(concurring and dissenting).
I concur in the result. It is my opinion that the court erred in giving an instruction on assumption of risk because there was no evidence that Leavitt comprehended the dangers. In Evans v. Buchner1 this court said:
The general rule is that the defense of assumption of risk is not applicable unless the facts which create a dangerous condition or situation are known and the danger itself comprehended by the person against whom the defense is being exerted.
In Buchner the court adopted a subjective test. The question in each case was to be *71whether the plaintiff had a knowledge of the facts and an actual comprehension of the danger. Under Buchner it would not be enough to invoke the doctrine of assumption of risk to argue that Leavitt must have had an awareness of the fact that Gillaspie had drunk a lot of beer; that his judgment may have been impaired; that it was dangerous to ride with him and that because he did ride with Gillaspie he comprehended the danger and elected to assume the risk.2
Although I concur in the result reached by the majority I do not agree that the defense of assumption of risk should be entirely abolished. Whether the doctrine is entitled assumption of risk or given'an appropriate label as a variation of the doctrine of contributory negligence, I believe that it has a place in our jurisprudence in some factual situations.
As was aptly stated by the Supreme Court of California in Prescott v. Ralph’s Grocery Co.3:
The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care. (See Prosser on Torts [1941], p. 377.) It is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk. (See Rest., Torts, § 893).
Assumption of risk has been abolished as a defense in the master servant relationship in Alaska, as it has in many other states.4 It has also been abolished in many states in automobile guest statutes. It appears that the defense has been entirely abolished in at least three states.5 Although some of the legal aspects of the defense may duplicate those of contributory negligence in some factual situations, this is not generally so where there has been a voluntary acceptance of a comprehended risk.6 It is significant that in the cases cited in the preceding note, two of which are relied on by the majority, the plaintiff in Bolduc v. Crain had no appreciation whatever of the unusual risk involved in attempting to assist the handler of a particularly “lively” team of horses; that in Feigner v. Anderson there was, as far as can be learned from the opinion, no evidence that plaintiff had an appreciation of any danger involved in hunting ducks out of the same blind as defendant; and that in Meistrich v. Casino the only evidence that plaintiff had an appreciation of the danger involved in skating on arena ice which defendant operator had frozen so hard that it became slippery, was that he “noted that his skates slipped on turns”. The requirement that there be evidence showing a comprehension of the danger involved would, in my opinion, have made the defense of assumption of risk in *72the foregoing cases inapplicable in Alaska and in other jurisdictions requiring an actual comprehension of the danger.
Section 893 of the Restatement of Torts contains numerous factual illustrations of where the doctrine of voluntary acceptance of a comprehended danger has logical application. One example is Hunt v. Portland Baseball Club 7 where the court held that a spectator could not recover from the ball club for injuries received when struck by a foul ball because he was intimately familiar with the game of baseball and the risks inherent in being a spectator and had knowingly placed himself in an area of appreciated risk.8
Under the majority holding, even though the evidence may show a voluntary acceptance of an appreciated risk, the question would be
whether a reasonably prudent man in the exercise of due care would have incurred the risk despite that [actual] knowledge, and if so, whether he would have conducted himself in the manner in which the plaintiff acted in the light of all the circumstances, including the appreciated risk.
The new doctrine is intended to simplify and clarify the law of negligence and eliminate incompatible defenses by subsuming assumption of risk under contributory negligence, but I doubt if this will be the ultimate effect. If the new test were applied to the facts of the Oregon baseball case just mentioned, the jury would be asked to determine first whether a reasonably prudent person in the exercise of due care would have purchased a seat not behind a screen even though he comprehended the danger. The evidence would ordinarily have established that seats behind a screen were available and that management could have made the balance of the seats safer by screening,9 but at the expense of visibility. The jury would be aware of the fact that hundreds of thousands of baseball, hockey and other sports fans daily and knowingly sit in areas of danger as spectators. If the jury conscientiously applied the objective test of the average man, and based its judgment on what it knew the average man was doing daily throughout the country, it might very well conclude that the spectator had acted with “due care” in purchasing a ticket for an unprotected seat, even though he knew there was a danger that he might be injured while occupying the seat.
