Ewald v. City of South Bend, 15856.

• Decision Date: 17 February 1938
• Docket Number: No. 15856.,15856.
• Citation: 12 N.E.2d 995,104 Ind.App. 679
• Parties: EWALD v. CITY OF SOUTH BEND.
• Court: Indiana Appellate Court

104 Ind.App. 679

12 N.E.2d 995

EWALD

v.CITY OF SOUTH BEND.

No. 15856.

Appellate Court of Indiana, in Banc.

February 17, 1938.

Appeal from Superior Court, St. Joseph County; J. Fred Bingham, Judge.

Action by Dorothy Ewald against the City of South Bend for injuries sustained when a motorist, because of the icy and slippery condition of the street, skidded into a bus in which the plaintiff was riding. From a judgment rendered for the defendant when the plaintiff refused to plead further after the court had sustained the defendant's prayer, the plaintiff appeals.

Judgment affirmed.Seymour Jansen, of Mishawaka, and Clifford V. Du Comb, of South Bend, for appellant.

Edwin W. Hunter, of South Bend, for appellee.

KIME, Judge.

The appellant filed a complaint in one paragraph seeking damages for personal injuries sustained by her as a result of the negligence of the appellee city. The appellee demurred and when the court sustained the demurrer the appellant refused to plead further. Judgment was rendered for the appellee. It is from that judgment that this appeal is prosecuted, the error assigned being the ruling upon the demurrer.

The complaint alleged that the appellee was a duly incorporated city; that on December 20, 1934, the appellant was a passenger on a bus which was proceeding south on Fellows Street, an arterial thoroughfare of said city; that one Jarvis was driving an automobile east on Dubail Street, which was at right angles to Fellows Street and because of the negligence of the city the automobile of Jarvis collided with the bus causing her injuries. The allegations are set out verbatim as follows:

“Plaintiff further alleges that at the time the collision of the railway bus in which she was riding and the automobile of Donald Jarvis and prior thereto, and subsequent to placing the stop sign on the West side of said Fellows Street at the intersection of East Dubail Avenue and Fellows Street, said defendant carelessly and negligently permitted and allowed the south side of said Dubail Avenue where the same intersects said Fellows Street to become dangerous and unsafe for travel, in this, to-wit:--that for a period of two weeks or more prior to said collision the South side of said Dubail Avenue where it intersects said Fellows Street for a distance of fifty (50) feet westward from the west line of said intersection had been covered with a coat of ice and snow of a depth of from four to six inches; that in compliance with the regulation of said stop sign on said Dubail Avenue at the intersection of Fellows Street, the stopping and starting of motor vehicles and the grinding of wheels of motor vehicles on the ice and snow had caused said ice and snow to become uneven and full of ruts, ridges, hillocks and depressions and the ice and snow falling from the fenders and wheels and under parts of the motor vehicles when they stopped and started at the intersection because of said stop sign and the stopping and starting of motor vehicles and the grinding of the wheels of motor vehicles, and particularly the tire chains on the wheels of said vehicles had cut ruts and depressions into the ice as it had accumulated and formed and had thrown and hurled the ice into ridges and hillocks which had frozen into slick and slippery ice thereby changing the surface and condition of said ice so that when the said Donald Jarvis, who was motoring eastwardly on said Dubail Avenue, approached said intersection with said South Fellows Street the wheels of his said automobile ran into the ruts and depressions between the ridges and hillocks formed as above set out and by the deposit of ice and snow falling from the underparts of said motor vehicles, and the said wheels, and were retained there by the ruts and depressions between the ridges and hillocks that had been formed as hereinabove stated, which said ruts and depressions between the ridges and hillocks caused the wheels of his said automobile to skid so that the said Donald Jarvis was unable to control the movement of his said automobile which skidded...