The proposition of appellant in effect presents the point of view that the evidence speaks unequivocally on appellee's negligence, and therefore he should not be allowed to recover for the resulting injury. In determining whether or not a recovery should be allowed, it is essential to view the conduct of the railway company and the appellee as a whole, and note the bearing the acts of each had upon the resultant injury. The facts are practically without dispute. The railway company placed the car at the usual place, which was safe and convenient, for unloading, and notified the consignee of the readiness of the car for unloading. It is conceded that the railway company was not to remove the freight from the car, it being a carload lot. After receiving the notice, the consignees, of which there were several, including the appellee, then took possession and control of the car for the purpose of unloading the same. It was conclusively shown that, after taking "the seal" from the door of the car, and delivering the same to the railway agent, two of the "parties (owners of the freight) commenced to open the door." They succeeded in opening the door, as appears, only "about a couple of inches," when it was discovered that "it would not move further without prizing." The two "parties" and the appellee, who was standing near the door, then voluntarily proceeded to use force to "prize" *Page 505 the car door open, and as a consequence of the method adopted to force the door open the appellee was injured. The appellee testified, and the other witnesses say the same thing, that —
"the parties commenced to undertake to open the door. They first started by prizing the door open with sticks of wood until they got it wide enough open for me to help them — about 18 inches. I got up (inside the car), and commenced with all the purchase power I could to help them. I put my right shoulder to the door, and Freddie Hasselfield standing in his wagon by the door, taken hold of the handle, and J. C. Covington, standing on the ground, pushed. After we had pushed the door some distance, it all at once gave way (responded to the force used), and I fell across the wagon bed there — threw me out of the car. I had my back against the sill of the door, and naturally was in a leaning position at the time the door turned loose suddenly. When I had my shoulder against the door, and while I was in a leaning position, I was using all the power I had against the door to push it. When the door gave way, shot back from me, it did so suddenly, and I just went (out of the car) like a bullfrog jumping in a pond, and fell down across the edge of the wagon bed."
The door was so constructed as to safely answer the purpose when used for that purpose only. The door was merely stuck or hung up from some cause, rendering it difficult to open. The cause of its being stuck and hard to open is not definitely shown, but inferably, as a jury would be authorized to say, the door would not slide easily on its rollers either because of rust in the carrier iron that the rollers moved in or because the sill of the car was binding the door, making it difficult to open. So, then, from the facts the appellee and the other two owners of the freight knew that the car door would not open easily, and only with difficulty by the use of force; and, so knowing, without protest and voluntarily, nevertheless undertook to force the car door open by methods of their own judgment and by means of their own choosing. If it be for the moment assumed that the railway company was negligent in the premises in reference to allowing the condition of the door to exist, still, as conclusively shown, the appellee and those assisting him knew of the negligence, in that the door would not open except with force, and, so knowing, voluntarily assumed the responsibility of opening the door with force, contributing to his injury. And assuming, too, that the railway company as a carrier owed the duty to the consignees to open the door in order to allow access to the freight in the car, as a necessary and inseparable part of the placing of the car for unloading purposes, it would be the right of the consignees to refuse to accept the proffered delivery and to unload the car until that duty was performed by the company, after they had discovered that the door would open only with force applied to it. If the consignees had called upon the railway company through the agent to open the car door, the railwtay company might have provided an employee who knew how to open it with safety. The consignees, however, made no request of the railway company through the agent to have the car door opened. Nor did the consignees, after fully knowing of the difficulty of opening the door and of unloading the car, refuse to accept possession and control of the car. The consignees, including the appellee, voluntarily undertook to do the act of forcing the car door open: and the appellee was injured, as conclusively shown, as a consequence solely of the method and manner adopted. Appellee and those assisting him put the force in motion that caused his fall, and the appellee placed himself in the position to fall. The danger was as obvious to him as to any normal person of his age of the probability of falling, as happened, upon the door's being moved forward; it being pushed, as stated, "with all the purchase power I could, using all the power I had against the door to push it." Knowledge of such physical law would be attributable to him, and the acceptance of the risk would be imputed to him. In such facts the law will not divide the duty between the railway company and the appellee, and the appellee was bound to take precaution to prevent injury being done thereby.
It is concluded that the appellee is not legally entitled to a recovery, and that the judgment should be reversed and judgment here entered in favor of appellant, with all costs of the trial court and of this appeal.