tion for judgment in favor of the defendant upon admitted facts appearing in the pleading, there were some additional facts agreed upon by counsel for both sides and stated to the court upon the argument of the motion. These additional facts appear in this record by statement of facts duly settled and signed by the trial judge. From the judgment of dismissal rested upon the facts so appearing, the plaintiff has appealed to this court.

[1] The controlling facts may be summarized as follows:

"Defendant is * a corporation * and owns and operates a plant for the manufacture and sale of gas in the city of Seattle, and maintains in connection therewith general offices. * * * On the 24th day of April, 1918, the plaintiff was in the employment of the defendant and engaged in the operation of a multiple head imprinter of the type 'F, and that it was the duty of the plaintiff in the operation of said machine to make certain zinc plates or stencils for the printing of gas bills. * * Said machine is run by electric power, and in its complete condition has in front of the dies a metal guard placed thereon to prevent the crushing or catching of fingers of the person operating said machine, and prior to said 24th day of April, 1918, and by the orders of said Miller in charge of said office, the said guard had been removed from said machine in order to speed up the operation thereof, and said removal was unknown to the plaintiff, and had said guard been on said machine the accident to plaintiff could not possibly have occurred."

The machine "was used in the office of the defendant as an office device or appliance." The plaintiff was a clerk in the general office of the defendant, and, while the larger part of her duties were clerical, it was also a part of her employment to operate this machine. Plaintiff's hand was injured by the die of the machine coming down upon her hand when the electrical power was applied by another, at a time when she was not expecting the machine to start. In view of our conclusion touching the correctness of the decision of the trial court, it is not necessary for us to further notice the manner or extent of the plaintiff's injury, or the alleged negligence of the defendant.

Among the extrahazardous works enumerated in the Workmen's Compensation Act (section 6604-2, Rem. Code) are "factories, mills and workshops where machinery is used." In section 6604-3 as amended by Laws of 1917, p. 474, "factories" and "workshop" are defined as follows;

"Factories mean undertakings in which the business of working at commodities is carried on with power-driven machinery, either in manufacture, repair or change, and shall include the premises, yard and plant of the concern.

"Workshop means any plant yard, premises, room or place wherein power-driven machinery is employed and manual labor is exercised by way of trade for gain or otherwise in or incidental to the process of making, altering, repairing, printing or ornamenting, finishing or adapting for sale or otherwise any article or part of article, machine or thing, over which premises, room or place the employer of the person working therein has the right of access or control."

In section 6604-4, Rem. Code, as amended by Laws of 1917, p. 478, under the general heading "Factories Using Power-Driven Machinery" are enumerated, among other things, for the purpose of specifying the amounts to be contributed towards the accident fund by employers, the following: "Stamping tin- or metal," canneries, metal stamping extra;" zing, Brass or lead articles or wares not otherwise specified;" "printing." It seems plain to us, that the word "factories," as used in the general heading under which these enumerations appear is used in a very general sense and means workshops as well, since there there is no general head

Vol. IV-Comp. 48.

ing containing the word "workshop," and the above-quoted items are as appropriate to work done in workshops as in factories

Was the office of the defendant a "factory" or "workshop" wherein power-driven machinery was being employed, in so far as the operation of this machine by electric power in the making of zinc plates or stencils was concerned, within the meaning of the Workmen's. Compensation Act? We think it was. It is plain that the machine was a power-driven machine, and that the operation of it in the making of zinc plates or stencils was the manufacture and change of zinc plates into the form of stencils; we also think the conclusion cannot be escaped that such work was extrahazardous, regardless of the fact that it may have been carried on in the general offices of the defendant rather than in some place apart from the office. Plainly, it was not clerical work. Its character, to our mind, was not different than if it had been carried on in a manufacturing plant devoted exclusively to such work. We are equally convinced that the plaintiff was engaged in extrahazardous work when she was operating this machine, though she also had other duties of a clerical nature, even though such duties constituted the larger part of her employment. The following decisions lend support to these conclusions: Wendt v. Ind. In. Com., 80 Wash. 111, 141 Pac. 311; Guerrieri Industrial Insurance Com., 84 Wash. 266, 146 Pac. 608; Replogle v. Seattle School District No. 1, 84 Wash. 581, 147 Pac. 196; State v. Business Property Security Co., 87 Wash. 627, 152 Pac. 334; Remsnider v. Union Savings & Trust Co., 89 Wash, 87, 154 Pac. 135, Ann. Cas. 1917D, 40.

