On Motion for Rehearing.
Appellant in its motion for rehearing urgently insists, for various reasons, that this court has erred in its original opinion affirming this case. We only deem it necessary, however, to specially notice two of the matters discussed therein.
It is contended that we erred in overruling its fifteenth assignment, which complains of the action of the court in giving the following charge: “It is the duty of an electric light company to exercise ordinary care and diligence in constructing and maintaining its poles and wires, and if it fails to exercise such care and diligence in constructing and maintaining the same as a person of ordinary prudence would do under the same or similar circumstances, and injury thereby result, the same would be negligence and it would be liable.” It is contended that this charge is error, on the theory that a court in its charge cannot state that the doing or the failure to do any particular thing is negligence, citing and discussing in support thereof the cases of H. & T. C. R. R. Co. v. Gaither, 35 S. W. 179; Campbell v. Trimble, 75 Tex. 270, 12 S. W. 863; Railway v. Robinson, 73 Tex. 284, 11 S. W. 327; I. & G. N. R. R. Co. v. Bason, 35 S. W. 209; Railway v. Wilson, 60 Tex. 143; Railway v. Wafer, 130 S. W. 713; Railway v. Murphy, 46 Tex. 356, 26 Am. Rep. 272.
It will be observed upon a review of the cases above mentioned, that the court in each of them violated the rule contended for in that it either told the jury that the doing of certain things, naming them, would be negligence, or the failure to do certain things, setting them out, would constitute negligence. The charge under consideration is not open to the objection urged, we think. It merely states in a general way that it is the duty of the light company to exercise ordinary care and diligence in constructing and maintaining its poles and wires, and states that if it fails to exercise such care and diligence in so constructing and maintaining the same as a person of ordinary prudence would do under the same or similar circumstances, and injury" thereby results, the same would be negligence, etc. We think this case is clearly distinguishable from those called to our attention by appellant, in that it does not undertake to state that the doing of any particular acts, or the failure to do any particular thing in any particular manner or way, would constitute negligence; but merely gives a general definition of negligence as applicable to the case at bar, for which reason we think there was no error in giving the charge assailed.
[15]. We might admit, as contended by appellant, that we misconceived the point raised by it under its sixth assignment, still we think its special charge No. 4 should not have been given for the additional reason that the condition of things mentioned therein was not pleaded by plaintiff as negligence-on the part of the defendant. Therefore the issue presented by such special charge was not in the case, for which reason the same-was properly refused.
After due consideration of all the questions raised by said motion, we are inclined; to adhere to our original opinion; and, believing that no error has been pointed out which will require a reversal of the case, the motion for rehearing is in all things overruled.
Motion overruled.