On Rehearing.
Plaintiff (appellee) in her motion for rehearing argues that the inconsistent allegations, because of which we held that her petition was subject to general demurrer, were stricken out upon special exceptions, thereby resulting in an elimination of the inconsistencies. There was no order striking out any part of the pleadings, unless such was the legal effect of the order sustaining the exceptions. Let us assume, without deciding, that such was the effect, in law, of the court’s action on th^ special exceptions. The questions then arising are-: (1) Did the remaining allegations of the petition sufficiently state a cause of action? and (2) If so, did that fact show that the action of the court in overruling the general demurrer was rendered harmless? We think that even though it was the duty of the court to sustain the general demurrer to the petition, if, after overruling same, the effect of his subsequent action in sustaining special exceptions was to render the pleading free of the vice which made it subject to general demurrer, the error would thereby be shown to be harmless.
Assuming that the effect of sustaining the special exceptions was to strike from the pleadings all portions thereof to which the exceptions related, it appears that all of numbered paragraph III, subdivision (1) of paragraph numbered IV, and at least the first subparagraph of numbered paragraph V, were eliminated.
Bearing in mind that general allegations of negligence are in legal effect superseded by more specific allegations, let us consider what acts or omissions were alleged to be negligence and a proximate cause of plaintiff’s injuries, after the eliminations mentioned. They may be briefly listed as follows:
a. “That the defendant company, its agents, servants and employees negligently and carelessly failed to stop the said street car at the place where it usually took on passengers and where plaintiff had stopped.”
b. “ * * * That the said street car * * * operated by A. B. Taylor, while acting in the scope of his employment, negligently and carelessly ran said street car against this plaintiff.”
c. * * * Motorman was negligent in that he did not keep the movements of said street car under control at the time of striking plaintiff, and that, had he had the switch or throttle by which air was applied to the brakes of said street car, on, while approaching the plaintiff, he could have stopped said street car and avoided hitting the plaintiff.”
d. “The motorman violated an ordinance prohibiting operation of a street car at a' greater rate of speed than was reasonable under the surrounding circumstances then existing (averred to be two miles an hour) in that he operated said street car at a rate of speed at the time of striking plaintiff and immediately before striking her, which was unreasonable under the surrounding circumstances (averred to have been greatly in excess of two miles an hour).”
e. “Motorman failed to sound his gong or bell * * * and thereby warn and indicate to plaintiff, as such would have indicated, that said motorman wanted plaintiff to get out of the way and did not intend to stop and accept her as a passenger at the point where she had stationed herself * * * and where said motorman had previously indicated by slowing down his car that he was going to stop and accept her; that the sounding of said hell would have indicated to plaintiff that the defendant motorman had changed his mind about the point where he was going to accept her as a passenger and would have enabled plaintiff to have reached a point of safety before she was cut off from said walk by said automobile.”
f. “Motorman failed and neglected to keep a proper lookout for plaintiff when she was preparing and attempting to, board said street car and to become a passenger thereon.”
g. (1) “Motorman * * * failed to exercise due care with respect to keeping a lookout for persons, and in particular the plaintiff, who was approaching the street car track upon which the street car was then being operated,” and (2) “motorman operating said street car having realized, or by the exercise of due diligence should have realized that plaintiff was in a position of peril and might be struck by the street car, the said motorman in charge of the operation of the said street car nevertheless failed to exercise due care in the use of all means at hand to avoid injury to the plaintiff.”
*140h. "Operator of * * * street car actually saw, realized and discovered the position of peril and danger in which the plaintiff * * * was placed in time to have avoided striking the plaintiff- * * * but * * * said motorman after having seen, discovered and realized the danger in which plaintiff was placed, failed to exercise care to stop said street car, or to apply the brakes and avoid striking the plaintiff, although he could have done so .without putting either himself or other passengers on said street car, or the street car itself, in danger of being injured.”
