The assignments of error contained in the record are directed to alleged errors in the charge. Plaintiff relies particularly upon the alleged erroneous failure of the court to explain the doctrine of the last clear chance and to apply the same to the evidence in the case. The acts of negligence alleged in the complaint do not give rise to the application of the doctrine of the last clear chance. "When the defendant answered, pleading contributory negligence, of the plaintiff parent, and setting up a version of the occurrence which might require the application of the doctrine, the plaintiff did not reply and plead the same. Under the present state of the pleadings, in the absence of special- prayer, the charge of the court may not be successfully challenged.
The case is essentially one of fact. The plaintiff offered sufficient evidence of negligence to be submitted to a jury. The evidence offered by the defendant tended to show want of negligence and to exculpate the defendant. This evidence has been submitted to a jury in two separate trials. Each jury has found that the defendant was not guilty of negligence causing injury to plaintiff’s infant child. We can find no sufficient cause for disturbing the verdict and judgment.
No error.