidence and a correct statement of the law they

should be given. However, I think that the

guidance of Appellate court said instructions

should not be given more than once. I think this

jury was adequately and completely instructed as

to pertinent factual and legal issues of this case

and therefore feel that the jury's verdict was

supported by the evidence and by the law of this


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case.

As I previously stated, the motion to set

aside the verdict is therefore denied. The

objections of the defendant noted and preserved

for the record. And I would ask Mr. Bullington to

prepare an order to that effect.

MR. BULLINGTON: Yes, sir.

MR. HART: Thank you.

THESE WERE ALL THE PROCEEDINGS HAD AND

EVIDENCE INTRODUCED IN THE TRIAL OF THIS CAUSE.


197

198-200

INSTRUCTION NO. P,

The court instructs the jury that your verdict must be based on the facts as you

find them and on the law contained in all of these instructions.

The issues in this case are:

(1) Was defendant's negligence a proximate cause of the accident?

On this issue the plaintiff has the burden of proof.

(2) Was the plaintiff negligent? (3) If he was negligent, was his negligence a proximate cause of the

accident? (4) Did plaintiff assume the risk of the accident and injuries? (5) If plaintiff assumed the risk of the accident and injuries, was that

assumption of the risk a proximate cause of the accident?

On these issues the defendant has the burden of proof.

(6) If the plaintiff is entitled to recover, what is the amount of his damages?

On this issue the plaintiff has the burden of proof.

Your decision on these issues mus.t be governed by the instructions that follow.

201

INSTRUCTION NO. (!__

The Court instructs the jury that in considering the weight to be given to the

testimony of an expert witness, you should consider the basis for his opinion and the

manner by which he arrived at it.

l

202

INSTRUCTION NO. D

The Court instructs the jury that if you believe from the evidence that a party

previously made a statement inconsistent with his testimony at this trial, that previous

statement may be considered by you as evidence that what the party previously said

was true.

203

INSTRUCTION NO. __ _

The Court instructs the jury that if you find from the greater weight of the

evidenc.e that both the plaintiff and the defendant were negligent and that their

negligence proximately contributed to the accident, you may not compare the

negligence of the parties. Any negligence of the plaintiff which was a proximate cause

of the accident will bar the plaintiff from recovering.

204

INSTRUCTION NO. K

The Court instructs the jury that a superseding cause is an independent event,

not reasonably foreseeable, that completely breaks the connection between the

defendant's negligent act and the plaintiff's injury. A superseding cause breaks the chain

of events so that the defendant's original negligent act is not a proximate cause of the

plaintiff's injury in the slightest degree.

205

INSTRUCTION NO. L

the Court instructs the jury that if you find by the greater weight of the evidence

that the plaintiff fully understood the nature and extent of a known danger, and if he

voluntarily exposed himself to it, he assumed the risk of injuring himself from that

danger. The plaintiff cannot recover for injuries that proximately resulted from assuming

the risk of a known danger.

206

INSTRUCTION NO. M- :L

The Court instructs the jury that the amount sought is not evidence in this case;

you should not consider it as evidence in arriving at your verdict.

207

INSTRUGION NO. JV

The Court instructs the jury that you must not base your verdict in any way upon

sympathy, bias, guesswork or speculation. Your verdict must be based solely upon the

evidence and instructions of the court.

208

INSTRUCTION NO. Q

The Court instructs the jury that an employer is liable for all damages

proximately caused by the negligence of his employee while acting within the scope of

his employment.

209

INSTRUCTION NO._-=.......;;;;.,__..

The Court instructs the jury that if you find from the greater weight of the

evidence that the plaintiff, in the exercise of that degree of care that a reasonably

prudent electrical contractor would have used under the circumstances, should have

known that the line which he cut was charged with electricity, then he was guilty of

negligence.

210

INSTRUCTION NO. S

The Court instructs the jury that you shall find your verdict for the plaintiff if he

has proved by the greater weight of the evidence that:

(1) the defendant's negligence was a proximate cause of the plaintiff's accident and damages.

