(dissenting).
The injury suffered by Malmquist was sustained while he was engaged in activity *123incident to his employment — to-wit: returning from the site of his work across the employer’s premises to the public way, at the end of his shift. The roadway of ingress and egress on the employer’s premises was furnished by and under the control of the employer. True, the Steele truck was not furnished as a means of transportation by the employer. But, it was upon the employer’s premises by employer’s express permission. As such it was one of the conditions existing upon the employer’s premises subject to the control of the employer; and it was common practice for employees to board trucks going to the gate.
If the employee had negligently stumbled over a stick lying in the road leading to the gate, or negligently allowed himself to be struck down by the Steele truck, the majority would not deny his injury was compensable. But, because he negligently hitched a ride on the truck for his own convenience, his injury is held not to arise out of his employment. Actually, without so saying the majority has applied the law of negligence, and has said that because the employee was negligent and there was no negligence on the part of the employer, the injury is not compensable.
It cannot be questioned that an employee while on the employer’s premises, in going to, and returning from, the site of his work, is engaged in activity incident to the employment. Deceased was using a roadway furnished and maintained by his employer for his use. It was to be expected that he would accept a ride when offered. Thus his employment was a “contributing cause” of his injury. This case is not distinguishable from Dutson v. Idaho Power Co., 57 Idaho 386, 65 P.2d 720, where the death was held compensable. As to negligence and contributing cause, the concurring opinion of Chief Justice Morgan is particularly applicable here.
Likewise it cannot be questioned that in traversing his employer’s premises from the site of his work to the main gate, the employee incurs risks which are not common to the public, but which are incident to the employment and shared only by fellow employees and the permittees upon such premises. Such risks are “hazards associated with the employment” and “inherent in and inseparable from the employment”. Jaynes v. Potlatch Forests, 75 Idaho 297, at page 303, 271 P.2d 1016, at page 1019. There this court held that an injury sustained by an employee at a railroad crossing, off the employer’s premises, but between the main gate and the public highway, arose out of a risk incident, and peculiar, to the employment, and therefore compensable.
If these cases are to be overruled it should be done expressly.
The order denying compensation should be reversed.