ON PETITION FOR REHEARING
Per Curiam.Defendant charges us with error in holding that no plea of contributory negligence was made. We find the following paragraph in its brief:
“Th&re is purposely no plea of contributory negligence on our part; the allegations in the answer are that the train was properly manned, properly equipped and properly operated, and that the defendant maintained at the moment a flagman at the public crossing.”
It is contended that plaintiff is charged with' negligence in its answer, and, that this averment must be given the same effect as a formal plea of contributory negligence. Without discussing this point we interpret the quoted paragraph as an abandonment of any plea or contention of negligence upon plaintiff’s part, particularly since in argument no such defense was made nor is there any qualification or reservation in the quoted paragraph.