You shall find your verdict for the defendant if:

(2) the plaintiff failed to prove the above element; or if

(3) you find by the greater weight of the evidence that the plaintiff was contributorily negligent and that his contributory negligence was a proximate cause of the accident; or if

(4) you find by the greater weight of the evidence that the defendant assumed the risk of the accident and injuries and that his assumption of the risk was a proximate cause of the accident.

211

)

INSTRUCTION NO. _/_

You are the judges of the facts, the credibility of the witnesses, and the

weight of the evidence. You may consider the appearance and manner of the

witnesses on the stand, their intelligence, their opportunity for knowing the truth and for

having observed the things about which they testified, their interest in the outcome of

the case, their bias, and, if any have been shown, their prior inconsistent statements, or

whether they have knowingly testified untruthfully as to any material fact in the case.

You may not arbitrarily disregard believable testimony of a witness.

However, after you have considered all the evidence in the case, then you may accept

or discard all or part of the testimony of a witness as you think proper.

You are entitled to use your common sense in judging any testimony.

From these things and all the other circumstances of the case, you may determine

which witnesses are more believable and weigh their testimony accordingly.

212

..,

INSTRUCTION NO. ~

The defendant, City of Bedford, has admitted that it was negligent.

Therefore, the only issues that you have to decide are whether the defendant's ; 1~ ~

negligence was the proximate cause of ~\,Plaintiffs accident or injuries, whether plaintiff

was contributorily negligent and, the amount of damages, if any, the plaintiff is entitled

to recover.

An admission of negligence should not influence you in any way in

considering the these issues.

213

,_-

INSTRUCTION NO. ~

When a party has the burden of proof on an issue, then he must prove

that issue by the greater weight of all the evidence. This is sometimes called the

preponderance of the evidence. It is that evidence which you find more persuasive.

The testimony of one witness whom you believe can be the greater weight of the

evidence.

214

INSTRUCTION NO.~

Contributory negligence is the failure to act as a reasonable person would

have acted for his own safety under the circumstances of this case.

215

INSTRUCTION NO. 2,_

"Reasonable care•• or "ordinary care" is a relative term. and varies with the

nature and character of the situation to which it is applied. The amount of degree of

diligence and caution that is necessary to constitute reasonable or ordinary care

depends upon the circumstances and the particular· surroundings of each specific case.

The test is the degree of care that an ordinarily prudent person would exercise under

the same or similar circumstances to avoid injury to another .

216

INSTRUCTION NO. _g_ When the defendant claims contributory negligence as a defense. it has

the burden of proving by the greater weight of the evidence that the plaintiff was

negligent and that this negligence was a proximate cause of the plaintiff's injuries.

Contributory negligence may be shown by the defendant•s evidence or by the plaintiff's

evidence.

217

INSTRUCTION No.JL

The proximate cause of an event is that act or omission that, in natural

and continuous sequence, unbroken by an efficient intervening cause, produces the

event, and without which that event would not have occurred.

218

I

INSTRUCTION N0.1!/_

If you find your verdict for the plaintiff, then in determining the damages to

which he is entitled, you may consider any of the following which you believe by the

greater weight of the evidence was caused by the negligence of the defendant:

1) any bodily injuries he sustained and their effect on his health according to their degree and probable duration;

2) any physical pain and mental anguish he suffered in the past and any that he may be reasonably expected to suffer in the future;

3) any inconvenience caused in the past and any that probably will be caused in the future;

4) any medical expenses incurred in the past and any that may be reasonably expected to occur in the future;

Your verdict should be for such sum as will fully and fairly compensate the

plaintiff for the damages sustained as a result of the defendant's negligence.

219

INSTRUCTION NO. /j.-

The burden is on the plaintiff to prove by the greater weight of the

evidence each item of damage he claims and to prove that each item was caused by

the defendant's negligence. He is not required to prove the exact amount of his

damages, but he must show sufficient facts and circumstances to permit you to make a

reasonable estimate of each item. If the plaintiff fails to do so, then he cannot recover

for that item.

