Upon a Petition to Rehear.
May 28, 1925.
By the court.We are of opinion to deny a rehearing in this case for the iollowing reasons:
*734The case was submitted to the jury solely upon the question as to whether the defendant in error assumed the risk of meeting trains while going to and from his work upon the notor car. We reached the conclusion that under the instructions asked for by tbe plaintiff and given by the court, and under the testimony upon which those instructions were based, that as a matter of law defendant in error assumed the risk.
There was only one instruction asked for by tbe plaintiff in the trial court, which presented his theory of the - ease and set out the acts of alleged negligence upon which he relied. That instruction tells the jury:
“The court instructs the jury that if you believe from the evidence that the plaintiff, Curtis Powell, was. at the date of the accident, in the employ of the defendant as a section hand on its road bed near Wildwood, and that the defendant furnished a motor car operated by its section foreman to transport plaintiff and other members of the section force to and from their work on said road bed; then it became the duty of the defendant to exercise reasonable care in operating and running said car to carry said plaintiff safely to his place of work and to-avoid injuring him; and if you shall believe from the-evidence that the defendant failed to exercise such reasonable care in the operation of said car, but stopped or ■ attempted to stop the car so suddenly that the plaintiff was thrown, or fell, in front of the car, the ear passing' over his body, and by reason thereof the plaintiff was injured, then you should find for the plaintiff such damages as he has suffered, or will suffer, from such injuries.
The defendant asked for only one instruction upon his theory of the case, viz.:
“The court instructs the jury that if they believe from the evidence that the plaintiff, Curtis Powell, was ■ riding on the motor ear on the morning in question, and *735in coming around the bluff or embankment the occupants of the car saw a freight train coming down upon them, and the driver of the motor car suddenly put on the brakes of the car in order to avoid a collision with the train, thereby causing the plaintiff to fall off the motor car or jump off the same in front of the said motor •ear, so that the motor ear thereby ran over the plaintiff, injuring him, then the court instructs the jury that such an accident was one of the assumed risks of the plaintiff’s employment, and the jury must find for the defendant.” 1
This instruction the trial court refused. In other Words the trial court held as a matter of law that under the state of facts drawn in issue by the two instructions the plaintiff below did not assume the risk.
We based our opinion upon the Hammond Case (Hammond v. Railway Company), 83 Michigan, 334, 47 N. W. 965, cited with approval by the U. S. Supreme Court in B. & O. R. Co. v. Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772. In that case the court said:
"* * * * The party injured (in the Hammond ■Case) was a section hand, who was injured while riding •on a hand car, in company with a fellow laborer and the . section foreman, and the negligence claimed was in propelling the hand car along a curved portion of the track, with knowledge of an approaching train, and without sending a lookout ahead to give warning. In respect to this, Mr. Justice Cahill, speaking for the court, said: ‘But if the conduct was negligent, it was participated in by Hammond. The latter had been going up and down this section of the road daily for three months. What•ever hazard there was in such position was known to .him, and he must be held to have voluntarily assumed :it. * * * Where, as in this case, the sole act of negligence relied on is participated in and voluntarily con*736sented to by the person injured, with full knowledge of' the peril, the question of the master’s liability does not arise.’
“So in this case Baugh, equally with the engineer, knew the peril, and with this knowledge voluntarily rode with the engineer on the engine. He assumed the risk.”
We think this decision is controlling in the case under consideration.
Stress is laid in the petition for rehearing' upon the foreman’s alleged negligence in going upon the-track with his motor ear ahead of the passenger train and in the face of an approaching freight train, and this-is alleged as a violation of some rides of the company requiring the foreman to find out the location of trains before going on the track. No violation of rules is anywhere charged in the pleadings nor is there any proof of rides or violation thereof established by the evidence. This question was not submitted to the jury by instruction as alleged negligence, either as a single act of negligence resulting in injury, or as associated with the alleged negligence upon which the jury was instructed, and must be considered as waived, as were other allegations of negligence set out in the notice of motion. The-jury cannot be turned loose to find a defendant guilty of any negligence which might be based upon a breach of any duties charged in the declaration, Director General v. Pence's Adm’x, 135 Va. 329, 116 S. E. 351, when the-court has given all the instructions asked for by the plaintiff setting out his theory of his case and no mention is made of such charges of negligence in the instruction.
While it is true that the question whether'the defendant was absolved from negligence because he was forced under the circumstances to act in emergency, was-not raised in the trial court, yet upon a motion to set *737aside a verdict as contrary to the law and the evidence, if it appears in the appellate court that the facts proven in the court below established a ease, as a matter of law, where the defendant was, without his fault, forced to act in an emergency, and an accident occurred resulting in injury to another, the appellate court would set the verdict aside although no mention was made in the trial court of the doctrine of error in extremis. The instant case, however, was not decided upon that doctrine by this court. It was discussed in connection with one theory of the ease advanced in argument. It is true that as a rule the application of the doctrine of “error in extremis” is one for the jury when the evidence is conflicting.
Rehearing denied.