{concurring). Counsel for the defendants Dick Brothers, Handlen, and Yorkshire Indemnity Company requested the trial court to submit a question in the special verdict which would have inquired whether the plaintiff was negligent in exposing himself to danger by riding with Cornelius who was under the influence of intoxicants. The trial court failed to do so with the result that the only question in the verdict, which related to negligence on the part of the plaintiff, was question 5 that only inquired whether the plaintiff was negligent with respect to lookout. Such failure was not prejudicial because the jury returned a negative answer to question 8, the assumption-of-risk question, thus in effect finding that Baird had no actual or constructive knowledge that Cornelius had drunk sufficient intoxicating liquor to affect his driving appreciably.
The distinguished trial judge in his memorandum decision, passing upon the motions after verdict, stated:
“The court very seriously considered the submission of Baird’s conduct all in the field of contributory negligence on two inquiries:
*298“ ‘Question 5 : Just before the collision in question was the plaintiff, Joseph Baird, negligent in any of the following respects: (a) With respect to lookout? (b) Did he willingly expose himself to the risk of injury by entering and riding in the Cornelius automobile ?’
“Question 6 would have related to cause.
“It is hoped and anticipated that courts are on the threshold of abandoning the assumption-of-risk rule and submitting the elements of a guest's conduct in the contributory-negligence field, where they appropriately belong.
“However, the usual timidity of a trial court for innovation in the face of established precedents asserted itself, and Baird’s conduct was made the subject to two inquiries, contributory negligence and assumption of risk.” (Emphasis supplied.)
In a paper entitled, “Contributory Negligence and Assumption of Risk” presented by Judge William E. Geamling to the recent annual meeting of the board of circuit judges, it was also advocated that assumption of risk be abolished in negligence cases as a defense separate and apart from contributory negligence.
A similar view is expressed in 2 Harper and James, Law of Torts, p. 1191, sec. 21.8:
“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.”
We are in complete accord with the conclusions expressed by Judges Parnell and Geamling that the time has come to abandon the concept of assumption of risk in host-guest automobile accident cases and to hold that conduct, which our court has heretofore denominated assumption of risk, is but a phase of contributory negligence. As a phase of contributory negligence, conduct formerly constituting assump*299tion of risk would be subject to the comparative-negligence statute, sec. 331.045, and thus in most cases would have the effect of merely reducing the amount of the plaintiff’s recovery.
The doctrine that now prevails of treating assumption of risk as a defense that is not only separate and apart from contributory negligence, but also is not subject to the comparative-negligence statute, frequently results in a miscarriage of justice. For example, in the instant case, if the jury had concluded that this was a drinking-companion case and had answered the assumption-of-risk question “Yes,” instead of “No,” the plaintiff would have recovered damages of $12,755.25, together with costs and disbursements, from Handlen, his employer, and the latter’s insurance carrier, and nothing from Cornelius and his insurance carrier. Neither would any of the three defendants who paid such judgment be entitled to contribution from Cornelius or his insurance carrier.1 Yet under the facts here present Cornelius was unquestionably far more negligent than was Handlen.
In host-guest automobile accident cases that involve only one automobile, or in two-car accident cases in which only the host-driver is found negligent, a finding of assumption of risk on the part of the guest results in the plaintiff’s recovering nothing. Such a result often works a rank injustice. A typical illustration is afforded by the recent case of Severson v. Hauck (1960), 11 Wis. (2d) 192, 105 N. W. (2d) 369.
A rule of law which makes complete denial of recovery dependent upon the vigor of a wife’s protests to her husband, *300or her failure to leave the car many miles from home,2 or whether a fifteen-year-old girl sufficiently protests against the reckless driving of an intoxicated driver and asks to be let out of the car,3 is one which is open to question and ought to be re-examined.
This court has sought to ameliorate the harshness of the rule by holding that, if the host-driver is found guilty of several acts of negligence and the guest is found to have assumed one or more of such acts, but not all, the guest may still recover.4 It has also refused to extend the doctrine of assumption of risk to those types of negligence cases in which a consensual relationship does not exist.5
Treating assumption of risk as a phase of contributory negligence would not be any startling innovation. As far back as 1934, Mr. Justice Fowler in a concurring opinion in Scory v. LaFave, 215 Wis. 21, 35, 38, 254 N. W. 643, stated:
“It has been stated by many courts that assumption of risk and contributory negligence are the same. While this statement has been properly criticized as incorrect, it is not necessarily incorrect to say that assumption of risk is a form of contributory negligence. It is not illogical to conclude that assumption of risk is always contributory negligence . . .
*301“It is to be borne in mind that the thing assumed in assumption of risk by a plaintiff is risk of injury to himself, and that a plaintiffs subjecting himself unreasonably to a risk of injury has always been, and I submit always will be, contributory negligence if injury results from the act from which risk of injury has been unreasonably assumed. To my mind attempt to apply the assumption-of-risk doctrine in host-and-guest cases was entirely unnecessary.”
