ON MOTION FOR REHEARING.
MacIntyre, J.This decision does not hold as a matter of law that merely because the defendant could not see the engineer, the engineer could not see the defendant, but holds that the facts as pleaded made it impossible for the engineer to see the plaintiff,— construing such allegations most strongly against the pleader. We can conceive of conditions where the plaintiff could not see the engineer, and yet the engineer could see the plaintiff; and where such conditions are pleaded, the case would be differentiated from the instant case. The plaintiff can of course show that conditions are such 'that he could not see the engineer, so as to show that he was in the exercise of due care. But if the plaintiff sets out in a different paragraph, as an act of negligence upon which he seeks to recover, something that is impossible under his pleading, this paragraph should be stricken on proper demurrer, there being nothing set out in this paragraph save this act of negligence, which is one of the acts of negligence upon which the plaintiff seeks to recover.
Rehearing denied.
Broyles, O. J., and Guerry, J., concur.