Concurring Opinion.
Wiley, J.I concur in the majority opinion of the court in holding that the facts found by the special verdict clearly show that appellant was guilty of negligence contributing to his injury, and for this reason cannot recover. Robinson, J., speaking for the majority, says that this case is clearly distinguishable from the case of Toledo, etc., R. Co. v. Hauck, 8 Ind. App. 367, but he does not, at any length, point out the difference between the two cases; and, as there is such a wide distinction between them, and as appellant relies largely on the Hauck case for a reversal, I desire to express my personal views in relation thereto. First, however, I want to point out the material facts which distinguish the two cases.
In the case at bar there is no finding that any one of appellee’s agents or servants knew that appellant was at or in the car unloading his goods, at the time of the accident. In the Hauck case, it was’known that appellee was in the car, and there at the express direction of appellant’s agent. In that case a car had been placed on the side-track at a way-station, for the use of appellee, in which she was going to ship some household goods. She was directed to the car by the station agent, and was told to hurry, and get her goods leaded. At the time she went to the car to load her goods there was no other car on the side or main track, and no train in or about the premises. She was *682unfamiliar with, the surroundings, and the time trains passed the station. While she was loading her goods, a freight train passéd on the main track, the side door of her car next to the main track being closed. The jury found as a fact that when said freight train passed the car in which appellee was at the time it passed on and out of her hearing, and that “she had reason to believe, and in good faith did believe, and, so believing, did rely thereon, that said train, after its movement beyond her hearing, continued on its way eastward, and, being wholly ignorant that said train would be backed upon said track and against said car, thereby endangering her life and limb, she remained in said car,” etc.
It will be observed from these findings that there is a total absence of any fact that she had any knowledge of approaching or impending dangér, while, on the contrary, there is an express finding that she believed, and had good reason to believe, and, so believing, did rely thereon, that the train, after it had moved beyond her hearing, had continued eastward on its way, and that she was wholly ignorant that it would be backed on the side-track and against her car. After such a finding of facts, it was a correct announcement of the law to hold that she was thus lulled into danger, and the appellant was bound to protect her while she was so situated. But how materially different, are the facts in the case in hand. The appellant here knew of the danger he was in. He saw the freight and passenger trains on the tracks. He saw the process of switching as it was being done, and knew that it was uncertain when the train would back up and couple onto the car from which he was unloading his goods. Thus it affirmatively appears, that he was fully aware of the impending danger, and yet he took no' precautions to avert it. The jury found that after reaching *683the car, and being in full possession of all the facts, constituting the danger, he did not even take the precaution to look up and down the track at the moving train. Then another broad distinction between this and the Hauck case is this: In the latter case, the station agent knew that Mrs. Hauck was in the car, loading her goods, while in the case at hand, there is an express finding, that neither the appellee’s station agent, conductor, nor any other servant had any knowledge that appellant was in the car when the train was being backed up against said car. In Toledo, etc., R. Co. v. Hauck, supra, Rinehard, J., speaking for the court said: “The mere knowledge of the fact that a freight train had arrived and passed the box car on the main track was no notice to her that such train would enter the side-track and endanger her safety by being pushed violently against the car in which she was lawfully engaged in her work of putting away the goods. She toas not bound, under such circumstances, to leave the car and watch the movements of the freight train.” (The italicizing in the above quotation is my own.) Mark the guarded and well measured language of the learned judge who wrote the opinion. “She was not bound under such circumstances,” he says, “to * * * watch the movements of the train.” What circumstances? Unquestionably the circumstances, that all the facts and surroundings presented to her mind and view. Such facts presented to her mind a state of circumstances that clothed her with perfect safety, while she was engaged in her duties. Suppose when she went to the car on the side-track, under the direction of the stasion agent, there had been a live freight train on the track, engaged in switching; that a passenger train was also at the station waiting for another passenger train to pass, which was then due; that it was uncer*684tain when the freight train would back up against her car, and she had full knowledge of all such facts, then the “circumstances” surrounding • her, would have been radically different from what they were, and the language I have just quoted would not have been applicable to the case, and, I dare say, would not have been used.
