I concur in the judgment of reversal in this case, but do not concur in all that is said in regard to the demurrer. The allegations on the subject of whether the defendant’s agents actually saw the person who was killed on the track, or whether they ought to have seen him in the use of ordinary care, were not stated in the alternative, but each fact was affirmatively alleged, making such allegations cumulative. Whether or not upon a demurrer properly raising that question the plaintiff should have been required to make these allegations in separate counts, or to make an election in regard to them, the demurrer.on the ground that the allegations were conflicting, uncertain, and ambiguous did not raise that distinct question, and it was not error to overrule it.