“While it may be true that the particular accident which resulted in the death involved in the instant case may not have been foreseeable as such, we must remember that the particular harm which actually did occur, need not have been specifically foreseeable, in order to make the defendant liable”
How later courts described this case
- “While it may be true that the particular accident which resulted in the death involved in the instant case may not have been foreseeable as such, we must remember that the particular harm which actually did occur, need not have been specifically foreseeable, in order to make the defendant liable”
Written by the judges who cited it.
The opinion
On Petition for Rehearing.
BEJACH, J.
We have read and carefully considered the lengthy petition to rehear filed in this cause. With all due respect for learned counsel of petitioner, we think there is nothing new presented in the petition to rehear. All of the matters embodied in the petition to rehear were carefully considered and disposed of by the majority opinion of this Court filed February 22, 1956. In addition, since that date, on to wit, March 9,1956, the Supreme Court has denied certiorari in the case of Turner v. Tenn. Valley Electric Cooperative, 288 S. W. (2d) 747 . This was a case in which, like the instant case, the trial judge directed a verdict in favor of the defendant, and in which case, this Court reversed the trial court, holding that the issues should have been determined by the jury. In the opinion of this Court, the facts in the Turner case were much weaker than those involved in the instant case, as regards the necessity of submitting same to a jury. If this Court was correct in reversing and remanding the Turner case, and the Supreme Court has ruled that it was, then, a fortiori this Court was correct in reversing and remanding the instant case.
The petition to rehear points out a few instances in which it is insisted that the majority opinion of this Court recites certain facts that were disclosed by the record which it is earnestly insisted are not so disclosed, such *579 as the statement that, “The record discloses that since the accident here involved, the pole on the Clond property has been straightened and tamped, thus reducing the sag of the wires suspended from it.” All of these instances are minor in character, and even if the majority opinion of this Court misinterpreted the record with reference to same, they are not sufficient to warrant a change in the conclusion reached.
The petition to rehear is denied.
Carney, J., concurs.
Avery, P. J. (Western Section), dissents.