dissenting. I concur in paragraph one of the syllabus but dissent from paragraph two of the syllabus and from the judgment. I agree that the rule of assumption of risk is distinct from the defense of contributory negligence. It is available to an automobile host charged with willful or wanton misconduct even though the guest’s contributory negligence might not bar his recovery.* This propostion of law is recognized and well annotated in 44 A. L. R. 2d 1342, at page 1347, where it appears that 13 other jurisdictions agree.
Here the plaintiff and defendant, in concert and by agreement, set out to operate a motor vehicle on the public highway, not as a means of transportation but for the admitted purpose of seeking thrills by driving at a high rate of speed over the highway which was as hilly as a roller coaster. The plaintiff drove on the outgoing trip and then changed places with the defendant, permitting the defendant to drive at an even higher speed over the same dangerous highway on the return trip. The defendant’s conduct was such that it could be characterized as willful and wanton misconduct as a matter of law. The plaintiff’s conduct makes him equally culpable. Un*236der the admitted facts, plaintiff’s conduct on most of the trip was such as to amount to consent. Plaintiff cannot be considered to have withdrawn from the venture at the last moment by reason of the fact that he protested when the substituted driver exceeded his standard of permissible wantonness.
2 Restatement of The Law, Torts 2d, Section 496A, recognizes that there may be a factual question for a jury in such a case as to whether or not the plaintiff knew, understood and appreciated the exact character or nature of the risk which he was assuming. To that effect is Cassidy v. Quisenberry (Ky.), 346 S. W. 2d 304, where it was held that the evidence left a jury question as to whether a 17-year-old girl, riding in the back seat of an automobile proceeding at 60 miles per hour on a so-called “roller coaster road,” realized the peril to which she was exposed. I find no such question here. Under the evidence, it seems clear that the plaintiff fully appreciated that the return ride over the dangerous highway was to be at least as dangerous as had been the original venture in which he voluntarily participated.
Public policy should not permit drivers who are thrill seekers as perverse as were the plaintiff and defendant under this evidence to clog the dockets of this state’s courts suing one another, when meritorious cases await disposition.
Under these circumstances, I would approve the disposition of this case by the courts below and affirm the judgment.
Matthias, J., concurs in the foregoing dissenting opinion.
The statement to the contrary by Hart, J., in Masters v. N. Y. Central Rd. Co. (1947), 147 Ohio St. 293, is disregarded as dicta since the court there decided the defendant’s conduct did not as a matter of law amount to wanton misconduct.