Medlin v. Vanderbilt

(dissenting) : I have considered only the exception assigning error in the ruling of the Circuit Judge, that the defense of assumption of risk, applicable to perils ordinarily incident to' the servant’s employment, could not be considered, for the reason that it had not been pleaded. I think that the error was properly assigned, and that the judgment of the Circuit Court, upon this ground alone, should be reversed.

The defendants contended, and there was evidence tending to show, that the injury sustained by the plaintiff resulted, not from any negligence on the part of his employers, but from…