George S. Ford, as plaintiff, brought suit against the Santa Fe, Prescott and Phoenix Railway Company, a corporation, as defendant, to recover damages suffered by him on account of personal injuries alleged to have been inflicted upon him as a result of defendant’s negligence. The testimony in the case tends to establish the following facts: Plaintiff and his brother were the consignees of ice consigned to them at Wickenburg, Arizona, through the defendant company. The ice was conveyed to Wickenburg in the caboose of one of defendant’s freight-trains. When the train reached Wickenburg plaintiff and his brother were at the station to receive the ice. The conductor in charge of the train said to them: “Got lots of ice in here, but you boys will have to imload it yourselves. I am short of help this morning. One of my men is sick.” A part of the freight-train, including the caboose, was left on the main track opposite the railroad station while the engine with two or three cars cut loose from the train and proceeded to take some cars from the sidetrack, and couple them into the train. Plaintiff and his brother immediately set about unloading the ice from the caboose while the conductor and a brakeman unloaded freight from another car in the train. The ice was *208in cakes weighing about three hundred pounds each. The plaintiff, his face to the ice and his back to the door, dragged the cakes with a pair of ice-tongs to the door of the caboose, and then slid them between his legs upon a truck standing beside the ear, where they were received by his brother. While plaintiff was in the doorway of the caboose with his back toward the truck in the act of sliding a cake between his legs, the cars from the sidetrack were coupled into the train. Plaintiff was jarred out of the door and fell against the station platform, striking his back and being seriously injured.
The first assignment of error is that “The court erred in denying the motion of the defendant for judgment for non-suit against the plaintiff, made during the trial and at the close of plaintiff’s evidence,” upon several enumerated grounds. Under our statutes the court has not authority to direct an involuntary nonsuit. Bryan v. Pinney, 3 Ariz. 34, 21 Pac. 332; Roberts v. Smith, 5 Ariz. 368, 52 Pac. 1120. Therefore the court’s denial of the motion was necessary, irrespective of the merits of the grounds urged had they been presented in support of the appropriate motion. Furthermore, the abstract of the record does not disclose that the motion in question was made.
The several grounds set forth in support of this assignment of error are each presented in support of the assignment which we shall next consider, and are as meritorious in its support as they would have been in support of the appropriate motion for an instructed verdict at the close of plaintiff’s case. This assignment is as follows: “The court erred in refusing to charge the jury as requested by the defendant as follows: ‘You are instructed to find a verdict for the defendant,’ because it appeared (among other grounds) that plaintiff was a licensee and suffered injury from a danger, the risk of which he assumed when he went on board of the caboose.” Under the facts as stated, resolving conflicting testimony in favor of plaintiff, plaintiff was not a licensee; he was an invitee, the consignee of freight, interested in its removal from the caboose, engaged at the request of the agent in charge of the defendant’s train, — to wit, the conductor,— in removing from the train merchandise consigned to him. As such he was entitled to protection against carelessness and *209negligence of the defendant through its servants whereby injury might result to him. Railway Co. v. Bolton, 43 Ohio St. 224, 54 Am. Rep. 803, 1 N. E. 333; Mason v. Railway Co., 65 Tex. 577, 57 Am. Rep. 606; Welch v. Maine Central Ry. Co., 86 Me. 552, 30 Atl. 116, 25 L. R. A. 658; Jacobon v. St. Paul Ry. Co., 41 Minn. 206, 42 N. W. 932; Toledo etc. Ry. Co. v. Hauck, 8 Ind. App. 367, 35 N. E. 573; Illinois Central R. R. Co. v. Hoffman, 67 Ill. 287. In support of this assignment of error, however, it is urged that no testimony was given to show that the conductor of the train had authority to deliver freight directly to the consignee or to authorize the consignee to remove freight from his train. Whether the ■conductor had or had not such authority is immaterial. The plaintiff was present in his own interest, seeking to obtain from the defendant freight to the delivery of which he was ■entitled. If the defendant’s representative, in charge of that freight, requested plaintiff to remove the consignment from the car, plaintiff, acting in his own interest, was justified in removing it, and was entitled to protection from carelessness ■or negligence on behalf of defendant’s employees. It was not incumbent upon him, however, before acting as his self-interest dictated, to ascertain the defendant’s rales governing the conductor’s authority. What would be the effect of knowledge by him or notice to him of a limitation upon the conductor’s authority is a question which does not here arise; .and the rule laid down by us must be limited by this fact. We are defining plaintiff’s right where he has no knowledge or notice of a limitation upon the authority assumed by the defendant’s representative.
