CHILTON, C. J.
Before proceeding to discuss the main proposition involved in this ease, it is proper to note the objections taken to the structure of the counts.
The first count, after setting out the corporate character of the defendant, and averring that, under the act of incorporation, said defendant was bound to keep, and of right ought to have kept, the streets and highways of said city of Wetumpka in good repair, and that the revenue of said city was ample and sufficient for that purpose, which revenue the said corporation was empowered by law to use for that purpose, proceeds to state, “ that the defendants, not regarding their duty in this behalf, and contrary to the provisions of the act aforesaid, neglected to keep the said streets and highways in good repair, and so mismanaged them that they were impassable, unsafe and dangerous, and that said plaintiff, passing and driving over aha along one of the public streets of said city, and within the corporate limits thereof, as he had a right to do, viz., a street usually known and called Company street, (commencing and ending within the corporate limits of said city,) and a certain bridge, being a part of said street, and within the corporate limits aforesaid, on account, and by reason of, said neglect, mismanagement and disregard of duty as aforesaid, had become rotten, unsafe and dangerous, of which said corporation had then and there, and for a long time previous, positive notice, and by means whereof, said bridge, while the wagon and team of the said plaintiff were passing over the same, fell through, and was broken down ; whereby said wagon, of the value of five [117]*117hundred, dollars, was broken, split and fractured, and the plaintiff’s team of mules, of the value of one thousand dollars, wounded and killed; whereby the plaintiff was deprived of their use,” &c.
The second count is substantially like the first, except that it superadds, that the defendant was accustomed to keep said street and the bridge in good repair, and had treated the same as a public street, the same being of great public utility and necessity, and disregarding their corporate and accustomed duties, failed to keep the same in repair, but knowingly suffered the bridge on said street to become unsound, rotten and dangerous ; and in consequence of their disregard and neglect of duty, imposed by their charter, and which before that time they had been accustomed to perform, the said bridge became incapable of sustaining the usual burthens which were accustomed to pass and repass over it, and the plaintiff, not knowing this fact, attempted to pass over it with his wagon and team, when it broke down, by reason of its unsound and rotten condition, causing the damage of which the plaintiff complains.
The third count varies the allegations, by averring that the defendants had no power or control over the said street, but that it was made their duty by the charter to remove all nuisances in said city ; that this street was not a legally established highway in the city, but was kept open for the use of persons, wagons, &c., passing to and from, public warehouses in the city for the storage of cotton, &c. ; that said corporation erected the bridge on said street, which, by their neglect, and by reason of its decayed condition, became and was a nuisance to the public, which was made known to the defendants ; and the plaintiff, in passing with his wagon, loaded with cotton, to a public warehouse, attempted to cross said bridge, when it fell through, by reason of the rotten, unsound condition of said bridge, causing the damage complained of.
The fourth count avers, that the corporation was bound by their charter to keep the streets, alleys, &c., of the city in repair, as also such streets as, after the act of incorporation, should be dedicated to the use of the city by the owners of the soil within the incorporation; that this street had been so dedicated, and used for fourteen years preceding the injury complained of, and was of great public utility and necessity; that [118]*118said corporation had ample means to keep said street and the bridge erected thereon in good order and repair, but so negligently conducted as knowingly to suffer the bridge to be and remain out of repair, and so rotten and unsafe that it broke down while „the plaintiff was crossing oyer on it, injuring his wagon and killing his mules, &c.
1. It is insisted by the counsel for the defendant in error, that none of the counts contain an averment that the bridge was broken without the fault of Smoot. This objection is not tenable. The averment that the injury resulted from the unsafe and rotten condition of the bridge, which rendered it incapable of sustaining the usual burthens which were accustomed to pass over it, is, in our opinion, quite sufficient. The plaintiff deduces his right to damages from a tortious breach of the defendants’ duty, which, he avers, has caused the injury of which he complains. If there be circumstances connected with the injury, showing that it is to be attributed to some fault of the plaintiff, it is for the defendant to set them up in defence. It is not required that a plaintiff’should, by his averments, negative every conceivable fact which might militate against his recovery. He is only bound to make out affirmatively a prima facie case for damages; and this he has done in the case before us, if, indeed, the action for damages will lie in such a case against the corporation.
