(dissenting).
With due deference, I wish to record my dissent. I thought we went as far as we could reasonably be expected to go in extending the “access doctrine” as an exception to the “going and coming rule” in Kelty v. Travelers Insurance Company, 391 S.W.2d 558 (Tex.Civ.App. — Dallas 1965, writ ref’d n. r. e.). But now the majority has gone a step further in holding that an employee, simply because of a barricade blocking the sidewalk and the signs directing pedestrians to cross the street, sustained a compensable injury when she fell in a public street on her way to work.
Until the legislature sees fit to abolish the so-called “going and coming rule,” it is my view that the courts should not by constantly whittling at it eventually obliterate it. This “access” exception to the general rule was limited by the court in Viney v. Casualty Reciprocal Exchange, 82 S.W.2d 1088, 1089 (Tex.Civ.App.- — Eastland 1935, writ ref’d) to those cases where the way *550traveled by the employee when injured is “the only way to and from the work, and is not traveled by the public generally.”
In the case at bar neither of these tests is met. The route chosen by Ms. Matthews was not the only way she could have taken to get to her work, and it was traveled by the general public. She was at liberty to cross Bryan Street at the next intersection east of the barricade, or she could have gone around the block. It was not shown that she could not have parked her car in the company parking lot or at some other place on the north side of Bryan Street. Moreover, the fact that the sidewalk and part of the street were blocked by the contractor does not alter the facts that the place where she fell was not blocked, was open to use by the public and was used by the public, and was not under the control of the employer.
In my view, the majority opinion is in conflict with that in Dishman v. Texas Employers’ Insurance Association, 440 S. W.2d 727 (Tex.Civ.App. — Fort Worth 1969, writ ref’d n. r. e.). The facts were quite similar and the principles of law involved were identical. The following excerpt from the opinion in Dishman illustrates my view of the dissimilarity between the situation in Kelty and that of the case at bar:
The general rule is that injuries received by an employee while going to or from work in order to be compensable must be sustained through the use of ingress or egress actually situated on the property of the employer or in such close proximity thereto as to be for all practical purposes a part of the premises of the employer. Stated another way if the means of ingress and egress expose the employee to some risk or hazard to which the general public would not be exposed the injury is compensable.
It should also be borne in mind that in Kelty we specifically declined to hold as a matter of law that Mrs. Kelty was acting within the course and scope of her employment. We merely held that the defendant-movant for summary judgment had failed to carry its burden under Texas Rules of Civil Procedure 166-A, and that a fact issue had been raised.
In my opinion this case should have been controlled by American Indemnity Co. v. Dinkins, 211 S.W. 949 (Tex.Civ.App.— Beaumont 1919, writ ref’d) approved in Lumbermen’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 75 (1922); Smith v. Texas Employers’ Ins. Ass’n, 129 Tex. 573, 105 S.W.2d 192 (1937); Texas Employers Insurance Ass’n v. Clauder, 431 S.W.2d 579, 584 (Tex.Civ.App. — Tyler 1968, writ ref’d n. r. e.); Flores v. Employers Fire Ins. Co. of San Antonio, Texas, 464 F.2d 1276 (5th Cir. 1972, cert. den. 409 U.S. 1046, 93 S.Ct. 545, 34 L.Ed.2d 497); Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex.Sup.1963); West v. Home Indemnity Co., 444 S.W.2d 786 (Tex.Civ.App. — Beaumont 1969, no writ) ; as well as by Viney v. Casualty Reciprocal Exchange, supra, and Dishman v. Texas Employers Insurance Association, supra.
I would reverse and render.