On Rehearing
SIMPSON, Justice.Appellants urge in their application for rehearing that the rule of harmless error has no application to the overruling of the demurrer to Count 3 of the complaint because, they argue, the evidence to prove Counts 1 and 2 would be insufficient to prove Count 3, citing Woodward Iron Co. v. Marbut, 183 Ala. 310, 62 So. 804. However, a comparison of Counts 2 and 3 plainly shows that the facts stated in the two counts are substantially similar, the only difference being that the direct trespass charged in Count 3 is embodied as an element of damages. In the Woodward case, where the Court was speaking of the rule of harmless error in relation to a defective count it was stated: “In the absence of other pleading, stating substantially the same facts, suggesting and requiring the same evidence” the rule of harmless error did not apply. Here, however, it is manifest that the rule of harmless error would apply insofar as overruling the demurrer to Count 3, if in fact the demurrer was well taken, which we deem it unnecessary to here dcr termine.
Appellant also argues that we have in effect held that wantonness was tantamount to negligence in holding there was a scintilla of evidence of negligence in the record. We do not so construe our holding. In Thompson v. White, 274 Ala. 413, 149 So.2d 797, it was stated that wantohness and negligence cannot exist in the same act or omission but are distinct colorings of a wrong to another’s injury. We have not impinged upon this rule, whether or not the rule stated a correct principle. In our opinion we stated: “We have set out evidence which we believe constitutes a scintilla of wantonness in justifying the trial court’s oral instruction on punitive or exemplary damages and we believe this is also sufficient to constitute a scintilla of negligence”. We think our statement of the facts also shows a scintilla of evidence of negligence since appellant continued blasting operations near the property of appellee even after the initial blast which cast mud, rocks and other debris upon appellee’s property. This foreknowledge and conscious disregard of a defect under the earth’s surface which caused the casting of *115mud, rocks, etc. upon appellee’s property would also be sufficient to constitute a scintilla of evidence of negligence.
The appellants’ contentions on rehearing impress us as without merit.
Opinion extended and application for rehearing overruled.
LIVINGSTON, C. J., and MERRILL and HARWOOD, JJ., concur.