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 *1189 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.