Cleveland Ry. Co. v. Masterson

I concur in the judgment of reversal in this case, upon the sole ground that the issue of the last clear chance doctrine was not made by the pleadings, and it was therefore reversible error to receive evidence upon that issue, and was also error to instruct the jury upon that issue. I cannot concur in any of the syllabi, and must dissent from the declarations of law in each of the five syllabi. I shall briefly state the reasons for my dissent.

The first, second, third and fourth syllabi relate to the rule of the last clear chance doctrine, but none of them places the reversal upon the grounds…