On Petition for Rehearing.
Montgomery, C. J.2.
Counsel for appellant on petition for rehearing reassert the insufficiency of the complaint, and re-argue other questions originally presented, considered and decided by the court. The complaint is not to be commended as a model pleading, but if all its allegations were true appellant would not only be guilty of gross negligence, but almost of a wilful disregard for the lives of its employes. It is earnestly insisted that appellant had a right-to run an extra car over its road, without regard to its usual custom, or the knowledge of employes on other ears, or the means of advising them, or the condition of the track, provided it used ordinary care in the premises. This contention may be conceded, but in this complaint it is made to appear, prima facie, that ordinary care for the safety of its operative men was not exercised. It is averred that appellant’s officers and agents in charge of its road started a second ear from LaPayette northward over a single track railway, knowing that the decedent’s car coming south had the right of way, and,- in the natural course of events, would meet the north-bound ear upon a dangerous curve, and cause a collision, but gave no order or direction to the motorman or *67conductor of the north-bound ear to take the siding immediately south of the curve. Counsel argue that the charge' that appellant did not take the particular precaution mentioned is not sufficient to show the absence of ordinary care and to establish negligence. The principle relied on is true as a general rule, but here it appears that the second ear was sent out under conditions that would make a collision upon a dangerous curve almost inevitable.
It is inconceivable that proper management would permit the meeting of cars on a single track at such a point, and would not provide for their passing at a convenient siding. The south-bound car had the right of way, was not required to take a siding, and could not be expected to back up in case of a meeting between passing points. In the circumstances stated, it appears to us that the natural, ordinary and only reasonable provision to have been made for the passing of the cars was to direct the north-bound ear to take the appropriate siding, which is alleged to have been immediately south of the curve, and that sending a man ahead on foot to give warning, as suggested, or any other arrangement which would permit the cars to meet where they could not pass, would have been absurd. It is alleged that no order to take the siding was given, and that the collision occurred as appellant’s officers knew in advance that it naturally would occur. Taking all the allegations of the complaint together, we think it clearly appears and is properly alleged that the deceased was without knowledge of the peril to which he was exposed and did not assume the risk, and that the complaint is sufficient in all respects.
The petition for rehearing is overruled.