"The above styled and numbered cause is pending before us on appeal from a judgment in appellee's favor for the sum of $7,500.00 as damages alleged to have resulted from an electric shock received by him while a passenger on one of appellant's street cars.
"Appellee alleged that on the 4th day of July, 1930, he was a passenger on one of the street cars of the Wichita Falls Traction Company at that time traveling on Lamar Street in the City of Wichita Falls; that said car was traveling over its tracks near Lamar and 16th streets when the trolley wire which carried the electric current that propelled the street car either broke or sagged so that one end of the same or one end of a wire in that vicinity came in contact with said highly electrified trolley wire and said wire in that vicinity swung around through the window of the street car near which plaintiff was sitting, striking him on the right arm near the elbow joint at a place which is commonly known as the `funny joint' or `funny bone,' which it was alleged resulted in personal injuries and damages as set forth in the petition but which we think we need not particularly describe.
"The acts of negligence made the basis of the suit are set forth in the 7th section of the amended petition, upon which the plaintiff went to trial. This section of the petition reads:
"`Plaintiff further alleges the facts to be that at the time in question plaintiff was a passenger upon the street car of the defendant and entitled to protection of at least the defendant keeping its own equipment and its own wires and its own street car in a reasonably safe condition and not allow the trolley wires to become disconnected, broken and torn down and thrown into the side of the street car, and striking this plaintiff as he was sitting in the street car, and that by reason of the defendant's failure to have the trolley wire so stable and situated and fixed as not to fall, break and drop down the said defendant, its agents, servants and employees were guilty of negligence in the following particular (a) in failing to have a substantial trolley wire that would not break to carry the current which operated its street cars.
"`(b) In failing to have poles supporting the trolley wire through which defendant carried its current, of sufficient strength as to stand the weight thereof. (c) In failing to keep other wires a sufficient distance from the trolley wires through which defendant carried its current so that the current would not be transmitted into any other wire or metal. (d) In failing to have its street car so protected that no wire carrying the high current which the defendant did carry through its trolley wire, could be thrown into the street car, and thereby strike its passengers. (e) Plaintiff further alleges that the defendant maintained and used a trolley wire, through which it carried its current of electricity to propel its street cars, that was old and worn out or defective in some manner unknown to this plaintiff and by reason thereof the same broke and an end or part of said trolley wire fell down and struck or came in contact with, this plaintiff either directly or contacted some other metal that allowed the current of electricity to come in contact with plaintiff, injuring him as herein stated, and in this connection the plaintiff alleges that the defendant was guilty of negligence in using and maintaining an old and worn out and defective trolley wire through which to carry its current of electricity to propel its street cars in question.
"`Plaintiff alleges that by reason of each and all of the above and foregoing grounds and acts on the part of said defendants, its agents and employees, same were each and all the proximate cause of the injuries to the plaintiff as has heretofore been set forth as well as will be hereinafter set forth.'
"The court, after giving the usual and proper definitions, submitted the case to the jury upon special issues. The issues so submitted, together with the answers of the jury, are as follows:
"1. Do you find from a preponderance of the evidence that the plaintiff C. Y. Elliott was injured by an electric shock on or about the 4th day of July, 1930? Answer: Yes.
"2. Do you find from a preponderance of the evidence that the defendant's trolley wire which carried the current which operated the street car broke on or about July 4, 1930? Answer: Yes.
"3. Do you find from a preponderance of the evidence that the breaking of the trolley wire of the defendant was on account of the failure of the defendant, if it did fail, to have a substantial trolley wire at the place in question? Answer: Yes.
"4. Do you find from a preponderance of the evidence that the breaking of said trolley wire, if it did break, was on account of the negligence of the defendant, if he was negligent as that term has been defined to you herein? Answer: Yes.
"5. Do you find from a preponderance of the evidence that the breaking of the trolley wire, if it did break, was the proximate cause of the injuries, if any, to plaintiff herein? Answer: Yes.
"6. Do you find from a preponderance of the evidence that the defendant allowed its trolley wire to become defective on July 4, 1930? Answer: Yes.
"7. Do you find from a preponderance of the evidence that the defective condition of the trolley wire of the defendant, if it was defective, was negligence as that term has been defined to you herein? Answer: Yes.
"8. Do you find from a preponderance of the evidence that the defective condition of the trolley wire, if you find that it was so defective, was the proximate cause of the injuries to the plaintiff, if any? Answer: Yes. * * *
"11. Do you find from a preponderance of the evidence that the breaking of the trolley wire of the defendant at the time in question, was not an unavoidable accident? Answer as you find the facts to be. Answer: Yes.
"12. Do you find from a preponderance of the evidence that plaintiff was struck on the elbow by the trolley wire of the defendant at the time and place in question? Answer: Yes.
"13. If you have answered special issue 12 in the affirmative, then answer:
"Do you find from a preponderance of the evidence that at the time plaintiff was struck on the elbow, if he was so struck, the said trolley wire was charged with electricity? Answer: Yes.
"14. If you have answered special issue 13 `Yes' then answer:
"Do you find from a preponderance of the evidence that plaintiff received an electric shock by being struck on the elbow, at the time and place in question? Answer: Yes.
"15. If you have answered special issue 14 `Yes,' then answer:
"Do you find from a preponderance of the evidence that the electric shock, if any, which plaintiff received at that time, was the proximate cause of plaintiff's injuries, if any? Answer: Yes.
"On original hearing, this court held, upon reasoning set forth in our original opinion which will accompany this certificate, that the evidence was insufficient to sustain the finding of the jury of negligence on the part of the appellant company in the specific particulars alleged without applying the principle or doctrine of res ipsa loquitur, which we concluded could not be done under the authorities cited, to wit, Davis v. Castile (Tex. Com. App.) 257 S. W. 870 and cases therein cited; Cecil & Co. v. Stamford Gas & Electric Co. (Tex. Civ. App.) 242 S. W. 538, and cases therein cited; Wichita Valley Ry. Co. v. Helms (Tex. Civ. App.) 261 S. W. 225, and cases therein cited, and cases cited in Digest of Texas Reports, vol. 13, p. 226 et seq., where it is said:
"`It is a general and well established rule that when one having a right to rely upon general allegations for the admission of his proof chooses to plead specially the facts upon which he relies for recovery, he must confine his proof to the facts alleged, and can recover upon no other ground,' citing a great number of cases.
"We accordingly ordered a reversal of the case for the insufficiency of the evidence on the issue of appellant's negligence.
"On motion for rehearing, however, the case of Simmons v. Terrell Electric Light Co., 12 S.W.(2d) 1011, by Section A of the Commission of Appeals, is pressed upon us. That was a case in which it was alleged a broken wire charged with electricity struck the plaintiff in his eye and injured him while walking on a sidewalk; but the plaintiff alleged that he did not know whether such wire broke and fell against his eye or whether it was already hanging down and stuck into his eye, when he ran against it; nor did he know how long the wire had been down or whether it was old and permitted to break and hang down or because of the weight it was forced to support, or because of the fact that the limbs of the trees brushed against the wires and wore them and broke them, or because of the fact that such wires were not properly supported, or from some other reason to plaintiff unknown, the wire was down over the sidewalk in such a manner as to injure and damage the plaintiff as alleged. It is clear in that case that the petition on its face gives notice to the defendant that the...
