response to a petition for rehearing.
Our attention has been called by the petition for a rehearing to the fact, which we overlooked on the original *234hearing-, that the instructions given by the court were not excepted to. The bill of exceptions reads as follows:
“The plaintiff then moved the court to give instructions 1, 2 and 3, to which the defendant objected, but the court overruled the objections, and gave said instructions, which are as follows.” Here follow the instructions. It is assigned as ground for new trial that the court erred in giving each of the instructions, and, as the giving of the instructions was objected to, it wrnuld seem that the omission of an exception to the giving .of them was due to a mere slip of the pen in writing the bill,of exceptions. But it is so well settled that in such a case there must be both an objection and an exception that the rule can not now be departed from. (Cox v. Winston, 3 Metc. (Ky.) 577; Civil Code of Practice, section 333; L. & N. Railroad Co. v. Graves’ Assignee, 78 Ky., 74.)
The judgment below can not, therefore, be reversed on the naked ground that the instructions given were er: roneous. Still, on the whole case,, we are of opinion that the ends of justice require a new triak From the testimony it appeared that appellee went between the moving cars to uncouple the car next to the engine, while the train was backing slowly; that, as he knew, the track was not surfacéd up at this point, but, though level at the middle of the ties, dropped down gradually at the side until at the end of the ties it was several inches below their tops; that the brakebeam of the engine hangs very low, and that if a person puts his font between the rails, and is not very particular or very quick, it will catch his foot when making- a coupling like this while the train is backing. These facts were a part of the transaction itself, and either came out on appellee’s own testimony or unavoidably during the progress of the trial. As appellee *235knew the condition of things, and the risk of putting his foot between the rails, if the track was in its usual condition, he could not recover. If the amended answer had been tendered when the testimony was given, we are satisfied the court would have allowed it filed, because' the above proof was inseparable from that which made out the plaintiff’s case, and the defendant had the right to bring out before the jury all the facts showing negligence or the want of it.
If the court had then ruled out the evidence offered as to the rule forbidding brakeman’s stepping between the rails in making these couplings, and had placed his ruling on the ground that the defense of contributory negligence was not pleaded in such a way as to allow this evidence, the defendant’s counsel would then doubtless have offered an amendment to their answer, or conducted their defense on some other ground. After admitting this evidence, the court erred in refusing, at the close of the trial, to allow the answer to be amended; for thereby counsel were apparently misled, and disabled from getting before the jury the defense upon which they had mainly relied, and a material issue shown by the evidence that was admitted was excluded from the jury.
Petition overruled.