*1 WALTER COATNEY, Administrator Estate of Walter Coatney, B uel Plaintiff Error, v. SOUTHWEST TENNESSEE ELECTRIC MEMBERSHIP CORPO RATION, Error. 292 W. 420. Defendant S. February 22, 1956. Western Section. Jackson.

Rehearing denied, March 1956. July 20, Supreme Petition for Certiorari Court denied 1956. *2 Memphis, Lexing- W. Prank Crawford, Joe C. Davis, plaintiff ton, for error. W. Brownsville,

John Norris, for defendant in error. appeal BEJACH, J. This cause involves an Walter Coatney, administrator of the estate of Buel Walter Coat- ney, judgment Circuit Court of Chester County, against dismissing suit Elec- Southwest *3 Corporation, Membership plaintiff tric error in in —the having plaintiff this Court been the court, lower and in error, defendant Southwest Tennessee Electric Membership Corporation, having been the defendant in parties the lower convenience, court. For will be styled plaintiff as in lower court, and defendant.

Plaintiff, as administrator of the of his estate son, Coatney, $25,000, Walter Buel sued the defendant for alleging wrongful by plaintiff’s death of intestate alleged, by negligence electrocution, was of caused, the defendant.

At the all conclusion of both of evidence, plaintiff judge of the defendant, and that the trial by peremptory a motion sustained defendant jury, dismissed the instruction to the cause. A seasonably for new and overruled, motion trial was filed appeal which an nature of a writ error after perfected Court. appellant four Court, has made in this Plaintiff, as unnecessary copy assignments these error. It is unnecessary opinion, and assignments error in this question single separately. All raise discuss them judge granting the the trial erred in whether or verdict; or, stated motion for a directed defendant’s presented, differently, on the or not evidence whether jury. submitted to should have been this cause testimony, dispute or in the There is little no question, itself into whether resolves one of therefore, might should have different minds drawn reasonable testimony. from this inferences or conclusions Coatney, en- intestate, Plaintiff’s Walter Buel Coatney, partner, gaged Robert with his cousin Neal business television Tennessee. At Henderson, in the partner death he time of his said they portable removing television antenna which had previously property Mr. Cloud, erected James set television in connection with demonstration of west in the home. Cloud residence is on the Cloud facing Henderson, side of Barham Street the town supplied electric east. It the defend- current having application been ant, for installation of same previous Mr. some time occurrence made Cloud involved Defendant’s incident in this law suit. high powered for distribution of lines electric current *4 along is of Barham run the east side Street. There a pole street in the side of the front Cloud on east of the property, a has from the and line been run it across pole driveway part property and the Cloud Cloud of property, from on distance of about 122 feet the Cloud pole line, on east of This well street. as side along Street, Barham east side of carried line a current volts. 6,900 7,200 uninsulated wires, pole There ais transformer on on the east side pole Barham and another transformer on Street, on the property. the Cloud The transformer on the side east Barham is Street 67 feet from Cloud, the residence of Mr. property transformer about 50 feet from is the residence. The across live wire Barham Street and part property voltage of the Cloud carries 6,900 7,200. property The transformer on the Cloud reduces voltage pole to from 100 to 220 The volts. on the property Cloud to which the transformer attached, pole guy supports. a dead end erected without wires or originally placed away leaning It was from Barham changed Street, but at time of the it accident, had position leaning where toward Street Barham creating sag a foot or thus so, a substantial the wire. running The wires into the Cloud residence from the transformer were insulated. time

At the of the accident which resulted in death Coatney Coatney, of both Walter Buel Robert Neal they engaged portable dismantling were antenna high. which was on a trailer about foot and a half pole antenna came contact the live wire defend- point top ant at a three about or four inches end pole, antenna as same extended, was then both Coatney Coatney, Buel Walter and Robert Neal passed through killed current which electric their place A burned about three or four bodies. inches from pole, top point indicated the antenna signs the live There in contact with wire. came were no any warning indicating kind the existence of the property, live wire Mr. across Cloud Cloud testi- *5 546 wire such live know there was a that he did that

fiecL property until accident. his after the across approxi- property on Mr. was The transformer Cloud’s mately transformer on 50 from his residence. The feet pole from residence. Barham 67 Street was feet on trans- testified that the witness, Defendant’s Ben White, properly 125 distance of from located a former could he Testimony it serves. 150 from residence which to feet a other establish there is no in the record to tends sim- of Henderson town construction defendant property. Mr. witness, One ilar that on the to Cloud formerly Blasengame, for lineman worked as a who had Co-op., Membership he testified that Pickwick Electric uninsu- see a naked construct constructed never did pole dead end and that unanchored, lated wire with a prevent always “guyed” poles line sag. causing pulling Other the wire it down and from testimony corner of in the record shows that serving a Streets, Fourth defendant is Barham and required duplex load Cloud with the same at the service run from a residence, and that this service is transformer 6 inches. thus feet and It a distance of street, on properly appears have the defendant could run on insulated transformer wire service line residence, the Cloud far of Barham Street to side erecting pole real for therefore, the reason that, necessity property was not on the Cloud transformer having house, the transformer close Cloud but to the Company preparing rather for the convenience to serve other and future customers of defendant anticipated. vicinity, preparation for which — Avitnesses, Cottrell, Mr. testified One of defendant’s pole appeared prop- be located on the Cloud that the erty expansion. take care jury future At least, a properly could have so found as and could fact, also found as fact that failure of defendant pole property secure the dead end the Cloud *6 negligence proximately plain- which of caused the death intestate. The tiff’s discloses that record since the acci- pole property involved, dent here the the on Cloud has straightened tamped, sag reducing been thus of the suspended wires it. question sole

