In its petition for a rehearing, the appellant calls attention to some slight errors the Court made in "a brief resume" *Page 97 of the allegations of the complaint. The main error is our reference to "an old road." We said it was charged by the respondent "that at or near an abrupt turn, there was an old road * * *." It now appears that we should have said "another road," which appeared to be a continuation of the main highway, and not an "old road." Our incorrect statement was due, it appears, to certain language used by the respondent in her argument, and with the purpose of making as short as reasonably possible our statement as to the allegations of the complaint. That the parties and others interested may have a full understanding of the case, although the opinion is made longer, we are willing for all the allegations of negligence to be set out in the opinion just as they appeared in the complaint.
It does not appear to us, however, that our slight inaccuracies as to the facts have any effect upon our legal conclusions. A careful consideration of the petition for rehearing has failed to convince us that we reached any erroneous conclusion as to the law involved in the cause.
It is therefore ordered that the fourth paragraph of the opinion of the Court be stricken out, and the following inserted in lieu thereof:
"In her complaint, the plaintiff alleged the defects in the highway, and the negligent repair thereof consisted of the following particulars:
"(a) In maintaining a highway which, at the place where it crosses the Southern Railway, turns abruptly to the right with a steep embankment to the left of the road and within a few feet of the railroad track.
"(b) In failing to have at the place where the said highway turns so abruptly to the right, any guard rail or other protection to prevent a person traveling in an automobile from going over said steep embankment.
"(c) In failing to have on said highway any sign post, guard rail, or other warning, of the presence of the steep embankment and of the abrupt turn of the highway to the right. *Page 98
"(d) In failing to have on said highway where it approaches the railroad crossing any sign or warning whatever of the abrupt turn of the highway to the right immediately upon crossing the railroad tracks.
"(e) In maintaining a highway which, at said railroad crossing, turns so abruptly to the right that at night the lights of an automobile fail to disclose said abrupt turn and show the presence of another road which appears to be a continuation of the highway after it crosses the railroad track and misleads and deceives a person traveling said highway.
"(f) In failing to construct at said dangerous railroad crossing an underpass or an overhead bridge.
"(g) In negligently and willfully failing and refusing to relocate the highway at the point where it crosses the railroad track so as to eliminate the sharp and dangerous curve to the right, notwithstanding the knowledge on the part of the defendant of the dangerous and defective condition of said highway."
"The allegations of the complaint were entirely sufficient to authorize the overruling of the demurrer."
The former opinion of the Court, as amended herein, will be filed and become the opinion of the Court.
The petition for rehearing is dismissed, and the order staying the remittitur is revoked.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES STABLER, CARTER and BONHAM concur.