220

INSTRUCTION NO. I(,.

If you find that the plaintiff had a condition before the accident that was

aggravated as a result of the accident or that the pre-existing condition made the injury

he received in the accident more severe or more difficult to treat, then if you find your

verdict for the plaintiff, he may recover for the aggravation and for the increased

severity or difficulty of treatment, but he is not entitled to recover for the pre-existing

condition.

221

• INSTRUCTION NO. I The Court instructs the jury that the fact that there was an accident and that the

plaintiff was injured does not, of itself, entitle the plaintiff to recover.

The plaintiff has the burden of proving by the greater weight of the evidence that

the defendant's negligence proximately caused the accident and any of the injuries to

the plaintiff.

222

INSTRUCTION NO. 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.

223

INSTRUCTION NO. _:j_ The law does not require a person to know that he is absolutely safe

before taking a given course of action. He is only required to exercise ordinary care--

such care as a reasonably prudent person would exercise under the circumstances.

•

224

INSTRUCTION NO. /0 The plaintiff has a right to assume that the defendant, it agents and

employees will use ordinary care until he realizes, or in the exercise of ordinary care,

should realize that the defendant is not going to do so.

225

INSTRUCTION NO. f>

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 . ~hat 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.

I! you find from the greater weight of the evidence that the plaintiff failed to

perform this duty, then he was negligent.

226

VIRGIN lA:

IN THE CIRCUIT COURT FOR THE CITY OF BEDFORD

GUY DUVALL ZIMMERMAN, ) )

Plaintiff, ) )

v. ) )

CITY OF BEDFORD, ) a Municipal Corporation, )

) Defendant. )

Case No. CL97-9283 fYla.A.j & , aoro

FINAL ORDER

On April 13, 2000, came the parties and counsel before the Court and

announced that they were ready for trial upon the pleadings previously filed and issues

joined.

Whereupon, came a jury of thirteen persons, and each side having

conducted voir dire and struck off three of said jurors, the remaining seven, to-wit:

Diane A. Morris, Dana H. Manley, Bobby R. Karnes, Nancy C. Garrabrant, Phillip D.

Snow, Shirley T. Amos, and Juanita M. Slocum, were sworn to well and truly try the

issues joined and a true verdict render according to the law and the evidence.

Whereupon counsel for the parties made opening statements to the jury.

The plaintiff then presented his evidence and rested. The defendant, by counsel,

thereafter moved to strike the plaintiffs evidence and enter judgment for defendant for

the reasons set forth in the record. The motion was argued by counsel and, after

considering the argument and authorities, the Court denied the defendant's motion for

the reasons set forth in the record, to which ruling the defendant, by counsel, excepted.

227

F.U.

Whereupon the defendant presented its evidence and rested. The

plaintiff presented no rebuttal evidence and rested. The defendant, by counsel,

thereafter moved for directed verdict or summary judgment for the reasons set forth in

the record. The motion was argued by counsel and, after considering the argument

and authorities, the Court denied the defendant's motion for the reasons set forth in the

record, to which ruling the defendant, by counsel, excepted.

Whereupon, the Court heard argument of counsel regarding the

instructions for the jury. All objections to the giving or the failure to give instructions, as

appearing in the record, are preserved and noted. The proceedings were then

adjourned until the following day.

On April14, 2000, the parties appeared again, and the jury received the

instructions of the Court and heard closing arguments of counsel. The jury thereafter

retired to consider its verdict. After some time, the jury returned with the following

verdict:

We the jury, upon the issues joined, find our verdict in favor of the plaintiff, and award him damages in the amount of $170,000.00.

Is/ Juanita Slocum Foreperson

Whereupon, counsel for the defendant asked that the jury be polled, and

the Court thereupon asked each juror individually whether this was his or her verdict

and all responded that it was his or her verdict.

