(concurring).
I agree that it was reversible error to instruct the jury in this case that if they found
“that the deceased, Arnold Kartchner, placed himself in a position of obvious peril when there was no reasonable justification therefor, then the said Arnold Kartchner, is deemed to have assumed the risk of his course of conduct and your verdict must be in favor of the defendants and against the plaintiff, no cause of action”.
The instruction does not fit the facts of the case. The paved portion of 13th South St. is 41 feet wide (20-foot lane for traffic each way). There is a 9-foot dirt shoulder between the edge of the paved portion of the street and the sidewalk. When the deceased stepped out of his station wagon, parked one foot from the sidewalk, he was 3 feet off of the paved roadway and approximately 8.feet from the main traveled portion thereof. This place where deceased alighted and was instantly struck is not so palpably dangerous that deceased could be considered to have assumed the risk.
The doctrine of assumption of risk is not limited to cases of master-servant relationship. Sherman and Redfield on Negligence Revised Edition, Section 135, 38 American Jurisprudence, page 845, Section 171-3. In the great majority of negligence cases an instruction upon the effect of plaintiff’s contributory negligence will cover all that need be said to the jury on that branch of the case. But the concept embodied in the phrase, “assumption of risk”, is applicable to certain fact situations where it more strikingly *183illustrates and explains to the jury why the plaintiff cannot recover. In Kuchenmeister v. Los Angeles & S. L. R. Co., 52 Utah 116, 172 P. 725, 729, we said:
“But the doctrine of volenti non fit injuria [assumed risk] stands outside the defense of contributory negligence and is in no way limited by it. In individual instances the two ideas sometimes seem to cover the same ground, but carelessness is not the same thing as intelligent choice.” (Italics ours.)
Where there is shown to exist a palpably dangerous condition [a clear risk], knowledge and appreciation of the danger and voluntary assent thereto, the election to take the chance may be classified as assumption of risk although it also constitutes contributory negligence. Bouchard v. Sicard, 118 Vt. 429, 35 A. 2d 439.
One does not assume the risks of danger which he has no reason to anticipate. Williamson v. Fitzgerald, 116 Cal. App. 19, 2 P. 2d 201. The assumption of risk doctrine applies where the danger is so obvious and imminent that no one of ordinary prudence would encounter it. Stogner v. Great Atlantic & Pacific Tea Co., 184 S. C. 406, 192 S. E. 406, 408. Negligence is the result of inattention or oversight, whereas consent to a risk implies knowledge of the danger of the act to be performed and the performance of the act understanding^ and without constraint, Dean v. St. Louis Woodenware Works, 106 Mo. App. 167, 80 S. W. 292.
Analysis of these decisions and of the cited authorities in the briefs leads to the conclusion that defense counsel is inviting error by requesting an instruction on assumption of risk where it is not clearly shown that there is: (1) a palpably dangerous condition; (2) knowledge and apreciation of the danger; and (3) a voluntary act by plaintiff showing that he was willing to take the chance. The first above element (and necessarily the other two) is lacking in this case.