The opinion
Rosellini, J.
(concurring) — I concur with the majority; but in view of the dissent, I find it necessary to further comment. I particularly disagree with the dissenting opinion that, under the evidence presented in the instant case, the crucial question of whether the respondent was in the course of his employment at the time of the accident, was improperly submitted to the jury. The dissent urges rather strongly that by approving the trial court’s submission of this question to the jury, the majority have condoned what is denominated as “jury legislation.” I agree of course that it is the function of the jury to decide questions of fact, and not to construe the law. However, in the instant case, contra to Gordon v. Arden Farms Co. (1958), 53 Wn. (2d) 41, 330 P. (2d) 561 , relied upon by the dissent, there was a significant factual question to which there was conflicting *757 evidence; namely, at what time did the accident occur. Further, the record discloses that in instructing the jury on the issue of “course of employment,” the trial court informed the jury that,
“An injury to an employee arises ‘in the course of his employment,’ when it occurs within the period of his employment; at a place where he may reasonably be, and while he is reasonably fulfilling the duties of his employment.” (Italics mine.)
Thus the jury was not presented with a question of law at all. Rather it was asked to decide a simple factual question (the time of the accident with relation to the time that the respondent’s period of employment began) respecting which there was conflicting evidence. The court, exercising its proper constitutional function, declared the law and left the factual question to the jury. Several witnesses testified as to their estimates of the time the accident occurred. Depending upon which of these several witnesses the jury chose to believe, it could have permissibly found that the accident took place as early as 7:50 a. m., or ten minutes before the respondent was scheduled to start work.
Finally, based upon a finding that the accident did in fact occur as early as ten minutes before the respondent was scheduled to commence work, the jury — giving plain and ordinary meaning to the words used by the court in its instruction — could properly decide that the respondent’s injury did not happen in the course of his employment for the reason that it did not occur “within the period of his employment.” If the appellant had any objection to the instruction as given by the court, it could and should have excepted thereto. The appellant did not do so; hence the propriety of the instruction is not now before us. Boyle v. Lewis (1948), 30 Wn. (2d) 665, 193 P. (2d) 332 .
Weaver, C. J., and Foster, J., concur with Rosellini, J.
Foster, J.
(concurring) — While I have signed both the court’s opinion and Judge Rosellini’s concurrence, it seems appropriate to remark that the decisions of this court respecting when a workman is in the course of his employ *758 ment, or when he is not, have created nothing but chaos. Order may be established only by legislative rescue from the judicial morass. This difficulty is not indigenous to Washington. By 1946, England found itself in the same predicament which resulted in a plain act of the British parliament. 2
“It was not surprising therefore that the Workmen’s Compensation Acts at once became the target for volleys of legal argument, or that miners who were injured by the shot-firing operations carried on in coal mines were held by the House of Lords not to be entitled to any compensation after all. Nor was the argument limited to ‘the course of employment’; almost every phrase used in the Acts was scrutinised over and over again by the courts and a massive series of law reports devoted solely to the subject of workmen’s compensation was built up over the years to the enrichment of the publishers and the edification of the profession. In numerous instances Parliament intervened in order to contradict the construction which the lawyers had fastened upon the Acts, but in 1946 Parliament lost patience altogether and decided that the only way to make the Acts work at all was to forbid lawyers to have anything to do with them.” Harvey, The Advocate’s Devil, chapter 5, p. 75, 88.