The opinion
On Petition for Rehearing
On petition for rehearing it is contended that we inferentially held the second count of the declaration insufficient because it did n'ot allege the existence of “persistent habit and habitual custom.” Such was not and is not our conclusion. We do not construe our opinions in either the Kaufman case, 84 Fla. 634 , 94 Sou. 697 , or the Maxwell case, 81 Fla. 107 , 100 Sou. 147 , to hold the allegation of the existence of “persistent habit and habitual custom” necessary to the sufficiency of a declaration in such a case as is here presented.
If the allegations of the declaration in such cases are sufficient to show actionable carelessness and negligence on' the part of the City’s agents and servants in the driving of fire apparatus on the public streets in disregard of the public lawfully using the street and that such actionable careless,ness and negligence resulted directly in injury to one so using the street, it is not necessary to allege or prove “persistent habit or habitual custom.” See City of Tampa v. Easton, opinion filed November 26, 1940.
In such cases “persistent habit or habitual custom” may be alleged and proved as a circumstance to show the probability of the unlawful commission of the careless and negligent act complained of.
Petition for rehearing denied.
*116 So ordered.
Whitfield, Terrell, Buford, Chapman and Thomas, J. J., concur.
Chief Justice Brown and Justice Adams not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.