I dissent. The evidence supports the finding of the commission that the employee lost his life by reason of the serious and wilful misconduct of his employer. Here we have an 8-foot dam upon which are two boards extending 2 feet above the top. Upstream (behind) from the boards is a 30-inch head of water. While the top of the dam is 4 feet wide the space left for a workman removing the boards is only 2 feet because the boards are midway on the top. The top of the dam was covered with moss and mud as it naturally would be by reason of there being no flow of water over it and the seepage of water through the boards. When a board was removed by the deceased and another employee there was a rush of the 30-ineh flow of water around the legs of the deceased. No life lines were fixed along the top of the dam. That could have been done easily and they would have afforded a saving handhold if an employee slipped.
*144The majority opinion lays stress on the evidence that the safety engineers for the employer’s insurance carrier made inspection of its works and never made any recommendations with reference to the dam. That evidence does not show, however, whether the dam was ever inspected, that the inspectors knew of the practice of removing the boards, or that they had ever been present when that work was in progress. That evidence is therefore of little value.
Reliance is also had upon evidence that there had never before been an accident during the removal of the boards. However, two of the witnesses who testified to that effect had only been employed for a short time and had participated in the removal of the boards only once or twice. The employer’s superintendent testified that over a long period of time no accidents had occurred, but because of his interest the commission could view his testimony with suspicion.
The majority opinion concedes that the view of the dam by the commission would be independent evidence supporting its decision but states that there was no showing that the conditions were the same at the time of the inspection. The time elapsing (11 months) is not sufficient upon which to base a conclusion of law that conditions were not the same. Where we have permanent things such as a dam and a stream the presumption is that conditions remain the same (see Wigmore on Evidence (3d ed.) § 437; Code Civ. Proc., § 1963 (32)). It was incumbent upon the employer to show that conditions were different. That it failed to do. Moreover, it did not object to the inspection and relies strongly, as does the majority opinion, on evidence that no prior accidents had happened which would be irrelevant unless the conditions were substantially the same at all times. Therefore, the view of the premises alone supports the award.
The conduct of the employer was in direct violation of the law requiring an employer to furnish a safe place to work and adopt all reasonable means necessary to achieve that end. (Lab. Code, §§ 6400 et seq.)
The views expressed in my dissenting opinion in Mercer-Fraser Co. v. Industrial Acc. Com., ante, p. 102 [251 P.2d 955], this day filed are equally applicable here, but I desire to point out particularly that the majority opinion here cannot be reconciled with the following cases: Parkhurst v. Industrial Acc. Com., 20 Cal.2d 826 [129 P.2d 113] ; Hatheway v. Industrial Acc. Com., 13 Cal.2d 377, 380 [90 P.2d 68] ; Hoffman v. Department of Industrial Relations, 209 Cal. 383 *145[287 P. 974, 68 A.L.R. 294] ; Pacific Emp. Ins. Co. v. Industrial Acc. Com., 209 Cal. 412 [288 P. 66] ; Gordon v. Industrial Acc. Com., 199 Cal. 420 [249 P. 849, 58 A.L.R. 1374] ; Blue Diamond Plaster Co. v. Industrial Acc. Com., 188 Cal. 403, 409 [205 P. 678] ; Johannsen v. Industrial Acc. Com., 113 Cal.App. 162 [298 P. 99].
While the above cited cases differ factually from the case at bar the philosophy and legal concept of those cases is equally applicable here. The dangerous character of the place where the employees were required to work was obvious. If it was not known it was of such a character that it should have been known. Steps could easily have been taken to alleviate the danger but the employer did nothing whatsoever and sent the employee on that dangerous mission with reckless disregard of his safety.
The majority here is obviously opposed to the philosophy and legal concept of the above cited cases, or, more obviously, the majority is opposed to an award for serious and wilful misconduct in any case. The decision in this and kindred cases of recent vintage demonstrates the truth of this statement.
The record here is clearly sufficient to support the findings of the commission and I would therefore affirm the award here made.