Since the before this Court judge directing whether or trial not the in a erred verdict in favor of defendant, our we examination must, in adopt review, record for the view of facts disclosed by plaintiff. which is most evidence favorable to by Lackey Metropolitan As Felts, was said J. in v. Life App. page 30 Tenn. at Co., Insurance 206 390, 397, S. W. (2d) page 810: 806,

“(1) argument In view much well briefs, rule, seems to recall the so often stated by eases, in numerous which both trial courts and appellate governed determining must courts be a for a verdict. motion directed That rule is based right jury; by the constitutional has trial and it preserve right fashioned as been to at the so separation same time to administer common law jury try function facts and the judge law. ‘There no exer be constitutional can power any cise to direct verdict in case in dispute any which there is evidence, to material as any legal or as doubt conclusion be drawn to the to ’ upon from the whole to tried. evidence, the issues Tyrus City, [Kansas M.] v. Ft. &S. 114 Railroad, 86 579, 594, 1074, 1077; Tenn. S. W. Brenizer v. 548 Ry., & 3 W. St. L. Tenn. S.

Nashville, C. City (2d) 1099; Nashville, Osborn v. 1053, W. S. (2d)W. 510. 197, 185 182 Tenn. S. requires

“(2) often, rnle trial As said so judges, considering appellate judges motion all look verdict, for directed to defendant plaintiff, true take as evidence, the evidence countervailing evidence, all to discard take legitimate strongest of the evidence for view inferences from plaintiff, reasonable allow all dispute any if favor; then there any any doubt determinative material evidence, the whole as to the conclusion to be drawn from Mfg. the motion must be denied. Wildman evidence, Davenport Hosiery Mills, 551, 556, 147 Tenn. Co. v. *7 & 121 Burchel, 249 Co. v. 984; S. W. Walton 557, Rep. 788; 723, 391, 121 W. 130 Am. St. Tenn. 715, S. 169 Prieto, Accident Ins. Co. v. Provident Life (2d) City Osborn v. 251; 83 124, Tenn. S. W. Ry. supra; McCowan, Tenn. Cent. Co. v. Nashville, App. (2d) Poole v. 931; 28 188 W. Tenn. S. 225, App., Smyrna, First Tenn. W. Nat. Bank S. (2d) 567-568.” 563, from situation,

On this view the evidence ques- were at least us, we think there two record before might reasonable minds tions about men evidence, in their have differed conclusions therefore, issues have been sub- this cause should, jury qustions These determination. mitted for are as follows: negligence defend-

1st. or not it was Whether powered high corporation place an uninsulated ant private property electric line across Mr. Cloud tlie warning- public? without notice or to either him or negligence 2nd. or Whether not it was to attach such powered high pole dead end, uninsulated electric line to private property anchoring Mr. Cloud’s without such pole by guy making against wires or otherwise safe sagging of wires it? attached ques-

An affirmative answer to either both of these or justified finding tions would have further such negligence proximate was the cause of Walter Buel Coat- ney’s death. questions presents problem

The first of these resulting of whether or not the accident and death of plaintiff’s awas foreseeable intestate result the act high powered placing of defendant wire uninsulated private property warning. across without While notice may particular he true accident which resulted may in the death involved case, instant not have such, been foreseeable remember we must particular actually occur, harm which did need specifically been foreseeable, order to make defend ant liable. As was Felts, well said J. in case Spivey Hospital, App. v. St. Thomas 31 Tenn. 12, 16, 28-29, 211 W. S. 457: particular actually

“So the harm which befell *8 Spivey enough not have need been foreseeable. It general some that harm a like was such character reasonably likely foreseeable result of defend- keep use ant’s failure to due care him in bed protect against getting him out of the window in his delirium.” alleges proof declaration establishes

The neighborhood served that all other houses in the directly electricity by lines trans with insulated from run properties served, outside to be located formers only property being the transformer on Cloud pole private property, on a one located across private property high powered an uninsulated line worse, constructed. this To make the matter uninsulated powered driveway high into the line across the run signs property, warning or other with no erected Cloud Certainly, public. the time notice Mr. Cloud at or corporation the defendant line, construction of this legitimate should some use have future foreseen driveway driveway bring might user the Cloud high powered dangerous into with its uninsu contact question fact line. At this was a least, lated we think jury. to be determined question, reference think

With to the second we undisputed establishes that end evidence if dead high post, which was attached transformer and the powered guy line, had uninsulated been anchored prevented leaning wires otherwise from or toward the sagging, preventing street, the wires fatal thus from cause would not occurred. accident involved this have proof pole portable is that metal on deceased’s point live antenna came in contact with the wire top three four from antenna about inches pole. appears sag It in the thus that a wires at point, more five this fatal inches, of no than caused post if the had anchored In other been words, accident. leaning, prevented guy wires, or otherwise fairly permit sag may the wires, so as to occurred fatal accident would inferred

551 opinion, jury judge, In all. our and not the trial permitted question. should been this settle In the case of Tennessee v. Sims, Electric Power Co. App. (2d) 21 Tenn. 108 W. 233, S. which case dealt 801, quality electricity, dangerous duty with the of power companies guard against dangers, such (Eastern Appeals Section)' through speaking Court Ailor, J., said:

“Electricity poten- being been has described as tially dangerous commonly most of the utilities today, lurking simple unsuspectingly used in the giving presence. warning harmless wire and its no company inAnd location of its wires an electric obligated has been held to either insulate its wires place beyond range persons rightfully them using highways public places, other and to exer- keep cise the utmost care to condition. them in safe Geisman Missouri-Edison v. Electric Co., 173 Mo. 654. 73 S. W. 654,

“The substance of the rule laid down the above any case to be that seems almost harm elec- humanly tricity which could have been avoided would company damages.” (Emphasis render the liable in ours.) Tennessee Co. Electric Power v. 21 Sims, (2d) App. 236, 233, Tenn. 108 801, S. W. 803. dealing liability

Other cases Tennessee of electric power companies, are we think consistent with City opinion, Lawrenceburg Dyer, are: v. 11 Tenn. App. 493; International Harvester Co. v. 32 Sartain, App. (2d) 222 Tenn. 425, 854; S. W. v. Tenn. Osborne (2d) Co., Electric Power 158 Tenn. 12 278, 947; S. W. 552 Chattanooga, City App.

