(concurring). While I concur in the result reached in this case, I have grave doubts of the correctness of some of the statements of the opinion of the court relating to the distinction between assumption of risk and contributory negligence in automobile collision cases involving the host-guest relation. I fear it was a mistake which we may ultimately have to correct to introduce into the law of such cases the idea of' assumption of risk as that phrase was used at the common law in negligence cases between master and servant. The bases of the two defenses of contributory negligence and assumption of risk in such cases are entirely distinct. Assumption of risk is considered to be a matter of contract, express or implied. Contributory negligence is a matter of conduct. In the ordinary case, the distinction between the two is plain. However; cases exist wherein assumption of risk shades into and even merges into negligence. Assumption of risk is not dependent on the probability or improbability, or the imminence or remoteness of danger. Where it exists it constitutes a defense whether in assuming the risk the servant exercised ordinary care or not. If the danger assumed was so imminent and apparent that a person of ordinary care and prudence would not assume it, the assumption of it amounts to and in fact is contributory negligence. The difference between the two is thus often a matter of degree rather than kind. These *34distinctions are pointed out in the cases cited in the note in 21 L. R. A. (N. S.) pp. 138, 139, cited in the opinion of the court, and are illustrated in the case of Knauer v. Joseph Schlitz Brewing Co. 159 Wis. 7, 149 N. W. 494, referred to in the opinion of the court. That was a case of assumption of risk by a servant who was struck by a car while working in a yard where cars were habitually shunted without warning. The servant.was held to have assumed the risk of the practice. He had inquired whether a car was coming before entering upon the car track, and was told that none was approaching. It is said in the opinion, page 14, that had he not taken precautions before entering upon the track “he would clearly have been guilty of contributory negligence.” It is also said, page 12: “It is not difficult to see that the two (assumption of risk and contributory negligence) may coexist, as between employer and employee, and absence of one and presence of the other may also coexist.” It is also said, page 11, that assumption of risk only arises as an incident to contractual relations. The host-guest relation does not rest on any contract, either express or implied. It is a mere social relation. The basis or the assumed basis of the assumption of risk doctrine in master and servant cases is entirely wanting. Thus it was perhaps illogical to apply the doctrine in host and guest cases. Quite likely the better way to have handled the matter would have been to hold that when the guest enters or voluntarily remains in the automobile of his host, under circumstances such that a person of ordinary care and prudence would not have done so, he is guilty of contributory negligence, and to say nothing about assumption of risk. The ultimate fact in such cases is that the guest is guilty of negligence in assuming the risk of harm or he is not so guilty. But if we do apply the 'doctrine we should be governed by the rules that applied to the doctrine in master and servant cases. If the risk of the danger assumed is so apparent that a person *35of ordinary care and prudence would not assume it, then the conduct of the guest in assuming it amounts to and is a want of ordinary care; and if a collision results from the conduct of the host of which the guest assumes the risk, then the guest contributes, — not to the collision, — but to his own injuries, and is guilty of contributory negligence.
• Applying this to the instant case, if Miss Scory in taking her position beside the automobile exercised ordinary care in so doing — that is, if a person of ordinary care and prudence under the circumstances would have taken a position beside the parked automobile, she was not guilty of contributory negligence. On the other hand, if a person of ordinary care and prudence would not have taken such position or ought to have foreseen that injury to him was likely to result from taking such position, she was guilty of contributory negligence. In the latter case her contributory negligence would have been subject to comparison with that of Mr. Swanson under our comparative negligence statute.
It is stated in Biersach v. Wechselberg, 206 Wis. 113, 118, 238 N. W. 905, that what was said about assumption of risk and contributory negligence in the Knauer Case, supra, was to some extent departed from in Fandek v. Barnett & Record Co. 161 Wis. 55, 150 N. W. 537. I do not perceive any departure, but if there was any, it does not alter the undisputable fact that the basis of the assumption of risk doctrine in master and servant cases was the contractual relation between master and servant; nor ■ does it alter the fact of the frequent coexistence of assumption of risk and contributory negligence under the same state of facts, or the fact that there are numerous decisions to the effect that the one may be present and the other absent under a given state of facts.
