¶1 (dissenting) :
¶2 Judge Litz and I would reverse this ease. Plaintiff was clearly guilty of culpable negligence in throwing oil from a vessel in his hands into the fire box where he knew there *175 were live coals. But the defendant being a non-subscriber to the workmen’s compensation fund, plaintiff’s conduct cannot be looked to as a defense. Even so, there can be no recovery merely because plaintiff was injured while in the employ of defendant, but it must satisfactorily appear from the evidence that the injury was occasioned by primary negligence of the defendant. This was non-existent unless we say that it was negligence (a) to have a can of crude oil at the works available for starting fires and/or other purposes, or (b) to inform plaintiff he could use the oil in starting fire without instructing him as to the manner in which it could safely be used. Our answer to both of these propositions is that the defendant had full right to assume that any person of ordinary intelligence would not do an utterly foolish thing, and particularly that no such individual would cast inflammable oil into a fire box with live coals while holding the oil container in his hands thus affording a direct means of transmitting the fire to his person. We are warranted in believing that just that thing happened in this case. The plaintiff testified “All I seen after I dashed the oil, there shot out a blaze about the size of your finger, and then I was on fire … In this view it makes no difference that plaintiff thought he was using kerosene, as the same disastrous result would probably have followed the like use of kerosene or any other highly inflammable oil.