The rule for which appellant contends, carried to its logical conclusion, would lead to confusion, and in many instances become the tool for working manifest injustice and great hardship. If the rule for which appellant contends is a correct one, then a person may place himself in imminent peril, with a full knowledge of impending danger, and in case of injury resulting from the negligence of another he may recover therefor, notwithstanding the wholesome and long established doctrine that contributory negligence is a complete defense to such recovery. In other words, if appellant had gone to the car to unload his goods, under the exact facts as they are presented in this case, with the exception that, instead of the switching of the train at the far end of the switch, it had then been backing down, and was rapidly approaching the car, yet applying the rule as contended for, he could still recover. So to declare the law would be in a measure to abrogate the rule governing contribu-. tory negligence, and be a reproach upon courts. The rule that has so long obtained, should not be relaxed. Granting that appellee’s station agent told appellant that he would have plenty of time to remove his goods from the car, before the freight train would back down against it (and yet I insist there is no express finding of such fact), and by reason of such direction he had a right to rely upon protection from injury, still the facts found are insufficient to support a judgment for appellant. The jury found that some of the *685articles oh merchandise in the car, were heavy, and that it was necessary for him to drive his wagon close to the car, so as to unload them. There is no finding that it was necessary for him to place his wagon in such close proximity to the car that any movement of the car would upset it. Yet this is just what he did, and the jury so find. Had he not done this, no injury would have resulted, for it appears from the finding of the jury, that he had removed all of his goods from the car to the wagon, and had left the car, and entered the wagon, before the train backed against the car. So, as a matter of fact, he had removed the goods, and his injury resulted from the upsetting of the wagon, and that occurred on account of his own negligence in placing his wagon in a dangerous position. There is another distinguishing feature between this and the Hauck case. In that case, at the time of the injury, appellee was alone in the car. No one was outside of the car, in her employ, to warn her of approaching danger, while in this case appellant’s servant was in the wagon all the time the goods were being unloaded, and was in full view of the approaching train, for, as the jury found, there were no obstructions to obscure the view. In such case the knowledge of the servant will be imputed to the principal.
There is another well grounded rule of law, that should not be lost sight of in a case of this character, and that is the knowledge of appellant of the apparent danger surrounding him. Mr. Beach, in his excellent work on contributory negligence, says:
“Knowledge on the part of the plaintiff as to the danger to which he is exposed, or, what is the same thing in law, a legal obligation to know of it, is an essential element in the case, when contributory negligence is the issue. The law holds no one respon*686sible for exposing himself to a danger of which he knew nothing, and of which he was under no obligation to inform himself. We must use ordinary care and prudence to avoid the ordinary and usual perils that beset us, but we are not bound to guard against those which we have no reason under the circumstances to suspect. Hence knowledge of the probable danger, or a sufficient reason to apprehend it, is essential to constitute contributory negligence.” Beach on Contributory Negligence, section 36. There is a long line of authorities in harmony with this doctrine, of which we cite the following: Wall v. Town of Highland, 72 Wis. 435, 39 N. W. 560; Pennsylvania, etc., Co. v. Varnau (Pa.), 15 Atl. 624; Moomey v. Peak, 57 Mich. 259; Jeffrey v. Keokuk, etc., R. Co., 56 Iowa 546; Langan v. St. Louis, etc., R. Co., 72 Mo. 392; Gray v. Scott, 66 Penn. St. 345. Again Mr. Beach says: “While it is unquestionably true that one may voluntarily and unnecessarily expose himself, or his property, to danger, without thereby becoming guilty of contributory negligence as matter of law, it is, nevertheless, an established rule that, where one does knowingly put himself or his property in danger, there is a presumption that he ipso facto, assumes all the risks reasonably to be apprehended from such a course of conduct.” Beach on Contributory Negligence, section 37. The rule that one cannot place himself in a position of danger, and recover for an injury resulting therefrom is firmly established and strongly intrenched by the authorities. Chicago, etc., R. Co. v. Murphy, 17 Ill. App. 444; Schoenfeld v. Milwaukee, etc., R. Co., 74 Wis. 433, 43 N. W. 162; Allen v. Johnson, 76 Mich. 31, 42 N. W. 1075; Goldstein v. Chicago, etc., R. Co., 46 Wis. 404. It has been held, and, I think correctly, that a party cannot knowingly expose himself to danger, and then recover damages for *687an injury which, he might have avoided by use of a reasonable precaution. Lake Shore, etc., R. Co. v. Clemens, 5 Ill. App. 77; Palmer v. Dearing, 17 Weekly Dig. (N. Y.) 145; 4 Am. & Eng. Enc. of Law, p. 56; Morrison v. Board, etc., 116 Ind. 431; Travis v. Town of Carrolton, 7 N. Y. Supp. 231; Splittorf v. State, 108 N. Y. 205.
