(after stating the facts). There is no •evidence tending to show that a shock of electricity of 600 volts, the voltage in use upon this car, would produce any ■such injury as that which the plaintiff received. Neither .is there any evidence tending to show that any voltage would produce that result. The theory of his original declaration is reasonable. If his arm had been out of the window and struck the pole, which was within reach, his .injury is easily explained. Plaintiff introduced witnesses who were familiar with electricity and the construction and use of trolley cars. No one had ever known these two guard rods along the windows. to become charged with electricity. The ends were screwed into the wood, and had no connection with any of the electric wires or apparatus. Plaintiff’s own expert testimony showed that these rods cóuld not be charged with electricity from the poles or from the trolley. No other similar accident was shown. No defect was .shown in the construction or management of the car. On the contrary an immediate ■examination showed the car and its appliances to be in *660good condition, arid nothing out of order. If the plaintiff’s injury resulted from a shock of electricity, which is. very doubtful, the ^record fails to show any reasonable theory for it, or any negligence on the part of the defendant which caused it. Verdicts cannot be based upon mere conjecture or guess.

The judgment is affirmed.

(concurring). The first count of the amended declaration avers that plaintiff was injured because of his arm being in contact with a pole, charged with electricity, standing near the track and car. The second count avers the injury to have been caused:

“ By a bolt of electricity falling off from or coming off from the feed wire or trolley wire and overhead electric-appliances used in propelling the said car, * * * said bolt of electricity coming down the side of said car * * * and entered the plaintiff’s body.”

In his opening to the jury, plaintiff’s attorney said:

“We will show it happened by a current of electricity coming down the side of the car and entering the body of the plaintiff. * * * We will show you that the poles were so close to the car, when in motion,- it would be almost impossible for a car to run along; those poles being so close to the car as they are when in motion and the poles-charged with electricity. We will show you that they are, and that the result was that in passing that pole he was-shocked.”

Plaintiff testified on cross-examination as follows:

“ Q. Did the pole come in contact with any part of your hand ?

“A. No, sir; the pole came in contact with nothing.”

Again:

“ Q. Did you have your hand outside the car ?

“A. No, sir; I-did not.”

I agree in affirming the judgment upon the ground that the testimony for the plaintiff does not tend to prove that *661he was injured by electricity, and upon the further ground that the testimony did not tend to make a case within the ■averments of the declaration or the opening statement of counsel for the plaintiff. I am not clear that, under the circumstances disclosed, if the declaration had set out a case of injury by electricity and such injury was shown, plaintiff would be bound to account for the presence of ■the current of electricity in the car.