ON REHEARING.
The reversal of the judgment of which the plaintiff makes complaint in his application for rehearing is based upon the action of the court in giving to the jury, at plaintiff’s request, special charge 2, whereby the effect wrought was to eliminate the matter of defense set up in plea 2, upon which issue was joined after plaintiff’s inaptly grounded demurrer was overruled. The chief contention of the applicant is that the special instruction mentioned did not have the effect to eliminate from the jury’s consideration the issues tendered by, and joined as upon, the averments of plea 2. Originally, it was not thought at all necessary to enter upon a detailed statement of the considerations inviting and unlerlying the ruling made in this connection, but out of deference to the earnest insistence of counsel in the application for rehearing we will now do so.
(10-12) The plea’s theory is that the plaintiff’s right to recover was barred by his contributory negligence. Such a plea is, of course, one of confession and avoidance of the cause of action to Avhich it is addressed. *589In determining the sufficiency or the legal effect of pleas, they must be read and considered in connection with the count or complaint to which they are interposed. So the legal effect of plea 2, in respect of the issues it tendered, and, by joinder thereupon, of the issues it made, must be ascertained by reference to the cause of action it purports to answer. This cause of action was stated in count 1 of the complaint. This count, drawn to state a cause of action under the first subdivision of the Employers’ Liability Act (Code, § 3910), declares as upon a defective roof in a mine operated by the defendant, appellant. It alleges that at the time the plaintiff was injured he “was engaged in the performance of his duties as such employee” of the the defendant, and that the defect causing his injury “consisted in this, viz., the roof of the mine in which plaintiff was working was defective.” Besides, the plea itself affirms that the plaintiff, at the time of his injury, was engaged in the mining operations. Now, the very nature and the averments of the plea (2) require the assignment to it of the legal effect of confessing the cause of action set forth in count 1, and of undertaking the avoidance thereof by recourse to the asserted contributory negligence of the plaintiff. The plea, of course, admits the material, above-quoted averments of the count wherein it is alleged that plaintiff was, when he was injured, actually engaged in the service of the defendant, his employer. Beading the plea in connection with this fact, expressly averred in the count, and to be taken as confessed so far as plea 2 is concerned, the plea’s effect is to say that while the plaintiff was engaged in performing his duties for his employer, in the mining operations described and as described in the count, he “negligently went,” in the performance of his duties, under the roof of the mine, which *590he knew, or ought to have known by the exercise of due care, was likely to fall, and was, in consequence, injured. So interpreted, and that is the only possible interpretation of the plea in its relation to the count, it is obvious that the plea must be assigned to the category of pleas predicating contributory negligence of the injured servant upon his remaining in the service of the master after knowledge of the defect or negligence causing Ms injury.
(13) It is urged for the applicant for rehearing that the abstract meaning of the word “went,” as employed in the plea, and of the word “remaining,” as that word signifies in the statement of the doctrine Avith reference to which it is commonly used and as used in the before-quoted added (in 1907) provisions of the statute (Code, 3910), effect to oppose the pertinent idea expressed in the plea to the idea imported by the use of the term “remain” in the doctrine against the availability of which in defense the added provision of the mentioned statute concludes, and hence refutes the notion that the proposition of charge 2, given at plaintiff’s instance, which pronounced a sound legal result in accordance with the mentioned provision of the statute under the evidence in this record, was not in contradiction of the substance of the matter of defense asserted by plea 2; in short, that said charge 2 did' not conclude against defense asserted by plea. The adoption of that conclusion would, as we have already indicated, construe the plea Avithout any sort of reference to the stated averments of count 1, to which it is addressed, to say nothing of its own assertion that, when injured, the plaintiff was then engaged in the master’s service. If it were possible to vieAV the plea as only serving to affirm that plaintiff was negligent in going into a place of known peril, or in going into a place *591which the exercise of due care would have made known to him was dangerous, there would he basis for the insistence, in such circumstances, that “to go” is not the equivalent of “to remain.” But the pleadings (count 1 and plea 2) set forth no such noncompound state of circumstances and relation. As presently important, the plea’s legal effect (after demurrer overruled) as a response to the count is to affirm that, notwithstanding he knew or ought to have known of the defect and of the danger, he continued to perform his duties, and so doing he negligently “went” into danger, and negligently subjected himself to danger, and ivas in consequence injured. — B. R. & E. Co. v. Allen, 99 Ala. 359, 13 South. 8, 20 L. R. A. 457. The plea being to the legal effect stated, charge 2, quoted in the original opinion, was in immediately contradiction of it, for it flatly concludes against contributory negligence “by reason of his remaining in the employment of defendant after knowledge of a defective roof.” — B. R. & E. Co. v. Allen, supra; Code, § 3910.
(14, 15) It is further insisted that the benefit of the defense set up in plea 2 was not denied defendant because the following special instruction was given to the jury at defendant’s instance: “If you believe from the evidence that plaintiff had been warned by the mine foreman, Pitts, not to go under the rock which fell upon him, and that it was dangerous, and that, disregarding such warning, plaintiff went under said rock, and it fell upon him, he cannot recover in this case.”
There was no plea attempting to assert plaintiff’s contributory negligence as upon his disregard of warning given him, as the charge hypothesizes, by his superior, Foreman Pitts. In this jurisdiction contributory negligence must be specially pleaded. — 3 Labatt on Master & Servant (2d Ed.) § 1280, and notes; A. *592C. C. & I. Co. v. Hammond, 156 Ala. 253, 47 South. 248. The matter of the charge 7 was not made an issue by appropriate plea; and hence it should have been refused. But, aside from this, the charge did not relate to the issue made by plea 2. The plea’s legal effect has been stated. The charge 7 proceeded upon the distinct theory of disregard of warning by the defendant’s representative, and essayed to avail of the doctrine which precludes the right of the servant to recover where, disregarding the master’s warning, he is injured in consequence of the defect against and of which he has been thus advised. — 2 Labatt, supra; A. C. C. & I. Co. v. Hammond, supra. Manifestly, the evidence to establish the material averments of plea 2 was radically different from that requisite to establish the facts hypothesized in charge 7.
(16) But, even if it should be assumed that charge 7 exactly expressed the defense set up by plea 2, the status would then have been that charge 2, given at plaintiff’s instance, conflicted Avith charge 7, given at defendant’s instance, and the jury was contradictorily advised — a result that is always condemned.
(17) ■ It is further insisted that rule 45 (175 Ala. xxi, 61 South, ix) should be applied to the end that a reversal of the judgment would be averted. Originally, the writer entertained that view; but fuller consideration led to the conclusion, according with that prevailing with the other judges, that the rule could not be given application to the status made by the pleading and stated in the foregoing opinions. The rule rests upon error committed, and expresses the doctrine that no judgment will be disturbed or reversal ordered “unless, in the opinion of the court-, * * * after an examination of the entire cause,” it appears “that the error complained of has probably injuriously affected sub*593stantial rights of the parties.”. To apply the rule to the status under review would inevitably result in denying the benefit to the defendant of the fight, under the statute (Code, § 5340), to have the defect in its plea distinctly pointed ont by the demurrer, and the right to amend to meet the demurrer (Code, arts. 12, 13), without any basis in the record for a conclusion that these rights were innocuously denied the defendant, within the provision of rule 45. It may be that, had the before-indicated defects in plea 2 been aptly pointed out by the demurrer, the defendant would have amended his plea, and thereupon would have offered evidence to sustain the material averments of the thus perfected plea.' There is nothing in this record from which we can conclude to the contrary.
The application for rehearing must be denied.
Application denied.
Anderson, C. J., and Sayre and Gardner, JJ., concur.