(Western Section), (dissenting).
As much as I dislike to do so, I feel constrained to and do dissent from the majority opinion in this case.
The facts of the case are condensed and set forth in the majority opinion and here only those facts necessary *76to an understanding of ray opinion will be referred to.
The ■ Tennessee Valley Electric Co-operative had a franchise or easement from Hardin County to construct its transmission lines along the right-of-way of the public roads and highways of said County, granted by resolution of.its Quarterly County Court, with usual restrictions relative.to use of the roads and highways.
it. E. Martin was a contractor employed to build certain bridges on certain of said roads, one of which was Paulk’s Mill Bridge. The road at that time was somewhat. a relocation of the old county road. The work was being-done by and through the State of Tennessee, and when finished the road was to be turned back to Hardin County. Three or four poles with transmission wires strung thereon, belonging to the Tennessee Valley Electric Co-operative, were located in the right-of-way for the relocation of this road as it traversed the creek bottom near Paulk’s Mill Bridge. In 1952, after the contract was let, the supervising agent of the contractor conferred with the proper representative of the Electric Co-operative, and it was there agreed that some three poles and the wires located in the right-of-way would be removed so as not to obstruct the right-of-way, or interfere with a boom, trolleys, shovel, or other construction equipment to be used in the construction of the bridge, the piling for which a machine was used to drive.
In the Spring of 1952, a machine with boom equipment, and other construction equipment of the contractor was brought on to the site of construction and the work began. Local people were employed, together with laborers from elsewhére, by the contractor. One member of this local crew was plaintiff’s decedent, Lewis Don Turner.
*77Much of the work on the bridge was done bnt not finished, and this equipment was taken away from the site of this construction and carried to the site of another bridge construction project by the contractor, where it was kept for several weeks. While this equipment was away from the Paulk Mill Bridge site, the Tennessee Valley Electric Co-operative reset the poles and restrung the wire in the edge of the new right-of-way for this road relocation, and re-energized these wires with electric power. This was the situation when the equipment in question was returned to the Paulk Mill Bridge site in early summer of 1952, for the completion of the work at that site.
The foreman and the crew all observed the re-set poles and the wires and knew that they were re-energized with electricity and were not insulated, though they were not so told by any representative of the Electric Co-operative. They also had actual knowledge shortly after the equipment was returned sometime in May or June, for the plaintiff’s proof shows that in the operation of this boom, it came in contact with these current carrying wires, and the wires, on account of this contact with the steel part of the cable or the boom, were almost burned in two. No injury occurred at that time. It seems that the foreman and all of the crew working at that time saw what happened, and thereafter, as well as before, the foreman of the crew had admonished all of the members of the crew, including the decedent, of the danger of working with that boom in and about these wires and, particularly, in letting the boom come in contact with them or too close to them. Neither the foreman nor any member of the crew ever requested the Tennessee Valley Electric Cooperative to move or to de-energize these newly strung *78wires, and continued to work there with that equipment until in August, 1952, when with this boom equipment an effort was being made to lift a heavy shovel, constituting a part of the equipment, into a truck. The work at that time was mostly completed and during this particular loading effort, deceased was holding to a cable or chain on that bucket so as to stabilize it and let it come into the truck bed. The operator of this crane equipment, at the personal instruction of the foreman who was present and directing what to do, in lifting this bucket or shovel from the ground to get it onto the truck, brought the boom against or so close to these high-powered transmission lines, causing actual contact or by arc electric current flowing from these power lines down the cable attached to the boom and out through the chain or cable being held by the decedent, his life was destroyed. This suit followed.
At the conclusion of the proof in chief by plaintiff, upon motion seasonably made by defendant, the Court directed the jury to return a verdict for the defendant, which it did, and the only question before us is the determination of whether the Court erred in so directing the jnry. Of course, in determining our action upon the errors assigned, it is our duty to accept the facts disclosed by the evidence in the light most favorable to plaintiff. Proper reference to authorities is found in the majority opinion and will not be repeated here. So that, the question to be answered is:
Does this record reveal any material evidence of the negligence, alleged in plaintiff’s declaration, which constitutes the proximate cause of the death of Lewis Don Turner ?
