¶1 (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.
¶2 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 a risk ordinarily incident to the servant’s employment, which by the contract of employment he had assumed. If this be true, the defendants were entitled to rely upon the fact, in exoneration, without having formally pleaded the defense of assumption of risk.
¶3 Whether obiter dictum or not, the present Chief Justice has clearly and properly announced the rule in the case of Betchman v. Railway Co., 75 S. C., 68; 55 S. E., 140, as follows:
“When a person enters into the employment of another as a servant, he assumes, in law, those risks that are ordinarily incident to the service. In an action by the servant for damages sustained through the alleged negligence of the master, the latter may show, without pleading the facts as a defense, that the injury was the direct and proximate result of an ordinary risk, as such risks are presumed to have been within the contemplation of the parties when *266 they entered into the contract, and testimony to that effect tends directly to refute the allegation of negligence. When, however, the defendant relies upon facts, occurring after the parties had entered into the agreement, to show that the plaintiff had, by his conduct, assumed the risk which caused the injury, such facts must be set forth as a defense, as they are in the nature of a plea of confession and avoidance.”
¶4 The defense of assumption of risk appears under two quite different forms : (1) Where the injury to the servant has resulted from a peril ordinarily incident to his employment, without negligence on the part of the master; (2) where the injury to the servant has resulted from an extraordinary peril due to the master’s negligence, but of the presence of which the servant was cognizant and the danger of which he appreciated.
¶5 As is said in Railway v. Horton, 233 U. S., 504; 34 S. Ct., 635; 58 L. Ed., 1062; L. R. A., 1915C, 1; Ann. Cas., 1915B, 475, cited with approval in Kirkland v. Railway Co., 128 S. C., 47; 121 S. E., 594:
“Such dangers as are normally and necessarily incident to the occupation are presumably taken into the account in fixing the rate of wages. And a workman of mature years is taken to assume risks of this sort, whether he is actually aware of them or not. But risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care with respect to providing a safe place of work and suitable and safe appliances for-the work. These the employee is not treated as assuming until he becomes aware of the defect or disrepair and of the risk arising from it.”
¶6 It is unfortunate that matters so diverse in their natures as the two forms of assumption of risk should have been given the same designation. The first form springs out of the contract of employment by which the servant assumes the ordinary risks of the service. It in no wise involves *267 negligence on the part of the master; in fact, such negligence is necessarily excluded. The second form arises outside of the contract, occurs after the making of the contract, and is referable to the law of torts, where the master has been guilty of negligence, which the servant is aware of, and whose dangers he appreciates.
¶7 There is*a much greater similarity between contributory negligence and assumption of risk of the second form than there is between the two forms of assumption of risk. At least both contributory negligence and assumption of risk of the second form imply negligence on the part of the master, for neither can exist .without it; whereas assumption of risk of the first form proceeds upon the theory that there has been no negligence on the master’s part.
¶8 It has been suggested, incorrectly I think, that contributory negligence and assumption of risk of the second form sometimes shade imperceptibly into each other. They are inherently separate and distinct: The only element they have in common is the negligence of the master. A servant cannot be held guilty of contributory negligence unless he is shown to have been negligent. He may be held to assumption of risk of the second form, however careful he may have been in the operation' of the particular appliance, if the appliance was negligently defective, and he knew and appreciated the danger. See the quotation from Railway Co. v. Horton, 223 U. S., 492; 34 S. Ct, 635; 58 L. Ed., 1062; L. R. A., 1915C, 1; Ann. Cas., 1915B, 475, in the opinion of Mr. Justice Purdy.
¶9 In Railway Co. v. McDade, 191 U. S., 64; 24 S. Ct., 24; 48 L. Ed., 96, the Court said:
“The question of assumption of risk is quite apart from that of contributory negligence.”
¶10 In Schlemmer v. Railroad Co., 220 U. S., 590; 31 S. Ct., 561; 55 E. Ed., 596, the Court held that there is a practical and clear distinction between assumption of risk and contributory negligence. By the former, the employee assumes *268 the risk of ordinary dangers of occupation and those dangers that are plainly observable; the latter is the omission of the employee to use these precautions for his own safety which ordinary prudence requires.
