concurring specially. I agree with the majority opinion, but feel that some statement should be made of the basis for affirming the overruling of special demurrer numbered eight to paragraph 15 (c) of the petition which alleged that the driver of the tractor or earth mover was negligent in driving that vehicle onto and diagonally across the expressway and into the side of the plaintiff’s vehicle when he (the driver) saw, or in the exercise of ordinary care could have seen, the plaintiff’s vehicle traversing said expressway. This ground of the demurrer attacks such allegations as being “vague, indefinite and uncertain, and mere conclusions of the pleader without factual support.”
The allegations of the paragraph of the petition thus attacked are in the alternative, and consequently can be construed as alleging no more than that the driver of the tractor could have seen the plaintiff’s vehicle on the expressway. Central of Ga. Ry. Co. v. Tapley, 145 Ga. 792 (2) (89 S. E. 841).
If the plaintiff here were proceeding upon a theory under which it is necessary to allege that the driver of the tractor saw the plaintiff’s approaching vehicle, or that he had knowledge of its approach, a demurrer raising the duplicity of the allegations would be good and the overruling of it would be error. Belch v. Spraybery, 97 Ga. App. 47, 50 (101 S. E. 2d 870); Frazier v. Davis, 94 Ga. App. 173, 175 (94 S. E. 2d 51).
For example, it has been held in cases seeking recovery against a railroad for wilful and wanton negligence in the injuring or killing of a trespasser, that since actual knowledge of the presence of the trespasser on the track by the railroad’s employees in charge of the train is necessary to establish wilful and wanton negligence, an allegation in the alternative that the employees “knew or by the exercise of ordinary care should have known” of the trespasser’s presence could charge no more than implied *668notice, and the petition should be dismissed upon demurrer. Central of Ga. Ry. Co. v. Stamps, 48 Ga. App. 309 (172 S. E. 806); Southern Ry. Co. v. Lomax, 67 Ga. App. 406 (4) (20 S. E. 2d 437). But where a recovery was sought under circumstances which placed upon the defendant a duty to anticipate the presence of the plaintiff, an allegation that the defendant either knew or ought to-have known of his presence was held not inadequate as failing to show negligence. McCombs v. Southern Ry. Co., 39 Ga. App. 716, 724 (148 S. E. 407). And see Frazier v. Davis, 94 Ga. App. 173 (94 S. E. 2d 51).
Here the plaintiff alleges that a huge earth moving machine was driven, not from an intersection, but'from an adjacent field aci’oss the shoulder and onto the expressway and into the side of his automobile. I think that under such facts the driver of the machine was under a duty to observe the highway and to know what traffic might be thereon before entering upon it, and in the light of such a duty the averment that “he saw, or in the exercise of ordinary care could have seen, plaintiff’s vehicle traveling and traversing said expressway” is sufficient. Because of the existence of a duty to observe and see, the allegation that in the exercise of ordinary care he could have seen is not objectionable as failing to show negligence. And it would seem especially true in the light of the principle that “a motorist upon the public highways of this State has a right to assume that the road ahead of him is clear.” Mathis v. Nelson, 79 Ga. App. 639, 642 (54 S. E. 2d 710); State Construction Co. v. Johnson, 82 Ga. App. 698, 701 (62 S. E. 2d 413); Brown v. Atlanta Gas Light Co., 96 Ga. App. 771, 777 (101 S. E. 2d 603). If the law affords to a motorist' such as the plaintiff here, the right to such an assumption, it must, by virtue of so doing, place upon the operator of an earth moving machine, under circumstances such as are here alleged, a duty to' observe and to see approaching traffic upon the highway.
What is said here is in no wise conflicting with the ruling in Doyal v. Russell, 183 Ga. 518, 534 (189 S. E. 32), and cases following it.