ON REHEARING.
ANDERSON, C. J.We do not think that the original opinion misconceives defendant’s pleas A and B, as they, in effect, set up negligence on the part of the plaintiff, who was riding with the driver, and who was not her agent or servant, and over whom she had no control, in that she failed to keep a lookout and to discover the approach of the train in time to warn the driver of the danger or to alight, as the said pleas expressly state that the plaintiff was unaware of the approach of said train. We still think that the pleas attempt to charge the plaintiff with performing the duty of the driver and of negligence for failing to keep a lookout, when it was the duty of the driver to do so and not the plaintiff. Had the plaintiff known of the approach of the train and failed to warn the driver, who was unconscious of the danger, or had she discovered it in time to extricate herself and failed to do so, she could probably not recover under count 1, and the trial court so held by overruling the plaintiff’s demurrers to plea C. Pleas A and B did not charge her with knowledge of the approach of the train, but expressly state that she was unaware of the approach of said train.
The application for rehearing is overruled.