Dissenting. — I am unable to concur in the view expressed in the majority opinion that, under the circumstances disclosed by the record, any question of fact was presented which entitled the case to be submitted to a jury. The respondent was familiar with the truckway; he knew that it was not protected by any guard-rail and that it was not lighted. He also knew that by descending the steps immediately outside of the mill maintained by his employer *233expressly for the use of employees, he could have reached the road provided and proceeded in safety; the mere fact that the road was muddy would not justify the respondent in assuming an unnecessary risk. He knew that the night was dark; that he could not proceed over the truckway without incurring the danger which he encountered. These facts are not disputed. Nevertheless he deliberately walked forth on to the truckway in the dark to his injury. It is my view that these facts are sufficient, as a matter of law, to make respondent guilty of contributory negligence.
Furthermore, the cases cited in the majority opinion base the duty of an employer to use ordinary care and diligence to furnish his employee with a reasonably safe place to work and a reasonably safe means of access to and exit from the place of employment, upon the same ground. There is no distinction in principle as to the employer’s duty in either case, and such duty is neither greater nor less in the one ease than in the other. To my mind, under the facts disclosed by the record, this should bring the case within the rule announced at this term of court in Selhaver v. Dover Lumber Co., ante, 218, 169 Pac. 1169, that “notwithstanding the defective character of the machinery an employee assumes the risk of his employment where it is shown that he knew of the defective character of the appliances with which he was working, or that the defects were so patent and obvious that with reasonable attention he should have known of their existence, and where he comprehended the danger incident to the defective condition of the machinery, or as a- reasonably prudent person should have comprehended the danger and risk.” In my opinion the judgment should be reversed.