These allegations must be considered in connection with others as follows: “ * * That plaintiff then saw a street car approaching * * * that she was walking into the street to signal, and did signal same to stop * * * ■ that as plaintiff signaled to said street car, she observed an automobile, which was driven by one John Key •* * * attempting to pass the said street car * * * that she was standing at the regular stopping place * * * that shé stepped upon the railway tracks of the defendant company and signaled the motorman to stop; that she stepped upon said railway tracks to prevent any danger of being hit by the said automobile * * * that the defendant’s motorman, without sounding his bell or signaling plaintiff, after slowing down his car to accept her as a passenger, changed his mind and proceeded on toward said trunk railway track with the purpose of requiring plaintiff, when he stopped for said railway track, to walk from the usual and customary place where he had been accepting her as a passenger and to board said street car at a point five feet east of said trunk railway track.” All the various acts or omissions alleged as negligence (including those eliminated by the special exceptions) were averred to be proximate causes of the injuries.
It is apparent from the foregoing that fatal inconsistencies remained after the action of the court in sustaining the special exceptions. Allegations of negligence in failing to stop the street car at the usual place, and negligence in running the street car against the plaintiff, were superseded by more specific allegations of (a) failing to keep a proper lookout for plaintiff, and (b) failing to keep the movements of said street car under control. The latter was in turn limited to failure to have the air control switch or throttle on, while approaching the plaintiff. Allegations of failure to operate the street car at a reasonable rate of speed was nullified, as a proximate cause of the injuries, by allegations that “the motorman could have stopped' the said street car and avoided hitting plaintiff,” the failure to do which, was alleged to be a proximate cause of the injuries. Allegations of the motorman’s failure to sound his gong or bell were rendered wholly immaterial in view of the allegations that plaintiff was aware of the approaching street car. These allegations, show that the motorman had full control of the car, and the complaint is made that he purposely changed his mind about stopping at the place where plaintiff intended to board the car after indicating a purpose to do so, and decided to stop something like fifty feet or more at the intersection of the street car track with the trunk railway track. In other words, according to some of the allegations, when the street car struck the' plaintiff it was because it was running too ■ fast and was out of control, the brakes were not applied, or the motorman did not see the plaintiff; according to others, all he had to do was apply the brakes; he did see the plaintiff, and was proceeding purposely to make the stop near the trunk railway tracks. Not a single ground of negligence is alleged but that is denied, as a possible cause of the injuries, by one or more other allegations, unless it be negligence based upon discovered peril, which we will next notice.
Here in the beginning we are confronted with an allegation that the motorman “having realized or by the exercise of due diligence should have realized that plaintiff was in a position of peril.' (Italics ours.) By no liberality of construction can this be said to be a positive allegation that the motorman saw and realized the peril. It shows that the pleader considered that the legal equivalent of the fact that the motorman saw and realized the peril was that by the exercise of due diligence he should have realized that plaintiff was in a position of peril. Mere repetition thereafter that the motorman saw and realized the peril, considered in connection with the above, could not have the effect to make the essential allegation positive. The alternative first expressed would still be implied "or by the exercise of due diligence should have been realized” etc. As said by the Supreme Court in Ewing v. Duncan, 81 Tex. 230, 16 S.W. 1000, 1002: “Courts sit to try causes upon positive averments, and not to hear and determine issues presented *141by allegations which affirmatively show that the pleader is in doubt as to the truth of the matter alleged.”
But, aside from the above, it so happens in this case that the only purpose which allegations of negligence based upon discovered peril could serve would be to render unvail-ing to the defendant the existence of possible contributory negligence on the part of the plaintiff. This is so because granting that there was discovered peril, there was, as plainly appears from the allegations of plaintiff’s petition, nothing that the defendant’s mgtorman could have done to prevent the injury .except such as was also alleged as primary negligence and the proximate cause of the injuries. What could he have done other than to sound the gong or bell and apply the air to stop the car? Independently of discovered peril, the failure to do these things was alleged as acts of primary negligence, and as a proximate cause of the injuries. As we have seen, all of these allegations were contradicted by other allegations. Application of the principles discussed in the original opinion compels us to hold that the effect of sustaining the special exceptions was not such as to render harmless the error of the court in overruling the general demurrer. It is, therefore, our conclusion that the motion for rehearing should be overruled, which is accordingly so ordered.