¶11 I cannot but think that the reasoning and conclusion of the Chief Justice, which are quoted above, in the case of Betchman v. Railway Co., were influenced by his conclusive reasoning in the case of Wilson v. Railroad Co., 51 S. C., 79; 28 S. E., 91, the analogy of which to the matter now in controversy appears to me to be complete. There the question was whether the defendant, under a general denial, should be allowed to prove that the injury to the plaintiff was caused by the negligence of a fellow servant. The Circuit Judge excluded the testimony and his ruling was reversed by the Supreme Court. After citing numerous authorities to' the effect that the defendant may offer affirmative as well as negative evidence under a general denial, the opinion proceeds:
“The reason why testimony is admissible, under a general denial, to prove that the injury was caused by the negligence of a fellow servant, is because its tendency is to show that there was no negligence whatever on the part of the defendant,”
¶12 —which is precisely the reason why, under a general denial, the defendant may show that the injury was the result of the ordinary risks incidental to the servant’s employment; a demonstration that it was not the result of the master’s negligence.
¶13 The test is thus stated by Mr. Pomeroy, quoted by the Chief Justice in the Wilson Case:
“Evidence which is in its nature affirmative is often confounded with defenses which are essentially affirmative, and in avoidance of the plaintiff’s cause of action, and is therefore mistakenly regarded as new matter, requiring to be specially pleaded, although its effect upon the issues *269 is strictly negative, and it is entirely admissible under an answer of denial.”
¶14 And by Mr. Bliss (section 327, Code Pleading) :
“Pacts, may be proved, although apparently new matter, which, instead of confessing and avoiding, tend to disprove those alleged by the plaintiff. Such facts support the denial.”
¶15 The Chief Justice then proceeds to' draw the distinction, as to the necessity of pleading, between the defenses of fellow servant and contributory negligence, showing that, guided by the foregoing rule, the defense of fellow servant is simply a negation of the plaintiff’s case, whereas that of contributory negligence is an admission or confession thereof, with new matter in avoidance; the one need not be pleaded, whilst the other must be. I can see no difference in this respect between the defense of assumption of risk of the first form and the defense of fellow servant, both of which are simply denials of the plaintiff’s cause of action and need not be specially pleaded.
¶16 In a note to 30 R. R. A. (N. S.), 1067, the author says:
“Where the risks in question are merely the ordinary risks [incident to the employment] … the phrase ‘assumption of risk’ does not express any distinctive rule of law, but merely expresses the legal principle that the master is not an insurer of the safety of his servant. … A specific pleading of the assumption of risk of the ordinary dangers incident to the service adds nothing to the general denial, and this is almost universally asserted wherever the precise question is passed upon by the Courts.”
¶17 In Tucker v. Terminal Co., 41 Or., 82; 68 P., 426, it is held (quoting Syllabus) :
“In an action for the death of an employee, the answer need not allege that he assumed the risk that caused his injury, if the hazard was ordinary.”
¶18 In Owl Creek Co. v. Goleb (C. C. A.), 210 F., 209; 127 C. C. A., 27, the Court held (quoting syllabus) :
*270 “Where assumed risk is incident to a servant’s contract of employment and arises out of it, it need not be specially pleaded, in order to be available as a defense in an action for injuries.”
¶19 In Phillips v. Railroad Co., 100 Neb., 157; 158 N. W., held (quoting syllabus) :
“Assumption of risk, not usually and ordinarily incident to service, … must be specially pleaded.”
¶20 In Cuozso v. Clyde, 223 Mass., 521; 112 N. E., 215, it is held (quoting syllabus) :
“Where a servant, as part of his contract of employment, assumed a risk, and such risk resulted in injury, it is not a matter of defense to be specially pleaded, as would be a risk not arising out of the contract.”
¶21 In Tucker v. Northern T. Co., 41 Or., 82; 68 P., 426, it is said:
“It is not alleged in the answer that plaintiff’s intestate assumed the risk that caused his injury, and such averment is unnecessary, if the hazard was ordinary, for the rule of the common law is that when a servant, of suitable age and sufficient intelligence, enters into the employ of the master, he is presumed to understand, and therefore, in' consideration of the rate of compensation agreed to be paid voluntarily assumes all the risks ordinarily incident to the business in which he engages (citing cases) ; and, whenever the law presumes a fact, it is. not necessary to aver the same in a pleading. Bliss Code PI. (3rd Ed.), § 175. The rule appears otherwise,'however, in respect to extraordinary risks, in which case the servant’s assumption thereof, to be available as a waiver, must be affirmatively alleged in the answer.”
¶22 To same effect is Maxson v. Case Co., 81 Neb., 546; 116 N. W., 281; 16 L. R. A. (N. S.), 963.
¶23 In Evans Co. v. Crawford, 67 Neb., 153; 93 N. W., 177, it is said:
“All ordinary risks incident to the employment are as *271 sumed, as a matter of law, and are deemed to have entered into the contract of employment. Where negligence is alleged against the master, which he denies, and on the trial of the issue the question of fact to be determined is the alleged negligence, the defendant is entitled to the benefit of an instruction to the effect that the ordinary risks incident to the employment are assumed" by the servant, as a matter of law, and without any affirmative plea in respect thereof.”