In Clark et al. v. Wright, 79 Fed. 744, it was held that one whose negligence is one of the proximate causes of his injury cannot recover damages from another, even though the negligence of the latter also contributed to it, and was the more proximate cause. See, also, Chicago, etc., R. Co. v. Hoedlings, Adm., 10 U. S. App. 422, 3 C. C. A. 425, 53 Fed. 61; Missouri, etc., R. Co. v. Moseley, 12 U. S. App. 601; Reynolds v. Great Northern, etc., R. Co., 32 U. S. App. 577; Scofield v. Chicago, etc., R. Co., 114 U. S. 615; Hayden v. Missouri, etc., R. Co., 124 Mo. 566.
The case of Wherry v. Duluth, etc., R. Co., 64 Minn. 415, 67 N. W. 223, is in point here. In that case appellant approached a street crossing, and found it blocked by a freight train. It was apparent to him that the train was liable to start at any moment, and after waiting some time, he attempted to cross by climbing up between the cars, about 250 feet from'the engine, and was injured by the train suddenly backing up, without giving any signal or warning. It was held that he could not recover. The court in speaking of the facts as stated, said that: “It was apparent that it (the train) might start at any time, and, if it should, the risk and danger were open and notorious. On these facts it must be declared that there was a want or ordinary care upon plaintiff’s part, eontrib-' uting to the injuries received, as a proximate cause thereof, without which the injuries would not have occurred.” The court further said: “The fact that a *688danger is known will preclude a recovery, in case of injury, when it is apparent and imminent, * * * One has no right to cast himself upon a known danger, where the act subjects him to imminent and great peril.”
If, in the case from which I have just quoted, the appellant had been directed by an agent of appellee to do just what he did do, and had been assured that he could do so in safety, the case would have been parallel to the One in hand. Yet would it be contended by any one that such direction and upon such assurance, appellant would have been relieved from responsibility? I think not. In the case at bar appellant was fully aware that the freight train, to a part of which the car from which he was unloading his goods was attached, was likely to back up and couple to. his car at any moment; and in the case of Wherry v. Duluth, etc., R. Co., supra, it was apparent to appellant that the train might start at any time. In this respect the two cases are analogous. It has been held in many cases that a railroad is a menace of danger. See Wherry v. Duluth, etc., R. Co., supra, and cases there cited. And, being a place of danger, a person who is mentally accountable cannot voluntarily place himself within its dangerous environments and perilous surroundings, and in case of injury resulting from the negligence of its servants, recover for damages sustained.
Recurring again to the Hauck case, supra, there was an allegation in the complaint and a finding by the jury that appellee had no knowledge or notice of the approaching train so backed in upon the side-track, and that no means were afforded her to learn or know of its approach. So in these material and essential facts this case is clearly distinguishable from that. Here appellant did have the means of knowing, and *689in fact the jury found that he did know, that the train was liable to move at any moment, and back up and couple onto his car.
Under the authorities and upon sound reasoning the facts found are, in my opinion, wholly insufficient to support a judgment in favor of the appellant, and the conclusion reached by the majority of my associates is correct.