On Motion for Rehearing.
Appellant insists that we erred in overruling its assignment of error to the refusal of the'trial court to instruct the jury, as requested by the defendant, that the term “proper lookout,” as used in special issues, meant such a lookout as a person of ordinary prudence in plaintiff’s situation would have kept under the same circumstances. That contention is made with special reference to the court’s failure to give that definition in cpnnection with special issues submitted presenting the defense of contributory negligence on the part of plaintiff.
As pointed out in our original opinion,' the jury found that at the time and place *548of plaintiffs injury the defendant’s mo-tortruck was being driven at a speed in excess of 20 miles an hour; that the brakes on the truck were faulty, insufficient, and inadequate; that the driver did not keep a proper lookout for the approaching traffic along the street where the accident occurred; and that in each of these particulars the defendant was guilty of negligence which was a proximate cause of plaintiff’s injury.
In’ the first place, the failure, if any, of plaintiff to keep a lookout ahead could have no possible connection with the driving of the truck with faulty brakes. In the second place, no testimony is pointed out tending to show that the driver would have driven the truck at a slower rate of speed than it was driven if plaintiff had requested him so to do. Furthermore, according to appellant’s pleadings and the testimony introduced by it, which was un-controverted, plaintiff was thrown from the truck as the result of its sudden swerving to the left in order to avoid collision with a car'ahead, for which, according to the jury’s findings, the driver, who was in exclusive charge of the truck, did not keep a proper lookout. Appellant has not pointed out any testimony tending to show that a person of ordinary prudence in plaintiff’s situation would have kept a lookout ahead and could and would have anticipated the danger of making a sudden turn to miss traffic ahead and could and would then have given some timely warning to the truck driver which would have caused him to desist from making such a turn. Hence, there was no proper basis for the submission of the issue of plaintiff’s contributory negligence with respect to keeping a lookout for dangers, such as the one which resulted in his injury.
And as pointed out in our original opinion, the error, if any, in failing to define “proper lookout” as applied to the driver of the truck would not be ground for reversal, in view of the finding of negligence in two other particulars, each of which was a proximate cause of plaintiff’s injury.
We adhere to our former conclusions that appellant is in no position to invoke the doctrine of negligence of a fellow-servant, since it did not in its pleadings urge that defense. If, as urged by appellant, the facts pleaded by the plaintiff showed that plaintiff and the driver of the truck, were fellow-servants, we do not believe that that fact would furnish any excuse for the defendant’s failure to present that defense in its pleadings if it intended to rely thereupon, which it could have done by merely referring to the facts pleaded by the plaintiff as a basis therefor- without assuming the burden of alleging and proving the same facts. For illustration, allegations in plaintiff’s petition may show that the action is barred by limitation, yet, unless that defense is raised either by exception or by plea, it is waived.
The motion for rehearing is overruled.