Rogers Tenn. W. v. S. Kingsport Utilities Inc. Lawrence v. 504, Appeals (Eastern Tennessee Court Brown, decided yet reported). (not Section) December *10 insisted behalf defendant case, In instant it is on of the undisputed evidence establishes the con- that the that in accordance National was with the involved, struction Authority specifi- the Rural Electric Code and Electrical properly defendant and, therefore, could not cations, that testimony negligence. guilty In the of view be held of of witnesses, defendant’s has been White, one of who Ben by Authority Yalley employed since the Tennessee high put tension near the T. V. A. does not wires that keep people T. tries from Y. A. residences, that along putting issue we think the residences their lines, though jury. the Even submitted have been should the of here assumed character construction it be entirely proper along for streets use was involved necessarily highways, char- not follow that such it does proper use for across of was also acter construction private leading private property a into a and on line might as men differ The minds reasonable of residence. therefore, been sub- should, the issues this, and jury. mitted the

Again, defendant, behalf of it is on insisted set the time of television the installation at Coatney, Buel was Walter residence, the deceased, Cloud presence that, line, of of electric warned contributory negligence guilty he was of such therefore, recovery his The basis administrator. a as would bar testimony appears Allen this contention plaintiff. Kelly, witness introduced This a witness and television business at radio had a testified that he present which, part He said that was time. he he worked just portable after the antenna residence Cloud property placed while Cloud been had hoys Coatney running same lead line into He said called attention residence. he Cloud Coatneys would line, as cause the electric set. that he not said, however, He did interference to high dangerous tension, electric line know that the was against Obviously, warning was directed line. solely

danger risk electrocution, was directed to the hut efficiency impairing set which was the television being circumstances, we installed. Under these cannot plaintiff’s as matter law, hold that intestate negligence contributory guilty of such would bar ques- right most, action for his death. At jury, proper of fact for under instructions from tion *11 judge. the trial opinion reasoning of this in all

The consistent opinion respects this in with former Court the case Valley Co-op., Turner 288 v. Tenn. Electric S. W. opinion pending is, time, 747. That at this still before petition Supreme certiorari; Court for writ and, on authority reason, it is not for cited as an in instant case. judge above,

For we think reasons stated the trial peremptory granting error motion for was instruc- in favor defendant, tion of the This the instant case. accordingly, is, cause reversed and remanded for newa opinion. trial consistent with appeal paid by costs

The will the defendant appellee, Membership and Southwest Tennessee Electric

Corporation. of tlie Costs lower will await court tlie final determination of tlie cause.

Carney, J., concurs. (Western

Avery, Section) P. J., dissents. Avery, (Western Section) (dissenting). P. J., is a defendant distributor V A for T cur- electric large rent over a area of which includes the Tennessee, town of Henderson. It owns transmission distribu- tion lines and in order serve the town residences powerline along of Henderson it constructed a volt 15,000 taking power Barham Street, lines from its trans- operations former consumers. facing

One Janies Cloud owned lot Barham Street running gener- on west side thereof, said street ally north and south. This a vacant lot when the system put along distribution about street, and July duplex dwelling October, 1953, Mr. Cloud built requested He that lot. defendant to serve duplex electricity dwelling with sufficient it, heat using apartment, electrical in each furnaces so power have sufficient hot heaters, two water two operation ranges, lighting, electric of other electrical appliances refrigerators, as radios, such televisions, etc. not shown in record,

The size this lot is necessary bringing building, in the current to the copper defendant uninsulated No. attached two wires through power to and *12 transformer then stood that on a pole directly shows which the record was across Barham the east side thereof, front lot,— Street Cloud pole stringing these to lines located somewhere in point by south this Cloud lot and selected Mr. line at a (B».55) apparently directly personally nearly Cloud dwelling. engineering plan The south of the called running carry these lines across the Cloud lot 6,900 to 7,200 electric A to volts current. small transformer pole property attached this was located in the to line by Cloud which this load would he lot, transformed proper 240 volts, or reduced not over and insulated strung pole property size from that on the wire Cloud line into house. These Cloud insulated wires phase. number, three in 3or primary coming

The uninsulated wires from east side of Barham Street, street across said and across a portion pole property lot of the Cloud line, passed driveway over from entrance Barham Street driveway lot, on the Cloud was south of dwel- ling. top primary The of the line wire as was referred to wire” “hot located about feet above the neutral 3% pole property wire. This Cloud line was the same pole along size long, was Barham used Street, 35' was ground, slight angle away leaning set 6' at a in the sufficiently tight. Barham so Street, hold these wires pole by guy ground. was This not fastened wires sufficiently ground tamped around the base of pole placed. this when was However, tension primary line had, time accident question, pole slightlv drawn so that it leaned toward perfectly undisputed, the street. The record is clear testimony, all the this hot wire not closer ground 20' than and the neutral line not closer than ground, merely 18' to the estimating the witnesses However, distance. within few hours and on the same day of the accident, exact measurements were made to height determine the of each of those lines from the ground. dispute no There is about these measurements