What appears to be an unrealistic aspect of the new test is at once apparent. Why should any controlling effect be given to the question of whether a reasonably prudent man would have incurred the comprehended risk if the evidence has established that the particular plaintiff did in fact voluntarily incur the comprehended risk? How can it be logically said that a person has acted with “due care” when it has become apparent from the evidence that he deliberately and knowingly chose to place himself in a position of danger? If the jury should find that the spectator had not acted with due care, in spite of the fact that a large segment of the population daily engaged in identical conduct, can it be said that the objective test of the average, or reasonably prudent man, has been realistically applied?
If the jury finds that the plaintiff spectator has acted with due care, the next question it would be asked to decide under the new test would be whether he
would have conducted himself in the manner in which the plaintiff acted in *73the light of all the circumstances, including the appreciated risk.
This aspect of the test must mean that the jury must next decide whether the spectator, after having knowingly and without negligence placed himself in an area of danger, thereafter conducted himself in such a manner as not to increase the danger to himself. In other words, was he con-tributorily negligent after having taken his seat? Judging by the wording of the new test, this question would be asked in every case where the jury had found initially that the spectator was not negligent in purchasing an unprotected seat, even though no evidence may have been introduced during the trial which would tend to show that he had done anything to increase the existing danger. In my opinion, it is unrealistic to ask a jury to determine the answer to a question which has no factual basis in the evidence. For example, if the evidence showed that the spectator had merely occupied his seat until he was hit in the head by a foul ball, the judge would be obligated, it would seem, to set aside a verdict for the defendant management because of lack of any evidence that the spectator had done anything to increase the risk of injury. The question might be appropriate if there was evidence that the spectator had remained seated in a fixed posture until struck by the ball when he could have avoided being struck by ducking to one side or the other, or downward, or perhaps could have even caught the ball in his hands. Evasive or protective action of this sort is regularly employed by the average fan who must, at times, be an athlete of sorts himself in order to exercise the judgment and agility necessary to avoid injury.
The foregoing discussion demonstrates, in my opinion, the impracticability of attempting to determine the usual assumption of risk situation by the rules of negligence. For other examples see a discussion, with illustrations in Restatement of Torts § 893 (1939).
. 386 P.2d 836, 837 (Alaska 1963) (footnote omitted).
.The subjective test adopted by Buch-ner is the rule in the majority of jurisdictions. See Guerrero v. Westgate, 164 Cal.App.2d 612, 331 P.2d 107, 110 (1958); Prescott v. Ralph's Grocery Co., 42 Cal.2d 158, 265 P.2d 904, 905-906 (1954); Dean v. Martz, 329 S.W.2d 371, 374 (Ken.1959) ; Evans v. Johns Hopkins Univ., 224 Md. 234, 167 A.2d 591, 594 (1961); Fitzpatrick v. Marastoni, 234 Or. 192, 379 P.2d 1022, 1023 (1963) ; Shoemaker v. Floor, 117 Utah 434, 217 P.2d 382, 387 (1950); Kingwell v. Hart, 45 Wash.2d 401, 275 P.2d 431, 4.34-435 (1954); Restatement of Torts § 893 (1939); Restatement (Second) of Torts §§ 496 A-G (1965).
. 42 Cal.2d 158, 265 P.2d 904, 906 (1954) (emphasis added).
. AS 23.30.055, 23.30.080.
. Felgner v. Anderson, 375 Mich. 23, 133 N.W.2d 136, 141-154 (1965) (except in employment relationships and where there has been an express contractual assumption of risk.); Bolduc v. Crain, 104 N.H. 163, 181 A.2d 641, 644 (1962); Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 95, 82 A.L.R.2d 1208 (1959).
. See W. Prosser, The Law of Torts § 67 (3d ed. 1964).
. 207 Or. 337, 296 P.2d 495, 498-503 (1956).
. Footnote 13 of the majority opinion cites the Oregon case of Zumwalt v. Lindland, 239 Or. 26, 396 P.2d 205, 207 (1964), as authority for the complete abolition of the doctrine of assumption -of risk, but since the Oregon automobile guest statute was involved it would appear that the case has a limited application.
. In which case the jury would experience little difficulty in finding management negligent, particularly if there was insurance in the background.