On Application for Rehearing
HARWOOD, Justice.In brief in support of the application for rehearing, counsel strenuously argue that we erred in reversing this judgment because of the action of the lower court in overruling the demurrer to the complaint.
In deference to counsel’s urgent insistence we have carefully reviewed our original opinion and authorities cited therein, as well as the authorities cited by appellee counsel in their brief on rehearing.
In their brief counsel for appellee state, “The sufficiency of the foregoing complaint is fully sustained by the holding of the court in the following cases: Birmingham Railway Light & Power Co. v. Weathers, 164 Ala. 23, 51 So. 303; Barber Pure Milk Co. v. Holmes, 264 Ala. 45, 84 So.2d 345; City of Birmingham v. Young, 246 Ala. 650, [22 So.2d 169].” In this portion of the argument counsel also allude to Ten Ball Novelty & Manufacturing Co. et al. v. Allen, 255 Ala. 418, 51 So.2d 690.
In Birmingham Railway Light & Power Co. v. Weathers, supra, the count claimed damages for injuries suffered by the plaintiff, a passenger on defendant’s street car, when “said car started or jerked, or the speed thereof was suddenly increased.” After cataloging the plaintiff’s injuries and damages, the count concluded with the averment that the plaintiff suffered injuries “as a proximate consequence of the negligence of defendant in or about carrying plaintiff as defendant’s passenger as aforesaid.”
In reversing the judgment because of the overruling of the demurrer to the complaint, the court, among other things, wrote:
“In a long line of cases to be traced back through a hundred volumes of our Reports to Leach v. Bush, 57 Ala. 145, it has been held that, when the gravamen of the action is the alleged nonfeasance or misfeasance of another, as a general rule, it is sufficient if the complainant avers facts out of which the duty to act springs, and that the defendant negligently failed to do and perform, etc. It is not necessary to define the quo modo, or to specify the particular acts of diligence he should have employed in the performance of such duty. What the defendant did, and how *126he did it, and what he failed to do, are generally better known to the defendant than to the plaintiff; and hence it is that, in such cases, a general form of averment is sufficient. In the numerous cases in which this question has been raised the rule quoted from Leach v. Bush has unquestionably been accepted as meaning that most general allegations of negligence, amounting to conclusions only, may be received as meeting the requirements of our system of pleading; but it has not been understood to dispense with a categorical averment that the defendant was guilty of negligence. The burden of allegation has generally been discharged by an allegation that the defendant negligently did or failed to do thus and so.
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“We are still of the opinion that, construing the count most strongly against the pleader, as we must do, because presumptively he stated his facts in the most favorable aspect of which they were capable, and yet construing it fairly, and without wringing the language used out of its ordinary meaning and common acceptation — we still think that the conclusion of the count means that the facts already alleged in its fore part constitute negligence, and that by reason and as a consequence of them, and nothing besides, plaintiff suffered his injuries, and that such must be taken to have been the intention of the pleader. That conclusion of the count is without authority of law." (Italics ours.)
The quotation set forth immediately above confirms our original views as to the insufficiency of the present complaint because of its failure to charge negligence or breach of duty. The present count as to the alleged wrongful acts of the Power Company alleges that the Company “failed to maintain its system of wires * * * in a reasonably safe condition.” This is not an allegation that the Company failed to exercise reasonable care in the maintenance. of its wires, nor that the Company negligently failed to maintain its system of wires. As before stated, the system of wires could have become unsafe because of extraneous conditions rather than because of any negligence on the part of the Power Company. Thus, in this aspect, by failing to charge that the Power Company negligently failed to maintain its system of wires in a reasonably safe condition, appellee also fails to assert a breach of any duty owed by the Power Company to the appellee.
Since no breach of duty was alleged, nor any act averred constituting negligence as a matter of law, the appellee cannot, by its concluding allegation that his damages were the result of negligence of the Power Company, turn the act of the Power Company as averred into a negligent act. As stated in Weathers, supra, “at best that charge” (negligence) “is made by way of inference only.”
In Barber Pure Milk Co. v. Holmes, supra, the complaint claimed damages' for injuries resulting to the plaintiff, who, while walking on a public sidewalk, was injured “when struck by the door of a truck suddenly opened by a servant of the defendant.” Demurrers to the complaint were filed but a reading of the opinion shows that the court was concerned only with (1) whether the complaint alleged facts from which the law would imply a duty owed by the defendant to the plaintiff, and (2) whether it sufficiently averred the relationship of the agency between the driver of the truck and the defendant company. The question of whether a breach of duty was averred was not discussed.
In the present case, counsel for appellant Power Company does not contend that the complaint is deficient in failing to show a duty owed by the Power Company to the defendant. Their contentions are that the present complaint does not aver a breach of the owed duty.
