(dissenting):
My basic disagreement with the majority is their failure to correctly characterize the risk of harm presented by this record. In applying the defense of assumption of the risk to any fact situation, the definition of the risk of harm is the critical element. It is apparent that an overly narrow view of risk could emasculate the entire concept. Similarly, too broad a definition could deny recovery. What is required is a definition of the risk of harm which comports with the proof and not just to part of the proof. The facts disclosed by the record in this case demonstrate a risk of harm far different from the risk defined by the majority opinion.
The meat given to Donald for grinding was in one large chunk weighing approximately one pound. While the size of the piece of meat was described as “two baseballs,” no description was offered of the shape. Donald testified that his usual procedure was to place the meat in the funnel-shapped hopper with his left hand. He would then withdraw his hand and use the aluminum stomper provided by Sanitary. He stated that it was necessary to use his hand in the case of the grinding the larger chunks because the worm gear would not catch the meat otherwise.
At the time he was given the one-pound chunk of meat, he attempted his normal procedure. He forced the chunk into the hopper with his left hand. Donald testified that he did not insert his hand far enough to touch the worm gear when he was feeding the chunk into the grinder.1
*376When he felt the meat catch the worm gear, he attempted to withdraw his hand, but could not. Donald stated that his hand had not at that point contacted the worm gear. He stated on cross-examination that there was nothing on the meat with which his hand became entangled! His attempt to remove his hand by jerking did not succeed. Donald stated that his hand went down as the meat went down and yet he was unable to extricate his hand. The meat was being pulled into the worm gear. It is clear that his hand was being drawn into the worm gear. It is equally clear that his injury was not the result of a voluntary act. Thus the risk of harm was that the meat, having been caught by the gear, would draw or pull his hand into the gear and render him unable to remove it.
Restatement (Second) of Torts § 496D (1965) states: “[A] plaintiff does not assume a risk of harm arising from the defendant’s conduct unless he knows of the existence of the risk and appreciates its unreasonable character.” Whitley v. Philadelphia Transp. Co., 211 Pa.Super. 288, 234 A.2d 922 (1967), cites this section of the Restatement with approval. The Pennsylvania Supreme Court has said that the risk must be “glaringly obvious or patent,” Cummings v. Borough of Nazareth, 427 Pa. 14, 22, 233 A.2d 874, 879 (1967).
“The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates. * * * If by reason of age, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk. * * * ” Restatement (Second) of Torts § 496D, Comment c (1965).
Turning to the facts of this case, we find that Donald Green was a 16-year old high school student at the time the injury occurred. He was employed in the grocery store on a part time basis, first as a delivery boy. Later, he was transferred to the meat department where his job was to wrap and package meat. He was not employed to grind meat and it was not part of his normal activity. His experience with the grinder was limited. *377During the two-year period of his employment, he had operated the grinder only about a dozen times. There was no evidence of any prior experience with similar machines. He was not instructed about the operation of the machine. Donald could offer no explanation of what occurred.
It is well to note that assumption of the risk is an affirmative defense. The burden of proof is on the defendant, Same v. Baltimore & O. R. Co., 370 Pa. 82, 87 A.2d 264, 270 (1952). In this case the defense presented no evidence. It relied on the testimony elicited on cross-examination.
From this record the conclusion is compelled that Donald was not aware of the risk that his hand would be drawn into the worm gear. He could not explain what occurred. This clearly negatives the idea that he subjectively knew of the risk and appreciated its character. Further, there is nothing in the record to demonstrate that such knowledge is imputable to a person of his background. He was a 16-year old boy of limited education and experience. On these facts he is not chargeable with knowledge of the risk. Accordingly, defendant was not entitled to an instruction, because the facts to support an inference of assumption of the risk simply were not present.
The majority characterize this analysis as “too finespun to apply to the everyday practical problems of negligence law,” supra at 7. They would define the risk as the danger of inserting one’s hand into the worm gear a, risk which Donald Green quite clearly understood and appreciated.
Such an approach accords little credence to the acknowledged distinction between the defenses of assumption of the risk and contributory negligence. It also pays too little attention to the procedural setting of the case. Further, it represents a misapplication of the doctrine of assumption of the risk.
The distinction between the defenses may be a nebulous one, but its existence has nevertheless been acknowledged as a part of Pennsylvania law: Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479 (C.A.3, 1965), cert. denied, 382 U.S. 987, 86 S.Ct. 549, 15 L.Ed.2d 475 (1966), amended 370 F.2d 95 (C.A.3, 1966), cert. denied, 386 U.S. 1009, 87 S.Ct. 1350, 18 L.Ed.2d 436 (1967). Courts have had difficulty both in making the distinction and in applying the doctrine of assumption of the risk. An-not. 82 A.L.R.2d 1218 (1962). However, difficulty in comprehension and application is not a basis for abrogation.
Contributory negligence is based upon the concept of fault. It is conduct of the plaintiff which contributes to his injury when that conduct is tested by the objective standard of the reasonable man. Despite defendant’s negligence, if the plaintiff is also found at fault, he is denied recovery.
