Coffman

This is an action for personál injuries. The plaintiff was given a verdict, and from the judgment thereupon entered the defendant appeals.

The point for which a reversal of the judgment is demanded is that the proximate cause of the accident by which the plaintiff received the injuries of which he complains was his contributory negligence. In this connection, we may with propriety consider the respondent’s contention that the defendant’s answer does not set up contributory negligence as a defense to the action, and that the question of the plaintiff’s contributory negligence is raised for the first time on this appeal. In reply to the contention, the defendant insists that the answer does sufficiently plead contributory negligence on the part of the plaintiff, and that, in any event, the case having been without objection tried upon the theory that such defense was pleaded and relied upon by the defendant, the respondent will not now for the first time be permitted to urge the objection that the defense of contributory negligence was not properly or at all set up in the answer.

We think the position of the plaintiff upon the proposition is sound. The “further and separate…