Eight years later the Minnesota court considered the problem in Hubenette v. Ostby (1942), 213 Minn. 349, 350, 6 N. W. (2d) 637, 638, and declared:
“However, what some cases call ‘assumption of risk’ (Markovich v. Schlafke, 230 Wis. 639, 284 N. W. 516) other cases deal with under the term ‘contributory negligence.’ Gudbrandsen v. Pelto, 199 Minn. 220, 271 N. W. 465; Thorstad v. Doyle, 199 Minn. 543, 273 N. W. 255. In some cases the expressions are used interchangeably. Wright v. St. Cloud, 54 Minn. 94, 55 N. W. 819; Herdman v. Zwart, 167 Iowa 500, 149 N. W. 631. The distinction between the two defenses was important in master-and-servant cases at common law, although even then the cases were in confusion as to what that distinction was. See Rase v. Minneapolis, St. P. & S. S. M. R. Co. 107 Minn. 260, 120 N. W. 360, 21 L. R. A. (N.S.) 138.
“In the ordinary personal-injury action, where plaintiff puts himself in a position to encounter known hazards which the ordinarily prudent person would not do, he assumes the risk of injury therefrom. Such assumption of risk is but a phase of contributory negligence and is properly included within the scope of that term. Mosheuvel v. District of Columbia, 191 U. S. 247, 257, 24 Sup. Ct. 57, 48 L. Ed. 170; Houston, E. & W. T. R. Co. v. McHale, 47 Tex. Civ. App. 360, 105 S. W. 1149; Restatement, Torts, sec. 466, comments c, d; Prosser, Torts, sec. 51, p. 379.” (Emphasis supplied.)
The following year the United States supreme court in Owens v. Union Pacific R. Co. (1943), 319 U. S. 715, 720, 63 Sup. Ct. 1271, 87 L. Ed. 1683, stated:
*302“The common-law defenses, assumption of risk, contributory negligence, and the fellow-servant rule were originated and developed in common ground [citing authorities including Bohlen, Voluntary Assumption of Risk, 20 Harvard Law Review (1906), 14, 91; and Bohlen, Contributory Negligence, 21 Harvard Law Review (1908), 233]. Not entirely identical in conception, they conjoined and overlapped in many applications. The overlapping areas first concealed, then created a confusion which only served to create more; so that in time the three became more, rather than less, indistinguishable. And assumption of risk took over also, in misguided appellation, large regions of the law of negligence (Emphasis supplied.)
The Nebraska court has found no difficulty in holding conduct of a guest in an automobile accident case of a character, which would clearly constitute assumption of risk under Wisconsin decisions, to be contributory negligence and subject to its comparative-negligence statute. For example, the acts of a guest in riding with a host-driver, whom he knew to be a fast driver and in the habit of using intoxicating liquors, and in failing to leave the car when the host refused to heed the guest’s repeated warnings regarding speed, were determined to be contributory negligence.6
There may be a type of assumption of risk that does not equate contributory negligence, and, therefore, is outside the operation of the comparative-negligence statute.7 However, acts of implied acquiescence of an automobile guest in the negligent acts of the host-driver, which evince a disregard by the guest for his safety, constitute negligence and properly should be subject to such statute. It is to be hoped that this court will so determine when next faced with a host-guest case involving this issue.
This is because no common liability would exist between the host driver, Cornelius, and Handlen, the driver of the other vehicle, and such common liability is essential to the application of the doctrine of contribution. Shrofe v. Rural Mut. Casualty Ins. Co. (1950), 258 Wis. 128, 45 N. W. (2d) 76; Farmers Mut. Automobile Ins. Co. v. Milwaukee Automobile Ins. Co. (1959), 8 Wis. (2d) 512, 99 N. W. (2d) 746.
Schinke v. Hartford Accident & Indemnity Co. (1960), 10 Wis. (2d) 251, 103 N. W. (2d) 73.
Severson v. Hauck (1960), 11 Wis. (2d) 192, 105 N. W. (2d) 369.
State ex rel. Litzen v. Dillett (1943), 242 Wis. 107, 7 N. W. (2d) 599, 9 N. W. (2d) 80; Bronk v. Mijal (1957), 275 Wis. 194, 81 N. W. (2d) 481; Jewell v. Schmidt (1957), 1 Wis. (2d) 241, 83 N. W. (2d) 487; Sprague v. Hauck (1958), 3 Wis. (2d) 616, 89 N. W. (2d) 226; and Haag v. General Accident Fire & Life Assur. Corp. (1959), 6 Wis. (2d) 432, 95 N. W. (2d) 245. However, in Tomchek v. Mutual Automobile Ins. Co. (1959), 6 Wis. (2d) 577, 95 N. W. (2d) 220, it was held that such rule is not applicable where negligent speed of the host was the overpowering act of negligence and the guest had assumed such speed.
Schiro v. Oriental Realty Co. (1956), 272 Wis. 537, 76 N. W. (2d) 355, 73 A. L. R. (2d) 1368; note, 1960 Wisconsin Law Review, 460, 468 et seq.
Landrum v. Roddy (1943), 143 Neb. 934, 12 N. W. (2d) 82.
This is the view expressed by Professor Richard V. Campbell, Wisconsin Comparative Negligence Law, 7 Wisconsin Law Review (1932), 222, 241.