In a personal-injury action arising out of an automobile accident, when may the defendant-driver properly assert the defense of assumption of risk against the plaintiff-passenger who asserts wilful and wanton misconduct on the part of the defendant-driver?
Plaintiff argues (1) that the defense of assumption of the risk is not conceptually different from the defense of contributory negligence, (2) that contributory negligence is not a defense where wilful and wanton misconduct on the part of the defendant is proved, and (3) that, therefore, assumption of the risk should likewise not be a defense.
*233In Kellerman, Admx., v. J. S. Durig Co. (1964), 176 Ohio St. 320, this court held:
“Where wanton misconduct on the part of a defendant existed, negligence on the part of the plaintiff is not available as a defense.”
In Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, this court held:
“A party charged with wanton misconduct is deprived of his plea of contributory negligence.”
Thus, plaintiff’s conclusion would follow if his major premise was correct. However, it is not true that contributory negligence and assumption of the risk are conceptually identical. Of course, “there may be instances where contributory negligence and assumption of the risk overlap,” Ricks v. Jackson (1959), 169 Ohio St. 254, 256; Keeton, Assumption of Risk in Products Liability Cases (19’61), 22 La. L. Rev. 122, 133. However, that they may sometimes be found overlapping does not demonstrate their identity. In Porter v. Toledo Terminal Rd. Co. (1950), 152 Ohio St. 463, this court held:
“1. The terms ‘contributory negligence’ and ‘assumption of risk’ are not synonymous. The former is based on carelessness and the latter on venturousness.”
In Prosser, Law of Torts (3 Ed.) 452, the writer states:
“* * * Where they have been distinguished, the traditional basis has been that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of conduct of the reasonable man, however unaware, unwilling, or even protesting the plaintiff may be. Obviously the two may coexist when the plaintiff makes an unreasonable choice to incur the risk; but either may exist without the other. The significant difference, when there is one, is likely to be one between risks which were in fact known to the plaintiff, and risks which he merely might have discovered by the exercise of ordinary care.”
In the case at bar, the defendant asserts a defense that is more than just contributory negligence. Defendant states in his brief: “ Appellee contends that the evidence in this case discloses that the plaintiff accepted a danger in driving and allowing himself to be driven over the ‘bumps’ for ‘thrills,’ which he *234clearly understood. He had enough foresight to appreciate the consequences of his action # * This claim that plaintiff consented to an appreciated risk differs from a claim that plaintiff was careless for his own safety.
The gist of the defense of assumption of the risk is (1) consent to or acquiescence in (2) an appreciated or known (3) risk, 61 Corpus Juris Secundum 95, Motor Vehicles, Section 486. The practicalities of proof require that the defense of assumption of the risk also be applicable where the risk is so obvious that plaintiff must have known and appreciated it. Ricks v. Jackson, supra. The defense is equally applicable to situations where the defendant creates the risk of harm to the plaintiff through wilful and wanton misconduct (Gill v. Arthur [1941], 69 Ohio App. 386) as it is where defendant creates the risk through negligence. For when the risk is known and appreciated, the consent of the plaintiff to proceed nevertheless is always commensurate with the risk created by the defendant. It is thus that assumption of risk may counterbalance wilful and wanton misconduct, whereas contributory negligence can not.
Therefore, assumption of the risk may be a defense even where there has been wilful and wanton misconduct on the part of the defendant.
There is then presented the question of whether the court or the jury should decide whether plaintiff, on the basis of the evidence presented, assumed the risk. Generally, that issue is a factual one that requires resolution by the jury. It is only when reasonable minds could come to but one conclusion that the issue becomes one for the court. Hamden Lodge v. Ohio Fuel Gas Co. (1934), 127 Ohio St. 469; Francis v. Bieber (1967), 10 Ohio St. 2d 65. Since it was the defendant who moved for a directed verdict, the trial court and this court are required to view the evidence in a light most favorable to the plaintiff (Hamden Lodge v. Ohio Fuel Gas Co., supra).
Since there is evidence which the trial court is required to believe when passing upon a motion for a directed verdict (1) that plaintiff believed that he was obligated to transfer control of the car to the defendant as owner when defendant insisted on the transfer, even though his driver’s license was suspended, (2) that defendant told the truth when he said, “nothing will happen,’’ (3) that plaintiff repeatedly told defendant to reduce *235the speed of the automobile and another passenger screamed at the “top of his voice” to slow down, (4) that plaintiff attempted in vain to turn off the ignition in order to stop the speeding car, and (5) that plaintiff had driven the car safely and at a lawful rate of speed over the same road, it was within the province of the jury to decide whether plaintiff assumed the risk created by the defendant.
Defendant’s motion for a directed verdict should have been overruled and the cause submitted to the jury.
The judgment of the Court of Appeals is, therefore, reversed, and the cause is remanded to the trial court for a new trial.
Judgment reversed.
Zimmerman, 0 ’Neill and Schneider, JJ., concur. Matthias and Brown, JJ., dissent.