Orth, J.,

delivered the opinion of the Court.

I

“REQUEST AND RELEASE

I, the undersigned, hereby request permission to enter the premises of 75-80 DRAG-A-WAY, PIT AREA, STAGING AREA, and participate in auto timing and acceleration runs, tests, contests and exhibitions to be held this day. I have inspected the premises and I know the risks and dangers involved in the said activities, and that unanticipated and unexpected dangers may arise during such activities and I assume all risks of injury to my person and property that may be sustained in connection with the stated *132and associated activities, in and about the premises.

In consideration of the permission granted to me to enter the premises and participate in the stated activities, and in further consideration of the provisions of a insurance medical plan, I do hereby, for myself, my heirs, administrators and assigns, release, remise and discharge the owners, operators, and sponsors of the said premises, of the activities, of the vehicles, and of the equipment therein, and their respective servants, agents, officers, and officials, and all other participants in the stated activities of and from all claims, demands, actions, and causes of action of any sort, for injuries sustained by my person and/or property during my presence in said premises and participation in the stated activities due to negligence or any other fault.

I represent and certify that my true age is stated below, and if I am under the age of 21 years, I do represent and certify that I have the permission of my parents and/or guardians to participate in the stated activities, and that they have full knowledge thereof.

I certify that my attendance and participation in the stated activities is voluntary, and that I am not, in any way, the employee, servant, or agent of the owners, operators or sponsors of the premises and the activities therein.

I HAVE READ AND UNDERSTAND THE FOREGOING REQUEST AND RELEASE.

In Witness Whereof, I have hereunto set my hand and seal. . . .”

The effectiveness of this document to hold harmless WILLIAM A. WILCOM, trading as 75-80 Drag-A-Way, defendant-appellee (Wilcom), is the crux of the case before us. ROLAND C. WINTERSTEIN and BARBARA *133WINTERSTEIN, his wife, plaintiffs-appellants (Winter-stein) , claim that it is void as against public policy and not “conclusively binding upon them as their intentional and unreasonable exposure to danger, which [Wilcom] knew or had reason to know.” Wilcom asserts it was a binding contract relieving him of responsibility for damages in accordance with its terms. The lower court agreed with Wilcom and so do we.

II

The case arose by the filing of an action in tort by Winterstein against Wilcom in the Circuit Court for Frederick County. The first count of the declaration set out that Wilcom was in possession of real property at the junction of Maryland State routes 75 and 80. On the property he operated a business called 75-80 Drag-AWay. Automobile timing and acceleration runs were conducted on two racing lanes. Wilcom’s employees were in a tower to watch “for any hazards on the track,” in the pits to inspect participating vehicles prior to each run, and at the end of the course to time the run. Roland Winterstein saw an advertisement of the runs and on 9 June 1967 went to the track to participate in speed contests in the “C gas class.” He paid the stated fee. Near the end of his run his car “hit a cylinder head approximately 36" long, 6" wide and 4" high, weighing approximately 100 pounds * * * which was not visible to him when he commenced the race” but was visible to Wilcom’s employees in the tower. He lost control of his car, jumped a ditch, drove up an embankment and turned over. He sustained “serious, painful and permanent injuries.” The declaration claimed that the crash and resulting injuries were due solely to the negligence of Wilcom and specified acts of omission and commission demonstrating that Wilcom had been careless. Roland Winterstein claimed $75,000. The second count was a joint claim by Roland and Barbara Winterstein for $35,000 for damages and losses to their marital relationship.

Wilcom pleaded the general issue. He then requested *134in writing an admission that two documents attached as exhibits to the request were genuine. Maryland Rule 421 a. Each was entitled “REQUEST AND RELEASE”, read as above set out, was dated 9 June 1967 and was witnessed by Wilcom. One, stamped No. 176, bore the signature under seal of Roland Winterstein and the other, stamped No. 177, bore the signature under seal of Barbara Winterstein. No response was served within the time prescribed by Rule 421 b 1, and therefore under Rule 421 b 2 the genuineness of the documents was deemed to be admitted. Thereafter Wilcom moved for a summary judgment in his favor. Rule 610. Upon the Motion and Memorandum of Points and Authorities, no answer having been filed and no hearing requested, the court by its order entered summary judgment in favor of Wilcom “with respect to each and every count”, and dismissed the action with prejudice, all costs to be paid by Winterstein. Winterstein appealed.

Ill

The first question is whether the releases were void as against public policy.