2. As respects the sufficiency of the third count: The seventh section of the act incorporating the city of Wetumpka, declares, “ That the mayor and aldermen shall have power to pass by-laws and ordinances, necessary and proper to prevent contagious and infectious diseases from being introduced into said city, and to preserve the health thereof, and to prevent and remove all nuisances at the expense of the person causing such nuisance, or upon whose property it may be found,” &c. The declaration avers, that the street on which the bridge was erected, was not a public street or highway duly established as such, but that it had been kept open for the use and benefit of all persons, travelling to and from certain public warehouses for the storage of cotton &c., and was of great use ; and it also avers, that said defendant, neither in its corporate nor in any other capacity, had any right or power to control or manage the said street or way ; that nevertheless it erected, or caused [119]*119to be erected and continued, a certain bridge on said street, which became, by reason of its rotten and unsafe condition, a nuisance, and that the injury to the plaintiff’s property was received by its falling through while he was crossing it with his wagon and team. The gravamen of this count, if we rightly understand it, is not that the corpora tion improperly or carelessly erected the bridge, but that it failed to abate it after the same had become so unsound and rotten as to be a public nuisance. As the bridge was on private property, (the count positively negativing the idea of its being on a public highway, and failing to show a public use of it for so long a period, as to amount to a dedication of it to the city,) if the corporation had torn it down as a nuisance, it would have been liable to the owner of the property in the event it had turned out not to be such ; and the resolve of the corporation for its abatement would have furnished to it no protection.
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CHILTON, C. J.
Before proceeding to discuss the main proposition involved in this ease, it is proper to note the objections taken to the structure of the counts.
The first count, after setting out the corporate character of the defendant, and averring that, under the act of incorporation, said defendant was bound to keep, and of right ought to have kept, the streets and highways of said city of Wetumpka in good repair, and that the revenue of said city was ample and sufficient for that purpose, which revenue the said corporation was empowered by law to use for that purpose, proceeds to state, “ that the defendants, not regarding their duty in this behalf, and contrary to the provisions of the act aforesaid, neglected to keep the said streets and highways in good repair, and so mismanaged them that they were impassable, unsafe and dangerous, and that said plaintiff, passing and driving over aha along one of the public streets of said city, and within the corporate limits thereof, as he had a right to do, viz., a street usually known and called Company street, (commencing and ending within the corporate limits of said city,) and a certain bridge, being a part of said street, and within the corporate limits aforesaid, on account, and by reason of, said neglect, mismanagement and disregard of duty as aforesaid, had become rotten, unsafe and dangerous, of which said corporation had then and there, and for a long time previous, positive notice, and by means whereof, said bridge, while the wagon and team of the said plaintiff were passing over the same, fell through, and was broken down ; whereby said wagon, of the value of five [117]*117hundred, dollars, was broken, split and fractured, and the plaintiff’s team of mules, of the value of one thousand dollars, wounded and killed; whereby the plaintiff was deprived of their use,” &c.
The second count is substantially like the first, except that it superadds, that the defendant was accustomed to keep said street and the bridge in good repair, and had treated the same as a public street, the same being of great public utility and necessity, and disregarding their corporate and accustomed duties, failed to keep the same in repair, but knowingly suffered the bridge on said street to become unsound, rotten and dangerous ; and in consequence of their disregard and neglect of duty, imposed by their charter, and which before that time they had been accustomed to perform, the said bridge became incapable of sustaining the usual burthens which were accustomed to pass and repass over it, and the plaintiff, not knowing this fact, attempted to pass over it with his wagon and team, when it broke down, by reason of its unsound and rotten condition, causing the damage of which the plaintiff complains.
The third count varies the allegations, by averring that the defendants had no power or control over the said street, but that it was made their duty by the charter to remove all nuisances in said city ; that this street was not a legally established highway in the city, but was kept open for the use of persons, wagons, &c., passing to and from, public warehouses in the city for the storage of cotton, &c. ; that said corporation erected the bridge on said street, which, by their neglect, and by reason of its decayed condition, became and was a nuisance to the public, which was made known to the defendants ; and the plaintiff, in passing with his wagon, loaded with cotton, to a public warehouse, attempted to cross said bridge, when it fell through, by reason of the rotten, unsound condition of said bridge, causing the damage complained of.