Some contention is made rested upon the fact, which for present purposes we may deem as admitted, that the machine when in perfect working order, with all of its attachments in place, rendered injury to the operator practically impossible. Such might be said of many machines to be found in factories and workshops, but the fact remains that it was possible for the machine to be in such condition that an operator's hand could be crushed. Plainly, we think, the impossibility of injury to the operator of a machine when it is in perfect order does not render its operation other than extrahazardous employment within the meaning of the compensation act.

[2] Some contention is made rested upon the fact that the defendant had failed to pay into the accident fund the amount it should be required to contribute thereto because of the employment of the plaintiff and others in the operation of this machine. This contention is rested upon section 6604-8, Rem. Code, relating to employers who are in default in such payments, and preserving to an injured workman his right of action against such defaulting employer. This, however, is no longer the law, since that section was amended by the laws of 1917, p. 487, wherein the right of action existing in favor of an injured employee against such defaulting employer is not preserved as it was under that section as originally enacted. Freyman v. Day, 182 Pac. 940, just decided. We conclude that the judgment of the trial court must be affirmed. It is so ordered.

Holcomb, C. J., and Bridges and Mount, JJ., concur.

SUPREME COURT OF APPEALS OF WEST VIRGINIA.

WILKIN
ย.

H. KOPPERS CO.*

"1. MASTER AND SERVANT-MASTER NOT LIABLE WHEN HIS NEGLIGENCE NOT PROXIMATE CAUSE.

Though an employer within the terms of the Workmen's Compensation Act fails to avail himself of the benefit of the statute, he is not liable for an injury sustained by an employee in the course of his employment, in the absence of negligence on the part of the former which is the proximate cause of the injury.

(For other cases, see Master and Servant, Dec. Dig. § 356.)

Error to Circuit Court, Brooke County.

Action by William S. Wilkin, administrator, against the H. Koppers Company. Verdict and judgment for plaintiff, and defendant brings Reversed, verdict set aside, and case remanded.

error.

Jno. J. P. O'Brien and Leo A. Coleman, both of Wheeling, for plaintiff in error.

R. L. Ramsay, of Wellsburg, and W. S. Wilkin, of New Cumberland, for defendant in error.

LYNCH, J. John Tsouvalakis, plaintiff's intestate and an employee of the defendant was killed accidentally while on his way to and about to enter upon the premises on which he was engaged to work, then only in the temporary control of the defendant, who had and exercised no right to control the operation of the railroad. The railroad right of way and tracks and the premises so controlled by defendant were not subject to joint ownership or control, but were held under different titles, though the properties lay immediately adajcent to each other. To the place of employment but two ways of approach about half a block apart were used by defendant's employees, and in using either of the two they were obliged to cross three tracks of the railroad company. One was a public crossing; the other a short cut used by many of its employees, with its knowledge and acquiescence, who for their own convenience preferred to cross the tracks at that point. It was this second route that the deceased took as he was approaching the plant for work on the night shift. Each of the two outside tracks was occupied by idle freight cars on the evening of the accident, and decedent either undertook to crawl under or pass between the cars on the bumpers, and then onto the middle track, where he was struck by the train and killed.

[1] Liability for decedent's death, as averred in the declaration and argued by counsel, rests solely upon the breach of the common-law duty requiring the master to provide for his servants a reasonably safe place in which to work and reasonably safe means of acccess thereto, without the benefit of the usual common-law defenses. They are not available because defendant, though clearly within the terms of the act, failed to elect to pay into the workmen's compensation fund the premiums provided *Decision rendered, Sept. 16, 1919. 100 S. E. Rep. 300. Syllabus by the Court,