Johnson v. City of Evansville
| Decision Date | 30 March 1932 |
| Docket Number | 14,278 |
| Citation | 180 N.E. 600,95 Ind.App. 417 |
| Parties | JOHNSON v. CITY OF EVANSVILLE |
| Court | Indiana Appellate Court |
Rehearing denied July 27, 1932. Transfer denied January 2 1933.
From Vanderburgh Superior Court; E. C. Henning, Judge.
Action by Frances Johnson against the City of Evansville. From a judgment in favor the defendants, on demurrer to the complaint, the plaintiff appealed.
Affirmed.
Charles M. LaFollette, for appellant.
Val Nolan, for appellee.
This was an action brought by the appellant against the appellee, city of Evansville, to recover damages for personal injuries alleged to have been received in a fall upon ice in an alley located within said city. The complaint was in one paragraph, to which the appellee filed a demurrer for want of sufficient facts, which was sustained and an exception taken by the appellant who refused to plead further. Judgment was entered for the appellee from which judgment this appeal was prayed and perfected.
The only error assigned and relied upon for reversal is the action of the court in its ruling upon the demurrer.
The salient parts of the complaint are: That Main Street is a public street within said city; that Southeast First Street and Southeast Riverside Drive are parallel streets intersecting Main Street at right angles one block apart between which and also running parallel with them is the alley in question which also intersects Main Street at right angles; that the grade of said alley is such as that at its mouth, intersecting Main Street, the surface of same forms a part of the sidewalk along Main Street and is used by pedestrians in going along Main Street between the two other named streets; that said Main Street slopes precipitately, at the point of intersection with said alley, towards Southeast Riverside Drive and is so constructed as to permit the drainage of the surface waters of said alley and street under normal circumstances along the south curb line of said street towards Southeast Riverside Drive; that from the 16th to the 21st days of January, 1930, there was a total snow fall in said city of approximately 6 inches; that between the 16th and 31st days of said month there were but 6 days during which the temperature at any time rose above freezing; that from the 1st to the 3d day of February following, the temperature rose each day above freezing; that during all of said time the said city made no attempt to remove the accumulation of snow and ice from either Main Street or said alley; that during said time the property owners on the south side of Main Street swept the snow and ice from off their sidewalks and piled the same and permitted the same to collect in the gutter of Main Street on the south side thereof immediately adjacent to said curb; that said snow and ice remained in said gutter for at least 13 days from the last of said snowfall in the month of January, and was not removed by said city prior to February 3, 1930; that the collection and accumulation of snow and ice swept from said sidewalks together with that which fell upon said street so collected in and clogged the said gutter as to render the natural drain of the surface water from said street and alley towards Southeast Riverside Drive impossible, and that the water was dammed up and held in said alley for at least 13 days; that during said time said snow and ice would at times slightly melt and become slush and would then be stepped into by passers on said street and across said alley and would then freeze and collect and accumulate in a roughened and dangerous condition for pedestrians upon the south side of Main Street and across said alley where used by pedestrians; that due to the location and height of certain buildings at the place where said alley intersects Main Street a shadow during all but a few of the daylight hours was cast upon said place which greatly retarded the natural melting of said snow and ice in the street, alley, and gutter, all of which facts were well known to said city; that the physical conditions at said place had existed for a number of years and that said city knew or should have known that if said snow and ice were not removed from said gutter that they would retard the flow of melting surface water from said alley and would permit the formation of ice over a long period of time upon said alley; that the plaintiff lived on the south side of Main Street at said time, between the points where said alley and Southeast Riverside Drive intersect Main Street; that early in the morning, on February 3, 1930, she left her residence with her husband to get her husband's motor vehicle and that in order to reach the public garage to get said car it was necessary to go in a general easterly direction on Main Street toward Southeast First Street and across the aforesaid alley; that she knew of the existence of the ice in said alley and approached in a careful and prudent manner leaning upon the arm of her husband as she attempted to cross same; that she slipped upon the roughened ice and slush then remaining, which was in a strip about 3 feet wide down the center of said alley which was 12 feet wide and fell, causing the injuries complained of; that the plaintiff had no other way by which to reach the said garage to which she was going that was less dangerous than to cross said ice in said alley; that her injuries were solely and proximately caused by the existence of said ice and slush in said alley and that the same had been negligently permitted to accumulate by said city; and that on the 18th day of February, 1930, she served notice on said city, by serving same upon the mayor, of the time, place, cause, and the nature of her said injuries. A copy of the notice was made a part of the complaint, as Exhibit A. Due to the fact that the sufficiency of the notice is questioned we set the same out verbatim as follows:
"To the City of Evansville, Vanderburgh County, Indiana:
To the Honorable Frank W. Griese, Mayor of said City of Evansville, Vanderburgh County, Indiana.
Most Honorable Sir:
You are hereby notified that on the 3d day of February, 1930, between the hours of 5 and 6 A. M. of said day, I was...
To continue reading
Request your trial