556 n whatever. top ground, 24' 6" wire was above the ground. 6" 21' the lower, the neutral wire, and above testimony Photographic Kel- Exhibit of William the plaintiff, picture ley, fair introduced shows a pole in of this Cloud the transformer house, south end pole property the and the transformer on line, Cloud together respective with the Street, east Barham side of poles power going between the and those to the lines dwelling, approximately at the southwest corner Cloud house. near the eave day Coatney of the accident,

On Walter Buel and Coatney, Robert Neal their sell effort cousin, Cloud, Mr. took their two-wheel a television to rubber- there tired trailer was an aerial with antenna, portable equipment referred aerial used prospective demonstration of television sets to custom- either ers, lot, to the Cloud and hand or automobile driveway up lot, backed that trailer Cloud driveway south then over to lefthand or side of the property proceeded line close to and to erect approximately space high, aerial into the and 47' antenna placed brought set a television in the Cloud residence, high-powered wire, aerial in under lead-in from the these apartment occupied by uninsulated lines and into connecting set, television Cloud, same to and left days. difficulty No for seems have been there three experienced the time Alan this aerial was erected. One Kelley, a brother-in-law and Administrator of estate present Coatney, Coat- Robert Neal two ney young this aerial men at erection the time of the when the connection was made antenna, plaintiff set. witness testified television He was presence and what he did. about his necessary clearly, proceeding it seems To see whole which carried this aerial to describe trailer type, platform of a flat wood or It had some antenna. affording bottom end of this a base for the metal, pipe, aerial in two sections hollow aerial. The *14 large upper length enough for 25' lower section in and placed inside and when bottom thereof, section to be was crank lever raised, had been there section upper propel up position its section from was used protruded inside the until whole aerial lower section Guy wires were attached to the into 47'. the air about platform top this and came down to the on of this aerial to stand when the aerial would continue so that trailer, part properly this the bottom how fastened. Just platform this does aerial was attached to trailer hinge type appear, but witnesses refer to it as some evidently this worked some sort connection, and Kelley undisputed testimony of socket, because the up any guy holding wires it that when two any would fall in the aerial unfastened and turned loose, (R. grounded. 77), direction. This aerial was not Coatneys this The aerial and two went hack remove eye happened, was while no saw what as it witnesses (see brought exhibit 1 one to William down end sketch fingers Kelley’s testimony) came of the antenna one part some unin- of these contact, manner, some with Coatneys sulated were electrocuted. wires and both Immediately, Melton across the a Mrs. Hazel who lived radio looked out interference, street had had and some Coatneys ground, on the her window or door saw neighbor call and ran there, ran then called a hack out plaintiff Melton when Mrs. case, a doctor. apparently got on elbows there, first over was trying give effort rise. Much was made knees, respiration young revive men the two artificial avail. without sitting where arrived, witnesses this trailer was

When days it left there three had been at the time was before, ground lying trailer aerial was back and this on away get picture, In street. order to a further undisputed testi- witnesses, Mr. other in their Cloud and mony, this trailer with aerial on was state that approximately 30' house. other words, south of the In dwelling 30' from the erected and across the aerial was driveway high-powered lines in two from it, dwelling. location and the The trailer between its driveway along under wires driven never driveway further back the lot from which crossed the was left the trailer when aerial was erected where backyard although ample (R. 73), room in the there *15 not, the aerial it could either to have erected where any dismantling, with or come in contact electric erection why point is was erected at that Just the aerial current. any explained by understandable this one nor it to not knowledge it is a matter of common Court, serve either within to televisions are located aerials dwellings, attached of the outside or inches wall few upon gable the roof. or ends, to pole placed yard this was in which free The person any normal kind and a shrubs trees easily ground on the see that these stand vision could Coatney, Mr. the Admin- not insulated. wires were two examination, on cross said: istrator, statement wire made that this “Q. You you that? could A. I insulated. How know by looking that wasn’t.” tell could Mr. Cloud stated that he had not noticed that these lines were uninsulated and that he was not told the em- ployees they defendant who erected them that were public convey- uninsulated. stated He no however, that yard. signs ances moved his around in There or were no warning signals posted by the defendant these power yard across lines the Cloud or uninsulated they high voltage. carried a majority opinion,

In extracts from the case Spivey Hospital, App. v. Thomas St. 31 Tenn. 28, 12, 16, applied 29, 211 W. 450, S. are to the facts in the particular quotation Spivey instant case. from the opinion is as follows: particular

"So actually harm which befell Spivey enough need not have been foreseeable: It is general that some such harm of like character was reasonably likely forseeable as result of defend- keep ant’s failure due to use care him in bed protect against getting him out window delirium.” highly applicable Of course statement facts Spivey dealing in the In that case. case Court was mentally Aviththe action of unbalanced, man such condi- being laymen being tion often referred as that “out of his head”, all of which was known the attend- hospital put ants in the in a Avho him bed two had within through three feet of the windoAv he fell. *16 dealing In instant case we are men business who, on each end the situation far as the record so possession shows, were in immediate of all of their facul- Coatneys mentally even if were ties, and off-balance, successfully argued how could it defendant such, plaintiff proof action, as the could foresee shows per- were were associate, rational, and his both of whom forming of the accident. time Spivey made

In other statements were case, Opinion, Judge prepared showing that learned who hospital negligence guilty of which attendants experience might After have common shows occurred. quoted part the Restatement of he of Section to the that— effect Torts,

“ factor in ‘If conduct is substantial actor’s bringing another, harm the fact about foreseen the should actor neither foresaw nor have harm the occurred extent or manner which ” being prevent liable.’ not does him from commented: he then actually particular which befell harm

“So the enough Spivey not have been foreseeable. It is need general like character that some such harm a likely reasonably as a defend- result of foreseeable keep due him in bed use care ant’s failure to against getting protect out him of the window his delirium. quite apart view of the case, we “But jury found well have that his act was think could extraordinary beyond as to be so unusual expectation; range that it of reasonable but awas expected reasonably might thing been experience condition. Common m view his occur patients jump or in such condition shows that often hospitals. upper-story Such out windows of fall (Em- reported decisions.” numerous in cases are added.) phasis