The concluding averment in the present complaint is an assertion only of general negligence describing an act which, *127insofar as shown by the averments, may or may not be negligent. “Mere alleging that a given act was negligence or was negligently done, without more, is not sufficient.” Tennessee Coal, Iron and R. R. Co. v. Smith, 171 Ala. 251, 55 So. 170. In other words, under innumerable of our decisions as shown by the citations in our original opinion, and the numerous cases cited in such authorities, the acts constituting the alleged breach of duty must be averred to have been negligently done, or must be negligent as a matter of law.
In City of Birmingham v. Young, supra, the suit was for claimed damages resulting when the plaintiff drove her automobile into an open ditch in a public street. The complaint contained a general averment that the plaintiffs injuries “were proximately caused by the negligence of defendant in negligently permitting said open ditch to be and remain in said highway.” (Italics ours.) Thus the act constituting the breach of duty was designated as negligently done. Such was not averred in the present complaint.
So far as we can discern from reading the opinion of the court in Ten Ball Novelty & Manufacturing Co. v. Allen, supra, the sufficiency of the complaint against apt demurrer was not raised nor considered.
We therefore find nothing in the above authorities which should cause us to depart from our original conclusions.
Counsel for appellee in support of their application for rehearing have also placed much reliance upon Tennessee Coal, Iron & R. R. Co. v. Smith, 171 Ala. 251, 55 So. 170; Stokely-Van Camp Inc. v. Ferguson, 271 Ala. 120, 122 So.2d 356, and City of Birmingham v. Smith, 231 Ala. 95, 163 So. 611.
Tennessee Coal, Iron & R. R. Co. v. Smith, supra, involved an action by a servant against a master based solely upon negligence. The only allegation as to negligence in the first count was as follows: “That said injuries and damages were proximately caused by reason of the negligence of defendant.” Demurrers were filed to the effect that it did not appear from the count that defendant was guilty of negligence. The lower court overruled the demurrer. As to the sufficiency of Count 1 in its averment of negligence, this court wrote:
“This is not sufficient, nor is it made sufficient by the other allegations showing the relation of the master and servant between the parties. All negligence is not actionable, and pleadings, to be sufficient to state a cause of action grounded on negligence, must affirmatively show that the negligence relied upon is actionable.
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“Merely alleging that a given act was negligence or was negligently done, without more, is not sufficient.”
It would appear that this case is completely supportive of our original opinion.
In Stokely-Van Camp Inc. v. Ferguson, supra, the complaint specifically averred that the beans, which caused the plaintiff’s illness “were so negligently prepared by the Defendant in the operation of its business” as to be spoiled and contaminated, and that plaintiff’s injuries were “a proximate result of the Defendant’s negligence in its preparation of the Pork and Beans.” Clearly such complaint showed a breach of duty and cannot be deemed supportive of appellee’s argument.
The last case cited by counsel for appellee in support of their contention that we erred in our original opinion is City of Birmingham v. Smith, supra.
This case was a suit for damages for injuries resulting from the plaintiff’s fall into a hole or defect in a public sidewalk. The complaint averred that the hole was without guards or lights, and concluded “and plaintiff avers that all of her injuries and damages were caused as a proximate result of the negligence of defendant *128in and about causing or permitting said hole, depression, or excavation to remain in said sidewalk at the time and place aforesaid.”
The court first concluded that while the complaint did not expressly aver a dangerous condition, the facts as averred reasonably imported a dangerous condition, and described a dangerous defect.
Where a municipality disregards one of its plainest duties and permits an unguarded, dangerous defect to remain in a sidewalk, where of necessity it is a constant peril to persons walking on the sidewalk, the negligence of the municipality is “obvious and glaring.” Mayor and Aldermen of Birmingham v. Lewis, 92 Ala. 352, 9 So. 243; see also, City of Montgomery v. Wyche, 169 Ala. 181, 53 So. 786, where it was held proper for the lower court to instruct the jury that if they believed from the evidence that a ditch into which the plaintiff fell was a dangerous place and the •city had failed to erect a guard rail, the failure to erect such barrier was negligence.
Thus the complaint in City of Birmingham v. Smith, supra, averred facts showing negligence per se and the general averment of negligence “in and about causing the defect” was sufficient. This being so, this case is not supportive of the present complaint.
To accord with the argument of counsel for appellee that the present complaint is sufficient would necessitate the overruling of dozens of our cases, extending virtually from the present back to the earliest of our jurisprudential history. We have cited many of these cases.
In brief counsel for appellee state that there is no magic in the use of the word “negligently” in describing the doing of an act complained of. Whether magical or not, under the rules laid down in our decisions, such term is essential to show a breach of duty unless the words describing the act of a defendant show in themselves negligent conduct, or show an act negligent as a matter of law. Such developed rule may be criticized as technical. The purist in pleading requirements would say no. But as stated in Birmingham Railway Light and Power Co. v. Weathers, supra: “We did not create this system, nor are we empowered to destroy it.”
Opinion extended; application for rehearing overruled.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.