Further, neither of the cases Derricks cited persuade us that Taft's negligence exceeded his as a matter of law. Derricks directs us to Sparish v. Zappa, 273 Wis. 195, 200, 77 N.W.2d 416 (1956), and Frei v. Frei, 263 Wis. 430, 434, 57 N.W.2d 731 (1953), in which the supreme court concluded that the plaintiffs were more negligent as a matter of law than the defendants, and denied recovery. In Sparish, the plaintiff was attempting to repair a farm machine when his foot slipped into a nearby silage blower.

The trial court granted Sekeres' motion. Relying upon Frei v. Frei, 263 Wis. 430, 57 N.W.2d 731 (1953), the court reasoned: Mr. Wolf's negligence has got to be greater than that of Mr. Sekeres, taking the evidence afforded most favorably, and that summary judgment is appropriate under the rationale of the Frei case, and I base that primarily on the fact that he was well aware of the dangers involved and the fact that the machine should not have been operated when it was clogged.

While this court holds that the comparative-negligence issue is for the jury in the great majority of situations, it has not hesitated to hold that a plaintiff's negligence equaled or exceeded defendant's in the extraordinary situations in which the facts required such a result. Crawley v. Hill (1948), 253 Wis. 294, 34 N.W.2d 123; Quady v. Sickl (1952), 260 Wis. 348, 51 N.W.2d 3; Hephner v. Wolf (1952), 261 Wis. 191, 52 N.W.2d 390; Klein v. Montgomery Ward Co. (1953), 263 Wis. 317, 57 N.W.2d 188; Frei v. Frei (1953), 263 Wis. 430, 57 N.W.2d 731; Sparish v. Zappa (1956), 273 Wis. 195, 77 N.W.2d 416; Powless v. Milwaukee County (1959), 6 Wis.2d 78, 94 N.W.2d 187; Kornetzke v. Calumet County (1959), 8 Wis.2d 363, 99 N.W.2d 125; and Bembinster v. Aero Auto Parts (1961), 12 Wis.2d 252, 107 N.W.2d 193. For the reasons stated, I would affirm the judgment for dismissal of plaintiff's action.

In the last-cited case, which was decided soon after Wisconsin's comparative-negligence statute had been enacted, it was stated that the cases, in which a court can rule as a matter of law that the negligence of a plaintiff is equal to or greater than that of the defendant, will ordinarily be limited to cases where the negligence of each is of precisely the same kind and character. Subsequently, this court has realized that in certain fact situations, in which a plaintiff has been disproportionately negligent, justice requires that his negligence be held to equal or exceed that of the defendant even though the negligence of each is not of the same character. Examples of this are afforded by the following cases: Crawley v. Hill (1948), 253 Wis. 294, 34 N.W.2d 123; Quady v. Sickl (1952), 260 Wis. 348, 51 N.W.2d 3; Hephner v. Wolf (1952), 261 Wis. 191, 52 N.W.2d 390; Klein v. Montgomery Ward Co. (1953), 263 Wis. 317, 57 N.W.2d 188; Frei v. Frei (1953), 263 Wis. 430, 57 N.W.2d 731; Sparish v. Zappa (1956), 273 Wis. 195, 77 N.W.2d 416; Powless v. Milwaukee County (1959), 6 Wis.2d 78, 94 N.W.2d 187; Kornetzke v. Calumet County (1959), 8 Wis.2d 363, 99 N.W.2d 125; and Bembinster v. Aero Auto Parts, ante, p. 252, 107 N.W.2d 193. After a careful review of the evidence in this case it is our conclusion that the plaintiff was not so disproportionately negligent as to require that the court remove the comparative-negligence issue from the jury.

Counsel for the defendant contend that, because the plaintiff knew of the defective condition of the cornpicker prior to the day of the accident and nevertheless continued to use such machine, this constituted assumption of risk as a matter of law. In this case, unlike Frei v. Frei (1953), 263 Wis. 430, 57 N.W.2d 731, it is necessary to distinguish between assumption of risk and contributory negligence. This is because of our conclusion that, while we are satisfied that the plaintiff was negligent as a matter of law in placing his hand in as close proximity as he did to the revolving rollers of the picker, the comparison of negligence presents a jury issue.

We have carefully considered two previous decisions of this court in which 50 per cent or greater negligence by plaintiff was determined as a matter of law. In Frei v. Frei (1953), 263 Wis. 430, 57 N.W.2d 731, plaintiff was picking up ears of corn beneath the snouts of a corn picker. He was injured when his sleeve was drawn into the machinery by reason of the gathering chains being loose.

Had the circumstances been as claimed by the plaintiff, it still would have been incumbent upon the court in the light of the evidence to hold as a matter of law that the plaintiff was guilty of contributory negligence which was equal if not greater than any negligence of the Damrows. As said in Frei v. Frei (1953), 263 Wis. 430, 434, 57 N.W.2d 731: "He also knew there was a perfectly safe way of protecting himself . . . — and he knew that he was entitled to use this method.

It has been customary for the courts of this state in cases wherein the plaintiff seeks to recover damages for a fall to submit in the special verdict a question inquiring as to whether the plaintiff failed to exercise ordinary care for his own safety and not to submit any question as to assumption of risk. Two recent examples of this are to be found in the cases of Bush v. Mahlkuch (1956), ante, p. 246, 75 N.W.2d 283, and Sturm v. Simpson's Garment Co. (1956), 271 Wis. 587, 74 N.W.2d 137. Wisconsin has limited the application of the defense of assumption of risk to situations where there is a consensual relationship between the defendant and plaintiff such as host and guest, or master and servant. Switzer v. Weiner (1939), 230 Wis. 599, 603, 284 N.W. 509, and Frei v. Frei (1953), 263 Wis. 430, 434, 57 N.W.2d 731. By sec. 331.37, Stats., the defense of assumption of risk has now been abolished in master-and-servant cases except as to farm labor. There was a complete absence of any consensual relationship existing between the plaintiff and the defendant in the instant case.

As to the guard, both parties testified that defendant had not told plaintiff of its existence and plaintiff testified that he had never seen it. Defendant in support of his contention as to comparative negligence relies also upon Klein v. Montgomery Ward Co. 263 Wis. 317, 57 N.W.2d 188, and Frei v. Frei, 263 Wis. 430, 57 N.W.2d 731. The safe-place statute was not involved in the Frei Case. What the court there says about the comparative negligence of the parties is said with respect to plaintiff's cause of action based upon commonlaw negligence.

The cold, blunt fact, therefore, remains that when this plaintiff swung his leg over this universal joint he negligently, carelessly and thoughtlessly swung it over the universal joint which was known to him to be dangerous. We have considerable difficulty in distinguishing this case from Wills v. Paul, 24 Ill. App.2d 417, 164 N.E.2d 631, where a plaintiff pulled off his gloves, reached for a cornstalk with the corn picker in operation and his hand became entangled in the machinery, and where it was held that the plaintiff was not in the exercise of due care and caution as a matter of law, or from Frei v. Frei, 263 Wis. 430, 57 N.W.2d 731, where the plaintiff while following an accepted practice in loading a truck from a storage bin by closing a door with a pick, slipped on some grain and his foot became entangled in a moving auger, and it was held that he assumed the risk and could not recover. A series of like cases is collected in 67 ALR2d 1232. In Ferguson v. Lounsberry, 58 Ill. App.2d 456, 207 N.E.2d 309, the plaintiff reached back and caught his sleeve in the corn dump while it was in operation and was seriously injured.