Walsh V. West Coast Coal Mines Inc‪.‬

Plaintiff, as administratrix, brought this action on behalf of herself and her minor children to recover damages for the death of her husband, resulting from an accident which occurred in defendant's coal mine, and which she alleged was caused by defendant's negligence. In its answer, defendant denied plaintiff's allegations of negligence and, by way of three affirmative defenses, alleged (1) that the deceased was a mere volunteer on its premises at the time he was killed, and that the dangerous conditions then and there existing were fully known to and appreciated by him; (2) that his death was caused by his contributory negligence; and (3) that he voluntarily assumed the risks incident to his presence upon the premises under the existing conditions. Plaintiff demurred to the third affirmative defense. The trial court sustained the demurrer as to the categorical allegation of assumption of risk by the deceased, but overruled the demurrer as to the remainder of the pleaded defense, allowing the facts therein stated to stand as a plea of contributory negligence.