Concurring Opinion
Hunter, J.— I feel that the decision should be reversed on the theory of assumption of risk. Generally I agree with the following argument of appellant as stated in her brief:
“Appellee made her living by teaching inexperienced people how to drive, giving from ten to twelve lessons per day. Daily Appellee rode with unqualified, inexperienced drivers, constantly exposing herself to injury. Appellee was engaged in this occupation at the time she was injured.
A similar situation was present in Richards v. Richards (Ky. 1959), 324 S. W. 2d 400. In this case Plaintiff was teaching the Defendant how to drive. The Defendant had driven years before but was not familiar with modern automobiles equipped with conventional transmission. As the *374Defendant was turning a corner the car started jerking and Plaintiff told Defendant to give it some gas. Defendant did this and the car shot across the street and struck a tree.
In reversing the verdict for Plaintiff, the Court said:
‘Strictly speaking, assumption of risk applies to the relation of master and servant and is based on the doctrine Volenti non fit injuria (one who consents to a hazardous undertaking cannot recover for an injury). The term presumes some danger, a knowledge thereof, and ordinarily implies an appreciation of the danger and acquiescence therein. 7 C. J. S. Assumption of Risk P. 137. The doctrine applies where one may reasonably elect whether or not he shall expose himself to a particular danger. To invoke the doctrine, it is essential that the risk or danger shall have been known to, or appreciated by, Plaintiff. 65 C. J. S. Negligence, §174 pp. 848, 851.
‘Some courts regard the assumption of risk and contributory negligence as interchangeable, but there is a distinction since assumption of risk is a mental state of willingness, while contributory negligence implies a failure of plaintiff to exercise due care. Also, assumed risk is based upon voluntary exposure to danger and is applicable only to cases where the injured person might reasonably elect whether or not he should expose himself to the danger. 38 Am. Jur. Negl. §173, p. 847. ‘Allen knew his brother Edgar was without experience in operating a modern car. Thus, Allen assumed a risk when he got in the car with his brother and undertook to teach him to drive.
‘It cannot be said this accident was caused by Edgar’s negligence. It was obviously caused by his inexperience in the proper handling of the mechanical controls. An emergency was created when he pushed down on the accelerator ‘too hard’ and the automobile ‘jumped across the road.’ He then panicked and failed to use the means at his command to stop the car. This is exactly the situation a person must anticipate when he undertakes to *375teach another how to drive. This is the risk he assumes.’
In LeFleur v. Vergilin (1952), 288 App. Div. 1035, 117 N. Y. S. 2d 244, the Court states: ‘We think that a plaintiff who has been licensed by the State of New York to operate a motor vehicle and who voluntarily accompanies a defendant, who has just received a learner’s permit, in defendant’s car for the purpose of teaching the defendant to drive, assumes the risk of the defendant’s inexperience and may not recover damages for personal injuries caused by the lack of skill or in experience of the defendant and that it was error for the court to fail so to charge.’
‘The doctrine of assumption of risk is also recognized in Indiana. In Brazil Block Coal Co. v. Hoodlet (1891), 129 Ind. 327 (330), 27 N. E. 741, the Court said:
‘It is too plain for controversy that one who needlessly and recklessly exposes himself to open and obvious danger is guilty of negligence. If he thereby suffers injury, he is guilty of such negligence as will preclude a recovery against the person causing such injury.
‘The law requires that men shall use the senses with which nature has endowed them, and when, without excuse, one fails to do so, and is injured in consequence, he alone must suffer the consequences. Lake Shore, etc., R. W. Co. v. Pinchin, 112 Ind. 592; City of Plymouth v. Milner, 117 Ind. 324.’
‘Then again, at page 333, the Court said:
‘Whether anything is said of the dangerous character of the employment, or of the defective and dangerous appliances or not, if the dangers and defects are of such character that they are equally known to or open to the observation of both employer and employee, it can well and justly be said that they stand on a common footing.’
‘Hence, if there was an employee-employer relationship existing in the instant case, the doctrine of assumption of risk would apply and would defeat the Plaintiff’s cause of action. If, however, *376no employee-employer relationship existed in this case then the doctrine of incurred risk would apply. An excellent discussion of the principle is found in Pittsburgh, etc., R. Co. v. Hoffman (1914), 57 Ind. App. 431, 433-439, 107 N. E. 315. This Court said, among other pertinent observations:
‘Where one voluntarily and knowingly places himself in a certain environment, or undertakes to use a certain instrumentality, and as a consequence received an injury, his right to recover therefor may be defeated by the doctrine of the assumption of risk, where the contractual relation exists, or by the doctrine of incurred risk where the relation is non-contractual, even though he may have exercised due care for his own safety in the midst of such environment or in the actual use of such instrumentality. In the midst of such environment or in the actual use of such instrumentality, he may have proceeded negligently or omitted to exercise care for his own safety, and if as a consequence he suffers an injury the principle of contributory negligence would defeat his right to recover therefor. When either of the first two principles defeats an action brought to recover for an injury, it is because of the situation that the person involved voluntarily and knowingly assumes. Contributory negligence defeats him by reason of careless conduct in a given situation. See Davis, Coal Co. v. Pollard, supra; Indiana, etc., Oil Co. v. O’Brien, supra; Town of Salem v. Walker, supra; Town of Gosport v. Evans, supra.’
‘In Ridgway v. Yenny (1944), 223 Ind. 16, 22, 57 N. E. 2d 581, our Supreme Court said:
‘One who knows of a danger arising from the act or omission of another and understands the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure . . . The incurring of the risk must be really voluntary.’
‘Further, it is clear that where there is no dispute in the evidence bearing on that question, as is the case here, it is for the Court to say as a matter of law that the Plaintiff assumed or incurred the risk.’
‘Pierce v. Clemens (1942), 113 Ind. App. 65, 77, *37746 N. E. 2d 836; Hedgecock v. Orlosky (1942), 220 Ind. 390, 395, 44 N. E. 2d 93; Standard Oil Co. of Indiana v. Meissner (1936), 102 Ind. App. 552, 556-557, 200 N. E. 445.
‘In the instant case there is no dispute in the evidence bearing on the question of assumption of risk. The evidence clearly shows that the Appellant was an inexperienced and incompetent driver. There is no dispute but that Appellee was giving her a lesson as evidenced by the receipt given Appellant by Appellee. In fact, there is no dispute but that Appellee made her living by riding with inexperienced drivers teaching them how to drive. Justice and right demand that a person teaching inexperienced people how to drive should not be allowed damages for injuries arising because of this inexperience. As the Court stated in Richards v. Richards (Ky. 1959), 324 S. W. 2d 400, this is what Appellee, assumed when she took this job.’ ”
Regardless of the question of whether the appellant had a valid operator’s license the undisputed evidence shows that the appellee voluntarily entered this automobile with the appellant in an attempt to improve her driving and she was paid $5.00 per hour. Appellant’s expressed reason for the lessons (as testified to by the appellee) was to gain confidence. This in and of itself points to the fact that appellee knew that appellant was lacking in some degree of being a competent driver. I feel that appellee as a matter of law, assumed the risk of any injury that resulted from this lack of competency.
Note. — Reported in 191 N. E. 2d 507.