(dissenting) : The petition unquestionably stated a cause of action. It was not necessary for the plaintiff to plead or prove the negative fact that the plaintiff’s husband was not engaged in interstate commerce at the time of the accident — that would be anticipating a defense. The answer, so far as relates to the question under consideration,- was merely a general denial. Under this the defendant, according to the ordinary practice, was entitled to disprove any averment of the petition, but not to show some affirmative independent fact — new matter — that prevented a recovery notwithstanding every allegation of the petition should be proved. The defense that the decedent received his injury while employed in inter*462state commerce was of that character. If no showing had been made as to the fact in that regard the judgment could be sustained. (Osborne v. Gray, 241 U. S. 16.) Inasmuch as, according to the decision cited, .the defendant was required to prove the fact in order to derive any benefit from it, the defense was clearly one that it could waive. Doubtless if the defendant had specifically pleaded that the decedent had not been engaged in interstate commerce this would have precluded it from showing the contrary. By the usual rule the failure to plead this defense in the answer would of itself amount to a waiver. The federal supreme court has modified this rule (Toledo, St. L. & West. R. R. Co. v. Slavin, 236 U. S. 454) and by that modification we are bound. But as I read the case just cited its doctrine goes no further than this — that a purely technical rule of pleading will not be permitted to deprive a litigant of a substantial right under the federal statute. Here the conditions there presented are reversed, and by the violation of the rules of orderly procedure the plaintiff suffers a serious wrong, while any error in the rejection of the excluded evidence is purely technical — utterly devoid of any effect upon the substantial rights of the defendant.
Ordinarily the manner of raising the issue concerning the character of commerce in which an employee is injured is of little practical consequence. But in the situation here presented a reversal of the judgment because of the rejection of evidence which was wholly outside of the pleadings will work a grave injustice. If the decedent was engaged in an operation of interstate commerce it was because of the unrevealed destination of the particular car the knuckle of which he was undertaking to adjust when the train ran against it. The use that was being made of the car lay peculiarly within the knowledge of the defendant. It would have been very difficult for the plaintiff to learn the fact in that regard, to say nothing of proving it. The defendant may almost be said to have had an option to try the case under the federal law or under the state law. If it saw fit to remain silent on the subject throughout, the plaintiff was forced to rely solely on the state law unless she could obtain evidence of the interstate character of the commerce in which the accident occurred. Or the defendant might produce what would amount to prima facie evidence of interstate commerce which it could overcome if it desired, but which the plaintiff possibly could not, for want of information. *463In the present case the evidence introduced perhaps had a tendency to raise a presumption that the car, in handling which the decedent was injured, was at the time in the course of an interstate trip, but it contained nothing to prevent a further showing that the car was not routed for Ft. Worth until after the accident had occurred. The defendant had an obvious motive in preferring a trial under the state law — the limiting of the judgment to $10,000. It should not be permitted to play fast and loose in the matter. It has not yet definitely asserted, by pleading or otherwise, that the accident occurred while the switchman was engaged in interstate commerce. It could assert the contrary, if sued under the federal act, so far as anything in the record of this case is concerned.
The courts should not allow the defendant, having direct and practically exclusive knowledge of a fact absolutely fatal to a recovery by the plaintiff, to conceal it until she had introduced all her evidence, neither pleading it nor referring to it in the opening statement to the jury, and then surprise her with it in the midst of a jury trial involving a number of controverted matters, unless some substantial right would thereby be protected. If the defendant had included in its answer a statement that the switchman had been killed while engaged in interstate commerce, or had in any way raised a question in that regard before the plaintiff had introduced her evidence, she could have dismissed her action and taken steps to have one brought under the federal statute, sparing herself the trouble, delay and expense of a long trial, which would have been manifestly futile if the car were known to have been in the course of an interstate trip.
If the interstate character of the transaction had been pleaded and proved, a reversal would be justified only because the action was not brought in the name of the proper plaintiff — a matter of form rather than substance. The beneficiaries are the same whether a judgment is rendered in favor of the widow or of an administrator. The case was fully tried out, with every benefit to the defendant that it could have had under the federal law, and with the additional advantage that its liability was limited to $10,000. There was no question of assumed risk in the case. The defendant asked no instruction on the subject excepting one to the effect that no recovery could be had if the injury was caused by “the ordi*464nary risks incident to the employment of deceased as a switch-man in the ordinary work incident to such employment.” The ordinary risks incident to the employment do not include those-due to the .employer’s negligence; and the decedent had no knowledge of the negligence relied upon by the plaintiff and found by the jury, and therefore could not in any event be regarded as assuming any of the risk with respect to it. (26 Cyc. 1225; Gila Valley Ry. Co. v. Hall, 232 U. S. 94.)
The real question in controversy in the case was whether the train started up again after having once come to a full stop. The defendant’s liability turned on the -solution of this question. It recognizes the purely formal character of its unpleaded defense by introducing the reference to it in the concluding pages of its brief in these words:
“We are very desirous that this case should be reversed on its merits and not upon any technicality, as we earnestly believe that the defendant is entitled to judgment upon the facts shown by the record. It is with some reluctance, therefore, that we call attention to a technical ground, which in our opinion requires a reversal of the case, regardless of any other errors pointed out.”
The case is not controlled by St. L. & San Francisco Ry. v. Seale, 229 U. S. 156, for there the defendant raised the interstate commerce question apparently before answering, and the question involved related only to the form in which it should be presented. Here it was not uncovered in any way until the defendant began introducing its evidence.
No possible actual prejudice could result to the defendant from the form of the action unless' it would be subject to a further action under the federal law for the benefit of the plaintiff’s child. Full protection against that could be afforded without reversing the judgment. I think the judgment should be affirmed, possibly with the condition that such protection should be given by making the administrator a party. If the ordinary rules of procedure are enforced the judgment should be affirmed because the defense relied on was not pleaded. If all rules of procedure are subordinated to the attainment of substantial justice, the judgment should be affirmed because it is the result of a fair trial of the real matter in controversy. If the plaintiff is held to compliance with the rules, while the-defendant is allowed to ignore them, a reversal is a matter of course.
Johnston, C. J., and Marshall, J., concur in this dissent.