SEPARATE CONCURRING- OPINION.
COX, J.I. I concur in reversing and remanding this cause but place my concurrence upon the ground that since the measure of damages upon which the case went to the jury was compensation alone, the verdict is excessive and the judgment should be reversed for that reason. Since the case is to be retried, the petition should be so amended as to clearly state facts which show the right of the administrator to sue under the fourth subdivision of section 5425, Revised Statutes 1909, and the trial should be conducted in harmony with the view expressed in the opinion of Presiding Judge Nixon.
II. On the question of contributory negligence the jury should be told in plain terms that if they should find from the evidence thát it was the duty of deceased Hegberg to see that the three cars left standing on the switch had sufficient brakes set to hold them in place while the switching was being done and he failed to perform that duty then he could not recover, and this without any reference to the specific duty of the conductor for there is no evidence that the conductor was in any way negligent in this case.
III. The printed rule offered in evidence does not require the brakes to be set on all cars placed upon *567a side track at the time they are placed there, but only requires that sufficient brakes be set to hold them in place.
Gray, Jconcurs in paragraphs 2 and 3.