February 5, 1919. The opinion of the Court was delivered by
MR. JUSTICE FRAMER.
Little need be said of the facts in this case, as only two questions are raised in the argument. The other exceptions were abandoned at the hearing.
The plaintiff, an employee of the defendants, brought this action for damages for personal injuries. The trial Judge refused to submit to the jury the questions of assumption of risk and contributory negligence, inasmuch as assumption of risk and contributory negligence had not been pleaded. From these rulings this appeal is taken. Both are affirmative defenses and must be pleaded in order to be available defense. Neither was pleaded, and his Honor, Judge Smith, could not have submitted either.
The rule is so well settled that a review, or even a citation of authorities, is unnecessary.
The judgment is affirmed.
MESSRS. JUSTICE HYDRICK, WATTS and GAGE concur.
MR. CHIEF JUSTICE GARY did not sit.