This is a petition for certiorari to the Court of Appeals to revise its conclusion as reported in Alabama Power Co. v. Holmes, 80 So. 736.3 On original consideration, the Court of Appeals applied the pertinent ruling in Birmingham Ry. Co. v. Fox, 174 Ala. 657, 56 So. 1013, deciding, in review of the trial court's action on demurrer to count 3 in this *Page 358 cause, that the averments of count 3 disclosed that the plaintiff, Holmes, was not a trespasser. But on rehearing — doubtless out of deference to the effect of the deserved application of the familiar rule that requires pleadings, when assailed by demurrer, to be construed most strongly against the pleader (Brown v. Ins. Co., 86 Ala. 194, 5 So. 500, among many others) — the Court of Appeals denied the application for rehearing on the sole ground that the demurrer, quoted in the opinion on rehearing, did not "distinctly state," did not "specify," as Code, § 5340, requires, the particular objection presented by appellant to the Court of Appeals. In my opinion, the view taken by that court, in its response to the application for rehearing, was correct. In substance, the demurrer only asserted that the averments of count 3 (charging simple negligence only) did not show that plaintiff was not a trespasser. Whether the count was omissive in that respect depended entirely, under the doctrine of Birmingham Ry. Co. v. Jones, 153 Ala. 157, 45 So. 177, upon the proposition — to state it affirmatively — that the count described such construction of the railway as constituted it a part of the surface of the street. It thus appears that the demurrer's assertion was of the legal result that would or would not attend according to the character of the railway's construction in the street. In other words, the demurrer, instead of distinctly stating, specifying the fault in the pleading as the statute requires, simply asserted the consequence the law attaches to a certain status. So the Court of Appeals well observed that the trial court might have passed on the demurrer without ever suspecting that the question argued on appeal was the question presented to the trial court by the demurrer. Aptly grounded demurrer would have specified the objection that the averments of the count did not show that the railway was constructed as part of the street, or that its averments did not negative the idea that the railway was a superadded structure on the street.
For these reasons only, I concur in the denial of the writ prayed.
3 16 Ala. App. 633.