On Motion for Rehearing. By motion for rehearing, appellee, Hawthorne, complains of the statement made by us of that part of appellant's answer setting up assumed risk as a defense, and insists that such statement is incorrect, in that it states that defendant alleged that appellee knew that appellant had adopted no rule, as it was its duty to do; requiring its engineer or fireman to give notice or warning by some appropriate signal to its trainmen of their intention to cast sand into the fire box.
We admit that the statement made by us which is complained of is not a substantial copy of that part of appellant's plea setting up the defense of assumed risk, but is a substantial copy of that defense as stated in appellant's brief, which was not by appellee objected to as being incorrect.
The rules prescribed for the government of this court provide that, if the statement made by appellant of the nature and result of the cause is not distinctly challenged by the opposing party, it may be accepted by the court as correct.
Appellee, as plaintiff below, made the following allegation:
"That defendant had failed to adopt and promulgate a rule (as in duty bound it should have *Page 327 done), requiring its engineers and/or firemen to give notice or warning by appropriate signals, namely, * * * by the whistle of the engine, * * * of their intention to cast sand into the fire box, as aforesaid, to the end that the brakemen on the train, and especially the head brakeman (plaintiff being such brakeman), might protect their eyes from injury by the sand, soot, and other matter, as they could have done; and that, had there been such a rule and notice or warning given, plaintiff could and would have protected his eyes from injury by the sand, soot, andother matter.
"And, in connection with the foregoing, plaintiff alleges that the time and place when and where the engineer and/or fireman would cast sand into the fire box for the purpose of cleaning the flues, as aforesaid, would be unknown to the brakemen on the train, and in the nature of things could not be known to them by any diligence on their part; that the sand, when it passes out of the smokestack together with the soot and other matter, is red hot, and the soot and other matter often in flames, and blows back over the engine and train with great speed, and is a real menace to the eyes of the brakemen and other train employees, and a danger against which they cannot protect themselves by any action of their own in the absence of notice or warning." (Italics ours.)
By its answer to such allegations, appellant, defendant below, in general terms pleaded assumed risk as a defense.
The plaintiff interposed no exception, either general or special, to the plea of the defendant, and defendant was not called upon to make more specific its general plea of assumed risk.
In the absence of a special exception to such plea, we think it was sufficient, especially so since, upon trial, appellee so accepted it and took the stand as a witness in his own behalf and testified that, prior to the time of his injury, he had worked as brakeman on freight trains for defendant for five years; that he knew that during that time the defendant had no rule requiring the engineer or fireman to give notice of their intention to put sand through the flues by any signal; that he was familiar with the operation of freight trains, and knew how they were being operated with reference to sanding the flues; that he knew about those hot cinders; that he knew they came out of the smokestack and would fly back and burn brakemen on the train; that they had burned his shirt; that he had lain down and covered his face to prevent his face from being burned.
Appellee admits that:
"The gist of his action was negligence of appellant in not adopting and enforcing an adequate rule for the protection of its employees against dangers arising from the method employed by appellant of cleaning its engine flues by forcing sand through them under high pressure * * * by requiring its engineers or firemen to give prior notice or warning thereof by some signal."
Considering the record as it came to us, it is apparent that the theory upon which the plaintiff tried the cause was that, notwithstanding the plaintiff knew that the defendant had adopted no rule, as it was its duty to do, requiring its engineer or fireman to give notice or warning by some appropriate signal to its brakemen of their intention to cast sand into the fire box, appellee was entitled to a recovery because he could not, in the absence of notice that sand was to be used at the time it was used, protect himself against its injurious effect. No other theory was presented to the trial court.
It would, we think, be unjust to here subject appellant to a Judgment against it for want of a more explicit plea of assumed risk, in the absence of a special exception to such plea, for, had such exception been interposed, appellant could, and doubtless would, have met any objection which might have been made to its plea.
For the reasons pointed out, the motion is overruled.
Overruled.