delivered the opinion of the court.
Appellee, Woodruff, sued the appellant, the Yazoo & Mississippi Valley Eailroad Company, for personal injuries, and recovered a judgment for ten thousand dollars, from which judgment the railroad company prosecutes an appeal to this court. The material facts are as follows:
At the time of the injury Woodruff was an engineer on the Woodville branch of the Yazoo & Mississippi Valley Eailroad, running from Woodville, in this state to Slaughter, La. The injury complained of was caused by the explosion of a glass tube in the lubricator, which latter was a part of the engine, and attached to the rear end of the boiler, to the left of the engineer’s seat, and to the right of the fireman’s and consisted of four glass tubes, about four inches in length and three-eighths of an inch in diameter, one of which fed oil into the' right cylinder of the engine, one into the left, one into.the air pump, and the fourth indicated the amount of oil in the lubricator, and all were guarded against injury from explosion by a cover of spiral wire; spaces *45being left between the wires, so that the engineer conld see whether the oil had been exhausted. At the time of the injury the engine was standing still. Woodruff, while sifting on his seat in the cab, reached across to his left to get an oil can, which brought his face near the lubricator, and while in that position one of the tubes Exploded, throwing the glass and hot oil into his face and eyes, which resulted in the loss of one eye and other injuries. The lubricator was what is known as the “Nathan No. 8.” Woodruff had been an engineer for twenty-one years — two years on the Queen & Crescent System, and nineteen years on the Yazoo & Mississippi Valley — and during his experience as an engineer had used a Bull’s Eye lubricator, a Detroit, and a Nathan No. 8. Glass tubes in all these lubricators explode at times, and the engineer carries along a supply in order to replace such as explode. Woodruff testified that one had exploded on this engine two or three months previous to the explosion which caused the injury, and such explosions had often occurred in his experience. The Nathan No. 8 is sent out by the manufacturer with a guard for the glass tubes, called in the testimony a “cup,” and is made of a metal-like tin, is circular in shape, and surrounds the glass tube, and has small slits in it, through which the engineer can look and see the gauge of tlje oil. The purpose of this guard is to hold as much of the glass and oil as possible in case of explosion, to prevent injury to employes. For some reason, on.the Yazoo & Mississippi Valley Eailroad, this guard is not used to a very great extent, being replaced at the shops with a spiral wire guard, like the one on the lubricator in question when it exploded. Woodruff showed by his own testimony that the Bull’s Eye lubricator is considered the best and safest; that the Nathan No. 8 is reasonably safe, when the glass tubes are covered with the guard sent out by the manufacturer, which costs only a few cents, but *46without such guard and with the spiral wire guard, it is unsafe and dangerous; that he had used the spiral wire guard for years, as well as the other, and he knew that the former caused, the lubricator to be an unsafe dangerous appliance; that, so equipped, he voluntarily operated his engine. The court refused a peremptory instruction to the jury to find a verdict for the railroad company, and also an instruction to the effect that they would-find a verdict for the railroad company, even if they believed from the evidence the lubricator, in question was defective and unsafe, provided it was known to Woodruff, and he operated the engine voluntarily with such knowledge.
The single question is (all other assignments of error having been withdrawn) whether the court below erred in refusing the peremptory instruction for the railroad company, which involves the question whether, taking all the testimony in the case, and every reasonable inference to be drawn therefrom, to be true, does it tend to establish liability on the part of the railroad company? Conceding that the engine which caused the injury was unsafe and dangerous, it is contended for the railroad company that, notwithstanding, there is no liability; that there was no issue of fact for the jury, because Woodruff’s own testimony, which is uncontradicted, shows that he knew „ of such defective condition of the engine, and voluntarily operated the same.
That part of section Í93 of the Constitution of 1890 bearing on this question is in this language: “Knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances, shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, of engines voluntarily operated by them.” Section 4056, Code 1906, contains a rescript of this clause to the Constitution, except there is interpolated, “or of the improper loading of cars,” *47which has no effect on the question involved. In construing this section of the Constitution, in I. C. Railroad v. Guess, 74 Miss. 170, 21 South. 50, the court used this language: “Section 193 of the Constitution, and also section 3559 of the Code, brought forward in the amendment of March 11, 1896, expressly except engineers and conductors in charge of dangerous- or unsafe cars or engines, voluntarily operated by them, from the provision that knowledge by an injured employe of the defective or unsafe character or condition of machinery or appliances shall be no defense to an action for an injury caused thereby. This exception, applied to engineers and conductors, was manifestly incorporated on grounds of public policy for the protection of human life.” And in Buchner v. Railroad Company, 72 Miss. 873, 18 South. 449: “The law was (before the adoption of .section 193 of the Constitution) that knowledge by an employe of defective appliances, which he voluntarily used, precluded his recovery for an injury thus received.” And in Y. & M. V. Railroad Company v. Parker, 88 Miss. 193, 40 South. 746: “The exception referred to (in section 193 of the Constitution) is applicable solely to conductors and engineers, as those terms are generally understood. The reason for the exception was the hope of instilling into the minds of the specially excepted operatives, a feeling of extra caution, by denying them the right of recoveiy, which was expressly granted to other employes who might operate other machinery with full knowledge of its dangerous and defective condition. This provision of the Constitution was based upon grounds of public policy, and was designed for the protection of human life, so often solely dependent upon the care, caution, and skill of engineers and conductors.”
It is clear that this case stands as if the clause of section 193 of the Constitution under consideration had never been adopted; for engineers and conductors, by *48its very terms, are excepted from its operation as to injuries done them by “dangerous or unsafe cars or engines voluntarily operated by them.” This exception declares the common law rule, under the conditions named, which theretofore applied to all employes, and was that knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances was a defense to an action for injury caused thereby, when voluntarily used by him. In Ballard v. Miss. C. Oil Co., 81 Miss. 507, 555, 34 South. 533, 548 (62 L. R. A. 407, 95 Am. St. Rep. 476), the court says: “We are clearly of the opinion that the stepladder furnished the deceased employe, Ballard, was a wholly unsafe and dangerous appliance; but it is equally clear that he had knowledge of its dangerous character. Under the common law his suit would therefore fail.” The rule is too well settled to need further citation of authorities; and, applied to the case, in hand, the facts shown by Woodruff’s own testimony make out a perfect defense for the railroad- — that the defective condition of the engine was known to him, and with such knowledge he voluntarily operated it; that this spiral wire guard (the only unsafe appliance shown) was in extensive use by the railroad, and had been for a long time, and he knew as much about its defects as the company -itself, and with such knowledge voluntarily used it.
It is contended for appellee that the defense of assumed risk was not presented in the court below, and therefore will not be entertained here. Plainly, the question was squarely presented by the testimony,, and the peremptory instruction, and instruction No. 9, to the effect that the jury should find for the defendant, if plaintiff knew of the defect and voluntarily operated the engine, asked on behalf of the defendant and refused by the court. And it is contended, further, that the defense of assumed risk is an affirmative one, and should ■ therefore have *49been pleaded specially, which was not done. This is the general rule, but has no application to this case; for the defense relied on was developed by appellee’s own testimony in his effort to make out his case. In McMurtry v. Railroad Co., 67 Miss. 601, 7 South. 401, and other cases following it, the court holds that, where contributory negligence is shown by plaintiff’s own proof, it will avail the defendant, and it is no objection to the defense that it was not specially pleaded. This principle applies with equal force here.
It follows, from these views, that the court below erred in not giving the peremptory instruction asked on behalf of the railroad.
Reversed, and remanded.