A third assignment of error is based upon the fact that the court refused, except with a modification, to give two instructions requested by the defendant. Each of these was for the purpose of advising the jury concerning the law as to a defense interposed by the defendant that plaintiff was guilty of contributory negligence. Each instruction as requested was given with the following proviso added thereto: "“That the contributing negligence of the party injured will not defeat the action if it be shown that the defendant might, with the exercise of reasonable care and prudence, have «voided the consequences of the injured party’s negligence.” The objection made to this proviso is as follows: “The jury *210were not told either in this or any other instruction given that the rulé of law expressed in the proviso applied only upon condition that the evidence showed that the defendant actually knew that plaintiff was guilty of negligence, or had by his own act placed himself in a position of danger.” We think the proviso would more exactly state the law if it were framed to meet the objection to it here made, but its language, used in precisely similar context, was approved by the supreme court of the United States in Inland and Seaboard Coasting Co. v. Tolson, 139 U. S. 558, 11 Sup. Ct. 653, 35 L. Ed. 270. Both upon that authority, and because it appears to us that the instruction is not so inexact as to mislead the jury, we hold that attaching this proviso to the instructions in question was not error.
A fourth assignment of error is based upon the giving by the court of .the following instruction: “Gentlemen, I charged you in connection with the law on the question of contributory negligence in this case, that if you should find that the plaintiff here was guilty of contributory negligence he could not recover in this case. I qualified that with this, that if the defendant company could, by the exercise of reasonable care and prudence have avoided the injury, then that question of contributory negligence of the plaintiff would not prevent his recovery. That, gentlemen, is the law, but there is still another and further modification to be made of that, which is this: That principle applies where the defendant, this company, knew that the plaintiff had been guilty of this negligence, then could have performed some act, or could, by exercising reasonable care and prudence, have prevented the accident, then that qualification would apply; but that only applies in a case where the defendant knew or might ha/oe known of the contributory negligence and then could have avoided it. If you should find in this ease that that was not the fact, -and that this was an accident which resulted from the negligence of both of the defendant and the contributory negligence of the plaintiff, and defendant didn’t know or reasonably would not be expected to know of that negligence, then that principle would not apply; and if both the defendant was negligent and the plaintiff was guilty of contributory negligence then he should not recover. That is, gentlemen, that I may make it clear to you, after all this statement, the *211plaintiff must prove negligence on the part of the defendant. If the defendant proves that the plaintiff was guilty of contributory negligence, and that contributory negligence did contribute to the injury, then he cannot recover in this case, unless the defendant knew, or had reason to know, of his position and his negligence, and could then, by the exercise of reasonable care, have avoided the accident.” The vice of this instruction, it is contended, lies in the words which we have italicized. It advised the jury that notwithstanding the fact, if it be a fact, that plaintiff was guilty of contributory negligence he would nevertheless be entitled to recover if it appeared from the evidence not merely that the defendant actually knew but that defendant might have known or had reason to know or reasonably would have known of plaintiff’s contributory negligence or position and negligence, and could thereafter, by the exercise of reasonable care, have avoided the accident and injury. That this instruction would have been open to no criticism if the italicized words had been omitted is beyond question. Grand Trunk Ry. Co. v. Ives, 144 U. S. 429, 12 Sup. Ct. 679, 36 L. Ed. 485; Inland and Seaboard Coasting Co. v. Tolson, supra. We have found rulings of the supreme courts of several states in point as to the merits of this instruction. Under the decisions of the supreme court of Missouri the instruction as given is good. Donohue v. St. Louis, I. M. and S. Ry., 91 Mo. 357, 2 S. W. 424, 3 S. W. 848. Under the decisions in the following cases this instruction is erroneous: Johnson v. Stewart, 62 Ark. 164, 34 S. W. 889; Herbert v. Southern Pacific Co., 121 Cal. 227, 53 Pac. 651; Georgia Pac. Ry. Co. v. Lee, 92 Ala. 262, 9 South. 231; Krenzer v. Pittsburg etc. Ry. Co., 151 Ind. 587, 68 Am. St. Rep. 252, 52 N. E. 220; Texas Pacific Ry. Co. v. Lively, 14 Tex. Civ. App. 554, 38 S. W. 370.
