The opinion
On Rehearing.
PER CURIAM.
A majority of the court, composed of ANDERSON, C. J., and Me
*661
CLELLAN, MAYFIELD, and SOMERVILLE, JJ., are of the opinion that the trial court erred, in not sustaining the defendant’s demurrer to count 3 of the complaint. It does not show that the way in question was a public highway, or that the plaintiff was going over same other than as a bare licensee, and, being a mere licensee, he was not within the protection of the degree of negligence charged. The way not being a public one, tne mere permissive use of same, short of such a period as would convert it into a public highway, made the plaintiff nothing more than a licensee. Pleading must be most strongly construed against the pleader, upon demurrer, and under this rule the said count 3 does not charge that the plaintiff was at the place of injury upon the invitation, express or implied, of the defendant. A. G. S. R. R. Co. v. Godfrey, 156 Ala. 202 , 47 South. 185 , 130 Am. St. Rep. 76 ; Scoggins v. A. & G. P. Co., 179 Ala. 213 , 60 South. 175 ; Campbell v. Lunsford, 83 Ala. 515 , 3 South. 522 . Nor does the count charge, that the rope, was what might be termed such a snare or pitfall as to give a bare licensee a right of action for the placing of same at the point in question. In the case of Barney Coal Co. v. Hyche, 197 Ala. 228 , 72 South. 433 , while the case was affirmed upon a complaint no better in this respect than count 3 of the present complaint, it will be noted from the opinion upon rehearing that the court did not indorse the correctness of the count, but simply held that the demurrer was not sufficient to present the defect contended for by appellant. It will also be observed that the cases of Dunn v. Gunn, 149 Ala. 583 , 42 South. 686 , and Lewman v. Andrews, 129 Ala. 170 , 29 South. 692 , were shaded in said opinion, and there may be expressions in said cases not thoroughly in harmony with this holding, but which are qualified or overruled in so far as they may conflict with the present holding, which we think is fully sustained by a long line of decisions by this court.
The rehearing is accordingly granted; the judgment of affirmance is set aside, and the cause is reversed and remanded.