The following opinion was filed March 19, 1915:
Marshall, J.(concurring). I concur in the decision upon the ground that, though the deceased assumed the risk of working under conditions which were more than ordinarily hazardous, he was guilty of contributory negligence in failing to exercise ordinary care to see whether the spouts were securely supported before going into the particular place where he was injured. According to the statement of facts, the spouts were liable to be insecurely supported as deceased must have known. The risk that they might be thus was the one he assumed. That was within his contract. It did not *70absolve him from responsibility of paying reasonable beed to whether they were in such condition before going into the probable zone of danger. According to the statement, just a little attention to the matter would have disclosed the imminence of such danger. He paid no attention whatever thereto and so was guilty of contributory negligence.
The last part of the opinion of my brother Vinje, stating a distinction between contributory negligence and assumption of the risk under the statutory policy rendering the former still a matter of defense, but the latter not, I cannot agree to. I do not think it is supported by Erdman v. Ill. S. Co. 95 Wis. 6, 69 N. W. 993; Schlemmer v. B., R. & P. R. Co. 205 U. S. 1, 27 Sup. Ct. 407; or Besnys v. Herman Zohrlaut L. Co. 157 Wis. 203, 147 N. W. 37.
The first case cited distinctly treats voluntarily working under extrahazardous conditions as assumption of the risk, and the others recognize that there may be assumption of risk of a high degree and failure to exercise ordinary care under the special circumstances. The idea that the grade of danger is a test of whether the particular risk is assumed, or the act in working under the conditions or in the particular way, an inadvertence, — is a new one and I fear an illogical and dangerous one.
It is unfortunate that assumption of the risk, which, necessarily, does not involve inadvertence, was ever confused with contributory negligence, which, necessarily, must be characterized by inadvertence. It is still more unfortunate, in my view, that after distinctly and emphatically turning to the only logical distinction between the two situations in Knauer v. Joseph Schlitz B. Co. 159 Wis. 7, 149 N. W. 494, the new idea should be advanced. At present, it has the support of but a minority of the court. I have faith that, upon further consideration, the distinction mentioned in the Knauer Gase will be affirmed as the only one and that it will also be reaffirmed, as in Besnys v. Herman Zohrlaut L. Co. and the *71Schlemmer Case, that if one voluntarily consents to work in an extra and unnecessarily hazardous place, he assumes the risk regardless of the grade of it, but if he then fails to exercise reasonable care, under the special circumstances, his conduct is not within the field of such risk but is within that of inadvertence. That does not inject any new and confusing idea into the law of negligence as regulated by the statute, while the idea that I feel compelled to dissent from, I think does.
A motion for a rehearing was denied, with $25 costs, on May 18, 1915.