OPINION ON REHEARING.
(82 Pac. —.)
The opinion of the court was delivered by
Burch, J. :After listening to a reargument of this cause, and reconsidering it in the light of such argument, the court is satisfied with the conclusions stated in its former opinion. Even if the words “as herein more specifically mentioned and described” related generally to the facts constituting the plaintiff's cause of action, still but one negligent act on the part of the defendant was described, and that was the failure to give the statutory warning.
*761On the reargument it was suggested that the issues were enlarged by the conduct of the parties at the trial, but a careful examination of the record shows that the defendant at all times protected its right to have the controversy kept within the limits fixed by the pleadings.
The plaintiff in presenting his case did seek to expand his charge of negligence by proving the speed of the train. This effort the defendant vigorously opposed by objections to the testimohy before it was given, and by motions to strike it out after it had been admitted. The court, however, approved the plaintiff’s course and refused to exclude the evidence from the consideration of the jury. With a new issue thus thrust upon it against its will the defendant undertook to make the best of the situation by showing a proper management of the train, taking into account its speed; but, by a request for an instruction, it again sought to limit the jury’s inquiry to the single issue presented by the petition.
Under these circumstances it cannot be said that the defendant accepted the new issue tendered by the plaintiff’s evidence, or consented that it should be tried, or acquiesced in its submission to the jury. The defendant acted all the time under the coercion of the court’s adverse rulings. It was not obliged to rest its fate upon its unavailing objections to the improper evidence. It still could oppose the irrelevant facts with exculpatory evidence upon the same principle that permits a defendant to answer after his demurrer to the petition has been overruled; and the final protest to the submission of the alien matter to the jury entirely precludes any charge either of inconsistency or of waiver.
If it should be conceded that the jury based their *762verdict upon the negligence charged in the petition the judgment must nevertheless be reversed. The jury found specially that the plaintiff’s agent in charge of the injured cattle saw the approaching train when it was half a mile distant from him.' This being true, the failure to sound the whistle eighty rods from the crossing could not-have been the proximate cause of the injury.
The judgment is reversed and the cause remanded.
All the Justices concurring.