The fourth count avers, that the corporation was bound by their charter to keep the streets, alleys, &c., of the city in repair, as also such streets as, after the act of incorporation, should be dedicated to the use of the city by the owners of the soil within the incorporation; that this street had been so dedicated, and used for fourteen years preceding the injury complained of, and was of great public utility and necessity; that [118]*118said corporation had ample means to keep said street and the bridge erected thereon in good order and repair, but so negligently conducted as knowingly to suffer the bridge to be and remain out of repair, and so rotten and unsafe that it broke down while „the plaintiff was crossing oyer on it, injuring his wagon and killing his mules, &c.
1. It is insisted by the counsel for the defendant in error, that none of the counts contain an averment that the bridge was broken without the fault of Smoot. This objection is not tenable. The averment that the injury resulted from the unsafe and rotten condition of the bridge, which rendered it incapable of sustaining the usual burthens which were accustomed to pass over it, is, in our opinion, quite sufficient. The plaintiff deduces his right to damages from a tortious breach of the defendants’ duty, which, he avers, has caused the injury of which he complains. If there be circumstances connected with the injury, showing that it is to be attributed to some fault of the plaintiff, it is for the defendant to set them up in defence. It is not required that a plaintiff’should, by his averments, negative every conceivable fact which might militate against his recovery. He is only bound to make out affirmatively a prima facie case for damages; and this he has done in the case before us, if, indeed, the action for damages will lie in such a case against the corporation.
2. As respects the sufficiency of the third count: The seventh section of the act incorporating the city of Wetumpka, declares, “ That the mayor and aldermen shall have power to pass by-laws and ordinances, necessary and proper to prevent contagious and infectious diseases from being introduced into said city, and to preserve the health thereof, and to prevent and remove all nuisances at the expense of the person causing such nuisance, or upon whose property it may be found,” &c. The declaration avers, that the street on which the bridge was erected, was not a public street or highway duly established as such, but that it had been kept open for the use and benefit of all persons, travelling to and from certain public warehouses for the storage of cotton &c., and was of great use ; and it also avers, that said defendant, neither in its corporate nor in any other capacity, had any right or power to control or manage the said street or way ; that nevertheless it erected, or caused [119]*119to be erected and continued, a certain bridge on said street, which became, by reason of its rotten and unsafe condition, a nuisance, and that the injury to the plaintiff’s property was received by its falling through while he was crossing it with his wagon and team. The gravamen of this count, if we rightly understand it, is not that the corpora tion improperly or carelessly erected the bridge, but that it failed to abate it after the same had become so unsound and rotten as to be a public nuisance. As the bridge was on private property, (the count positively negativing the idea of its being on a public highway, and failing to show a public use of it for so long a period, as to amount to a dedication of it to the city,) if the corporation had torn it down as a nuisance, it would have been liable to the owner of the property in the event it had turned out not to be such ; and the resolve of the corporation for its abatement would have furnished to it no protection. But before it could be abated by the city authority, as a nuisance, the question must first be settled by the corporation that it was such nuisance ; and this involved the exercise of judicial power, the failure to exercise which properly, in the absence of malice or corrupt intention, constitutes no.' ground of action. We are of opinion, therefore, that the third count was bad. Unlike the other counts, it avers no duty on the part of the corporation to repair the bridge, but places it beyond its jurisdiction, except upon the ground of its being a nuisance.
3. But it is also insisted, that, conceding the liability of the corporation to keep the streets and bridges in repair, yet this general liability does not necessarily require that this particular bridge should be kept up ; for, non constat, the street was better without than with it; and moreover, it does not appear but that there was a good way around the bridge, rendering it unnecessary to pass over it.
