(concurring specially).
I concur in the result of Justice Taylor’s opinion, i. e., that the judgment must be reversed and the cause remanded for a new trial, but for a different reason. The maj ority opinion is based upon the contention that the principle of assumption of risk was inapplicable to the particular facts at hand and it was reversible error for the trial court to give such an instruction. I would hold that the assumption of risk instruction should never be given in a tort action with two exceptions: (1) where there is a master-servant relationship outside the scope of the Workmen’s Compensation Act; and (2) in instances of express contract with one party agreeing to assume 1he risk involved.
There is a split — in fact, a yawning chasm — in the authorities on this question. On the one hand are those holding that the assumption of risk doctrine can be distinguished from the doctrine of contributory negligence and that in fact both doctrines can be applicable to the same facts in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable and thus amounts to contributory negligence. This line of reasoning has been adopted by the Restatement of the Law, Torts, Second, § 496(a) pp. 560-65. For a collection of cases adhering to this principle see the Reporter’s Notes to § 496(a) in the appendix to the Restatement of the Law, Torts, Second, p. 411. Other cases are collected in 82 A.L.R.2d in an annotation beginning on page 1218. For a recent enlightened decision in which the court decided to follow this line of decisions see City of Tucson v. Holliday, 3 Ariz.App. 10, 411 P.2d 183 (1966); but even there the court points out:
“As to what circumstances may justify an assumption of risk instruction, the interrelationship of various legal principles involved demands some leeway for the exercise of discretion by the trial judge. This arises from the overlapping of the defenses of assumption of risk and contributory negligence, and the possibility of injecting confusion into the minds of the triers of fact.” (411 P.2d at p. 191)
It is observed by the annotator in 82 A.L.R.2d 1226, that while the courts generally adhere to the view that assumption of risk and contributory negligence are separate and distinctive defenses, the attempts by the courts to formulate the distinction between the two have resulted in great confusion. It is also pointed out that ordinarily the distinctions made by the courts are not too helpful. Illustrative of such attempts are statements to the effect that assumption of risk involves a mental state of willingness, while contributory negligence depends upon the conduct of the plaintiffs; that assumption of risk involves more or less deliberation, wherein contributory negligence implies the absence of a deliberate choice; that the essence of assumption of risk is “venturousness,” while the essence of contributory negligence is “carelessness”; that the defense of assumption of risk rests in contract or may exist independently of any contractual relation, whereas the defense of contributory negligence rests in tort; or that, as distinguished from contributory negligence, causal relation between assumption of risk and injuries is immaterial, or in other words the question of proximate cause is not involved where the principle of assumption of risk is applied.
*55My own experience while serving as a trial judge for nearly twelve and one-half years has taught me that after having listened to proper instructions on negligence, contributory negligence, proximate cause and some forty other instructions, as were given in the case at hand, any jury is sufficiently confused without adding thereto instructions on assumption of risk together with its necessary corollaries, i. e., the subjective test — what peril, if any, was actually apprehended and understood by the plaintiff and voluntarily assumed; the fact that proximate cause has no bearing on the principle of assumption of risk; and some instruction trying to define the distinction between assumption of risk and contributory negligence.
The other line of authorities agree with my conclusion and point out that in its primary sense the plaintiff’s assumption of risk is only the counterpart of the defendant’s duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria (he who consents cannot find injury). In a secondary sense the assumption of risk is merely a form of contributory negligence and is an overlapping of that principle. In this secondary sense a plaintiff may also be said to assume a risk created by defendant’s breach of duty towards him, when he deliberately chooses to encounter that risk. In such a case, except possibly in master and servant cases, plaintiff will be barred from recovery only if he were unreasonable in encountering the risk under the circumstances. Thus this is really a form of contributory negligence. It is contended that these concepts of the principle of assuming the risk are purely duplicative of other more widely understood concepts, such as scope of duty or contributory negligence. As concluded by Fleming James, Jr. (co-author of Harper and James, Law of Torts), in his article in 61 Yale Law Journal 141, at page 169:
“Except for express assumption of risk, therefore, the term and the concept should be abolished. It adds nothing to modern law except confusion. For the most part the policy of individualism it represents is outmoded in accident law; where it is not, that policy can find full scope and far better expression in other language. There is only one thing that can be said for assumption of risk. In the confusion it introduces, it sometimes— ironically and quite capriciously — leads to a relaxation of an overstrict rule in some other field. The aura of disfavor that has come to surround it may occasionally turn out to be the kiss of death to some other bad rule with which it has become associated. We have seen how this may happen with the burden of pleading and proving an exceptional limitation on the scope of defendant’s duty. There may be other instances. But at best this sort of thing is a poor excuse indeed for continuing the confusion of an unfortunate form of words.”