*79We first look at the negligence charge in the declaration. This declaration is a sort of recital of the facts attempted to he proven. It avers, in the first count, that the Electric Co-operative was informed by the foreman or person in general charge of the construction that a “crane” would be used in the construction operation, and a request that these electric power lines he de-energized and the poles removed from the right-of-way; that defendant Co-operative complied with that request by moving the poles and taking the lines down, laying them on the ground off the right-of-way; that sometime after this was done the Electric Co-operative in May or June of 1952, while the crew was temporarily away on another job, reconstructed this power line by replacing- the poles and restraining the wires and re-energizing them, and did not notify the State Highway Department, the County, or the contractor that such work had been done, or that they intended to do so, and
“said defendant corporation well knew, or by the exercise of ordinary and reasonable care, should have known, that the lives of said workmen would be jeopardized and endangered by such acts.” (R. 3)
The declaration then sets out the fact that Lewis Don Turner, a member of the crew, was killed by the electric current from these lines running through the boom or cable as aforesaid, and alleges further that the power lines were uninsulated and that said defendant Co-operative
“was grossly negligent and careless in sending a deadly current of electricity through or over said power lines over the area where plaintiff’s intestate and others were employed without first obtaining *80permission to do so from said contractor or his representative, or without advising said contractor or his representative of said defendant’s intention to do so.” (E. 4)
And that
“said defendant having once removed the dangerous condition, they were hound not to recreate such a dangerous condition without obtaining permission from said contractor or his representative, or without advising said contractor or his representative of said defendant’s intention to again create such dangerous condition, and violation of said duty under these circumstances amounted to gross negligence and willful and wanton conduct on the part of said defendant corporation.” (E. 4)
The second count of the declaration repeats all of the alleged negligence of defendant set forth in the first count, and alleges negligence per se in the reconstruction and operation of these power lines in violation of Section 3708.102 (l) of Williams Tennessee Code, in that it had no authority from the County or the State to so construct these power lines along the right-of-way in question. This last or second count will not he further referred to because the proof is very clear that said defendant did have authority from Hardin County, which owned the right-of-way for this road, copy of the franchise being filed as part of cross-examination of plaintiff’s witnesses.
Unquestionably, it was the duty of the Electric Cooperative, when it intended to or did reconstruct these power lines, under the circumstances above mentioned, to notify the contractor what it intended to or had done. However, the foreman of the construction crew and the *81crew members, suet as were introduced by plaintiff, all stated that they observed that these power lines had been reconstructed on their return to the site, and they experienced the fact that they were re-energized as aforesaid, and that no further or other request was made by the contractor, his foreman or any other person working along that area of the Co-operative to remove, further relocate, or de-energize these wires; that soon after the crew had returned to this project, the foreman warned all of them not to bring this crane, boom, or cable into contact with these wires. In addition to that, all of them had the actual experience of seeing what would happen if the crane was brought in such contact, because the operator actually brought the crane into contact with the wires within a day or so after they returned to work at that point and from that conact it was shown that these wires were burned badly, after which occurrence the foreman again admonished all the crew members to be very careful not to make contact with those wires. With full knowlodge that these wires had been réstrung on the newly reset poles, and that they had been re-energized, can it be said that the failure of the defendant to notify the contractor that such reconstruction had been done, was the proximate cause of the death of decedent? What more knowledge could have been brought home to the contractor, the foreman, and the crew, than that which they had actually observed and experienced prior to August 13, 1952, the date of the death of decedent?
The plea of the defendant was simply that it is not, guilty of the matters and things, wrongs and injuries-, in said declaration alleged.
If it can be said, which I do not concede, that the> defendant was negligent in reconstructing these power *82lines, would such negligence constitute any part of the proximate cause of the injury to deceased, when the foreman brought his men in, put them to work, and he, as well as the men, knew and experienced the result of such alleged negligence? If so, I fail to see how.
It is insisted that the defendant could have foreseen the accident which might occur at the time it reconstructed the power lines, but there is not the slightest proof in this record that the Tennessee Valley Electric Co-operative knew that this crane would be brought back on that job for any purpose. It is also conceded by all of the testimony that there was no necessity for bringing this crane into contact with the wires as relocated, in order to complete the work remaining unfinished.
As I see the situation, the question presented on the facts as proven, is not whether the defendant knew or should have known that the contractor would use the crane in the course of construction of the remainder of the project, and that if such crane were so used it might come in contact with the relocated lines of the defendant, but the question to be considered, and which was considered by the lower Court apparently, is whether, or not the defendant is charged with the duty of foreseeing that the foreman would, with full knowledge of the experienced dangerous condition created by these lines and the use of the crane at the place it was at the time of the accident, permit or direct the men to work at said place, thereby making probable the injuries to deceased, particularly since both the foreman and the men had seen what did happen when the boom or cable came in contact with the wires. The men had been admonished on at least two occasions about it and all continued to work.