¶24 In Martin, v. Light Co., 131 Iowa, 724; 106 N. W., 359, the Court said:
“When a servant enters the employment of a master, he is presumed to have taken into consideration such danger and exposure to injury as is naturally incident to or connected with such service, even when the master has exercised all reasonable care for his servant’s safety. The risk thus arising, which involves no element of negligence on the part of the master, the servant takes upon himself, and his wages are considered to be his full compensation for the danger thus incurred, as well as for the actual labor of his hands. This so-called ‘assumption of risk’ inheres in the contract of employment or in the relation of master and servant, and need never be pleaded as a defense. A simple denial of the charge of negligence raises the question of this .assumption sufficiently for all purposes of. the case.”
¶25 The case of Duffey v. Coal Co., 147 Iowa, 225; 124 N. W., 609; 30 L. R. A. (N. S.), 1067, contains an exceedingly clear statement of the principle. It is there said:
“The term ‘assumption of risk’ has come to be used in a twofold sense. It is often said that an employee assumes the ordinary risk that is incident to his employment. This form of assumption of risk is often pleaded by defendants in personal injury cases, although it is quite unnecessary to do so. Assumption of risk in its true sense has reference to those risks arising out of the negligence of the master, when such negligence is known to the employee, and the ■danger therefrom appreciated by him. In the first form *272 herein indicated, a specific pleading of assumption of risk of the ordinary dangers incident to an employment is a mere amplification of the general denial, and adds nothing to it in a legal sense. In the second form herein indicated, it is an affirmative defense, and must be specifically pleaded as such.”
¶26 Several South Carolina cases have been cited as supporting the proposition that assumption of risk, of whatever form and under all circumstances, is an affirmative defense, which must be pleaded. All of them involve assumption of risk of the second form, as tO' which there cannot be a doubt as to the necessity of pleading the defense, and are not, for that reason, authority upon the question under discussion.
¶27 In Strait v. Rock Hill, 104 S. C., 116; 88 S. E., 469, the basis of the charge of negligence was the defective condition of the rock crusher. Assumption of risk under such circumstances was a defense, which, as a matter of course, in the nature of confession and avoidance, had to be pleaded. It would fall under the second form of the defense of assumption of risk.
¶28 In Kelly v. Lumber Co., 107 S. C., 96; 91 S. E., 978, the basis of the charge of negligence was the defective condition of the appliance upon which the servant was working. The defendant contended that, although such was the condition, the servant knew it, and therefore assumed the risk; clearly a case of the second form. The Court held that it had to be pleaded.
¶29 In Becker v. Railroad Co., 128 S. C., 131; 121 S. E., 476, the basis of the charge of negligence was the defective condition of an engine upon which the servant was working. The defendant moved for a nonsuit upon the ground that the plaintiff knew of the defect and continued to work after the master had promised to repair it, thereby assuming the risk; clearly a case of the second form. The Court held that, as under such circumstances the defense had tó be- *273 pleaded, the defendant was confined to the specifications of that defense which he does plead.
¶30 The case of Montgomery v. Railroad Co., 73 S. C., 503; 53 S. 33., 987, contains an exceedingly interesting and able opinion of Mr. Justice Jones (afterwards Chief Justice of this Court for many years), in which he demonstrates the assimilation of assumption of risk of the second form of contributory negligence, so far as the necessity of pleading it is concerned, and conclusively shows, under the rules of pleading, that there should be no difference in the matter of pleading between these two defenses. There can be, of course, not the slightest assimilation of assumption of risk of the first form to contributory negligence, and the rules of pleading which require assumption of risk of the second form to be pleaded have not the remotest application to that of the first form, while applying with exact fitness to both contributory negligence and assumption of risk of the second form.
¶31 The quotations from the authorities contained in the opinion, which need not be repeated here, conclusively show that a defense which negatives the allegation of negligence, as the assumption of risk of the first form does, may be proved under a general denial. Towards the end of the opinion this passage occurs:
“Applying the foregoing elementary principles of pleading to the case in hand, it is clear that assumption of risk is new matter in the nature of confession and avoidance, and must be pleaded.”
¶32 It is manifest that the learned justice was speaking of that form of assumption of risk which admits the negligence of the defendant and by way of confession and avoidance seeks to be relieved of that conceded negligence by certain other facts or delinquencies attributed to the servant. Certainly the effort to establish the fact that the servant was injured as a result of the risks incidental to his employment, which excludes the negligence of the master, cannot, by any *274 possibility, be construed into a confession and an effort to avoid its consequences.