It is rarely the case that a court is justified in taking from the jury the question of fact whether or not a person, either plaintiff or defendant, is guilty of negligence, and the petition in the present case to my mind presents no exception to the general rule. The decision of the majority has in effect applied the doubtful doctrine of assumed risk and because the situation was well known and perfectly obvious to plaintiff a recovery has been denied him. I use the term "doubtful doctrine of assumed risk" because of the policy of our State, as evidenced by the recent Act of the Legislature practically abolishing such defense and substituting therefor that of contributory negligence, and further because such a defense, to my mind, finds no place in a case of this character. I know of no case other than one involving the law of master and servant in which the defense has been sustained. On the contrary, it has been distinctly held in this State and by this court, as well as the Supreme Court, that it can not be said, as matter of law, that a plaintiff assumes the risk of a known danger unless his conduct amounts to contributory negligence. Gulf, C. S. F. Ry. Co. v. Gascamp, 69 Tex. 545;
Gulf, C. S. F. Ry. Co. v. Grisom, 36 Texas Civ. App. 630[36 Tex. Civ. App. 630]; Cowans v. Ft. Worth D.C. Ry. Co., 89 S.W. 1116. It is not conclusive on the question of contributory negligence that appellant knew of the situation at the time he attempted to unload the lumber, or that the same was obvious to him, but at most this can be only a circumstance from which the jury might find that he was guilty of contributory negligence in undertaking the work under the circumstances. In setting the car at the particular place to be unloaded, appellee invited appellant to use the premises at that place in the usual manner, and if he acted as a person of ordinary prudence in accepting the invitation and the company was guilty of negligence as alleged, he would certainly be entitled to a recovery. The invitation by appellee to use the premises in such a case is just as real as is the invitation of a city to the public to use a street, and it is well settled that a plaintiff who in the exercise of due care drives or walks into an obstruction in a street may recover for the city's negligence, even though the obstruction or defect is obvious. The principle here contended for was applied by this court in Ft. Worth R. G. Ry. Co. v. Morris, 18 Texas Ct. Rep., 527. In that case the railway company had partially obstructed the street with a box car and the plaintiff's horse in an attempt to use the crossing became frightened and upon being urged across by the plaintiff ran away, inflicting injuries on plaintiff for which a recovery was sought. In the course of the opinion Mr. Justice Stephens for the court used the following language: "A traveler is not required to give up the use of the street in such case, but may assume some risk with impunity, especially where, as here, the situation itself amounts to an invitation to use it." For precisely the same reasons appellant was not required to abandon his employment, but was authorized to assume some risk in unloading the lumber, especially since the situation undoubtedly amounted to an invitation to him to do so. He alleges in effect that he did not know and could not ascertain the extent of the danger incident to a use of the premises, and doubtless thought he could load the lumber without danger to himself, though it seems he was mistaken in this.
I attach no importance to the fact that the car and wagon were both standing still when the accident occurred, for necessarily this was so and necessarily the same has no bearing upon the question of defendant's or plaintiff's negligence.
For these reasons I dissent from the majority opinion herein.
Writ of error refused.