SCHAUER, J. Petitioner-employer, a corporation, seeks annulment of an award of increased benefits based upon a finding of respondent Industrial Accident Commission that [140]the death of one of petitioner’s employes was caused by the employer’s serious and wilful misconduct. (See Lab. Code, § 4553.) We have concluded that the award cannot be sustained, in that the evidence is insufficient to establish the minimum elements of serious and wilful misconduct as those elements are enunciated in Mercer-Fraser Co. v. Industrial Acc. Com. (1953), ante, p. 102 [251 P.2d 955], and cases there cited, and that the award should, therefore, be annulled.
From the record it appears that the deceased employe, aged 36, was employed as a laborer by petitioner, and that he met his death by drowning when he fell from a concrete dam on top of which he was working. The dam, constructed by petitioner across the Feather River over 30 years ago, was some 8 feet high, 800 feet long, and 4 feet wide across the top. It was maintained for the purpose of raising the elevation of water in the river so as to discharge it into a diversion canal for distribution for irrigation purposes. Along the center line of the top of the dam, 2%-inch steel pipes were imbedded in cement postholes at about 4-foot intervals for the dam’s full length; the pipes extended 30 inches above the top of the dam.
Bach year, during spring or early summer when the level of the river dropped to the point where water would not flow into the canal in sufficient volume, flashboards were placed along the top of the dam, attached to and resting against the steel uprights, and were left in place until the end of the irrigation season in the fall, at which time they were removed. The flashboards were 2 inches thick, 12 inches wide, and 16 feet long, and were installed two high (i.e., so as to make a 24-inch flashboard rise over the concrete top of the dam.) This practice had been followed for some 32 years.
In September, 1950, Baggett (the deceased employe), and two other workmen, Roseman and Heape, under instructions from petitioner’s foreman were engaged in removing the flash-boards. Roseman was prying the boards loose, and Baggett and Heape were lifting them out and carrying them to the side of the dam. It was about 2:30 o’clock in the afternoon. Water was flowing over the top of the flashboards to a depth of about 6 inches, giving approximately a 30-inch head over the top of the dam when the boards were removed. When Baggett and Heape had lifted off one of the top boards, they started to carry it shoulder high across the top of the dam and Baggett necessarily stepped into the water flowing through the place where the removed board had been. He [141]slipped and fell over the side of the dam, which had a down slope of 45 degrees, into the pool below. Roseman and Heape testified that Baggett was smiling as he went down the slope, and started to swim downstream to shore, in no visible distress ; after swimming about 100 feet he waved his arms several times and sank; Heape thought “he got a cramp”; Roseman then jumped in to assist Baggett but was unable to reach him before the latter drowned; the two workmen when they saw Baggett slip and fall “had no concern, didn’t think anything was wrong,” and if “there had been any difficulty . . . [could] have gone in right at the start”; the current below the dam was not still but there was “Not too much” rush of water; the witnesses had never “slipped or fallen or had any difficulty” on the dam, and had never heard of anyone else doing so in the several years they had worked for petitioner company; although there was a “little moss” on top of the dam, it was not especially slippery where the three men were working, “We were walking back and forth on that without any trouble”; there is no great “rush of water” over the dam in the fall when the flashboards are removed; Baggett was wearing “ordinary working clothes,” and was barefooted; none of the three workmen was wearing a life jacket; they had never been furnished such jackets; and there was no cable or life line across the dam, no boat downstream, and nobody “in attendance downstream for any purpose.”
Whitinger, a laborer and subforeman for petitioner company since 1924, testified that the foreman told him not to go out on the dam to help remove the flashboards, but “to let the younger men go”; many times before he had helped with the removal; he never knew of anyone else slipping off the dam in all his years with the company. Gifford, construction superintendent and general foreman for petitioner company for some 32 years, testified that no one had gone off the dam before while removing or putting in the flashboards; for many years the State Compensation Insurance Fund has been the workmen’s compensation insurance carrier for petitioner company, and has sent its safety engineers to go over petitioner’s system to recommend safety measures, and petitioner has “done everything their safety engineers recommended”; such engineers had never “recommended any safety device on the dam other than those we have had there”; petitioner did not furnish the men. with life lines, “they preferred to work without them.” and Baggett himself had said “I don’t want any[142]thing on. . . . When I get out of this I don’t want no obstructions. When I get in the water I want to swim”; the Feather River is “crystal clear.”
Respondent commission, after issuing its award based on a finding of serious and wilful misconduct, granted the employer’s petition for rehearing. The three commissioners constituting Panel One of the commission then personally “viewed the premises of the dam site,” and thereafter the decision on rehearing or reconsideration was issued, again awarding increased benefits based upon a finding of serious and wilful misconduct of the employer “in that said employer wilfully and knowingly failed and neglected to provide a safe place of employment, and failed and neglected to use safety devices and safeguards to render said place of employment safe, and failed and neglected to use safety devices and safeguards to render the employment and said place of employment safe.” This petition for review followed.
As grounds for annulling the award petitioner contends that the evidence does not support the findings and that the findings do not support the award. More particularly it is urged that since it is undisputed that for the more than 30 years that the dam had been maintained and the same method of installing and removing dashboards had been followed no one had gone off the dam before while working with the flashboards “there wasn’t the slightest reason to believe that there was any danger out there at all,” and that “had not Baggett got a cramp he would have swam ashore, regarded the whole thing as funny . .'. ” Petitioner also relies on the fact that the engineers of their insurance carrier apparently did not regard the working conditions on the dam as being dangerous, and argues further that the employe could have seized one of the steel posts spaced 4 feet apart along the top of the dam thereby further justifying the assumption by the employer that the work was safe.
Respondent commission’s view of the premises, made some 11 months after the death of Baggett, does not constitute independent evidence “which must be presumed to support the finding of serious and wilful misconduct” (see Ethel D. Co. v. Industrial Acc. Com. (1934), 219 Cal. 699, 704 [28 P.2d 919] ; Simmons Co. v. Industrial Acc. Com. (1945), 70 Cal.App.2d 664, 669-670 [161 P.2d 702]; Estate of Sullivan (1948), 86 Cal.App.2d 890, 895 [195 P.2d 894] ; Camicia v. Camicia (1944), 65 Cal.App.2d 487, 490-491 [150 [143]P.2d 814]) inasmuch as there was no showing that conditions were the same then as at the time of the accident. The commission argues, however, that the employer’s suggestion that only the “younger men” do the work of removing the flashboards shows the employer recognized the “inherent danger” of the work. The commission also suggests that the employer might have furnished life lines but does not suggest how they could have been used, suggests a rowboat at the foot of the dam, and suggests that life jackets might have been used although from the evidence it appears doubtful that Baggett would have used one. In other words, the commission appears to take the view that “something” should have been done, and to have based its conclusional finding of serious and wilful misconduct controllingly on the bare fact that an accident did occur. There is not the slightest evidence to support a finding that the petitioner deliberately sent its employes to work upon the dam either (1) knowing that the conditions thereon constituted an immediate hazard which would probably cause serious injury or death to one or more of them, or (2) that it so acted with positive, active, wanton, reckless and absolute disregard for possible consequences of that nature.
Inasmuch as the evidence is, therefore, as a matter of law insufficient, the award must be and it is annulled.
Gibson, C. J., Shenk, J., Edmonds, J., Traynor, J., and Spence, J., concurred.