Eastern Ave. Corp. v. Hughes, 228 Md. 477, was concerned with a clause in a lease providing that the landlord would not be liable for injury to the person of the tenant or damages to his property.1 The court upheld the validity of the clause, following what it found to be the great weight of authority, namely that exculpatory clauses are valid. It noted, at 480, that “the only state in which an exculpatory clause has been held invalid as against public policy appears to be New Hampshire.” However, it observed that in some states, subsequent to *135a judicial decision upholding such claims, the legislature had enacted statutes invalidating some types of exculpatory clauses. The General Assembly of Maryland apparently responded to the observation. But it voided as against public policy only exculpatory clauses in agreements between landlord and tenant, ch. 124, Acts 1964, leaving the law otherwise as it stood.2

The General Rule of Law Regarding Exculpatory Clauses

In the absence of legislation to the contrary, the law, by the great weight of authority, is that there is ordinarily no public policy which prevents the parties from contracting as they see fit, as to whether the plaintiff will undertake the responsibility of looking out for himself. “It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation of care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent.” Prosser, Law of Torts, 3rd Ed. (1964) § 67, p. 456. In other words, the parties may agree that there shall be no obligation to take precautions and hence no liability for negligence.

Exceptions to the General Rule

There is a proviso to the general rule. The relationship of the parties must be such that their bargaining be free and open. When one party is at such an obvious disadvantage in .bargaining power that the effect of the contract is to put him at the mercy of the other’s negli*136gence, the agreement is void as against public policy. The proviso is applicable on this basis between employer and employee.

It is also against public policy to permit exculpatory agreements as to transactions involving the public interest, as for example with regard to public utilities, common carriers, innkeepers and public warehousemen. Prosser feels that there has been a definite tendency to expand the exception raised by the proviso to other professional bailees who are under no public duty but deal with the public, such as garagemen, owners of parking lots, and parcel checkrooms, because the indispensable need for their services deprives the customer of all real equal bargaining power. He finds decisions divided as to other private, bailees for hire, the decision likely to turn upon the extent to which it is considered that the public interest is involved. Id., at pp. 457-458.

Generally, exculpatory agreements otherwise valid are not construed to cover the more extreme forms of negligence — wilful, wanton, reckless or gross. Nor do they encompass any conduct which constitutes an intentional tort. Id., at p. 459. And, of course, it is fundamental that if an agreement exempting a defendant from liability for his negligence is to be sustained, it must appear that its terms were known to the plaintiff, and “if he did not know of the provision in his contract and a reasonable person in his position would not have known of it, it is not binding upon him, and the agreement fails for want of mutual consent.” Id., at p. 458.

Transactions Affected with a Public Interest

Because an exculpatory provision may not stand if it involves the public interest, see 175 A.L.R. 8 (1948), our inquiry turns to what transactions are affected with a public interest. In Tunkl v. Regents of the University of California, 383 P. 2d 441 (1963) the Supreme Court of California, in bank, found that in placing particular contracts within or without the category of those affected with a public interest, the courts have revealed a rough *137outline of that type of transaction in which exculpatory provisions will be held invalid. “Thus the attempted but invalid exemption involves a transaction which exhibits some or all of the following characteristics. It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.” At 445-456 (footnotes citing authorities omitted).

We note a further refinement. Although the traditional view has been that where the defendant’s negligence consists of the violation of a statute, the plaintiff may still assume the risk, there is a growing tendency to the contrary where a safety statute enacted for the protection of the public is violated. The rationale is that the obligation and the right so created are public ones which it is not within the power of any private individual to waive. Prosser, supra, at 469. See Guerrero v. Westgate Lumber Co., 164 Cal. App. 2d 612, 331 P. 2d 107 (1958) ; Casey v. Atwater, 22 Conn. Super. 225, 167 A. 2d 250 (1960) ; McCarthy v. National Association for Stock Car Auto Racing, Inc., 226 A. 2d 713 (N.J. 1967).

*138IV

It is clear that the exculpatory provisions involved in the case before us whereby Winterstein expressly agreed in advance that Wilcom would not be liable for the consequences of conduct which would otherwise be negligent were under the general rule recognizing the validity of such provisions. There was not the slightest disadvantage in bargaining power between the parties. Winterstein was under no compulsion, economic or otherwise, to race his car. He obviously participated in the speed runs simply because he wanted to do so, perhaps to demonstrate the superiority of his car and probably with the hope of winning a prize. This put him in no bargaining disadvantage.