I cannot help but agree with the conclusion reached by the supreme court of New Jersey in McGrath v. American Cyanamid Co. et al., 41 N.J. 272, 196 A.2d 238, at pages 240-241, (1963) where the court points out:
“In Meistrich we said the terminology of assumption of the risk should not be used when it is projected in its secondary sense, i. e., that of contributory negligence ([Meistrich v. Casino Arena Attractions Inc.] 31 N.J. 44, at p. 55, 155 A.2d 90 at p. 96, 82 A.L.R.2d 1208). We thought, however, that ‘[p]erhaps a well-guarded charge of assumption of risk in its primary sense will aid comprehension, [citation] We added [citation] :
“ ‘ * * * With respect to its primary sense, it will not matter whether a trial court makes or omits a reference to assumption of the risk, provided that if the terminology is used the jury is plainly charged it is merely another way of expressing the thought that a defendant is not liable in the absence of negligence; that a plaintiff does not assume a risk defendant negligently created [citation]; *56and that if defendant is found to have been negligent, plaintiff is barred only if defendant carries the burden of proving contributory negligence, i. e., plaintiff’s failure to use the care of a reasonably prudent man under all of the circumstances either in incurring the known risk or in the manner in which he proceeded in the face of that risk.’
“Experience, however indicates the term ‘assumption of risk’ is so .apt to create mist that it is better banished from the scene. We hope we have heard the last of it. Henceforth let us stay with ‘negligence’ and ‘contributory negligence.’ ”
With this conclusion I concur most wholeheartedly.
This court has recently held that contributory negligence is a defense in host-guest cases where the plaintiff has the burden of establishing misconduct amounting to “gross negligence,” and therefore there is no longer any reason for inserting the principle of assumption of risk even in those cases. Hodge v. Borden, 91 Idaho 125, 417 P.2d 75 (1966).
For other recent decisions following what I consider the better line of reasoning see Bulatao v. Kauai Motors, Ltd., 406 P.2d 887 (Hawaii 1965); Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136 (1965); and Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208 (1959).
The cause at hand is illustrative of the danger of using the doctrine of assumption of risk. If the defendants had not requested that instruction together with its companion relative to there being no requirement that the assumption of risk be causative of plaintiff’s injuries, and providing, of course, the trial court did not give similar instructions on its own, the parties and the court would be spared the time, extra work load and expense necessarily involved in a new trial.
I have carefully examined the leading Idaho cases which have discussed or recognized the assumption of risk doctrine and find nothing therein which would require retaining this doctrine. Williams v. Collett, 80 Idaho 462, 332 P.2d 1032 (1958); and Deshazer v. Tompkins, 89 Idaho 347, 404 P.2d 604 (1965), both involve master-servant relationships and therefore fall within one of the exceptions mentioned', herein where the doctrine could be retained and applied. In Hooton v. City of Burley, 70 Idaho 369, 219 P.2d 651 (1950); Domingo v. Phillips, 87 Idaho 55, 390 P.2d 297 (1964); and Hodge v. Borden, 91 Idaho 125, 417 P.2d 75 (1966), the facts would have supported a finding for the defendants on the principle of contributory negligence without adding the confusing principle of assumption of risk.
Therefore, with the two exceptions mentioned, I recommend the complete banishment of the assumption of risk doctrine in Idaho. Instead, let us uniformly apply the better understood and more easily explainable principles of “negligence” and “contributory negligence.”
TAYLOR, C. J., SMITH and Mc-QUADE, JJ., and NORRIS, D. J.We concur with Justice Spear’s views on assumption of risk but do not think they are necessary to a decision in this case.