possible to take a census of the crippled and injured employees of industry and of the deaths which have occurred therein while they were engaged in their employment for which no compensation has been allowed. It is difficult to understand the relation of these principles to each other. In 18 R. C. L. 672, 673, is analyzed the relation of assumption of risk to negligence and contributory negligence. It is there said:
“During the earlier years of its existence the doctrine of assumption of risk was accepted without much examination into its fundamentals or its relation to other subjects. In recent times, however, perhaps owing to the doubts that economic changes have cast upon its expediency, the doctrine has been subjected to much careful examination and criticism. In particular the courts have devoted themselves to a consideration of its relation to negligence and contributory negligence; and it has been almost uniformly concluded that a denial of recovery on the score of negligence on the part of the employee proceeded upon a different principle than a refusal of compensation based on assumption of risk, or, in other words, that assumption of risk and contributory negligence are distinct and different defenses. At the same time the courts assert that both defenses may be available under the same state of facts, and indeed the same case. But it is declared that the two principles rest upon different grounds—that assumption of risk rests in contract or upon the principle expressed in contract or upon the principle expressed by the maxim, ‘’Volenti non fit injuria’’, whereas contributory negligence rests in tort or an omission of duties; and, according to some courts, a distinction exists in respect of the imminency of the perl. It is generally agreed that assumption of risk may be a defense in cases where there is no contributory negligence, and where more than ordinary care has been exercised by the employee. Such has been the general trend. It is sufficiently certain, however, and is becoming generally recognized that attempted distinctions between these two principles (contributory negligence and assumption of risk) are metaphysical, not practical. * * * Eminent courts and publicists have regarded the doctrines of assumption of risk and contributory negligence as nothing more than different names for the same thing. * * * Nor is the identity of the two doctrines without practical importance. From the dual terminology of the subject, and the confusion and misunderstanding that have followed thereon, have resulted deplorable consequences, sometimes amounting to a miscarriage of justice.”
