Sloss-Sheffield Steel & Iron Co. v. Salser

SIMPSON, J. This action, by the appellee against the appellant, is for damages from an injury received by being struck by a rock, which had been thrown out by blasting operations' carried on by the defendant. The first assignment of error insisted upon is to the action of the court in overruling defendant’s demurrer to the [517] second count of the complaint as amended. The averments of said count are not “inconsistent and repugnant,” and there is no cause of demurrer raising the ground of alternative averments in the count. The other ground of demurrer insisted on was not well taken, towit, that it is not alleged that defendant knew, or could by reasonable care have known, of the presence of. the plaintiff. That is covered by the expression that he “negligently failed,” etc. — Robinson Mining Co. v. Tolbert, 132 Ala. 462, 466, 31 Soutt. 519. There was no error in overruling the demurrer to said count. The demurrer to the first count as amended was properly overruled. The count states thiat plaintiff ivas working near the quarry where the blasting was being done; that defendant knew, or by the exercise of reasonable care could have known, that plaintiff -was near enough to he injured by the falling rocks; also that the injuries were causesd “by the negligence of the defendant, in the negligent manner in which its blasting operations were conducted.” — Armstrong v. Montgomery Street Railway, 123 Ala. 233, 26 South. 349, and cases cited; Robinson Min. Co. v. Tolbert, 132 Ala. 462, 31 South. 519. There ivas no error in overruling the demurrer to the third count of the complaint. — Authorities supra; Lampkin v. L. & N. R. R., 106 Ala. 287, 17 South. 448; Woodward Iron Co. v. Herndon, Admr., 114 Ala. 191, 214, 21 South. 430. Referring to the fourth assignment of error, we do not think that the cases holding that an entire failure to use any remedies have any application to this case, in which it is shown that the plaintiff went to the regular physician of the defendant, who dressed his wound, did not consider it serious, gave him no instructions about coming again, and Avho testified that it was his duty to look after such cases. Moreover, the plaintiff testified that [518] lie did go to see the physician three other times, and did not find him at his office. The next assignment of error insisted on by the appellant is that the court erred in refusing to give the second charge, towit: “If yon believe the evidence, you cannot find for the plaintiff under the first count of the complaint.” The argument in favor of this assignment is that, as the said count does not specially complain of the failure to give notice, and there is an entire absence of evidence to show that the manner of blasting was dangerous, the plaintiff could not recover on this count. The rule is laid down that if, in blasting, rocks or stones are thrown upon the adjoining lands of another, the party is liable, without regard to negligence, as it is a trespass upon the premises; also that it is necessarily dangerous in a thickly settled portion of a city, but that in other cases the liability attaches where the work has been done negligently. — 1 Thompson on Negligence, § 764; Bessemer C. & I. Co. v. Doak, 152 Ala. 166, 44 South. 627, 680, 12 L. R, A. (N. S.) 389. It is also said that persons blasting, who know, or by reasonable diligence could know, that injury will probably result from the blasting, should protect the parties exposed to danger by covering the blasts, or, if this cannot be done at a reasonable cost, warning must be given so that the parties can seek a place of safety. — Blackwell, Ex’r, v. Moorman & Co., 111 N. C. 151, 16 S. E. 12, 17 L. R. A. 729, 32 Am. St. Rep. 786. We think there was sufficient testimony in this case, from the facts that the rocks were thrown and there was no evidence of any particular precautions, to leave it to the jury to determine whether the blasting was. done in a proper or negligent manner. The judgment of the court is affirmed. ‘Anderson, Denson, and McClellan, JJ., concur.