Shelley

Appellant sued to recover damages suffered in a fall allegedly due to negligence of the appellees in spilling oil on a stairway of the building where appellant worked. A trial by jury eventuated in a verdict adverse to her.

In its Instruction No. 6 the court advised the jury, in substance, that if appellant was herself negligent and if her negligence proximately contributed to the accident and her resulting injuries, she was not entitled to recover. Appellant objected to the instruction on the ground that no issue of contributory negligence had been raised by the answer. The sole question on appeal is whether in this state of the pleadings the submission of the issue was error. We are of opinion that it was not. In arriving at that conclusion we have assumed the correctness of appellant’s contention that the issue is one required to be affirmatively pleaded.

On the direct examination of certain witnesses called by appellant testimony was elicited from which the jury were entitled to infer that appellant had knowledge in advance of going on the stairway that the steps and the platform leading to them were heavily covered with oil, and that by a reasonable use of her faculties she…