561 In the both case, instant actors—the defendant strung yard the wires over the in accordance with the Safety height, National Electrical Code as plaintiff dealing who raised aerial and antenna —were designate with a or element “elec- substance which we ’ tricity ’; each them knew or should have known—and evidently in this case each them did know—that path ground. of electric current is toward the earth or They speaking, relatively knew this law, of elec- regular tric current. Each of them knew that when the path interrupted, of the current was detoured short- or circuited earth toward the a metallic substance in person, a hands of that would follow electric current path body voltage detoured that into the small and that injury. produce bodily thereof would death or dealing must We remember that we are not alone with every possible oreseeability, probable f but we are deal- “ foreseeability, ing with reasonable and that ‘as the gravity possible apparent harm increases, correspondingly likelihood of its occurrence need be by Judge Opinion, less’ as said Felts ”, same quoting gave Torts, Prosser on the illustration 221-2, notwithstanding uses, which Prof. the fact Prosser perhaps one that the odds were thousand that when person approaches crossing, a railroad no train would crossing yet pass strike not him, over did duty driver to look for as he relieve train approached with intention the track. to cross

Judge quoted reliable, substantial and Felts also proper Spivey follows: case, authorities in the

“ reasonably perceived ‘The risk defines the duty imports obeyed, to be and risk relation; range risk to another or to others within the Seavey, apprehension. Negligence, Subjective or Objective, Boronkay 41 H. L. Rev. v. Robinson & 6; Carpenter, 247 N. Y. This N. E. 400. does one who launches destruc mean, course, always liability, relieved the force, tive force if pursues though an unex known to be destructive, *18 pected necessary path. defend "It was not that the particular have notice ant should had method possibility occur, if the an accident would ordinarily prudent of an accident was clear to the eye.” Munsey Webb, 150, 156, v. 231 U. 34 Ct. S. S. (58 162); & Tilford, 45 v. Park L. Ed. Condran 44, 341, 565; 213 Y. 107 N. E. Robert v. U. S. N. 345, Fleet] Emergency Corp., [Shipping 240 Y.N. Board Palsgraf N. E. 650.' C. J. in v. Cardozo, 474, 477, 148 Long 339, 99, R. 248 N. Y. 162 N. E. Island Co., added.) (Emphasis A. L. 1253.” 100, 59 R., again dealing are that we with a We must remember path path defendant, but a for this not erected ljy plaintiff deadly made an follow over current to position unreasonably raising an antenna foreseeable placed dwelling from the in which was to feet particularly since there an was receiver, and television space have the rear house raised abundant possible range any completely out of antenna this dealing injurious a situation course, with Of we are risk. produced testimony, the evidence material where the undisputed circumstantially, verbally and uncon- is page fully agree on with statement we tradicted, majority opinion the effect: 1 of testimony, dispute "There little or no question, itself into one therefore, resolves might or have minds should' reasonable of whether drawn different inferences conclusions this ’’ testimony. alleged negligent pointed Two acts the defendant are (1) stringing power out: uninsulated wire lines private property (2) over of Cloud; and erection of pole property through in his with a transformer thereon which the on current these uninsulated lines trans- path proper so as formed to continue its reduced voltage, guying pole prevent without it from leaning lowering the elevation of the uninsulated power line. alleged negligence,

As first act of isit said that voltage might reduction in current been ob- pole with a tained transformer located on side of east Barham Street. This overlooks the fact that proof, person any uncontradicted whatsoever, pole the effect that transformer on that *19 (R. 117). negli- “loaded” It would have been an act gence within itself to have that transformer, overloaded damages appliances for if to had homes resulted from “overloading”, the such defendant would be held liable beyond These therefor. uninsulated wires were elevated by required height the the National Electrical Code. by proven That fact is to reference as Code itself, by Again, read into record witness for defendant. negligent stringing it said that a factor act was is high-powered driveway yard these lines across the majority opinion Cloud, but the overlooks fact stringing driveway that the of these wires across was plaintiff. not what caused death of The antenna was point never they under the wires carried at the where driveway (R. crossed the it 74) before was raised. 73, placed completely The antenna was the left of the driveway 92), (R. front toward distance tlie some driveway. if the Even crossed the where lines on nnder the carried and antenna the aerial trailer had driveway, proof uncontra- is wires that crossed lot, it Olond to the when was carried dicted that it platform lying which was about the trailer flat on the passed ground, showing it could have off thus that 18" driveway. Again, safely while it under lines two lines crossed other that uninsulated shown is any by area, shown private in the Henderson is not lots lines proof uninsulated the erection of whatever that procedure. property private knowWe is an unusual over knowledge uninsulated lines of common a matter highways up strung streets our all and down are voltage carrying higher the one than over the Cloud knowledge property; a matter of common and we know as all over the lines form a network these uninsulated adequate power. electric The also fact is served areas necessary ground antennas when overlooked that ungrounded. (R. they erected, antenna are 77) effect that proof to the all in this connection might properly grounded, there antenna had been if the plaintiff enough shock but some electric have been Certainly 98) produce (R. foreseeable death. duty, upon obligation properly perform their rests operated appliances installing our homes who those are company required energy, of a as is electric energy strings merely is taken which the the lines from our homes. into *20 alleged negligence reference to the

As to pole pole unguyed lot, if that had leaned Cloud on the sag sufficiently so in these wires would far that ground height thereof from than less have caused required perhaps was the National Electrical Code, possible negligence be there would reason to find some regard. proof undisputed that The howéver, that here, is ground wire was hot feet 24% ground neutral was wire feet above its lowest 21% point. proof unguyed pole The that had leaned original position, permitting its a little from thus some sag undisputed little additional lines, in these but the proof sag that there was no excessive these lines sag and that the there then was about of the same that along pictured all other wires then The the streets. physical respect exhibits show a situation with to that sag clearly indicates that there was no excessive sag undisputed proof these lines. shows that pole proper ground, properly was was distance in the tamped, away was leaned from the street when it first set. minds Seasonable foresee would that the earth put give pull upon pole by would to the lines, these it and unless could be foreseen there would be such leaning pole sag, excessive to create an excessive company how such could action be said reason- ably injury person any foresee an on .the Cloud property? knowledge as matter We know a common temperatures variance elements creates lessening tension of that both a tension in such they but metal when for six wires, stood months required higher height still are than the National negli- Code, be Electrical can an it attributable as act gence Admitting, ? at the were erected time the wires inspect duty is the defendant to the lines its distri- system repair, keep proper bution them in could required they said that that there determine higher require- sag in lines which were than Code? of the National Electrical ments *21 566 point, in cross-examination of witness

At this plaintiff, .Blassingame, he for was who testified shown book-styled: Department of National “U. S. Commerce, Safety Rules for Installation and Standards, Burean was and Lines”, Communication asked Maintenance Safety page Rules for sec. 232 of the Installa- 44, at look public streets, and what state Maintenance, tion and The witness stated that Section. shown the kind installations Section showed public question along should be such streets ground 18' and neutral carrier or wire above ground up 15,000 volts, hot 20' above the and wire be 22' volts carrier lines should above 15,000 excess of ground. The then that there was no witness stated yard question why crossing line reason should any height. greater witness was also at The shown be Code, Fire the “National Electrical National Board of he from sec. and was asked to read Underwriters, 1951”, paragraph page 321, then read from the 8115, and he ‘‘ ’ as follows : ’, Structures headed: supporting “Metal antennas be structures shall permanently effectively grounded.” and Following he asked read sec. which he follows: read as counter-poise lead-in

“Outdoor antenna and building conductors from an antenna to a shall not light power cross or circuits shall over electric away kept well be all so as such circuits to avoid possibility prox- contact. "Where accidental imity light power to electric service conductors avoided, the of less than 250 volts cannot be installa- provide tion shall be such as to a clearance feet. It antenna least two recommended that counterpoise conductors so installed as not to power light cross under electric conductors.” majority opinion language Judge Ail or uses the Tennessee in the case Electric Power Co. v. Sims, *22 App. 233, 801, Tenn. 108 W. 236, 803, S. wherein he electricity being potentially described the most dan gerous commonly today, of the utilities used and in which “lurking unsuspectingly simple he said: in the and giving warning presence”. harmless wire and no of its further, And “in the location of its wires an electric obligated company held has been to either its insulate beyond place range persons wires or them right fully using highways public places, and other and to keep exercise the utmost care to them in a condi safe supporting tion”, that statement reference to Geis — v. mann Missouri-Edison Co., Electric 173 Mo. 654, 659. An S. W. examination of that showing case, Judge Burgess actually Opin what said and from which Judge ion Ailor seemed to draw his rule, is as follows:

“Electricity dangerous is one of the agencies most ever discovered human owing science, and, to that duty light company fact, it was the the electric every protection which use was accessible to insulate points people its all wires at where right go, to use the keep and utmost care to them so; personal injuries person place in a where right negligence be, has upon he without part contributing directly thereto, is liable in damages.” dealing that case the Court

In with a wire that had negligence insulated been company failing keep np insulation insnlation, security, had deteriorated. gave in fact sense of but aoff further: said The Court is also said to instruction

“Plaintiff’s third jury if the wire that, it tells the erroneous, appearance standing had all the where deceased being properly insulated, invitation this was an "While to risk contact with it. him inducement to propo- simply an abstract announces this instruction is said with what is in accordance law, sition cases.) (Citing arguendo.” several general public, day gone long when the since that elec- minds, not know possessing does reasonable conveyed our being tricity wires we see all over considered now these wires are land, general public. by the But that “simple harmless” *23 majority emphasis by given the statement is not emphasis given by Judge Ailor opinion The in that case. is in the statement: in of the rule laid down the above

“The substance any harm from almost elec- seems to that ease humanly tricity avoided been could have which damages.” company liable would render in completely. its out This statement lifted context paragraph. a in sentence was It sentence The one paragraph relating a used connection devices with company its to indicate trouble should use City v. line, and referred to case Sanders Carthage, (2d) . 330 Mo 51 W. 529. The real 844, S. except meaning of the be understood statement cannot following that two sentences be used in connection with, quotation. except the above Without break, period, Judge Ailor said:

“This seems develop- rule to have followed capable indicating ment of devices trouble on lines they develop. the instant In the case of Sanders v. City Carthage, 330 Mo. 844, 51 S. W. duty

the court held that it of an electric company equipped to have its switchboard with a ground appeared ground detector, where it that a detector would have indicated break in wire, high degree required the exercise of care by law.” proof is uncontradicted that had the antenna in

question ground in the instant case had a at the wire, time it came contact with the wire, uninsulated would have thrown circuit breaker, or in other words, would have out” “kicked the circuit breaker plaintiff injured. would not have been n they dealing possibility In the case Sims with the being sparks of fire started electric such current, touching ignitable wires, from contact electric etc. unexplained .carry If are material. we statement respect into effect facts found in instant case, nothing making we are less than insurers out of our companies, service for it could have been fore- electric persons traveling planes daily seeable that some might traverse the elements above bail us, out upon wires and fall these uninsulated be electro- *24 they proceeding toward the in cuted as earth their were slowly safey letting parachutes them down. The writer ready thinking power himself to to lend that protect companies public, in be insurers order to must the 570 which is supposed of the public that part

