Birmingham Ore & Mining Co. v. Grover, 48 So. 682

Birmingham Ore & Mining Co. v. Grover

48 So. 682 | Ala. | 1909

SIMPSON, J.

This suit is by the appellee against the appellant for injuries received from the blasting operations of defendant while the plaintiff was engaged in his employment .as a brakeman of the Louisville & Nashville Railroad Company. The first assignment of error insisted on is to the overruling of the demurrer interposed by the defendant to the first count of the complaint. It is urged that, although very general averments of negligence are sufficient, yet, when the pleader undertakes to state facts which are supposed to constitute the negligence, he is limited to the facts set forth, and that the facts set forth in this complaint do not justify the charge of negligence. In the use of explosives it is ro cognized that if one, in blasting, throws stones, rocks, or other substances on the land of another, it constitutes a trespass. — Bessemer Coal, etc., Co. v. Doak, 151 Ala. 670, 44 South. 631. It is also recognized that a person has the right to use explosives on his own lands with certain precautions, and when an injury occurs thereon the burden is on the plaintiff to show negligence in the use of the explosives.

We understand, from the allegations of this count, that the plaintiff was on the land of the defendant when the injury was received. If a party who is blasting on his own land knows, or has reason to believe, or could by reasonable diligence know, that any one is in dangerous proximity to the place where the blasting is being done, it is the duty of the person in charge of the explosive either to use means to cover the place, so as to prevent the throwing off of material, or to give warning when the blast is about to be made, in order that those in perilous places may seek a place of safety. — Cameron et al. v. *281Vandergriff, 53 Ark. 381, 386, 13 S. W. 1092; Blackwell v. Moorman & Co., 111 N. C. 151, 16 S. E. 12, 17 L. R. A. 729, 729, 732, 32 Am. St. Rep. 786, and note; Blackwell v. Lynchburg & D. R. R., 111 N. C. 151, 16 S. E. 12, 17 L. R. A. 729, 32 Am. St. Rep. 786, 791; Wright v. Compton, 53 Ind. 337, 341; Driscoll v. Newark, etc., Co., 37 N. Y. 637, 97 Am. Dec. 761, 763; Gates v. Latta, 117 N. C. 189, 23 S. E. 173, 53 Am. St. Rep. 584. “ The sufficiency of a complaint, in an action for personal injuries, which undertakes to define the particular negligence which caused the injury, must he tested by the special allegation in that respect, although the general allegation of negligence would, in the absence of such special allegations, be sufficient to make a prima facie case of negligence.” — 6 Thompson on Negligence, § 7452; Consumers’ Elec., etc., Co. v. Pryor, 44 Fla. 354, 32 South. 797, 805; Decatur, etc., Co. v. Mehaffey, Adm’r, 128 Ala. 242, 253-4, 29 South. 646; Highland, etc., Co. v. South, 112 Ala. 642, 650, 20 South. 1003.

While, according to the authorities cited, it is not net, essary to aver that the party doing the blasting had actual knowledge of the proximity of the person injured, yet it is necessary to allege that he either knew, or had reason to believe, or could by reasonable diligence have known, that the party injured Avas in a position where the missiles from the blasting Avould probably reach and injure -him. In this particular said count was demurrable. Consequently the court erred in overruling the demurrer to said first count.

For the same reason the court erred in overruling the demurrer to the second count.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, Anderson, and Mayfield, JJ., concur.