The business operated by Wilcom had none of the characteristics of one affected with the public interest. The legislature has not thought it suitable for public regulation for it has not sought to regulate it. Wilcom is not engaged in performing a service of great importance to the public which is a matter of practical necessity for any member of the public. Wilcom does not hold himself out as willing to perform the service for any member of the public coming within certain established standards; we see nothing to indicate that he may not arbitrarily refuse to permit any person to participate in the speed runs. Since the service is not of an essential nature Wilcom had no decisive advantage of bargaining strength against any member of the. public seeking to participate. Nor was Winterstein so placed under the control of Wilcom that he was subject to the risk of carelessness by Wilcom or his agents; Winterstein was under no obligation whatsoever to race his car.

We do not believe that any safety statute of this State, enacted for the protection of the public, was involved. Our attention has not been called to, nor are we aware of, such a statute dealing with activities of the nature conducted by Wilcom.

We observe that Winterstein did not allege that the *139negligence he attributed to Wilcom was other than simple negligence; he characterized Wilcom’s omissions and commissions as careless, not wilful, wanton, reckless or gross; he does not say that he was wronged by an intentional tort.

The short of it is that as to the releases here the effect of the exemptive clauses upon the public interest was nil. We find that each release was merely an agreement between persons relating entirely to their private affairs. In the absence of a legislative declaration, we hold that they were not void as against public policy.

Our holding finds support in other jurisdictions on comparable facts. In French v. Special Services, Inc., 159 N.E.2d 785 (Ohio 1958) the cases arose out of an action for damages, in negligence, against the proprietor of a race track by parties who engaged in stock car races for prizes. Negligence, not wanton or wilful misconduct was alleged and it was admitted by the plaintiffs that prior to their entry into the races, they signed a release, the provisions of which were in substance those of the releases before us. The Court of Appeals of Ohio quoted the trial court with approval, at 787:

“The defendant, Special Services, Inc., not being a public utility or common carrier, and not owing any obligation of public trust to the plaintiff, a contestant, and not being the plaintiff’s employer; the court finds that plaintiff and defendant were free to contract in such a manner as to relieve the defendant from the responsibility for damage or injuries to the plaintiff, caused by the defendant’s negligence, excepting when caused by wilful or wanton misconduct.”

The appellate court- found “forceful reasons why public policy does not require that such a release be declared invalid and affirmed the judgments of the lower court on the pleadings for the defendants.” Hine v. The Dayton Speedway Corp. et al., 252 N.E.2d 648 (Ohio 1969) fol*140lowed French and construed it as provided in its syllabus as holding:

“1. A participant in a stock car race and the proprietor thereof are free to contract in such a manner as to relieve the latter from the responsibility for damages or injuries to the former caused by the latter’s negligence, excepting when caused by wilful or wanton misconduct.

2. An agreement between a participant in and the proprietor of a stock car race, whereby the former assumes the risk of injuries resulting from his participation in such event and releases the proprietor from any claims for damages, is not invalid as against public policy.”

McCarthy v. National Association for Stock Car Auto Racing, Inc., et al., supra, involved a release in substance not unlike the releases before us. The case turned on the fact that in New Jersey the legislature had taken an interest in the field and had expressed its policy by providing for licensing and for regulation designed for the safety of both participants and spectators and a safety statute had been violated.3 But in the course of the opinion the court said, at 714:

“In several of our sister states, releases by stock car drivers have been sustained. See French v. Special Services, Inc., 107 Ohio App. 435, 159 N.E.2d 785 (Ct.App.1958) ; Corpus Christi Speedway v. Morton, 279 S.W.2d 903 (Texas Civ.App.1955) ; Theroux v. Kedenburg Racing Association, 50 Misc.2d 97, 269 N.Y.S.2d 789 (Supp.Ct.1965) ; cf. Del Santo v. Bristol County Stadium, Inc., 273 F.2d 605 (1 Cir.1960). But in those states there were no statutes or regulations evidencing public policy *141or official interest in this field of activity. So far as appears, stock car races in those jurisdictions are wholly ungoverned and parties are at liberty to enter into such private relations and arrangements as they choose.”

And at 715 it quoted with approval Boyd v. Smith, 372 Pa. 306, 94 A. 2d 44 (Sup. Ct. 1953) :

“Such a protective clause is undoubtedly valid and enforceable if it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the State but merely an agreement between persons relating entirely to their private affairs.”

