dissenting.
In my view, a prima facie case of assumption of the risk was not established yet the court reverses the trial court for omitting to charge the assumption of the risk doctrine where the charge was not demanded in writing, as required by T.R.Civ.P., Rule 51.01.1
The succinct holding in Rule, cited in the majority opinion, is:
We hold that Rule 51.02 of the Tennessee Rules of Civil Procedure has not abolished or altered the rule announced *449in the Provence [v. Williams, 62 Tenn.App. 371, 462 S.W.2d 885 (1970)] and Holmes v. American Bakeries Co., 62 Tenn.App. 601, 466 S.W.2d 502 (1970)] cases, supra, that in order to predicate error upon an alleged omission in the instructions given to the jury by the trial judge he must have pointed out such omission to the trial judge at trial by an appropriate request for instruction. [Emphasis supplied.]
Rule v. Empire Gas Corp., 563 S.W.2d 551, 554 (Tenn.1978).
At common law, a request to charge affirmative defenses could only be made at the conclusion of the general charge and it was a party’s “duty to offer a special request” where the charge was meager or insufficient. Womac v. Castell, 200 Tenn. 588, 292 S.W.2d 782 (1956). T.R.Civ.P., Rule 51, relaxed the requirement that special requests could only be received at the conclusion of the general charge but reaffirmed that the request had to be made and written.
In overruling the motion for a new trial on the failure to instruct, the trial court stressed no written request was made. Indeed, the pre-trial order reads: “[s]pecial instructions to the jury requests shall be submitted to the court” five days before the trial date. The appellant stands in violation of the pre-trial order, T.R.Civ.P., Rule 51 and Rule yet the majority excuses this on the basis of an informal request, made in chambers, which is not even in the record before us except in an acknowledging remark of the trial court when considering the motion for a new trial. Would the majority hold a verbal request made at the conclusion of a general charge and denied by the trial court, to be sufficient compliance?
The majority’s holding is in contravention of a settled rule of law and places an undue burden on trial judges. It is a wise and salutary rule that the trial judge is not to be reversed on meager or inadequate instruction to a jury unless a written instruction is timely filed with the court and denied.
Appellant’s issue is without merit, nor would I reverse the judgment on the other issue discussed by the majority.
. T.R.Civ.P., Rule 51.01 Requests for Instructions At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests....