(dissenting).—I am compelled to dissent
from the conclusion reached by the majority. It would be of no avail to enter into an analysis of the testimony, but I think it differs materially from the testimony presented in the case of Pugh v. Oregon Imp. Co., 14 Wash. 331 (44 Pac. 547, 689), although in that case I did not join in the decision to deny the petition for rehearing, as I subscribed to the original opinion under a misapprehension of the testimony, which was exceedingly voluminous. In the Pugh Case, supra, it was conceded for the purposes of the. opinion that it was an established fact that the operation of the fan was stopped by Ramsey, the assistant superintendent, and that this would sustain the charge of. negligence against the defendants; but that case was decided squarely upon the ground of contributory negligence on the part of Pugh. It is now said by the majority in this case that there was no proof of negligence on the part of appellant. There was testimony tending to show that the *303fan. was closed down by tbe order of tbe superintendent. With the weight of the testimony, this court should not concern itself. That falls within the special province of the jury. It is not sufficient in my mind to hold the company to reasonable care in the operation of such works as this mine is shown to be, but, in the interest of the safety of human life, it ought to be held to the very highest care. If Mr. Ramsey, the superintendent, found it necessary to leave the mine to go to his dinner, or for any other purpose, he ought to have left some one in his stead ; and that some one, whether it was Mr. Smalley, or whoever it might be, would be, for the time being, the superintendent of the mine, and would not be a fellow servant, in any sense. I think the whole testimony shows that if the company had exercised that degree of care which it should have exercised, considering the dangers to which its employees were subjected, this accident would have been averted. I think the judgment should be affirmed.
Reavis, J.—I join in the foregoing dissenting opinion.