In Lattrell v. Swain Swain, 127 Vt. 33, 239 A.2d 195 (1968), these doctrines are considered interchangeably in a decision holding that a jury could properly have found (a) that a defendant was not guilty of actionable negligence, (b) that the plaintiff was guilty of contributory negligence and (c) that the plaintiff had assumed the risk.
In this sense, the ruling was not "appealable" within the requirement of this section of the statutes. The plaintiff relies upon Beal v. Ready, 126 Vt. 127, 223 A.2d 820 in support of his claim. That case was a court proceeding on a petition to have a default judgment set aside on the ground of fraud, accident or mistake under 12 V.S.A. ยง 2353.