particularly ordinary minds and in an reasonable act to possess more safety, particu- their own way reasonable wires and in construction they when are larly, by plaintiff electricity such as installations operated in the instant case. case is instant governed I am the opinion that v. Electric rules laid down Wallace approved by 259 36 Tenn. S. W. 1953, App. 527, (2d) Power Board, Court, Eastern Section 558, decided in the cases of: v. Gulf Moody supported by Opinions 8 R. 817, 820, 142 218 A. L. 280, Tenn. S. W. Refining Co., 682, 24 148 W. Tenn. 1243; App. 686, v. S. Moyers Ogle, 170, 89 87 Conn. A. Kelsey Rebuzzini, 556, v. 637; (2d) R. Louisville Home Co. v. A., S., 103; Telephone 52 L. N. L. 548; 93 N. Ky. 128, A., W. 9 R. S. S. Gasper, 693. 111, p. S., 65 C. J. sec. Negligence, All cases are cited approval above Board, supra. Examining Power Wallace v. Electric be assumed can the defend- therefore, these rules, instrumentality if an could and when ant for.esee lines being the electric carried those power diverted an he be individual, would killed body through severely injured. But, height least at the they plaintiff and at point above where ground antenna, can it be said that there fore- erected of the current would so path seeability at the situation from an looking intervening diverted. So Opinion said distinctly Wallace v. cause, App. 527, Tenn. Board, [36 Power W. Electric S. case of Gulf Refin- Moody v. referring 560] Co., that: supra, ing

“The rule was there laid down that defendant original pro- negligence will be relieved of an act of except vided harm not would have resulted from it interposition independent for the new and some interrupted sequence cause which the natural injury. appears events the As the and caused from opinion holdings in that as from case well as the might numerous other cases which be cited problem, analysis, simply in the final is determine ’’ proximate injury. which act was the cause Moyers referring Ogle, He said, also the case v. supra: * * * general independent rule that if an

‘ ‘ negligent operation act into sets the circumstances injury already existing which result in because an dangerous subsequent condition, such act proximate injury. cause of See numerous cases opinion. exceptions However, cited in there are respectable general authority rule and holding negligence person of the first regarded proximate fault will cause of an injury negligent subsequent wherever the acts wrongdoer ordinary experience are such as man sagacity, acquainted all circumstances, reasonably anticipated. Kelsey have should Re v. [supra]. negligence But where buzzini of a third person is of an unusual character and the defend produced ant’s act omission alone would injuries plaintiff, defendant will not * * * be liable. principle applicable “Another in such cases is liability predicated prior cannot be or remote merely or occa

cause which furnished condition intervening injury resulting sion for from an an but condition cause; unrelated efficient injury might anticipated, under have been proximate prevailing will be conditions, known .subsequent notwithstanding others. acts of cause *26 page Negligence, S., 693.” C. J. sec. brought the erection When have a about we situation position— relative a television aerial an unheard away it is to serve a 30 feet wherein from house sup- -by who are television within the three men house,— posed possess who for themselves and reasonable care be contact with must are familiar the fact that there particularly, electricity operate television, Kelley, lead-in as he took since them, one Alan dwelling, to the called wire from the into antenna coming under these it was attention of the deceased that got if them it would too close to uninsulated wires escape reception, there can be no in the cause static reasonably sensible that these three from the conclusion regardless wires these two uninsulated men observed Kelley their attention to fact Alan did not call injury danger possible to themselves. majority opinion very does It me that the seems to clear testimony properly White, Ben construe the one not testimony related to defendant, as witness for question follows : him on cross-examination asked put high tension wires near Y. doesn’t

“Q. T. A. people try keep No, sir, A. we residences? along putting our lines.” residences immediately following the examination, re-direct On as follows: and answered asked above, he was you speaking “Q. State whether about are transmission A. Transmis- or distribution lines'? may help you explain sion lines. It what trans- brings power mission line is. It to the sub- station. In case, our station is west town. power Co-operative We deliver the to the one point.” (R. 148) easily talking

So is ascertainable that lie about directly power plants transmission lines from T A V the sub-station that served the town of Henderson, entire serving as well as to sub-stations other entire areas. isIt knowledge a matter of common these transmission coming carry exceedingly lines into these sub-stations higher voltage than “distribution lines”. It another knowledge matter of common that if the transmission wholly line is knocked out, distribution lines are whole ineffective area involved or without *27 explained talking He that the he was service. lines about brought power “transmission lines” that meaning “our station” to located “west of town”— Henderson. apparent regard

It is me to in statement this nothing running had to do with a “distribution” line to dealing which is what “transformer”, we are with in fragment testimony this case. This of which seems to be majority misunderstood from statements in made opinion, appears carry me to to no reasonable inference negligence, injury of least foreseeable reasonable any one in an erection of uninsulated line across private property, height long ground so as its from the complied regulations provided by with the National Elec- by every distributing trical Code and followed concern electricity anything that we know about.