These and all similar objections are answered, by the allegation in the counts that it was the duty of the corporation, resulting from their organic law, to keep up this particular bridge. If the bridge was unnecessary, and the corporation had determined to dispense with it, there being a good way around it, this would constitute a defence, and would go to negative the allegation that the corporation had failed to discharge its duty in suffering it to go to decay; but being mat-[120]*120tor of defence, it was for the defendant, and not the plaintiff, to bring it to the notice of the court and jury. Whether the highway could have been passed without going over the bridge, is not the question presented, or required to be presented, by the plaintiff. He says, this bridge was a part of the street, and it was the duty of the defendant to keep it in repair, and in consequence of a tortious or negligent bi’each of this duty by the defendant, the plaintiff’s property has been destroyed in an attempt to pass over it. He thus shows the injury complained of to be the proximate result of the defendant’s breach of duty, which renders his right of action complete, if such action will lie; and whether or not it will, is the only remaining subject of inquiry.
4. It is too well settled, by an unbroken current of authority for many years past, that an action on the case for a tort may be maintained against corporations, as against individuals, now to be controverted.
At an early period in the history of corporations, it was held, that such actions could not be maintained.' Indeed, at one time it was much doubted whether assumpsit would lie against a corporation aggregate, since, it was said, it could only bind itself under seal; and such was the decision in Breekbill v. Turnpike Co., 3 Dall. 496. But when it was suggested that, being impersonal, and having no hand, it could not affix a seal, and must therefore contract with some agent to act for it in that behalf, the old doctrine was abandoned ; for, if it could not act without a seal, it could never act at all, as it can only act through an agent, -which it could never create, in the first instance, under seal. -The principal difficulty we have had in this case, is, in determining as to the nature of the liability of the defendant in respect to the failure of duty and negligence charged against it, considered in connection with the law of its organization ; in other words, whether the duty alleged to have been negligently and tortiously violated, grows out of, and forms a part of, those powers in the exercise of which the corporation acts as a legislative body, or whether such duty does not involve the exercise of its governmental functions. To illustrate : Power is given to the corporation to pass by-laws and ordinances, necessary and proper to prevent contagious and infectious diseases ; but the passage of such by-laws and ordi[121]*121nances involves the exercise of legislative power, and although it is the duty of the corporation to pass them when an emergency shall render them necessary, still no action on the case would lie for a failure to perform such duty, at the suit of any one who may have sustained injury from such diseases. This is a public, governmental power, with reference to which the corporation may exercise a sound legal discretion. On the other hand, where a particular duty is positively enjoined, and no discretion is vested in the corporation, as to whether it will or will not perform it, (as if the city or municipal corporation, in consideration of certain exemptions and immunities, such as from working on roads and highways, &c., is positively required to keep the highways in said city in repair,) and, having the means for performing this duty, the corporation wilfully or negligently fail to perform it, in consequence of which failure an extraordinary injury happens to an individual, we see no reason why an action will not lie as well against it as against an individual, for a similar omission of duty which works an injury to another.
The case before us falls directly under the principle we have laid down ; for, by its act of incorporation, it is declared that “the inhabitants of the said city shall be excused from working on roads and highways out of the said city, and from patrol duty, éxeept under authority of said city; but the streets and highways of said city shall be kept in repair by said city,” &c. —See Acts of Ala. 1839, p. 47 §11. We must judicially take notice of this act, as a part of the public law, as though it had been set out in each count in the declaration. —State v. The Mayor and Aldermen of Murfreesboro’, 11 Humph. R. 212.
The tendency of the modern decisions is, to hold corporations liable, like individuals, for tortious violations of duty, not involving governmental powers, and to disregard the distinction which has sometimes been taken between what is termed misfeasance and non-feasance. We are of opinion that there is, in such eases, no solid distinction between a tortious neglect of a known, defined duty, which is of such a character as not to involve governmental powers, and the performance of such a duty in so unskillful and negligent a manner as to cause particular or extraordinary injury to another. The consequences to the party injured' are the same, whether they result from misfeasance or non-feasance.
[122]*122We have looked into a number of cases, bearing upon the question of the liability of corporations for omissions of duty similar to the one now under consideration, and without extending this opinion by citing them, we feel satisfied that the weight of authority is in favor of sustaining the right of action. The case of Meares v. The Commissioners of the Town of Wilmington, 9 Iredell R. 73, 80, very clearly shows that the power, or rather the duty, enjoined upon the corporation, to repair, is not one of those public, gratuitous duties for which the corporation should not be held responsible; it receives an equivalent in the immunities granted to it.
The judgment must be reversed, and the cause remanded.