concurring:
I take it as a rule of universal application that when a party’s own presentation of his case destroys his right to recover or his defense, the trial court should so declare. Rogers v. Thompson, 364 Mo. 605, 615, 265 S.W.2d 282, 287[1] (banc 1954); Peoples Finance Corporation v. Buckner, 344 Mo. 347, 350, 126 S.W.2d 301, 302-303[3] (1939); Coats v. Sandhofer, 248 S.W.2d 455, 457-458[4] (Mo.App.1952); 88 C.J.S. Trial § 258(d) (1955). I concur because in my view the plaintiff’s evidence conclusively establishes his assumption of risk and negates his right to recover. I am in no doubt there is a dearth of Missouri authority on the very point decided; there was a day when assumption of risk was no defense to an action based on negligence, Markley v. Kansas City So. R. Co., 338 Mo. 436, 90 S.W.2d 409, 411 (1936), but that is no longer the case. The doctrine of assumption of risk may now apply to preclude recovery in negligence cases except when the action involves a master and servant relation, Terry v. Boss Hotels, Inc., 376 S.W.2d 239, 247[15—17] (Mo.1964), and the duty owed by a railroad to a consignee’s employees is not based upon any contract between the carrier and the consignee’s employees; it is a “ . . . tort liability, imposed by law, growing out of the railroad’s duty to persons who it might reasonably anticipate would use the car in such a manner as to be injured by the defect.” Markley v. Kansas City So. R. Co., supra, 338 Mo. at 442, 90 S.W.2d at 411; Sykes v. St. Louis & S. F. R. Co., 178 Mo. 693, 712-713, 77 S.W. 723, 728 (1903). There is no suggestion here that the case is controlled by 45 U.S.C.A. § 54, which in effect abolishes the defense of assumption of risk in F.E.L.A. cases. Moreover, there is a long line of authority holding that when the condition (here the defective gondola door) which gave rise to the danger of injury is open and visible, and the danger is such that it should be apparent to and appreciated by a person of ordinary intelligence, the consignee’s employee assumes the risk of injury if he uses the defective car. See Southern Ry. Co. v. Edwards, 44 F.2d 526 (5th Cir. 1930); Annot., 106 A.L.R. 1140 (1937).
I fully realize that “assumption of risk” is difficult to distinguish from contributory negligence; I also realize that the general knowledge that an injury might result without appreciation of the risk to which a defendant’s conduct exposes him is not sufficient. Bullock v. Benjamin Moore and Company, 392 S.W.2d 10, 14[10] (Mo.App.1965). Here, however, we are not concerned with the sort of remote contingency involved in Bullock, and as there stated, “[I]f the danger is so apparent that a reasonable person would and should have seen it and recognized it, . . . plaintiff will [not] be heard to say that he did not recognize or appreciate it.” Bullock, supra, 392 S.W.2d at 14.
Here, the plaintiffs’ evidence indicates that plaintiff Roy Hedgcorth was loading gondola cars. The end doors fold inward, and they do sometimes become bent. The doors can be raised with a chain hoist or “tug-it” from the outside, and if the. doors are functioning properly, three men can lift the door from the inside. If a chain hoist has to be used, one should not stand inside the car, because, as witness Rosenberry testified, “ . . . [T]hat’s a dangerous place to be.” There was some evidence that the end doors on these gondola cars weigh *477more than 1,000 pounds. The doors latch when they are moved into proper position, and that can be done as well from the outside as from the inside. There was evidence from several witnesses that defective gondola cars could be rejected — “bad ordered” — if they were defective.
Plaintiff Roy Hedgcorth was a mill foreman with “[Ajbout ten years” experience loading gondola cars when the accident occurred. The particular car in which he was injured appeared at first to be “about as good as any of them.” Upon attempting to raise the door — from the inside of the car— plaintiff and two other men attempted to raise it manually. Plaintiff knew the end door he was attempting to raise was bent. He and two other men — one of whom had a “bar” — then remained inside while a truck driver “hooked onto it and tried to pull it up.” As the principal opinion notes, the chain broke and the plaintiff was injured.
If the only questions here were whether it was safe to use the truck and chain to raise the defective door and whether the plaintiff stood in a dangerous position while the door was being raised, I think the appeal would involve only contributory negligence, rather than assumption of risk. As it is, the plaintiff himself showed conclusively that he had as much knowledge of the risk as the defendant, at least after he and two other men had attempted to raise the door. The plaintiff should have appreciated that the door weighed more than 1,000 pounds, that the door was not secure until it was latched, and to my mind the risk of having the 1,000 pound door fall backward was so obvious that any reasonable person should have recognized it. When it was discovered that the door could not be raised manually by three men, that it would take three men, a pry bar and a winch to raise it, plaintiff still had a clear alternative: he could have rejected the car and he could have done so, for all the record shows, without fear of economic reprisal.
I bear in mind that the doctrine of assumption of risk has been criticized as a product of the Industrial Revolution, designed (or invented) to relieve the employer of burdens he ought to bear, Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14, 30-32 (1906), but today’s overorganized industrial employees scarcely require the same degree of judicial solicitude as those of Dickens’ day. I believe, as the principal opinion holds, that the result there reached may well be rationalized on the basis of a want of duty to warn, but I also believe that the plaintiff was barred by voluntary assumption of risk. In either case, the trial court properly directed a verdict for the defendant. Because the plaintiff had no case to submit, any trial error was immaterial. Howard v. Johnoff Restaurant Company, 312 S.W.2d 55, 56[1] (Mo.1958); O’Dell v. Dean, 356 Mo. 861, 863, 204 S.W.2d 248, 249[1] (1947).