574 opinion proof

I am also to concur unable negligence any in this inference case shows reasonable part dealing the condition on the with defendant pole upon was located which the transformer property sag wire never in the line, where Cloud requirement of the minimum have been low as shown to nor that location of the Code, the National Electrical property distribution line across Cloud uninsulated any negligence under the facts of whatsoever constitutes this case. dissenting opinion, prepare beginning this I

Since (2d), 4, W. have Advance Sheets No. S. received Highlights” appears page is what 4 of the “Judicial Supreme Opinion Court an be the substance Pennsylvania Pennsylvania, in the case of Jowett v. mo 452. There is 383 Pa. A. Co., Power complier quotation makes this case, but the from' statement: Pennsylvania Supreme has freed

“The Court company liability power in the one death of television when the antenna who was electrocuted high repairing came into contact with which he was power company.' voltage It had been line negligent company been had contended dangerous failing nature of over- warn of the opinion by Supreme in- Court, an head wires. agreed Justice, the lower Chief Stern, Horace company duty give owed no such court that the may company warning. It while said that a' *28 possibility into consideration the to take bound been through might some natural cause that the antenna agency with its it was not wires, into contact come anticipate obliged intervention, that human aided by the existence coupling of a careless defective in tbe snapped during repair antenna, which opera- bring tions, would about such an accident. The Court proximate added that the actual and cause of the accident was coupling. the defective Musmanno, J., ' ground dissented on the failure of the company give danger notice was the actual proximate cause of the accident.” might It also well to refer to the case of Burnett Rutledge, App., v. Civ. Tex. 284 S. W. 944, 950, jury which is a Texas case wherein the found for the raising defendant. It striking involved of a boom power property electric lines on the of an oil well concern actually belonged and which drilling lines company, to the brought against but drilling the suit was company against Company also the Southwestern Public Service electricity drilling delivered the company, to the commenting upon jury, the verdict of the Court said: controversy,

“The reveals, evidence without appellee, Company, Southwestern Public Service performed electricity no act other than to deliver the delivery electricity lease. of the by delivering pole effected the same to a take-off appellees, Rogers 495' from well and the & Rut- ledge, pole their built own transmission line from this to the well. The evidence likewise uncontroverted entire both installation, Southwestern Company Rogers Rutledge, Public Service & compliance in strict the laws of Texas and Safety with the National Electrical Code. Since undisputed evidence reveals that the electrical entire requirements met installation all and of' law *29 Safety perceive it is difficult Code, Electrical to any particular how issue this under facts of cause pres- negligence appellees made for of the negli- jury. any In the absence entation appellees gence, to an-instructed would be entitled any existed, if submission, verdict errors unnecessary However, be material. would not jury appellees issue as the found rule on such ’’ any negligence guilty in the cause action. may quotation While the substance of above jury applied to the issues wherein dictum as case yet expresses defendant, for had returned a verdict respect very thought con- with to what clear Court negligence part suppliers of electric stitutes on the Rutledge, it of Burnett v. in the case Also, current. said: cleaning em- oil contractor’s

“In action well public ployee against oil service owners of well and injuries employee company for sustained when fellow cleaning an oil unit into electric mast of well raised owners, entire electrical owned well where wire requirements National met all law and installation Safety no issue as to Code, there was Electrical ’’ presentation jury. negligence defendants & Beresford v. Pacific Gas Electric Co., In the case of (2d) 498, 499, 290 P. California case 45 Cal. damage question involving fire from electric instal- bring- under trees which fell, wires ran where the lation, telephone power with ing lines, line contact contributory negligence respect in construction, said: Court against supplier power

“In action electric for fire damage plaintiff’s sustained when tree on land fell supplier’s across energizing transmission line, tele- phone wires, there was insufficient evidence to take ’’ contributory negligence jury. issue to simply Dissenting These references are made *30 Opinion support in of the statement that the foreseeabil- ity injury part of power to some on one of electric power distributors, a network of such over lines all country, applied our to such cases as the instant now one giving under consideration and our sub- consent to the jury, destroys mission of such fact to the the usefulness Judge sitting juror, of a Trial aas 13th and also in his application undisputed they rule facts that are negligence such is that no shown as a matter of will law, bring position saying soon into the us that the electric against injuries, regardless are insurers distributors injuries distributing the fact that occur such over system recog- built accord with national standard power nized constructors of such lines and the courts throughout country, damages our and liable in therefore injuries energizing for received from contacts with such go regardless up of whether one has to wires, or come regardless contacts, down to make such and of the dis- making such tance involved contacts. properly disrgarding

It that when seems me all countervailing testimony, any all, if indeed there be considering proper might all inferences that resolving evidence, drawn from the them entire very plaintiff logical limit, favor of the to the when properly there is but one understood, whole record follow, and the Trial Court who saw course testimony, only witnesses, heard their and who not sits juror, Judge properly con- as a tlie law but as a 13th. would not differ cluded that the of reasonable men minds proximate plaintiff’s death, to the cause any proximate negligence of was not cause of his death negligence plaintiff, and the defendant, but judgment Trial be affirmed. Court’s should Rehearing. Petition

On for carefully BEJACH, We have read considered J. lengthy petition With to rehear filed in cause. respect petitioner, think all counsel of we due learned petition nothing presented rehear. there new petition rehear All of matters embodied in the carefully majority disposed of considered and February opinion In addi- this Court filed 1956. Supreme date, since to March wit, 9,1956, tion, Turner v. Tenn. has in the case of Court denied certiorari Valley Cooperative, 288 747. This Electric S. W. *31 like the trial was a case in which, case, instant judge defendant, in verdict favor directed reversed the trial case, court, which this Court holding determined that the issues should been jury. opinion facts Court, In the this than those involved in Turner were much weaker case submitting necessity regards as case, instant reversing jury. If this was correct same to Court Supreme remanding and the Court case, the Turner this that it was, then, has ruled Court fortiori reversing remanding the instant case. correct points petition out a few instances in to rehear The majority opinion of that the which it insisted Court disclosed facts that were the record certain recites earnestly are not disclosed, it is insisted so such that, statement “The record discloses since pole property involved, accident here on the Clond straightened tamped, reducing sag has been thus suspended it.” of the wires All of these instances majority opinion in character, are minor and even if the misinterpreted of this Court record with reference to they change are not sufficient to warrant a same, in the conclusion reached. petition rehear denied.

Carney, J., concurs.

Avery, (Western Section), J.P. dissents.