Thereupon, counsel for defendant moved to set aside the verdict as

contrary to the law and the evidence. The motion was argued by counsel and, after

2

228

considering the argument, the Court denied the defendant's motion for the reasons set

forth in the record, to which ruling the defendant, by counsel, excepted.

WHEREFORE, the Court enters judgment in favor of the plaintiff, Guy

Duvall Zimmerman, against the defendant, City of Bedford, in the amount of

$170,000.00, plus costs of this action and interest at the judgment rate from April14,

2000.

It appearing that nothing further need be done, it is further ORDERED that

3

229

We Ask for Entry of This Order:

C. Richard Cranwell (VSB #3347) David B. Bullington (VSB #28074) Cranwell, Moore & Bullington, P.L.C. Post Office Box 11804 Roanoke, Virginia 24022 540-344-1 000 (telephone) 540-344-7073 (telefax)

Counsel for Plaintiff

Seen and Objected to:

David B. Hart Peter D. Vieth Christopher W. Stevens Wooten & Hart, P.C. Post Office Box 1224 7 Roanoke, Virginia 24024-2247 (540) 343-2451 (telephone) (540) 345-6417 (telefax)

Counsel for Defendant

J:\CLIENT .OBB\ZIMERMAN\PLE\OROER.PLE

4

230


Attorneys at Law

Roanoke, VA

VIRGINIA:

IN THE CIRCUIT COURT FOR BEDFORD COUNTY

GUY DUVALL ZIMMERMAN

Plaintiff

v.

CITY OF BEDFORD

Defendant

) ) ) )

) Case No. Cl97009283-00 ) ) ) )

NOTICE OF APPEAL AND NOTICE OF FILING OF TRANSCRIPT

Defendant City of Bedford, a municipal corporation, by counsel, hereby gives

notice of appeal to the Supreme Court of Virginia from the final judgment of this

Court entered on the 8th day of May, 2000, and further gives notice that the transcript

of the proceedings was filed in the Office of the Clerk of this Court on the 19th day of

May, 2000.

CITY OF BEDFORD

By~/(;~ Of Counsel~

David B. Hart, Esq. (VSB No. 3393) Peter D. Vieth, Esq. (VSB No. 34150) WOOTEN & HART, P.C. P. 0. Box 12247 Roanoke, VA 24024-2247 (540) 343-2451 (540) 345-6417 facsimile

231

err/~. FILED IN THE CLERK'S OFFICE ~ BE~RD COUNTY CIRCUIT COURT

lher2.:fday of 1/Jut , 20 00

~ ~ OCLEAK

(~ 1{. ~M-Il\ -EJ151--EP. CLERK


Attorneys at Law

Roanoke, VA

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was mailed to

C. Richard Cranwell, Esq. David B. Bullington, Esq. Cranwell & Moore P. 0. Box 11804 Roanoke, VA 24022 Counsel for Plaintiff

this 24th day of May, 2000.

\\web_ wah\sys\apps\wpS 1\files\ul \ 13446\notice of appeal.docmc

2

232

ASSIGNMENTS OF ERROR

1. THE TRIAL COURT ERRED IN REFUSING TO DISMISS THE ACTION BECAUSE THE EVIDENCE SHOWED THAT THE PLAINTIFF WAS GUILTY OF CONTRIBUTORY NEGLIGENCE AS A MATTER OF LAW.

2. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THE PLAINTIFF HAD A DUTY UNDER THE CIRCUMSTANCES OF THE CASE TO EXERCISE THE DEGREE OF SKILL AND CARE EXERCISED BY REASONABLY PRUDENT ELECTRICAL CONTRACTORS AND OTHERS WHO WORK REGULARLY WITH ELECTRICAL DISTRIBUTION LINES.

3. THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT THE PLAINTIFF HAD A DUTY TO CUT THE LINE IN A MANNER THAT WAS NOT DANGEROUS TO HIMSELF IF HE DID NOT KNOW WHETHER THE LINE WAS CHARGED WITH ELECTRICITY.

233

Documents

Plea in Bar, Demurrer, Grounds of Defense, and Affirmative