In this case a re-hearing was granted on the ground that the specific negligence charged in the third count of plaintiff's declaration was alleged to consist of the use of an excessive quantity of dynamite to remove a hollow pipe from a portion of the ocean beach which was a part of the city street whereon the husband of plaintiff, a police officer, was standing when instantly killed by fragmentation caused by the explosion which scattered portions of the metal pipe for long distances in every direction, and even into the inhabited portion of the town, within whose boundaries the explosion took place.

It appears from the record that as to this particular count of the declaration the only issue made was that of not guilty and that arising from a special plea denying that the alleged servant of the municipality — the city engineer, was authorized or directed by the town authorities to use dynamite for blasting out the pipe in question which it was desired by the authorities to have removed as an obstruction to traffic on the beach.

While a plea of contributory negligence applicable to all three counts of the declaration had been originally filed by the defendant, it appears that this plea, so far as it was interposed as a defense to the third count of the declaration, had been stricken out by order of the court on motion of the plaintiff. No attempt to plead anew was made and no error is assigned on striking the plea as originally filed. In consequence, the case was tried entirely, as to the third count of the declaration, on the plea of not guilty and plea denying agency.

In this State contributory negligence and assumption of risk are affirmative defenses and when available they should be specially pleaded and proved. King v. Cooney-Eckstein *Page 99 Co., 66 Fla. 246, 63 So. 659; Ann. Cas. 1916 Cow. 163.

The only exception to this rule is where plaintiff permits contributory negligence to be shown without objection under other pleas, or where the alleged contributory negligence appears affirmatively in the case made by the plaintiff. S.A.L. Ry. Co. v. Good, 79 Fla. 589, 84 So. 733; Warfield v. Hepburn,62 Fla. 409, 57 So. 618; Tampa G. C. R. O. vs. Lynch, 91 Fla. 375, 108 So. 560; Southern Express Co. v. Williamson, 66 Fla. 286, 63 So. 433.

As to the defense of assumption of risk this Court has held:

"As a general rule, the doctrine of assumption of risk pertains to controversies between masters and servants, though circumstances may arise between parties other than masters and servants when the doctrine may apply; but such defense is never available unless it rests upon contract; 'or if not exclusively on contract, then, on an act done so spontaneously by the party against whom the defense is invoked that he was a volunteer, and any bad result of the act must be attributed to an exercise of his free volition, instead of to the conduct of his adversary. * * * The word 'assumption' imports a contract, or some kindred act of an unconstrained will. Whenever a man does anything dangerous he encounters the risk, but it by no means follows that legally speaking he assumes the risk." (Emphasis ours).

Cooney-Eckstein Co. vs. King, 69 Fla. text 254.

The evidence shows that the charge of dynamite used to remove the pipe was so great that although plaintiff's husband was standing well away from the explosion a distance of more than 200 feet, that a fragment of the iron pipe struck him in the side making a jagged wound *Page 100 which went through his liver and top of the right kidney, tore a hole in the abdominal aorta, injured the pancreas, tore off the top of duodenum which is a part of the intestine, and passed through the left kidney and then emerged on the left side of the body between the tenth and eleventh ribs, producing almost instant death.

It was also shown by disinterested witnesses that the force of the explosion was so great that pieces of debris from the shattered pipe were thrown for great distances, in some instances, between five and six hundred feet from the place where the dynamite was discharged.

Indeed, insofar as the third count of the declaration was concerned the defendant municipality seemed to rest its defense almost entirely upon the proposition that the act of one H. W. Smith in setting off the dynamite to remove the pipe in question, was not the performance of an act within the authority, or apparent scope of the authority, of said Smith as an agent, servant or employee of the municipality of Jacksonville Beach.

The evidence in the record is sufficient to show negligence on the part of Smith in using under the circumstances here disclosed, dynamite having an explosive characteristic greatly in excess of the necessities of the case, as alleged in the third count. It is also sufficient to show if believed by the jury, that Smith was acting within the implied scope of his authority as a city employee in using dynamite for the purpose of removing the pipe as an obstruction to traffic on the beach which was a part of the city street.

The jury having found the facts in the case against the defendant and there being no issue of contributory negligence raised by way of special defense to the third count, and no sufficient showing of such contributory negligence *Page 101 appearing in the plaintiff's evidence as to bar a recovery, and the doctrine of assumption of risk not being applicable to the basis of recovery relied on under the third count it appears that upon further consideration, after rehearing, the judgment should be affirmed.

Affirmed on re-hearing.

BUFORD, P.J., AND TERRELL AND DAVIS, J.J., concur.

BROWN, J., concurs in the opinion and judgment.

BUFORD, C.J., AND ELLIS, J., dissent.