V

In oral argument before us Winterstein called attention to Code, Art. 79, § 11 which provides:

“In any and all cases in which any person sustains personal injuries as a result of a tort alleged to have been committed against such person, any release of the claim of such injured person for damages resulting from such tort, signed by such injured person within five days of the infliction of said injuries, and any power of attorney to or contract of employment of an attorney at law, with reference to recovery of damages for such tort, signed by such party within five days after the infliction of such injuries, shall be voidable within sixty days at the option of such injured party.” 4

He suggested that the release here was in contravention of that statute. The point was not tried and decided below and so is not properly before us. Rule 1085. Nor was it presented as a legal proposition in his brief and we *142may decline to consider it for that reason. Rule 1046 f. In any event it is patent that the statute by its terms does not apply to the release here. It was the clear legislative intent that only releases signed within the specified period after the commission of the tort be voidable at the option of the injured party, apparently to regulate a practice not involved in the situation before us. We note that were the proper construction that the statute apply to releases exculpating a defendant before the commission of the tort giving rise to damages there would have been no need for the legislature to have enacted Code, Art. 53, § 40. See note 2 supra. If the legislature deems it advisable to extend the prohibition against exculpatory clauses to agreements other than landlords and tenants, it is, of course, free to do so.

VI

Winterstein contends that the releases executed “did not conclusively establish the voluntary assumption of risk in which there was an intentional and unreasonable exposure to danger which the plaintiffs-appellants knew or had reason to know as a matter of law.” This point was not presented, tried and decided below. Rule 1085. In any event the premise of the contention is faulty because the rule of law on which Winterstein relies is not invoked in the factual posture of the case before us. Winterstein relies on the statement in Powers v. State, 178 Md. 23, 31: “The test in determining voluntary assumption of risk is whether there was an intentional and unreasonable exposure to danger which the plaintiff either knew or had reason to know.” That rule deals with implied acceptance of risk, the basis which is not contract but consent. There can be no valid implied and voluntary consent to assume a risk without the knowledge of the risk. See Prosser, supra, pp. 459-469.5 But here *143there was an express agreement admittedly executed by each of Roland Winterstein and Barbara Winterstein. We have found that the release was not void as against public policy and it is not claimed to be otherwise invalid. In it Winterstein not only acknowledged the risks and dangers involved and recognized that unanticipated and unexpected dangers might arise but expressly released Wilcom “from all claims, demands, actions and causes of action of any sort, for injuries sustained by my person and/or property during my presence in said premises and participation in the stated activities due to negligence or any other fault.” This exculpatory language is thorough and comprehensive. It encompassed the claim, demand and action here and effectively released Wilcom. The intent of the parties was expressed in clear and unequivocal terms. The document anticipated the alleged negligence of Wilcom and held him harmless. The contention is without merit.

We observe that any joint claim for loss of consortium necessarily falls as dependent upon the avoidance of the releases.

Judgment affirmed with costs.

The opinion of the court was delivered by

Wbintratjb, C. J.

Plaintiff was injured by a fall while ice-skating on a rink operated by defendant. The jury found for defendant. The Appellate Division reversed, 54 N. J. Super. 25 (1959), and we granted defendant’s petition for *47certification. 29 N. J. 582 (1959). The facts appear in the opinion of the Appellate Division and need not be repeated in detail.

The Appellate Division found error in the charge of assumption of the risk. It also concluded there was no evidence of contributory negligence and hence that issue should not have been submitted to the jury.

Defendant urges there was no negligence and therefore the alleged errors were harmless. See Bush v. New Jersey & New York Transit Co., Inc., 30 N. J. 345, 351 (1959). We think there was sufficient proof to take the issue to the jury. There was evidence that defendant departed from the usual procedure in preparing the ice, with the result that it became too hard and hence too slippery for the patron of average ability using skates sharpened for the usual surface. Erom plaintiff’s account of his fall, a jury could infer the stated condition of the ice was the proximate cause.

We however agree with defendant that the issue of contributory negligence was properly left to the trier of the facts. Plaintiff had noted that his skates slipped on turns. A jury could permissibly find he carelessly contributed to his injury when, with that knowledge, he remained on the ice and skated cross-hand with another.

The remaining question is whether the trial court’s charge with respect to assumption of risk was erroneous. The words “the proximate cause, rule of proximate cause” appear in the charge at a point at which they are unintelligible and at which “assumption of risk” doubtless was intended. Plaintiff’s counsel objected to the charge, making specific reference to the introduction of “proximate cause” in the court’s treatment of assumption of risk and adding “It is confusing in my mind and I don’t see how the jury can understand it.” Defendant urges the stenographer erred in recording “proximate cause” when in fact the trial judge said “assumption of risk.” The record, however, was not corrected, and the phrasing of plaintiff’s objection to the *48charge would seem to support the transcript. We cannot exclude a likelihood that the trial judge unwittingly uttered the wrong phrase, and being unaware of the slip, failed to comprehend the objection made. In these circumstances, we cannot disagree with the view of the Appellate Division.

The Appellate Division also found the trial court failed to differentiate between assumption of risk and contributory negligence. The Appellate Division added (54 N. J. Super, at page 32):

“We note that contributory negligence involves some breach of duty on the part of a plaintiff. His actions are such as to constitute a failure to use such care for his safety as the ordinarily prudent man in similar circumstances would use. On the other hand, assumption of risk may involve no fault or negligence, but rather entails the undertaking of a risk of a known danger. Hendrikson v. Koppers Co., Inc., 11 N. J. 600, 607 (1953).”

As we read the charge, the trial court expressed essentially the same thought, i. e., that assumption of risk may be found if plaintiff knew or reasonably should have known of the risk, notwithstanding that a reasonably prudent man would have continued in the face of the risk. We think an instruction to that effect is erroneous in the respect hereinafter delineated. The error is traceable to confusion in the opinions in our State.

Assumption of risk is a term of several meanings. Eor present purposes, we may place to one side certain situations which sometimes are brought within the sweeping term but which are readily differentiated from the troublesome area. Specifically we place beyond present discussion the problem raised by an express contract not to sue for injury or loss which may thereafter be occasioned by the covenantee’s negligence, and also situations in which actual consent exists, as, for example, participation in a contact sport.

We here speak solely of the area in which injury or damage was neither intended nor expressly contracted to be non-actionable. In this area, assumption of risk has two distinct meanings. In one sense (sometimes called its *49“primary” sense), it is an alternate expression for the proposition that defendant was not negligent, i. e., either owed no duty or did not breach the duty owed. In its other sense (sometimes called “secondary”), assumption of risk is an affirmative defense to an established breach of duty. In its primary sense, it is accurate to say plaintiff assumed the risk whether or not he was “at fault,” for the truth thereby expressed in alternate terminology is that defendant was not negligent. But in its secondary sense, i. e., as an affirmative defense to an established breach of defendant’s duty, it is incorrect to say plaintiff assumed the risk whether or not he was at fault.

A discussion of the subject must start with the common-law action of a servant against his master, for it was there that assumption of risk emerged or at least was distinctly developed. The master owed a duty to provide a reasonably safe place to work. If he discharged that duty, he was not liable for damages due to the inherent risks that remained. The master, upon that postulate, was not negligent. He might be liable if he failed to warn the uninitiate of those inherent risks, 3 Labatt, Master and Servant (2d ed. 1913), § 1151, p. 3059, but the experienced workman was said to have assumed them. Quite obviously, the expression simply stated in other terms the basic thought that the master had not breached his duty. 3 Labatt, Master and Servant (2d ed. 1913), § 1186a, p. 3188. Assumption of risk, in that sense, was not a separate defense. It was not required to be pleaded and the burden of proof was not upon the master. Taylor v. Chicago, R. I. & P. Ry. Co., 186 Iowa 506, 170 N. W. 388, 390 (Sup. Ct. 1919). On the contrary, the servant had to prove the injury was caused by a risk other than one inherent in a well-run establishment, that is to say, that the master was negligent. That assumption of risk as thus used was not a separate defense but rather another way of saying the defendant was not negligent, is further evident from the frequent statement that a servant did not assume the risk of his master’s negligence. 3 Labatt, *50 Master and Servant (2d ed. 1913), § 1186a, p. 3188; Fagan v. Central R. Co., 94 N. J. L. 454, 457 (F. & A. 1920); Cetofonte v. Camden Comden Co., 78 N. J. L. 662, 666 (E. & A. 1910); Smith v. Erie R. Co., 67 N. J. L. 636, 645 (F. & A. 1902).

Hence if the servant established that his injury was caused by a risk created by the master’s breach of duty to furnish a reasonably safe place to work, assumption of the risk in the primary sense necessarily was negated. But the master could press an affirmative defense, as to which the burden of pleading and proof was his, that plaintiff should nonetheless fail because he voluntarily exposed himself to a risk negligently created by the master. Unhappily, that defense was also called assumption of risk. Thus two utterly distinct thoughts bore the same label with inevitable confusion. Martin v. Des Moines Edison Light Co., 131 Iowa 724, 106 N. W. 359, 363 (Sup. Ct. 1906).

The confusion was aided by the practice of pleading assumption of risk as a separate defense without indicating whether the purpose was merely to deny negligence or to assert an affirmative defense on the hypothesis that defendant was negligent. So also a single form of charge to the jury came into usage attended by the same obscurity. Thus where the facts were such that assumption of risk was pertinent only as a denial of negligence, the jury was instructed to deal first with the issue of negligence, and if negligence should be found, then to consider the “defense.” Thus instructed, a jury might find negligence (a finding which in legal effect negates assumption of risk in its primary sense) and yet find for defendant under a misapprehension that assumption of risk in its primary sense somehow constituted a bar. Still further, although it would be technically accurate with respect to assumption of risk in its primary sense to say that plaintiff assumed the risk of non-negligent injury even though he was free of fault, that same instruction, if given where assumption of risk in its secondary sense is in issue, would lead to the exculpation of a negligent *51defendant upon the erroneous notion that a plaintiff assumed the risk of that negligence even though he was free of blame. And, we believe, the confusion has been further compounded by treating assumption of risk in its secondary sense as an affirmative defense different in its essential ingredients from the defense of contributory negligence, thus creating the potential of a verdict for defendant notwithstanding a jury’s finding under the issue of contributory negligence that plaintiff exercised the care of the reasonably prudent man under all the circumstances.

The proposition we have just advanced, that assumption of risk in its secondary sense is indistinguishable in its nature from contributory negligence, requires further discussion. We may note at once that our cases describe these two “defenses” as “barely distinguishable,” Costino v. Di Menzo, 124 N. J. L. 398, 401 (Sup. Ct. 1940); “virtually identical,” White v. Ellison Realty Corp., 5 N. J. 228, 235 (1950); “convertible” or “interchangeable,” Benton v. 7. M. C. A. of Westfield, 27 N. J. 67, 69 (1958); Petrone v. Margolis, 20 N. J. Super. 180, 189 (App. Div. 1952); Pona v. Boulevard Arena, 35 N. J. Super. 148, 153 (App. Div. 1955), certification denied 19 N. J. 326 (1955); and “twins,” Scheirek v. Izsa, 26 N. J. Super. 68, 72 (App. Div. 1953). Indeed in Hartman v. City of Brigantine, 23 N. J. 530, 537 (1957), it was suggested that in the interest of clarity assumption of risk in the secondary sense “might well be subsumed” under the defense of contributory negligence.

To determine if assumption of risk in its secondary sense differs from contributory negligence, the critical test is whether a plaintiff’s conduct under the former is measured by the standard of the reasonably prudent man, for if it is, nothing remains to distinguish it from contributory negligence.

Reverting again to the soil of origin, we find the servant was held to have assumed the risk of a negligently created hazard if he continued to work with knowledge of it. Indeed, *52actual knowledge was not required, for the doctrine was applied to a risk which a reasonable man would have detected. Seaboard Air Line Railway v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062 (1914). If the employee knew or ought to have known of the hazard, he was barred even though he was guilty of no “fault” beyond continuing to work. Cetola v. Lehigh Valley R. Co., 89 N. J. L. 691, 692 (E. & A. 1916). The rigor of that rule was later tempered by permitting an employee to rely for a reasonable period upon the master’s promise to rectify the negligent condition. Seaboard Air Line Railway v. Horton, supra; 3 Labalt, Master and Servant (2d ed. 1913), § 1197, p. 3242.

Although the rationalization of the foregoing common-law view was threaded with the fiction that the servant “contracted” for his master’s immunity as a quid pro quo for the wages paid, it seems likely that it was but a harsh and improvident application of the familiar standard of the behavior of the reasonable man. In short the courts thought it indisputable that a reasonably prudent man would not continue to work with such knowledge, and thus finding no room for difference of opinion, took the matter from the jury. But if this be an incorrect view of the underlying thought process and if assumption of risk was then something other than a misguided application of the broad principle of contributory negligence, it would not matter today, for the common-law concept, however viewed, was discredited long ago at the very scene of its flowering. Thus in our State, the Legislature, the final arbiter of public policy, abolished that defense in the Workmen’s Compensation Act, ordaining that where the parties choose to retain the common-law remedy, relief shall not be denied on the ground that the employee “assumed the risks * * * arising from the failure of the employer to provide and maintain safe premises and suitable appliances.” R. S. 34:15-2; Brost v. Whitall-Tatum co., 89 N. J. L. 531 (E. & A. 1916).

*53In the light of the history of the subject and legislative action just described, it would be improvident to transplant the doctrine of assumption of risk into other areas with the discredited notion that one who knew (or should have known) of a negligently created risk is barred even though free of fault, i. e., even though a reasonably prudent man would have incurred the risk despite that knowledge. Rather the just approach, as with respect to other applications of contributory negligence, is to leave the issue to the jury if reasonable men may disagree or to decide it as a matter of law if there is no room for difference in evaluation. So it may be one thing to raise the bar as a matter of law if a man entered a blazing structure to retrieve a fedora, but something else thus to bar him if his purpose was to rescue a child. See Eckert v. Long Island R. Co., 43 N. Y. 502 (Ct. App. 1871); Wagner v. International Ry. Co., 232 N. Y. 176, 133 N. E. 437, 19 A. L. R. 1 (Ct. App. 1921). This approach has been embraced in our State. In apptying assumption of risk in its secondary sense in areas other than that of master and servant, our cases have consistently recognized the ultimate question to be whether a reasonably prudent man would have moved in the face of a known risk, dealing with the issue as one of law or leaving it to the jury upon the same standard which controls the handling of the issue of contributory negligence. Benton v. Y. M. C. A. of Westfield, supra (27 N. J. at page 70); Hartman v. City of Brigantine, supra (23 N. J. at page 537); Nauman v. Central & Lafayette Realty Co., Inc., 137 N. J. L. 428, 430 (Sup. Ct. 1948), affirmed on opinion below, 1 N. J. 124 (1948); Coffey v. Middlesex-Spotswood, Inc., 52 N. J. Super. 39, 43 (App. Div. 1958), certification denied 28 N. J. 186 (1958); Doherty v. Trenton Trust Co., 42 N. J. Super. 398, 403 (App. Div. 1956); Pona v. Boulevard Arena, supra (35 N. J. Super, at page 153); Scheirek v. Izsa, supra (26 N. J. Super, at pages 73-74); Petrone v. Margolis, supra (20 N. J. Super, at page 188); Halpern v. Barbara Holding Corp., 5 N. J. Super. 87, 90 *54 (App. Div. 1949); Turck v. Kaywal Really Co., 3 N. J. Super. 165, 168 (App. Div. 1949); Campbell v. Pure Oil Co., 15 N. J. Misc. 723, 727 (Sup. Ct. 1937); Solomon v. Finer, 115 N. J. L. 404, 406 (Sup. Ct. 1935); cf. Indiero v. Fausto, 126 N. J. L. 219, 220 (Sup. Ct. 1941), affirmed on opinion below, 127 N. J. L. 244 (E. & A. 1941); Goldstein v. Hotel Altman, 4 N. J. Super. 78 (App. Div. 1949).

Hence we think it clear that assumption of risk in its secondary sense is a mere phase of contributory negligence, the total issue being whether a reasonably prudent man in the exercise of due care (a) would have incurred the known risk and (b) if he would, whether such a person in the light of all of the circumstances including the appreciated risk would have conducted himself in the manner in which plaintiff acted.

Thus in the area under discussion there are but two basic issues: (1) defendant’s negligence, and (2) plaintiff’s contributory negligence. In view of the considerations discussed above, it has been urged that assumption of risk in both its primary and secondary senses serves merely to confuse and should be eliminated. Editorial, Assumption, of the Risk —A False Issue, 73 N. J. L. J. 346 (1950); James, Assumption of Risk, 61 Yale L. J., 141, 169 (1952); 2 Harper and James, Law of Torts (1956), § 21.8, p. 1191. Dean Prosser agrees that in the area with which we are here concerned “assumption of risk serves no useful purpose, since it introduces nothing that is not fully covered either by the idea of an absence of duty on the part of the defendant, or by that of contributory negligence of the plaintiff.” Prosser, Torts (2d ed. 1955), § 55, p. 305. He however suggests the terminology does focus attention upon the nature of the ultimate issues and hence may well be retained.

Perhaps a well-guarded charge of assumption of risk in its primary sense will aid comprehension. But we cannot see how a charge of the concept in its secondary sense will contribute a net gain. And it seems too much to expect a jury to grasp the issues when assumption of risk is ad*55vanced in both of its senses. The present case is of that character, for here defendant may urge in the primary sense that plaintiff assumed the risk inherent in a carefully operated rink and also in the secondary sense that plaintiff assumed the risk of a negligently created hazard because he imprudently skated with awareness of the added danger. We think it likely in such circumstances that a jury will think there are three or four issues rather than the two of negligence and contributory negligence.

We are satisfied there is no reason to charge assumption of the risk in its secondary sense as something distinct from contributory negligence, and hence that where the thought is projected in that aspect, the terminology of assumption of risk should not be used. Bather, as suggested in Hartman v. City of Brigantine, supra (23 N. J. at page 537), the subject should be subsumed under the charge of contributory negligence. With respect to its primary sense, it will not matter whether a trial court makes or omits a reference to assumption of the risk, provided that if the terminology is used the jury is plainly charged it is merely another way of expressing the thought that a defendant is not liable in the absence of negligence; that a plaintiff does not assume a risk defendant negligently created, cf. Ford v. Reichert, 23 N. J. 429, 434 (1957); and that if defendant is found to have been negligent, plaintiff is barred only if defendant carries the burden of proving contributory negligence, i. e., plaintiff’s failure to use the care of a reasonably prudent man under all of the circumstances either in incurring the known risk or in the manner in which he proceeded in the face of that risk.

Still another reason has been advanced for the retention of assumption of the risk in its primary sense. The thesis is that “in that situation, though the assumption of risk gives rise to a lack of duty on the defendant’s part, nevertheless (notwithstanding that the plaintiff usually has the burden of proving that the defendant owes him a duty) the defendant here has the burden of proving the assumption *56of risk—that is, the burden of proving the lack of duty.” Klinsky v. Hanson Van Winkle Munning Co., 38 N. J. Super. 439, 444 (App. Div. 1955), certification denied 20 N. J. 534 (1956). With this, we disagree. See, 2 Harper and James, Law of Torts (1956), § 21.7, p. 1190. In support of its view, the Appellate Division in Klinsky cited De Eugenio v. Allis-Chalmers Mfg. Co., 210 F. 2d 409 (3 Cir. 1954), in which the law of New Jersey was applied. But the federal court was there dealing with assumption of risk in its secondary sense and hence correctly held the burden of proof was defendant’s.

A plaintiff has the burden of proving negligence. If a defendant challenges the existence or extent of the duty asserted or disputes a breach of that duty, the burden of proof remains with plaintiff, even though defendant may be defeated in that inquiry if he fails to adduce facts to negate the duty or the breach suggested by plaintiff’s proof. The burden of proof as to negligence of’defendant does not shift to him merely because he chooses to express his denial of negligence in terms that plaintiff assumed (may not complain of) risks which inhered notwithstanding that defendant properly discharged the duty he owed in the circumstances. Eor example, if a passenger upon a common carrier is thrown by the movement of the vehicle, the burden is his to prove an unusual (negligently created) jerk or jar even though defendant asserts the fall resulted from an incidental, non-negligent movement. Perhaps the confusion flows from those situations in which a defendant may have a duty to warn of the existence of a risk which itself is not the product of negligence, just as for example at common law the master was bound to warn the inexperienced employee. The fact that there plaintiff’s knowledge of the risk is crucially involved in the issue of defendant’s breach of duty should not obscure the obligation of the plaintiff to prove that breach, i. e., a failure to warn. Different, of course, is a case in which the risk itself was negligently created and defendant as part of his affirmative defense of *57contributory negligence seeks to prove that plaintiff was warned or knew of it.

In short, each case must be analyzed to determine whether the pivotal question goes to defendant’s negligence or to plaintiff’s contributory negligence. If the former, then what has been called assumption of risk is only a denial of breach of duty and the burden of proof is plaintiff’s. If on the other hand assumption of risk is advanced to defeat a recovery despite a demonstrated breach of defendant’s duty, then it constitutes the affirmative defense of contributory negligence and the burden of proof is upon defendant.

With the modifications expressed above, the judgment of the Appellate Division is affirmed.

For modification—Chief Justice Weintraub, and Justices Bublihg, Jacobs, Pbanois and Peoctoe—5.

Opposed—None.