Assumption of the risk relates to the subjective awareness by the plaintiff of a perceptible risk of harm. A person who perceives the risk or who, by reason of his background, should have perceived the risk is denied recovery when the risk comes to fruition resulting in injury. The effect of assumption of the risk is to extinguish the defendant’s duty; it compels the conclusion that the defendant was not negligent. W. Prosser, The Law of Torts § 67 (3rd ed. 1964); F. Harper, Law of Torts §§ 10 & 130 (1933).
In the instant case the jury’s finding necessarily forces the court to make the distinction. The jury specifically found that the plaintiff was not contributorily negligent. From this we must conclude that his conduct was not unreasonable and that his conduct did not contribute to his injury. By so finding, the jury foreclosed from our consideration any causally related conduct of the plaintiff.
If the risk were that of inserting one’s hand into a meat grinder knowing with certainty that injury would result, and *378the plaintiff did that, then the court should have no difficulty concluding that he assumed the risk as a matter of law. Certainly, contributory negligence as a matter of law is also indicated. This is a situation where the concepts merge.
However, the proof indicated that Donald did not voluntarily insert his hand into the worm gear. Recognizing this, the majority state that it was a jury question to determine whether the act of placing one’s hand in close proximity to the moving gear constituted assumption of the risk of voluntarily contacting the gear.
One might ask whether stepping in front of a moving train is the same as standing near the track or whether stepping off a cliff is the same as approaching the edge. How close is close? Clearly, different considerations must govern.
Add the fact that the operative force is one over which the actor has no control and the issue is presented in stark contrast : the train derails; the edge of the cliff shears off; or, meat pulls a hand into a meat grinder. The risk of harm presented by this ease is different from that defined by the court.
If the actor is not cognizant of or chargeable with knowledge of the risk, he simply has not assumed it. Because the characterization of the risk by the majority does not recognize the operative force and the subjective awareness of the plaintiff which is demonstrated by this record, it is inaccurate. The doctrine has been misapplied.
Finespun such distinction may be, but if they are mandated by the law of the jurisdiction which we are required to apply, we cannot ignore them.
For the foregoing reasons, I respectfully dissent.
KALODNER, Circuit Judge, joins in this dissent.
. Testimony of Donald R. Green — DIRECT EXAMINATION
“Q. Do you recall on tlie specific night you were cutting [sic] meat whether your hand was able to remain above the top of the bell or collar here at such time as the meat made contact with the worm gear?
“A. No.
“Q. Your answer is, ‘No, I don’t recall,’ or ‘No’ — .
“A. No, it couldn’t remain- — -my hand couldn’t remain above the grinder itself, until it caught, because I laid it on the —and it didn’t catch, so I had to hit down on it in order for it to go down in the machine.”
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“Q. * * * [W]ill you tell us to the best of your recollection what you recall happened that evening?
“A. * * * I took the meat over to the grinder, and I placed it in the machine, as I usually do, and after feeling the meat catch into the gears, I went to remove my hand and it wouldn’t come out.
“Q. At that time did your hand feel as if it were caught in the mechanism?
“A. No, sir.”
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CROSS-EXAMINATION
“Q. * * * [T]here was nothing to prevent you from laying the meat in there and then forcing it down with this plunger, was there? Was there?
“A. No, sir.
“Q. And, of course, if you use the plunger you can’t get your fingers caught, can you?
“A. Well, I always did use the plunger.
“Q. Well, this time you pushed it down with your fingers, obviously.
“A. I always did before.
“Q. * * * [D]o you know how deep you got your fingers in here?
“A. Not offhand. I would only be guessing.
“Q. Well, there was nothing on this piece of meat to grab hold of your hand, was there?
“A. No.”
* * * -Hi
“Q. * * * [T]here was no necessity for you to put your fingers down in; you could just put it on top — drop it on top, or drop it across the top, if you like — and force it down with the plunger; that is so, isn’t it?
“A. Yes, but often it doesn’t catch when you force it down with the plunger.
*376“Q. Well, if you force it down far enough, obviously it will catch.
“A. It will slip over.”
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“Q. Well, Donald, it may sound like a silly question, but if you put your fingers down here far enough you are just bound to get them caught in the machine; isn’t that a fact?
“A. True.
“Q. And you did that; isn’t that right?
“A. I wasn’t aware how far I put my hand down into the machine.
“Q. Well, I realize you didn’t do it on purpose, but the reason — the reason that you had this unfortunate accident is that you put your hand too far down in the machine; isn’t that a fact?
“A. Yes, sir.
❖ * * * *
“Q. And, of course, you didn’t lose your balance or anything; you just were standing there putting this meat in, and the next thing you knew your fingers were caught; right?
“A. Yes, sir.”
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REDIRECT EXAMINATION
“Q. Donald, when your hand was in the meat grinder and you attempted to pull it out, do you know how deep into this collar your hand was?
“A. I would say not past the first— this here joint here — second joint of my hand.
“Q. Do you know whether your hand —this is at the time you first were unable to pull your hand back, for whatever reason — do you know at that time whether your hand was down low enough in the machine to make contact with the worm gear?
“A. I was positive it wasn’t.
“Q. It was not?
“A. It was not.
“Q. Was the meat below your fingers or were your fingers below the meat at that point?
“A. My hand was sinking with the meat.
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“Q. But you are sure your fingers had not made contact with the worm gear at the time your hand was first obstructed from removing it?
“A. I am positive of that.”