
    J. ROSENBAUM GRAIN CO. v. MITCHELL.
    (Supreme Court of Texas.
    April 17, 1912.)
    Negligence (§ 119) — Pleading—Pbooe.
    Defendant cannot show other acts of contributory negligence than those specifically pleaded by the answer.
    [Ed. Note. — For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. § 119.]
    Error to Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by John Mitchell against the J. Rosenbaum Grain Company. Judgment for plaintiff was affirmed in the Court of Civil Appeals (142 S. W. 121), and defendant applies for a writ of error.
    Application refused.
    Capps, Cantey, Hanger & Short, of Ft. Worth, for plaintiff in error.
    
      
       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   BROWN, C. J.

We have carefully examined and considered plaintiff in error’s application, and have concluded that it should be refused. In refusing the application we have not passed upon the question of Jones’ negligence as being imputable to Mitchell, because that is not embraced ,in the answer of the grain company. Having pleaded specially the acts of contributory negligence of Mitchell, the grain company must he confined to the matters pleaded. The evidence admitted can furnish no defense, in the absence of proper allegations.

The application is refused.

PHILLIPS, J., did not participate.  