On Petition for Rehearing.
Per Curiam.The opinion states that the wind at the time of the appellee’s injury was blowing from the west. In the petition for a rehearing the attention of the court is called to the fact that this is incorrect. The evidence shows that the wind was blowing from the northwest.
Appellee interprets the opinion as holding that the burden of proving freedom from contributory negligence was upon appellee, whereas, under the act approved February 17, 1899, concerning pleading and proof in action for damages, etc. (Acts 1899, p. 58), freedom from contributory negligence need not be alleged nor proved, but is matter of defense. The complaint alleges appellee’s freedom from contributory negligence. ' The issues were framed and the trial appears to have proceeded upon the theory that appellee was free from contributory negligence. True, the opinion states that appellee’s evidence is not sufficient to prove his freedom from contributory negligence, and, being insufficient to establish this fact, the verdict is not supported by the evidence. Yet, whether th^ contributory negligence of an injured party affirmatively appears from his own or the evidence of the adversary *470party, is not, if it so appears, material. The opinion rests upon the proposition that it appears from the evidence of appellee, including undisputed physical facts, that appellee was guilty of contributory negligence.
The petition for rehearing is overruled.