Concurring.—We place ■our concurrence in affirming the judgment of the •circuit court more particularly upon the ground, that the ■question raised on the rehearing of this case does not properly arise on the' record.
It is conceded that, under the decisions of the Supreme Court, by which we are bound absolutely, it devolved upon the defendant to plead any contributory negligence of the plaintiff in order to raise such issue. Without such plea there could logically be ho such issue of fact for. the jury to pass upon. Matters not put ■ in issue by the pleadings should not be submitted to Ahe jury.
The answer not having tendered such issue,'and the •evidence not being such as to justify the trial' court in taking the case from the j ury on the ground that plaintiff ’ s " evidence showed, clearly contributory negligence on the -part of plaintiff’s wife, it certainly could not devolve •on the plaintiff in framing his instructions to submit such issue tó the jury. Instructions must be drawn in '•conformity -with the issues. ‘ 1
The plaintiff’s instructions properly presented the questions of fact predicated in the pleadings. In all of them the jury were told, that if they found the facts, ' constitutive of the cause of action, alleged in the petition, to exist, and that “in consequence, thereof” and “whereby she was injured,” they should find for the • plaintiff. Under the issue of a general denial this is *676all that could be demanded of the plaintiff. And most certainly, if the defendant wished to raise the question presented on the rehearing of this case, it should have asked an instruction directed thereto, thereby affording the trial court an opportunity to pass upon it-. It asked no such instruction. Every instruction asked by it was, in effect, given. The question we are asked to pass upon particularly is in fact raised for the first time in this court.
The judgment is affirmed.