It has been stated by many courts that assumption of risk and contributory negligence are the same. While this state*36ment has been properly criticized as incorrect, it is not necessarily incorrect to say that assumption of risk is a form of contributory negligence. It is not illogical to conclude that assumption of risk is always contributory negligence because, as stated in the opinion by Mr. Justice PIolmes in Schlemmer v. Buffalo, R. & P. Co. 205 U. S. 1, 12, 27 Sup. Ct. 407, 409, . . . “the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind.” It would not be unreasonable to say that the “preliminary conduct of getting into a dangerous employment” is contributory negligence. If following a practice is so dangerous as to constitute common-law negligence of the employer, it requires no great stretch of reason to conclude that an employee who voluntarily and knowingly submits himself to. the danger of that practice is also negligent under the common law. In this view assumption of risk would always be contributory negligence, although there might well be contributory negligence in addition to assumption of risk in a given case. It would seem that assumption of risk must be held to be a form of contributory negligence in order to justify our ruling in Walker v. Kroger Grocery & Baking Co. 214 Wis. 519, 252 N. W. 721, wherein we held that the negligence of guests, whose only negligence was that they had assumed the risk of the negligent manner in which their host was driving the car in which they were riding, was to be compared with the negligence of the driver of a truck with which the car in which they were riding collided. If assumption of risk is not contributory negligence, under our comparative negligence statute, the conduct of one who assumes a risk is not to be compared to the conduct of one *37from whom he is claiming recovery on the ground of negligence. If the conduct of a guest is contributory negligence as to the third party, the same conduct is contributory negligence as to his host. The conduct is contributory negligence as to both because the guest has voluntarily subjected himself to a risk of harm to himself to which an ordinarily careful and prudent person would not subject himself.
The opinion of the court herein quotes with seeming approval from Colby Cheese Box Co. v. Dallendorfer, 213 Wis. 331, 251 N. W. 447, 449, which assumes that a statement in Tentative Draft No. 10 of Restatement of the Law of Torts is a correct definition of contributory negligence, and that one is not contributorily negligent except under the conditions there stated. Under that statement Miss Scory could not have been guilty of contributory negligence as to Swanson unless she had ability to control the conduct of Mrs. LaFave. This ignores the proposition that has always obtained under the common law that one could not recover for the negligence of another if his own negligence contributed to produce his injuries. It must be borne in mind that contribution to the injury to the plaintiff, not contribution to the accident that caused his injury, is the only contribution that is essential to contributory negligence. Thus one who carelessly takes a position of danger is guilty of contributory negligence, although his conduct has nothing to do with the accident caused by the negligence of another in which he sustains his injuries. See Wiese v. Polzer, 212 Wis. 337, 345, 248 N. W. 113, and the railroad and street railroad cases there cited, wherein the plaintiff occupied a place upon the platform or steps of cars or trains that collided with obstacles. Taking the position of danger did not operate to cause the collision involved, but was nevertheless contributory negligence. I make bold to suggest that in final analysis it will be found that the statement quoted in the opinion of the court herein from the opinion in the *38Colby Cheese Box Co. Case, supra, must be limited to cases wherein the defendant seeks recovery from the plaintiff by counter-claim on the ground of the latter’s negligence. A plaintiff is not liable to the defendant (Miss Scory would not be liable to Swanson) unless the plaintiff’s (Miss Scory’s) conduct squared with the statement in the opinion. But a plaintiff might be barred from recovery at common law by his contributory negligence in putting himself in a position of danger, although his act in so doing had no connection whatever with causing the accident in which he sustained his injury.
It is intimated in the opinion herein that the statement made in the Wiese Case, supra, to the effect that the rule of assumption of risk as between host and guest does not apply as between a guest and third persons unless the negligent act of the host in which the guest acquiesces operates as a cause of the collision, is incorrect because it implies that if the host’s negligent act does so operate the guest is barred from recovery against the third person for the latter’s negligence. I surmise that where a guest is not so barred it is because the risk of harm he assumed was one which a person of ordinary care and prudence would have assumed under the circumstances present. In other words, in such case, the guest is not barred because he did not negligently contribute to his own injuries, rather than because his assumption of risk as against his host did not operate as an assumption of risk as against the third person. It is to be borne in mind that the thing assumed in assumption of risk by a plaintiff is risk of injury to himself, and that a plaintiff’s subjecting himself unreasonably to a risk of injury has always been, and I submit always will be, contributory negligence if injury results from the act from which risk of injury has been unreasonably assumed. To my mind attempt to apply the assumption of risk doctrine in host and guest cases was entirely unnecessary. The *39same result follows from applying the doctrine of contributory negligence irrespective of that of assumption of risk. We say a guest assumes the risk of injury from negligent conduct of his host to which he knowingly and voluntarily .subjects himself. The host in such case is negligent because he has done something that an ordinarily careful and prudent driver would not do. If the host is negligent under a given state of facts, the guest is negligent under the same state of facts for voluntarily and knowingly subjecting himself to the dangers incident to the host’s conduct, and the guest is precisely as negligent as is the host. The guest subjects himself to precisely the same danger to which the host subjects him. It follows under our comparative negligence statute that the guest’s negligence is not less than that of the host and he cannot recover from the host.
This belated expression of dissent from the policy of trying to inject the assumption of risk doctrine into the law of negligence applicable to automobile accidents involving the host-guest relation is perhaps as useless as it is untimely. The opinion is filed in the fear that the court may be getting its lines crossed in the attempt to administer the comparative negligence statute, and in the hope that it may eventually aid in bringing about an application of the statute that is simple and free from inconsistencies.