Concurring Specially. — I agree with the general rule of law as stated by Mr. Justice Sullivan. This court has followed the most advanced and liberal rule that has *104ever been approved by the courts in allowance of damages in this class of eases. (Anderson v. Great Northern R. Co., 15 Ida. 513, 99 Pac. 91; Fleenor v. Oregon S. L. R. Co., 16 Ida. 781, 102 Pac. 897; Wheeler v. Oregon R. & N. Co., 16 Ida. 375, 102 Pac. 347; Maloney v. Winston Bros. Co., 18 Ida. 740, 111 Pac. 1080.) Where, however, there is a total failure to show negligence on the part of the defendant, there can be no recovery, and precaution and diligence cannot be required to such an extreme as would prevent an individual or. company from carrying on its ordinary business. In this case it is clearly shown and is not denied that the respondent was guilty of gross negligence. He was at a place where his employment did not require, but rather forbade, him being. The fact, however, that he was in a place of danger did not license the company to run over him or to in any degree lessen its vigilance in maintaining a lookout for anyone who might come in the way of its engines. Clearly respondent was in no real or apparent danger when walking on the track five hundred feet ahead of the switch engine, and the engineer was then under no duty to slow up or stop the train on this account. He was an employee and train conductor, physically and mentally sound and under no disability. The engineer and fireman say they did not see him any more until after the accident, yet it is clearly shown that he was on the track from that time until he was injured. I realize that the company is not required to maintain the same degree of vigilance in its switch-yards, when making up trains and cutting out cars, in the way of maintaining lookouts and slowing up when someone comes onto the track that is required of it outside its yards and at crossings. Notwithstanding this consideration, I am not prepared to say in this case that there is absolutely no evidence of any negligence on the part of the company in not discovering the respondent on the track sooner than was done, or, in other words, in not maintaining more or greater vigilance in its lookout over the track in the direction in which this engine No. 22 was backing up.
Since this case must be again tried, I refrain from any further comment on the evidence on this point.
*105In any possible view of tbe law, tbe verdict in tbis case is exorbitant and excessive. If tbe jury should find the company guilty of negligence sufficient to support a verdict, still they are commanded by the act of Congress to diminish the damages in proportion to the amount of negligence attributable to the employee. This they certainly failed to do in the present case. I concur in reversing the judgment and ordering a new trial.