dissenting. I can not concur in the opinion of the Court, as it seems to me to establish a dangerous innovation in pleading and a most unjust discrimination between the plaintiff and defendant. Section 260 of The Code provides that “In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties.” Of course tire plaintiff must state the material facts constituting his cause of action so as to give the defendant reasonable notice of what it will be called upon to answer; but it would be equally useless and impracticable to set forth in detail each particular fact constituting the alleged negligence. The entire system of Code pleading is intended to effect substantial justice without regard to immaterial technicalities. This is evident from a bare citation of The Code. Section 269 says: “No variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the. adverse party, to his prejudice in maintaining his action upon the merits. Whenever it shall be alleged that a party has been misled, that fact .shall he proved to the satisfaction of the Court, and m what respect he has been misled; and thereupon the Judge may order the pleading to be amended upon such terms as shall be just.” Section 210 provides: “Where the variance is not material and provided in the preceding section, the Judge may direct the fact to be found according to the evidence, or may order an immediate amendment, without costs.”
*561Section 271 provides that “Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in the entire scope and meaning, it shall not be deemed a case of variance within the preceding section, but a failure of proof.”
Section 276 provides that “The Court and the Judge thereof shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings, which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” The italics are my own.
In the case at bar there does not seem to be any variance in the pleading, but simply a want of particularity. Can it be contended that in the case at bar it has been alleged or proved to the satisfaction of the Court that the defendant has been actually misled by the complaint, or that the cause of action is unproved in its entire Scope and meaning ? And yet these are the absolute requirements of the statute before such an exception can be entertained. Was it not the duty of the defendant to move in the Court below, and if it was silent, there where the objection, if valid, 'might have been remedied, can it now be heard? It is not denied that the complaint states a cause of action, and if the defendant wanted more particulars, why did it not ask for them ?
My Second objection is the unjust discrimination between the plaintiff and the defendant. In damage suits, why should the plaintiff be required to set forth in full every particular fact relied on to show the negligence of the defendant, and yet the defendant be permitted to show any act within the range of human conduct under the bare allegation that the negligence of the plaintiff contributed to> his own injury? In Cogdell v. Railroad, 130 N. C., 313, this question was distinctly raised, in relation to which this Court says on page 319: “In its answer, defendant avers ‘that the death of the *562intestate was not caused by any negligence of defendant, but was caused by the negligence and fault of the plaintiff’s intestate himself.’ This is a strict compliance with the statute (Acts 1881, Chap. 33), and put plaintiff upon notice as to that defence, as fully appears from the fact of bear being prepared witb evidence to meet the charge of going upon the car in a drunken condition. However, if plaintiff bad not anticipated, and could not with reasonable certainty have anticipated the defence, it would have been proper for the Court, upon application, to 'have ordered that a bill of particulars be prescribed in The Code.”
The plea of contributory negligence is an affirmative defence in the nature of confession and avoidance, which, by express statutory provision, must be alleged and proved. Why should the plaintiff be held to a stricter rule than the defendant under similar circumstances ? Why can not an equal measure of right be given with an impartial band ?
My view of the merits of this case is briefly this: If the defendant employed a skillful and competent superintendent, and be used all the means wbicb would bave been employed under the circumstances by a man of ordinary prudence and equal skill to determine whether the second blast bad been fired, the defendant would not be liable; but this is a. fact for the determination of the jury.