The gravamen of Count B of the complaint is the negligent failure of defendant as the owner of the premises to act in the abatement of the alleged nuisance thereon, resulting from blasting operations carried on by trespassers, after notice and knowledge of the maintenance of such nuisance alleged to have proximately caused injury to plaintiff. There is an absence of averment in said count showing that prior to the injury to plaintiff, as a result of such blasting, scrap iron, slag, stone or other substances were thrown from said premises and cast upon the property of other persons or on the streets of the city in the vicinity of the alleged injury of plaintiff, in such sort as to endanger the members of the public in the use of the public streets. In the absence of such averment, no duty on the part of the defendant to act in the abatement of said alleged nuisance appears.
For aught appearing, the blasting, which caused the injury of plaintiff, was the first instance scrap iron or other substances calculated to injure persons on the streets of the city had been thrown thereon.
The plaintiff's right of action rests upon the duty of the defendant to guard the public against injury resulting from the use of its property, whether the persons engaged in the blasting operations were servants, contractors or trespassers. Montgomery Street Ry. Co. v. Smith, 146 Ala. 316, 39 So. 757; Nance v. Gray, 143 Ala. 234, 38 So. 916, 5 Ann.Cas. 55; Mayor Aldermen of Birmingham v. McCary, 84 Ala. 469, 4 So. 630. But to raise a duty on the part of the defendant to act, in the case of trespassers, notice or knowledge that their acts were endangering the members of the public using the streets was essential. I am, therefore, of opinion that the court erred in overruling the demurrer to said count B. Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665.
While this court affirmed the judgment in the last cited case, although the count upon which it was tried was demurrable, it held the overruling of the demurrer was error without injury, for the reason that the trial court in the charge to the jury required proof of the omitted averment. That is not so in the instant case. The court merely required plaintiff to prove the averments of his complaint. There is a tendency to relax the rules of good pleading, sometimes to ignore them, because of Rules of Practice in Supreme Court, Rule 45, Code 1940, Tit. 7 Appendix. I am not in sympathy with this thought, and believe that procedural law and the science of pleading is the foundation of our jurisprudence, and without its observance justice cannot be administered. Therefore, I concur in what was said by the late Mr. Justice Sayre in Woodward Iron Co. v. Marbut, 183 Ala. 310, 313, 62 So. 804,805: "Certainty to a common intent in pleading is essential to the due administration of justice, and it cannot be abolished. By certainty causes and issues are identified for the determination of jurisdiction, and thereby the protection of parties against repeated trials of the same case, the finality of elections of remedies, the comity of courts, and other conserving principles of procedure are assured. * * * And, to come nearer to the needs of the instant case, certainty in some degree is required to give adversary parties reasonable notice of what they *Page 128 must be prepared to meet, and to speed the disposition of causes under their merits."
These utterances have been reaffirmed in Federal Land Bank v. Mulkey, 228 Ala. 500, 153 So. 775; Schwartz Motor Company v. Bradley Real Estate Ins. Co., 220 Ala. 295, 125 So. 26.
For the error noted, I am of opinion that the judgment of the circuit court should be reversed and the cause remanded.
Treating the count as sufficient, there was evidence offered by plaintiff tending to show that on a previous occasion slag, scrap iron, stone and other substances were thrown a great distance by such blasting on the premises of the railroad company and of private individuals. There was evidence tending to show that the premises in question were under the control and supervision of defendant's engineers and other agents and servants. This evidence authorized an inference to be drawn by the jury that defendant had knowledge or notice of the blasting operations by said alleged trespassers, and this evidence justified the refusal of affirmative charge. On this point, I do not concur in the opinion of Mr. Justice THOMAS, but dissent therefrom.