On Motion for Rehearing.
We have fully considered the motion for rehearing and find no reason to cause this court to change its opinion. The porter testified, and his testimony was not contradicted, that he heard the trunk slipping and ran over to where it struck appellee. Appel-lee does not allege that the trunks had been piled up in a negligent manner, but that while the porter was endeavoring to throw a trunk on top of other trunks he so handled the trunk as to cause it to fall on plaintiff. In his motion for rehearing appellee states that the evidence discloses that the .trunks were already stacked along the edge of the platform back of him when he sat down, and that the porter was not placing trunks along there when appellee sat down, but was placing them on another part of the platform. Appellee contends that afterwards the porter brought the trunk which fell upon him to that part of the platform where appellee was sitting, and threw or lifted it up on another trunk, then pushed it over to the edge, and it fell off upon appellee. It is undisputed that the trunks at the edge where ap-pellee sat were piled two or more high, and therefore appellee’s statement that there was still a row of trunks left after the one fell on him may be said not to be a contradiction of the porter’s testimony that when he looked over to the place from which the trunk had fallen he saw that there was a broken place in the line of trunks that was there; a vacant place, like a tooth missing out of a row of teeth when one is gone. This very significant piece of testimony is denied by no one.
While much is said in the motion for rehearing about the trunk being thrown or lifted upon another trunk and shoved over, and the bump caused thereby being what attracted appellee’s notice, neither he nor Grasshof, or any other witness, testified to hearing any bump. The first thing that attracted their attention was a rattling or sliding sound, which was so alarming that according to Grasshof’s testimony he .supposed it was a trunk falling, and both he and appellee instantly tried to jump away from the danger. If appellee’s attention was attracted by a bumping sound, or by the scraping of the trunk as it was pushed over the other trunk or trunks, and he saw the force applied to the trunk which caused it to topple over, he could have jumped and escaped injury. Appellee testified that he did not jump forward, but “raised” up to jump forward, and looked over his shoulder just an instant before the trunk struck him. It is evident that the sound which alarmed him so closely preceded the trunk hitting him that he was unable to jump after hearing it, and it was a physical impossibility for him to know what caused it to fall. It was a three-cornered trunk, and there was considerable vibration of the platform. If he heard a trunk being bumped upon others right back of him, and looked around instantly, as a prudent man would have done, he could have jumped in ample time. If he heard only what he testified he heard, namely, a rattling or sliding sound, which so closely preceded the injury that he was unable to do more than rise up, he could not tell whether it was one of the trunks already stacked which fell upon him, or a trunk then being placed on the others. The *1190porter testified that the trunks laid flat were stacked as high as they could get them, ánd that the trunks standing on end were one or two high, with some light pieces thrown on top; that the trunk which fell took up a good deal of space, but was not heavy; that it took up so much space, because it was in the shape of a piano box; that it was about 2% feet high and 2 or 2y2 feet wide and about 4 feet long. He also testified that the first trunks were put on the depot end of the platform (the end where appellee sat); that they stacked them two or three high; that they placed stacks of them back even with the board, and -made another row and stacked them all the way back. There is no contradiction of this testimony. It accords with the beliefs expressed by other witnesses. Appellee testified that he thought there were two or three rows where he was sitting.
It would be indeed a strange thing for the porter to attempt, after completing his outside row of baggage by piling it as high as he could, to take a large, badly shaped trunk, and put it on top of • the outside row right where appellee sat, instead of beginning at one of the ends if he thought the row would stand another tier being put upon it. The testimony shows that appellee’s theory cannot be sustained; but it must be that the trunk which fell upon him was one of those which had been piled up before he sat down upon the velocipede, and that, not having alleged negligence in piling them up, he cannot recover.
We did not reverse the judgment because one part of appellee’s testimony was inconsistent with the other, but because his testimony in regard to the cause of the trunk falling is contrary to the physical facts, and it cannot be true that he knew whereof he testified. We cannot shut our eyes to the responsibility -resting upon us, and aflirm judgments upon testimony which cannot be of any probative value, when viewed in the light of the admitted physical facts, which show such testimony to be merely the opinion of the witness, and an opinion which must be erroneous. Every one that observes such matters at all knows the tendency of trunks to slide and slip and fall when piled upon one another. The evidence fully showed this tendency, and appellee admitted that he knew of the danger of the position he assumed. He swore:
“I knew that if a trunk thrown upon top there got loose from the person handling it, or the trunk became dislodged from the vibration or any natural cause, that they would fall on me. I knew that when I sat down there. * * * while they were unloading these trunks, they were rolling them around by hand, that vibrated the platform some, and made some noises, so I could hear it. I heard it behind me.”
Trunks were piled along the edge of the platform at the time appellee chose his por sition near the trunks. Porters were engaged in piling trunks on top of the others. Appellee Jrnew that, and admits that he knew the danger of a trunk falling under such circumstances. 1-Ie testified:
“The trunks were all piled there, and I saw them when I sat down, and they were piled up back of it. I don’t remember if it was two tiers of trunks, or one tier of trunks. I don’t remember how high they were piled.”
Grasshof, who was with appellee, testified that the trunks were piled along the platform where he and appellee sat down. He swore positively that there was no man behind the trunk when it fell. The physical facts clearly indicate that appellee could not have seen any one throw a trunk into the vacancy between the piles of trunks, and unless the trunk was thrown the case was not made out. All that appellee swore was that he saw a hand grabbing at the falling trunk.
[8] The evidence shows that appellee deliberately chose a Aplace to take a seat which he knew was dangerous. He was not acting under instructions from his foreman, but he acted voluntarily. He knew the trunks were piled near the edge of the platform; he knew other trunks were being added to them; he knew that the trunks might slip from vibrations of the platform; he knew that the vibrations were taking place; and yet in the face of this knowledge he chose, of all others, this place of danger in which to sit and engage in a conversation. He could not justify such conduct, even though he had been ordered by his foreman to assume the position he did. The danger in this instance was just. as apparent as in those cases in which men dug under overhanging cliffs. Reason and common sense should have caused him to appreciate the danger of sitting underneath a platform where trunks were piled one upon another. Appellee confessed that he knew that the trunks might fall. Hightower v. Gray, 36 Tex. Civ. App. 674, 83 S. W. 264.
Appellee was not in a place -provided for him by his master, but in one he had sought, while not engaged actively in his work. He voluntarily chose a place that he knew was dangerous, and was guilty of contributory negligence. Brooks v. Joyce, 127 Iowa, 266, 103 N. W. 91; Tanner v. Wickliffe Coal Co. (Ky.) 108 S. W. 351; Miller v. Moran, 39 Wash. 631, 81 Pac. 1089, 1 L. R. A. (N. S.) 283, 109 Am. St. Rep. 917; Dolstrom v. Newport Min. Co., 165 Mich. 309, 130 N. W. 643.
The motion for rehearing is overruled.