(after stating the facts as above). As we view the record, the only issues made by both the pleadings and the evidence were one as to negligence vel non on the part of the train porter, and, if he was negligent, one as to the amount appellee was entitled to recover as damages for the injury he suffered. It conclusively appeared that the injury appellee sustained was due to his falling from the train. There was no evidence tending to show that, if he fell because the porter negligently shoved the box against him, negligence of his own co-operated and concurred with that of the porter in causing him to fall. Therefore the issue as to contributory negligence on the part of appellee, made by the pleadings was not made by the testimony. Nor do we think the testimony made an issue as to whether the porter, if he, at appellee’s request, in violation of appellant’s rules, opened the door to the south side of the vestibule to enable appellee to alight from the train on that side, acted outside the scope of his duty as appellant’s employs or not.
If it was the porter’s duty to open doors of the vestibule at the station, it was not outside the scope of his employment to open the one in question, notwithstanding, in opening it, he may have violated appellant’s instructions and rules. Burnett v. Oechsner, 92 Tex. 588, 50 S. W. 562, 71 Am. St. Rep. 880; Ry. Co. v. Anderson, 82 Tex. 516, 17 S. W. 1039, 27 Am. St. Rep. 902. The testimony of appellant’s assistant superintendent, Hutchings, on its behalf, that it was the porter’s duty to open vestibule doors at stations and assist passengers was uncontro-verted.
The validity, of the judgment depends, we think, upon the answers which should be made to questions, to wit: (1) Did the findings made by the jury authorize it? (2) Were the findings supported by testimony? If both questions should be answered in the affirmative, the judgment should be affirmed. If either should be answered in the negative, it should'be reversed.
The jury found, as is shown in the statement above, (1) that the porter undertook to open the door for appellee and to aid him in alighting from the train with his box of whisky; (2) that in performing his undertaking the porter “negligently” caused the box to fall down the steps and against ap-pellee, “thereby knocking him” from said steps; • and (3) that his act in causing the box to fall down tbe steps was tbe proximate cause of the injury to appellee.
Unquestionably, we think, the findings specified established liability on the part of appellant to appellee, and authorized judgment against it for the damages he sustained as a result of his falling from the car.
The objections to the findings based on the questions they were answers to are, we think, not tenable. Neither of the questions was “confusing and misleading” or “on the weight of the evidence in assuming the existence of controverted facts.”
That each of the findings specified was supported by testimony is shown by the record. Appellee, as a witness on his own behalf, testified, in effect, repeating much that is said in the statement above, as follows: At his request the porter agreed to assist him in getting off the train on the south side thereof when it reached AVinfield. After calling that place, and before the train reached the station, the porter took appellee’s box of whisky, and, accompanied by appellee, went *1130to tlie vestibule of the coach. Wlien they reached the vestibule the porter opened the door to the south side thereof,. and placed the box on the floor, “right close up to the top” of the steps thereto on that side. Ap-pellee took a position on the step above it, holding with one hand to the handrail of the coach, and resting his other hand on the box. While he was standing in that position, and while the train was still moving, the porter told him it was “time to get off,” and with his foot shoved the box down the steps. The box, falling against appellee’s legs, caused him to fall from the train. “I saw the porter push that box,” appellee testified; “he just taken his foot this way and pushed it. He pushed it with such force until it knocked me off.” Appellee’s testimony was corroborated by that of the witness Spruill, whom the jury had a right to believe.
It is clear, we think, that the testimony referred to authorized the findings establishing appellant’s liability to appellee. The fact that that testimony was contradicted in toto by the testimony of other witnesses is not a reason for reversing the judgment. As the accident could have happened as appellee said it did, we have no right, in face of the finding of the jury that it did happen that way, to say it did not.
It was the duty of the jury to determine the conflict in the testimony, and, they having determined it, their findings should not be set aside by us.
Other assignments in the briefs not in effect disposed of by what has been said are believed to be without merit, and are overruled.
The judgment is affirmed.