The break in the wire was caused solely by the falling tree. As the Woodrums cut the tree, it cannot be said that any negligence in the construction or maintenance of the power lines was the proximate cause of the injury. Also for reasons appearing later the Woodrums were guilty of contributory negligence in knowingly and intentionally handling a transmission wire, and cannot recover for injuries resulting therefrom. I therefore agree with the result of the majority opinion. But I am unable to say as a matter of law that the practice upon the part of the power company of readjusting the alignment at its plant when the circuit breaker "kicks out" by closing the switch before making an investigation; and thereby transmitting a high-powered current through its lines over highways and private premises, is the exercise of the highest or utmost degree of care.

Admittedly the use of electricity has become a necessity, and the public is demanding service and desires this at reasonable rates. Also private companies who operate power plants are entitled to a profit. Further it may be assumed that it is impracticable to place the wires under the ground, and in towns and cities and along public highways it is impossible to avoid all contact with trees and other obstructions; and that two transmission lines, one of which could be used when the other is in trouble, may be impracticable on account of prohibitive cost. Also I am willing to concede that under the proof in this case any trouble over a line which causes a short circuit or adds a load to the line will cause the circuit breaker to "kick out" and shut off the power, and that the operator cannot locate the trouble except by patrolling the line; that these troubles occur frequently and for the most part by minor and harmless interferences, and that, if the operator had to investigate the cause of each of them before restoring the current, the public service would be much disturbed. But the fact remains that the release of the circuit breaker signifies trouble. It may or may not mean "danger," but gives notice of probable danger, and is the only warning of danger provided by the company. And, whatever may be the economic necessity of closing the switch to give a constant and continuous service, I can but place human life above the demands of commerce. If power companies, either for private gain or to supply the public demand for adequate service, and because the fatalities *Page 47 are few, insist upon ignoring the warning of probable danger on the ground of public service and economic efficiency or necessity, and thereby electrocute unwary and innocent victims, then they and the general public through them should pay the injured persons the economic loss suffered thereby. It is no argument to say that all companies are doing the same thing or that modern science has not discovered any safer or more practical device. Admittedly the circuit breaker functions properly, but, if its warnings are ignored, its purpose is frustrated, and the company takes the risks and should bear the consequences, regardless of custom which can never justify a legal wrong. Suppose a transmission wire falls upon my premises or upon the highway, and the circuit breaker, giving notice of trouble and it is adjusted. I am traveling at night and without notice or warning come in contact with the wire, and my life is extinguished. Can it be said that the operator owes me no duty; that he is not negligent; that my life must be sacrificed and the economic loss must fall on the injured person instead of the one perpetrating the injury? The question carries its own answer.

The majority opinion temporizes with this phase of the question, but seems to intimate that persons rightfully upon premises or upon public highways traversed by transmission lines may be classified, and that it would be negligence as to some of them to close the switch but not as to others dependent upon the circumstances of the case. I cannot grasp this distinction. Negligence is a breach of duty, and, if the duty exists at all, it should apply generally to all who are rightfully using such premises or highways. In this case it is evident that when the wire broke it came in contact with the companion wire, formed a short circuit, and the circuit breaker "kicked out." When the switch was closed, the wire was re-energized, but this did not cause a second kick-out. There was nothing at the power plant to give further notice of this condition, and this could not be discovered except by patrolling the lines or by information from its customers or some passerby of such condition. The wire may have remained indefinitely upon the post where Willie Woodrum placed it and where young children purposely or others inadvertently might come in contact with it, and, if this had occurred and death or injury resulted, could it be said that the utmost degree of care had been exercised? Of course no duty is owing *Page 48 to a mere trespasser who climbs a pole or knowingly dislodges or breaks down a wire and is injured in so doing, but, as to all persons properly and innocently enjoying such premises and highways, the company is under the duty of refraining from so using its property. It is said that, if this rule should be adopted, every one injured by loose transmission wire would claim that he relied on the current being cut off and that the company would not only be held to be an insurer, but that the plea of contributory negligence would be practically eliminated. Not so; a broken wire will not cause the circuit breaker "to kick out" except in case of a short circuit, and ordinarily the end of the wire attached to the power plant remains energized; hence every one is chargeable with notice that contact with a transmission wire is dangerous even though it is sagging or broken, and any one who knowingly and voluntarily makes such contact is guilty of negligence; hence the company can always rely on contributory negligence in a proper case.

Again the expression "insurer" is inaccurate. The doctrine for which I am contending only requires such company to indemnify the injury or loss occasioned by its affirmative act in re-energizing its lines after it has actual warning of probable danger — a clear failure to exercise the utmost care — and leaves open all the defenses applicable to negligence cases; though, if this rule makes it an insurer, then it is justified on the principle above advanced that, if society demands the sacrifice, it should indemnify the sufferer. I therefore respectfully dissent from the reasons given by the majority opinion for its conclusions, and am authorized to say that Justices Dietzman and Willis concur herein.