*83We must bear in mind that the location of this bridge was out in the country, not near any house, industrial section, or residential area. The picture exhibits in the record, four in number by plaintiff, showing the bridge in question and looking both ways in the right-of-way, reveal this location to be in a wooded area and no house anywhere near it. Neither of these pictured exhibits show proof by reasonable inference or otherwise, that it was necessary to insulate these wires. The declaration does not allege that they were located too close to the ground.
I concede that electricity is a dangerous element when not properly controlled, and that it is the duty of those in charge of electrical current to exercise ordinary care and prudence to prevent its escape to other objects,- that it is their duty to keep it in condition to safeguard the public against injury thereby in a reasonable way commensurate with the danger involved.
The foreseeable rule applies when the facts and circumstances justify the application thereof, but we are not confronted in this case with any such facts as were shown in the case of Osborne v. Tennessee Electric Power Co., 158 Tenn. 278, 12 S. W. (2d) 947. In that case fire had apparently reached the power lines of defendant and it was notified of that fact and that the current should be shut off. It was not done promptly, leaving a question for the jury. It might be that, in the instant case, after this foreman and the crew had seen the crane or boom come in contact with the electric lines, long before the date of the decedent’s injury, had the defendant been notified to shut off the current, as was done in the Osborne ease, supra, and after a reasonable time it had not *84done so, that fact would have constituted foreseeable negligence.
The case of Rogers v. City of Chattanooga, Tenn. App., 281 S. W. (2d) 504, 509, in which opinion this member of the Court concurred, is not in point and not controlling. The general principles stated therein are correct, but in that case the City owned the power distribution system, had erected the poles and lines within the city, and within the business area thereof, had then granted a permit to construct a building right along beside these lines, which building construction required the use of a crane, and having granted such permit, after constructing its own lines, it was the duty of the City to insulate those wires, or at least to foresee that the uninsulated wires in the area of the authorized construction might cause injury to a. laborer in such construction. In that case, it was said :
“The jury might well find that these defendants in erecting and maintaining a 11,000-volt electrical line at this particular location, to-wit, an industrial area, should have reasonably foreseen that someone might negligently allow an iron pipe, a boom cable, or other conductor of electricity, to come too close to the high-tension wire and as a result thereby one or more persons be killed or greatly injured. If the jury should find that the defendant should have reasonably foreseen that such might happen and failed to take the necessary steps to prevent the same, then it would be guilty of negligence which was the direct and proximate cause of such injuries. ’ ’
We have no such location nor any such electric load shown by the instant record. I am unable to see the *85applicability of the facts of that case to the facts in" :the instant case.
The majority opinion in the instant case also offers in support the case of Kingsport Utilities, Inc., et al. v. Lawrence Brown, decided December 23, 1954, bnt unreported, in which there was a dissent by Judge Hale, as a case in point, and in that case it was said:
“Defendant Utilities recognized that the area where the plaintiffs were injured was an expanding business section. In fact it defends its construction of the line beyond the point where it served its existing customers on the ground of anticipated business activity. Yet, it took no steps to insulate its wires as the record shows it might have done and had done in another business section of town. A jury might well say that in thus creating an unnecessary hazard without insulating its wires or raising them above the height of tools and machinery commonly used in construction and industrial activities, it was not in the exercise of the highest degree of care.”
The area or location of the work being done, referred to in the Chattanooga case and in the Kingsport case, is entirely different from the country road area through creek bottoms. It seems to me, therefore, that the intervening carelessness of the foreman of the construction crew in putting his men to work, and keeping them at work, and directing the very operation where the foreman and the crew had seen and experienced the result of getting the crane too close to the charged electric lines, and that of the crane operator, coupled with the instructions and admonitions of the foreman and the activity of the laborers, as they were all there in the actual operation and construction, and in the operation of the crane in *86lifting and loading the bucket into the truck, constitute an intervening act which amounts to the proximate cause of the injury and death of the deceased, if it could be found, as aforesaid, that the electric company was not exercising a high degree of care in the relocation of its power lines in the edge of the right-of-way at the cite in question.
I think the Trial Court properly instructed the jury to return a verdict in favor of the defendant, as in my opinion it is easily determinable, as a matter of law, that any act of the Electric Co-operative did not constitute any part of the proximate cause of the death of the decedent, Lewis Don Turner, and that with sound reasoning only that conclusion can be reached from this record.
In this day, when we have electricity everywhere and people have become fully aware of the result of coming in contact with it, and particularly those persons who work at a job that furnishes the experience and knowledge that the deceased in this case had, they are required to exercise reasonable care for their own safety.