We have reached the opinion that the instruction is erroneous. It lays down too broad a rule of responsibility. Under the law it was incumbent upon the defendant to exercise reasonable care and prudence to protect the plaintiff. This was correctly explained to the jury. If, under the circumstances as they existed in this case, it was a reasonable act to make a coupling while the caboose was being unloaded, then that coupling to be lawfully made should have been made with reasonable care for the plaintiff’s safety. If *212plaintiff was not already familiar with the fact that the couplings might be made while cars were being unloaded, a proper part of defendant’s care was so to advise him; and plaintiff’s knowledge or want of knowledge is an element in the determination whether he was contributorily negligent. Plaintiff had the right to rely upon it that defendant would conduct all of its operations with a reasonable care for his safety; but the defendant had a corresponding right to rely upon it that plaintiff would not unreasonably or neglectfully expose himself to injury. To require that the defendant should have adopted means to observe whether plaintiff was violating his duty not to be negligent would have the effect to deprive the defendant of this right. These are reciprocal rights upon which rest the doctrine of recovery for injuries caused by negligence and the defeat of such recovery through contributory negligence. The jury may have found that it was reasonable for defendant to make a coupling while plaintiff was unloading the ice, and that plaintiff ought to have anticipated a coupling; but that the coupling was made with unreasonable violence. Then what should have been determined was whether plaintiff acting in the light of the fact that defendant might reasonably make a coupling had taken a position unreasonable and negligent, a position in which he would be likely to be injured should the defendant make the coupling in a reasonable manner. If so, then even if the coupling had been made with reasonable care, plaintiff might have been injured; and if, despite defendant’s negligence, plaintiff would have been uninjured had he been reasonably careful himself, he was equally culpable with the defendant. It would follow that the negligence of each having jointly operated to produce the injury, the injured-party should not have recovered. On the other hand, if the defendant actually knew that the plaintiff was in a position, though through his own carelessness and negligence, wherein he was in danger of injury, if then by the exercise of reasonable care and diligence defendant could have prevented the injury, and did not do so, the resulting injury verged upon a willful and malicious injury, and the defendant should compensate the plaintiff, despite plaintiff’s negligence; for under no circumstances whatever may the defendant willfully and maliciously injure the plaintiff.
*213What ought to have been known or observed, or would have been known or observed by the exercise of reasonable care, is often a factor in determining the existence of negligence. It is conceivable that facts may have existed, in connection wdth other facts in this case, which would support an instruction that defendant was negligent, if defendant’s servants reasonably could have known of plaintiff’s position, and so knowing could, by the exercise of reasonable care, have prevented his injury. This would be applicable, for example, if it was not the custom at that station to couple cars into the train when it was being unloaded, or if plaintiff had possession of no facts which would reasonably lead him to anticipate such a coupling. Then plaintiff could rely upon having the car stable, and could act accordingly. It would be the duty of defendant, before making a coupling which would jar the car, to use a reasonable care to ascertain plaintiff’s position, warn him of the shock or use other means to protect him. A violation of this duty would be negligence. This we state without determining the applicability of such an instruction to the facts. The authorities cited, supra, under the second assignment of error discussed are illustrative. But under all situations the defense of contributory negligence must be left intact. By reason of the fact that the instruction under consideration imposed upon the defendant a duty to use care to ascertain whether plaintiff was being negligent it is erroneous.
We find no error in the other instructions complained of, and deem it unnecessary to discuss them at length.
By reason of the error in the instruction just considered, the judgment is reversed and the case remanded for new trial.
SLOAN, J., and CAMPBELL, J., concur. DOAN, J., dissents.