(concurring in part; dissenting in part).
I.
Concurring
I concur in so much of the majority opinion as holds that jury issues were presented, and the trial court properly overruled the motion for a directed verdict.
There was ample material evidence from which the jury would have been warranted finding:
a. That the use of a dual fusing system was unusual under the modern state of the art.
b. That such use should have been called to the attention of the maintenance crew.
c. That the failure to warn of this obsolete system was a breach of duty on the part of the Power Board.
d. That the knife blade switches were not visible on the night before, or the day of, the accident because of ice, fog and snow.
e. That the maintenance crew had no reason to suspect a dual switching system and, therefore, had no duty to look for the knife blade switch.
f. That the lines were dead on the night before the accident.
g. That some time during the night the lines were re-energized at the substation or there was a feed-back from the auxiliary system, with the result that the lines were “hot” the next morning.
h. That in either event the Power Board was under a duty to warn.
i. That a breach of these duties was the proximate cause of plaintiff’s injuries and damages.
In any event, under appropriate standards of appellate review, these were jury issues.
II.
Dissenting
The Trial Judge charged the jury, in part, as follows:
It is the duty of the Electric Power Board to exercise the highest degree of care consistent with the business of transmitting electricity to maintain its premises or the pole, in this instance, in a reasonably safe condition for the plaintiff using the premises, or the pole, and if there were dangers that were not obvious to the plaintiff of which the Power Board or the defendant knew or with reasonable care should have known, it was the duty of the Power Board to eliminate such dangers or to give warning thereof. Now, liability in this type of case is grounded upon the superior knowledge of the Power Board of the danger over the plaintiff lineman in this case. It is when the dangerous condition is known to the Power Board and not to the plaintiff, Roy Wilson, that a recovery is permitted.
The majority holds that these instructions were neither “adequate or entirely accurate instructions”. I disagree. It even faults the trial judge for referring to “the pole”, holding this to be “somewhat imprecise and inaccurate”. With utmost deference to my colleagues, this is “reaching” for a reason.
I would hold the charge to be both adequate and accurate. Had the trial judge stopped immediately after charging “[i]t is the duty of the Electric Power Board to *98exercise the highest degree of care”, the charge would have been both inadequate and inaccurate. But, he did not stop. He went on to charge:
. if there were dangers that were not obvious to the plaintiff of which the Power Board or the defendant knew or with reasonable care should have known, it was the duty of the Power Board to eliminate such dangers or to give warning thereof. Now, liability in this type of case is grounded upon the superior knowledge of the Power Board of the danger over the plaintiff lineman in this case. It is when the dangerous condition is known to the Power Board and not to the plaintiff . . . that a recovery is permitted. (Emphasis supplied).
The trial judge is to be commended for a succinct, adequate and accurate statement of the applicable law in a case involving an independent contractor working under its own clearance. True, he could have gone further and deeper into the subtle nuances of the law, but there is no requirement that a trial judge’s charge be couched in the erudite phraseology of a law review article, nor that it be encyclopedic in nature. Indeed such is not desirable. It is intended merely to give the jury a general insight into the applicable law.
Under Tennessee law, an independent contractor assumes the risk of a known danger, but the owner has a duty to warn of a hidden danger, to those who are without actual or constructive notice. Shell Oil Company v. Blanks, 46 Tenn.App, 539, 330 S.W.2d 569 (1959). Under the same authority, our courts adhere to the view that an exception to the general duty on the part of the owner to provide a safe place to work, exists in those cases “where the risks arise from, or are intimately connected with, defects of the premises, or of machinery or appliances . . . which the contractor has undertaken to repair.” 330 S.W.2d at 571. Nor may the doctrine of assumption of the risk be involved where there is a risk “separate and distinct from those created by the defects to be repaired”. 330 S.W.2d at 571-72. And under such circumstances the owner has a duty to warn of hidden dangers. Ibid. See also Dempster Bros., Inc. v. Duncan, 61 Tenn.App. 88, 452 S.W.2d 902 (1969).
This is, in substance, what the trial judge charged.
The trial proceedings shed significant light upon the sufficiency of the charge and also provide substantial insight into the conscientious effort made by the trial judge to enlist the aid of counsel in an effort to instruct the jury accurately and adequately.
The record shows a lengthy colloquy between the court and counsel on the matter of the duty and standard of care, with the court soliciting the aid of counsel. Counsel representing the Power Board at one point, exclaimed, “I don’t know the duty”.
The court specifically told counsel: I would like for you to write down what you say the duty is for me to charge this jury. . . .
Thereafter he advised counsel precisely what he wanted, and gave them until the next day to present this matter to him.1
When the court reconvened the next day, counsel for the Power Board read briefly and commented on (15 lines in the Bill of Exceptions), Jones v. City of Dyersburg, 59 Tenn.App. 354, 440 S.W.2d 809 (1967), but presented no special requests.
Counsel for plaintiff submitted seven (7) special requests, however, these do not appear in the record.
I find it difficult to rationalize holding a trial court in error on the basis of a charge where complaining counsel failed to respond to the trial judge’s request for assistance. The Power Board was represented by capable and experienced trial counsel. Brief research would have enabled the presentation of appropriate special requests. I cannot condone his standing idly by, withhold*99ing the requested assistance, and then charging the trial judge with error.
The trial judge did his homework and his charge was correct.
Assuming arguendo that the charge was meager or inadequate, this is not fatal. As the late Chief Justice Burnett said, in Bluff City Buick Co. v. Davis, 204 Tenn. 593, 323 S.W.2d 1 (1959):
This Court has held for more than 100 years that we would not reverse a case for meagerness, inadequacy, etc., or failure to give a charge unless a special request is asked which correctly sets forth the points to be charged. (Emphasis supplied).
204 Tenn. at 602, 323 S.W.2d at 5.
I deplore the tendency sometimes shown by appellate courts to expect trial judges, in their charges, to be extemporaneously and spontaneously as thorough in their exposition of the law as appellate judges are — or should be — in judicial treatises originating in the rarefactive atmosphere of their appellate judicial chambers. This great expectation is founded in fallacy.
Until the State of Tennessee recognizes that her trial judiciary deserves and needs adequate court rooms, adequate library facilities and, more importantly to this issue, a fulltime law clerk, we are going to continue to have meager — and sometimes inadequate — charges. It is impossible for a trial judge, working under a tight schedule and attempting to manage a heavy case load, to sit the trial bench, coping with the increasingly complex issues of legal controversies, forced to “shoot from the hip” as he rules on evidentiary problems, dealing with counsel “working in the pits” in a fierce adversary system, to give the thought and attention to jury charges that cases demand and justice requires.
I am not willing to reward their best efforts with reversal merely because a charge, intended for lay consumption, does not measure up to law review standards of legal erudition.
I would affirm.
. Court adjourned at 4:00 o’clock p. m. prevailing time and reconvened the next day at 9:00 o’clock, a. m.