
    No. 344
    WAGNER v. BOWLING GREEN (City)
    Ohio Appeals, 6th Dist., Wood County
    No. 362.
    Decided Jan. 18, 1926
    923. PLEADINGS — Petition alleging negligence (829) of city as proximate cause of injury complained of, states sufficient cause of action.
    Attorneys — B. P. James for Wagner; Wm. B. James for City; both of Bowling Green.
   RICHARDS, J.

Rosena Wagner brought this action in the Wood Common Pleas against the Toledo, Bowling Green and Southern Traction Co. and the city of Bowling Green, alleging in her petition that she had been struck while in an automobile crossing street railway tracks on a street in said city; that due to the negligence of the city the tracks on said street projected about four inches above street level retarding the progress of automobiles; that this condition existed for about three months previous to the accident, known to the city but unknown to her.

The city demurred to the petition and the Common Pleas Court sustained the demurrer and dismissed the action against the City. Wagner prosecuted error to the Court of Appeals which held:

1. The averments in the petition tend to show negligence on the part of the city, and also a continuous negligence in permitting the tracks to remain in such condition as to retard the progress of automobiles.
2. Under such averments it would be competent to introduce evidence to show that the negligence complained of was the proximate cause of the injury and the case should be tried.

Judgment reversed.  