So far as the record discloses this case was tried upon pleas of contributory negligence interposed by the defendant to each count of the declaration. I have failed to discover any plea of not guilty, and no such plea is indexed as the rule requires, if such plea was interposed and is in the record.

The cause of action rests upon the alleged negligence of Mrs. Thomas and her daughter, Ruth, to whom Mrs. Thomas had intrusted the automobile, in carelessly operating the machine so that it ran upon and struck the plaintiff and his wife, who, as pedestrians, were crossing a street in the City of Orlando. The street they attempted to cross was Magnolia Avenue south of a point where Livingston Street, running east and west intersects the Avenue.

The defendants' automobile was traveling south on Magnolia Avenue and had crossed the intersecting street, according to the testimony of the driver of the car, therefore the plaintiff and his wife were attempting to cross Magnolia Avenue on the south side of the intersecting Livingston Street.

The second and third counts allege that the plaintiff, who sued for damages for injury to himself and wrongful death of his wife, was crossing Livingston Street. There was a variance between the allegations and proof as to those two counts so the plaintiff could not recover on them. All other counts, however, alleged that the plaintiff and his wife were *Page 302 attempting to cross Magnolia Avenue when they were struck near the west side of that street.

I concur in the conclusion reached by Mr. Justice DAVIS, however, that the last clause in the ninth and eleventh instructions constituted error of a substantial character because even if the plaintiff and his wife were guilty of contributory negligence in carelessly placing themselves in a place of danger they might nevertheless recover if the defendant failed to exercise through her agent the last clear chance to avoid the accident.

The reasons given by me in the concurring opinion in the case of Merchants Transportation Co. v. Daniel, 109 Fla. 496,149 South. Rep. 401, are the reasons which I give here for concurring in the decision in this case.

BROWN, J., concurs.