Dissenting in Part, and Concurring in Part and in the Judgment. — I am unable to agree with that portion of the opinion written by Mr. Justice Sullivan in which he discusses the law of negligence on the part of the railway company, and applies the same to the facts proven in this case.
It appears that both the engineer and fireman were in a position to have seen the respondent upon the track from the time that Moore first saw the respondent up to a point not more than a ear’s-length distant from the respondent at the time he was struck.
It is also shown by the evidence that after the respondent was seen by Moore, who was fireman on the engine which struck the respondent, no effort was made by either the fireman or the engineer upon the engine to give the respondent any different signal of the approaching of such engine than was being given by the ringing of the bell and the noise from the engine before the respondent was seen by Moore, the fireman.
There is no evidence to show that during the time intervening between the time Moore first saw the respondent upon the track and the time the engine struck the respondent, either the engineer or the fireman were in any way engaged so as to prevent them from seeing the respondent during that period of time, and no reason given why they did not again look down the track and see whether the respondent was leaving or had left the track after he had first been seen. With the knowledge of the company that the respondent was upon the track, and that if he did not leave it he would be struck *106by the engine, the employees in charge of the engine which struck the respondent did not exercise special care or watchfulness at any time between the time they first ascertained that the respondent was on the track and in danger of being struck by the engine, to the time he was struck, and with full knowledge during all such times that the respondent was on the track and would be struck if he did not leave the track. These are questions to be considered in determining the negligence of the appellant; and, also, did the employees exercise ordinary care which a reasonable and prudent person should exercise under the circumstances to avoid the injury to the respondent. The determination of these questions, in the first instance, was with the jury. The jury having found negligence on the part of the appellant, such verdict should not be disturbed by this court, if there is evidence from which reasonable men might disagree as to negligence. The verdict should not be set aside. (Wheeler v. Oregon R. & N. Co., 16 Ida. 375, 102 Pac. 347.) To say as a matter of law, as is said in this opinion by Mr. Justice Sullivan, that there was no negligence on the part of the appellant, is, in my judgment, not justified by the law, nor is it a proper regard for the value and protection of human life. I do not believe that the cases upon which Mr. Justice Sullivan relies, when closely analyzed, sustain the rule announced in that opinion. I shall not undertake in this dissenting opinion to analyze those cases, for the reason that the judgment rendered is to be reversed and the case may come to this court again upon appeal, when this question may again be considered.
Mr. Justice Sullivan says in his opinion, after reviewing a number of cases from other courts: "It would be unreasonable for this court to hold under the facts of this case that the engineer should have stopped his train and sent forward a brakeman to invite the conductor to get off the track, as under the facts of this case and the law applicable thereto there was no negligence whatever shown on the part of the appellant.” The substance of this statement is repeated a number of times in the opinion, and it would seem to be the rule announced in that opinion. I cannot approve this rule. *107I am clearly of the opinion that the facts were sufficient to justify the jury in finding that there was negligence on the part of the appellant, and that such negligence was the proximate cause of the injury. Neither do I think it necessary for this court to hold, under the facts of this case, that it was the duty of the engineer in charge of the train that struck the respondent to have stopped his train and sent forward a brakeman to invite the conductor to get off the track. It is very easy to make that kind of a statement in order to protect an employee who does not do his duty, and also in defense of the wrongful acts and carelessness of the company in operating its train, but that result does not follow from the rule of law which imposes a duty on the part of the railway company, under the facts of the case, to use all reasonable care in averting the injury, which clearly appears not to have been done under the evidence shown in this case.
As I understand the general rule of law applicable to the facts of this case, it is, that one’s own negligence in such cases precludes recovery, subject to the qualification that where the defendant has discovered or had knowledge of the peril of the plaintiff’s position, and it is 'apparent that the plaintiff makes no effort whatever to escape therefrom, the duty becomes imperative for the defendant to use all reasonable care to avoid the injury, and that if this is not done, the defendant becomes liable, notwithstanding the negligence of the plaintiff or deceased. This rule, in my opinion, is applicable to the facts shown by the evidence in this case. I do not believe that where a railway company, operating a train upon its right of way, either upon its general track or in the yards where trains are transferred and made up, after a danger or peril becomes apparent to those in charge of the train, and after it is brought to the knowledge of the employees in charge of such train that the danger is not recognized or appreciated by a person passing along the track in front of the train, such facts can excuse the company from exercising reasonable effort to stop the train and prevent the injury.
From an examination of the cases cited in Mr. Justice Sullivan’s opinion, and other eases, it will be observed that *108the facts recited in such cases are generally different, and that the conduct and acts of the employees under circumstances which tend to show negligence on the part of the railway company are not alike, and that each case is determined by its own facts and circumstances. An examination of these various opinions leads me to believe that under the facts shown by the record in this case the trial court, and also this court, should not determine as a matter of law that the railway company had discharged itself from liability, by its employees observing all the precautions which the circumstances and emergency demanded. (Neary et al. v. Northern Pac. Ry. Co. et al., 37 Mont. 461, 97 Pac. 944, 19 L. R. A., N. S., 446; Riley v. Northern Pac. Ry. Co., 36 Mont. 545, 93 Pac. 948; Louisville & N. R. Co. v. Morlay, 86 Fed. 240, 30 C. C. A. 6; Bouwnmeester v. Grand R. & I. Co., 63 Mich. 557, 30 N. W. 337; Kelley v. Chicago B. & Q. R. Co., 118 Iowa, 387, 92 N. W. 45; Louisville & N. R. Co. v. Trammell, 93 Ala. 350, 9 So. 870; Watts v. Richmond & D. R. Co., 89 Ga. 277, 15 S. E. 365; Kansas & Ark. V. Ry. Co. v. Fitzhugh, 61 Ark. 341, 54 Am. St. 211, 33 S. W. 960; St. Louis S. W. Ry. Co. v. Bishop, 14 Tex. Civ. App. 504, 37 S. W. 764; Erickson v. St. Paul & D. R. Co., 41 Minn. 500, 43 N. W. 332, 5 L. R. A. 786; Schulz v. Chicago, M. & St. P. Ry. Co., 57 Minn. 271, 59 N. W. 192; Mellon v. Great N. Ry. Co. (Minn.), 143 N. W. 116; Brown v. Chicago B. & Q. R. Co. (Minn.), 134 N. W. 315; Chamberlain v. Missouri Pac. R. Co., 133 Mo. 587, 33 S. W. 437, 34 S. W. 842; Isbell v. New York N. H. Ry. Co., 25 Conn. 555; Dale v. Colfax Coal Co., 131 Iowa, 67, 107 N. W. 1096.)
This court, also, in my judgment, in the ease of Anderson v. Great Northern Ry. Co., 15 Ida. 513, 99 Pac. 91, announces the same general principle of law, and this rule should be adhered to by this court in a case where the facts shown are of the same general character as the facts in this ease.
I concur in the opinion of Mr. Justice Sullivan in his discussion of the Employer’s Liability Act enacted by Congress in 1908 and the amendment made in 1910, and I also concur in the opinion as to the judgment being excessive. It is *109apparent that the jury did not observe the instructions of the trial court with reference to their duty to consider the contributory negligence of the plaintiff in determining the amount of damages in case they found for the plaintiff, and on account of such judgment, I think it is the duty of this court to reverse the judgment.