(concurring).
This is another in a line of cases in which we must deal with contributory negligence in terms of “appreciation of risk; ” and where the defenses of assumption of risk and contributory negligence do not differ in legal effect. Cf. Turpin v. Shoemaker, 427 S.W.2d 485 (Mo.1968).
I concur in the majority opinion but desire to indicate my view that, when the question is fully presented to us on appeal, we should consider: (1) abrogating contributory negligence, assumption of risk, and the humanitarian doctrine; and (2) adopting the “pure” form of comparative negligence. Cf. Li v. Yellow Cab Company of California, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (1975).
There would seem to be no question that contributory negligence (Butterfield v. Forrester, 1809, 11 East 60, 103 Eng.Rep. 926), assumption of risk (Cruden v. Fentham, 1799, 2 Esp. 685, 170 Eng.Rep. 496), and the humanitarian doctrine, are, as general concepts, court-made and not legislative-made. Cf. Abernathy v. Sisters of St. Mary’s, 446 S.W.2d 599 (Mo. banc 1969) and O’Dell v. School District of Independence, 521 S.W.2d 403 (Mo. banc 1975). An exception would seem to be actions for wrongful death (§§ 537.080 and 537.085, RSMo 1969).
Therefore, under Abernathy, supra, I do not believe we need defer to the General Assembly in resolving the matter. The doctrines were established by the courts and, if they are to be abrogated or changed, this Court should abrogate or change them.