¶1 (dissenting).
¶2 I dissent. My disagreement with the prevailing opinion is very largely on the construction which we should place on the undisputed facts, and on the inferences which should be drawn from the evidence of a continuing use of the permanent board. The basis of my discussion of these problems will be the facts as stated in the prevailing opinion. For although those facts are not stated unduly favorably to the plaintiff yet they are sufficient for the points which I wish to make.
¶3 First as to the construction to be placed on the placing of the chains around the wheel pit. I do not think our problem is to determine what was the intention of the defendants in placing the chains as they did in that position. Our problem is rather to determine what should the defendants have anticipated would be the effect of thus placing the chains, on the employees who had in the past been using the permanent board to cross from one side of the pit to the other when the pit was open. What the defendants’ intention was in so placing these chains is immaterial, the same as any other unexpressed intention which they may have had. The only thing we are concerned with is what intention did they communicate to the plaintiff and their other employees by such act. In other words since they did not expressly by oral communication or by any written statement indicate to the plaintiff and other employees that they were ho longer to use this board in crossing the pit when it was open, could they reasonably anticipate that the mere placing of those chains around the pit in the manner which they were placed would be sufficient to cause the plaintiff and *320 other employees similarily situated to desist from using that board in crossing the pit in cases where to do so was the most convenient way to get where their work required them to go.
¶4 In determining what was the intention of the defendants in placing the chains around the pit the prevailing opinion points out that it would be more dangerous for plaintiff to pass around the post and between it and the car, and back on the permanent board and then on across the pit, with the chain there as it was placed, than it would be for him to merely walk across the board without any chain. This would have some weight in determining what were defendants’ intentions in placing the chain there, but it has very little bearing in determining what should the defendants reasonably anticipate would be the effect thereof on plaintiff and other employees similarly situated. While we cannot presume that defendants would intentionally change the situation so that it would be more dangerous for plaintiff to perform his work we can infer from the facts that such was the effect of so placing the chain around the pit. And while they may have intended by placing the chain around the pit to notify plaintiff and other employees similarly situated not to use the permanent board in getting from one side of the pit to the other, still we may conclude that defendants should have known that it would not be an effective means of giving such notice. Of course the placing of the chain around the pit did have the effect of preventing some one from falling into the open pit at other places where is was not covered by the permanent board.
¶5 The evidence is undisputed that before the chain was placed around the pit, plaintiff and his crew and other employees similarly situated, when the pit was open, used the permanent board regularly to cross from one side thereof to the other; that at times their work required them to go from one side of the pit to the other and this was the most convenient way to do so; that when the pit was closed, both before and since the chain was placed around it, such employees have regularly walked over the boards which covered *321 it including the permanent board; that no one has ever told plaintiff that he was expected not to use this board in crossing over the pit nor has he ever been so notified in writing. The permanent board is 22 inches almost two feet wide, it weights 75 pounds, it consists of three heavy planks firmly bolted together and it fits firmly in a groove made therefor on the sides of the pit. It gives ample room for a person to walk across it and its appearance would suggest that it was put there for that purpose. The prevailing opinion suggests that it would only be 40 feet further to go around the pit, to have to go that much farther would seem to a man busy at work too far to go around when he could get where he was going merely by stepping over or stooping under a chain or by swinging around the post as plaintiff did. It is also clear that the men working in this pit regularly used this board in crossing from one side thereof to the other. Under these circumstances, since the danger is doing so without stopping to consider the possibilities is not apparent, and since human experience teaches that busy men do often take such chances, in my opinion the defendants had they acted as ordinary, prudent men, would have anticipated that the plaintiff and the other employees who were similarly situated would continue to use this board to cross the pit just as they had used it before the chain was placed there. To me it seems that this is the thing that you would naturally expect them to do.
¶6 This is not exactly the negligence which plaintiff pleaded. But the evidence of such negligence was supplied by both parties without any objection that either part was surprised thereby and not prepared to meet it. By the nature of this evidence it was of necessity developed in showing the facts as they existed which facts were relevant to the issues as made by the pleadings. It is a well recognized rule in this and other courts that where plaintiff alleges a wrong committed in one manner and the defendant proves that he did not commit the wrong in the manner alleged but did commit that same wrong in a different manner, that the court may award judgment in plaintiff’s favor on the basis of the facts *322 as proved. I think the principle involved in that kind of a case is applicable here. It would probably have been better had plaintiff asked leave to amend his complaint to conform to the proof, but as long as the proof was before the court and no one had been deprived of full opportunity to rebut or disprove it I think that question should have been submitted to the jury.
¶7 It may well be that plaintiff himself was guilty of contributory negligence in attempting to cross the pit on this board by swinging around the post as he did. Obviously had he stopped to think he would have recognized that to swing around this post was more dangerous than to go around the pit, or to step over or stoop under the chain. But under the Federal Employer’s Liability Act contributory negli-fence is not a defense. If the evidence shows that the defendants’ negligence was a contributing proximate cause of the accident that is all that is necessary. In this case, in my opinion, all that was necessary was that a showing be made that the defendants as reasonable persons should have anticipated that plaintiff and the other employees similarly situated would continue to use this board in crossing the pit and that in so doing the place to work was unsafe. This question I think should have been submitted to the jury.
¶8 Even if we were to conclude that the placing of this chain around the pit was in itself sufficient notice to plaintiff and the other employees similarly situated that they should not use this board to cross the pit when it was open, I think the evidence is sufficient from which the jury could reasonably find that such employees had continued to so use this board after the chain was placed around the pit the same as they used it before so as to notify the defendants of such use and that in view of such use this was an unsafe place to work. In my opinion neither the record nor the extracts therefrom quoted in the prevailing opinion can be read without concluding that plaintiff and his witness were positively testifying that after the chain was placed there, plaintiff and his crew and the other employees similarly situated continued to use this board to cross the pit whenever *323 it was convenient for them to do so, as they did prior to the placing of the chains, and that neither of them receded from this positive testimony or testified contrary thereto on cross examination. While plaintiff’s witness on cross examination only mentioned the names of two persons and two occasions when he saw such employees crossing the board when the pit was open after the chain was placed around it, this does not mean that those two occasions were the only ones where he saw such employees cross the board after the chain was placed around the pit. It only means that those two occasions were all that readily came to his mind. It might well be that he could have seen such employees cross that board over and over again and still only be able to recall two specific events when that had occurred. If that had become a common occurrence in his day’s work, it would be natural that he would not retain them so that he could mention each one of such events.
¶9 Nor do I agree that the fact that three other employees of the defendants testified that they had not seen plaintiff or any other employee similarly situated cross the board when the pit was open after the chain was placed around it, was very strong evidence that such was not the custom. It is not shown that had this been the custom that these witnesses would have remembered seeing this happen, these witnesses were not shown to have been there constantly nor was it shown that had they seen such employees so cross the board that they would have remembered it. So their testimony is not necessarily in conflict with the testimony of plaintiff and his witness. But even if it were, in my opinion, it is still a question of fact for the jury and we cannot determine this fact against the plaintiff as a matter of law.
¶10 I therefore am of the opinion that this case should have been submitted to the jury on these issues.