ALLEGATIONS AS TO OBSTRUCTION LEFT IN THE STREET.

Court of Appeals for Summit County.

#### Howard McMillen v. City of Akron.

Decided, October, 1918.

*Pleading*— Allegations *of Special Facts*— Sufficient *in a Negligence Case, When*— Action *for Damages to Automobile Caused by Obstruction in Street.*

1. Where a petition alleges specific facts which constitute -a *prima facie*cause of negligence, demurrer does not lie on the ground that the negligence is not alleged in terms.

2. Allegations to the effect that an iron standard, four feet high, weighing fifty pounds and of the kind sometimes placed near the outer ■ rail of a street car line for the purpose of regulating traffic, was left in the street near an intersection on a very dark night and while plaintiff was driving his automobile slowly along said street he ran into said obstruction -and damaged his car for which he asks judgment against the municipality, states a cause of action and the petition is not open to- demurrer.

*Jonathan Taylor,*for plaintiff in error.

*Owen 31. Roderick,*contra.

Lawrence, J.

Error to the court of common pleas.

The plaintiff in error, who was plaintiff below, commenced an action against defendant in error, the city of Akron, before a justice of the peace, wherein a default judgment was rendered in his favor. The ease was appealed to the court of common *272pleas 'by defendant, in which court a demurrer was sustained to the petition of plaintiff on the ground that it did not state facts showing a cause of action; and the sole question presented here for our consideration and determination is, did the court below err in sustaining said demurrer.

The petition, in substance, alleged that South Main street is one of the main thoroughfares of the defendant city, and that there is a double track street car line running through its center ; that the city had placed on* both sides of said tracks, near the intersection of Main street with Market street and within a couple of feet from the outer rails of said tracks, iron standards weighing approximately fifty pounds and of a height of about four feet; that these standards are placed on and removed from, the line of traffic as the city considers proper for the regulation thereof; that at or about 9 o’clock p. m., May 5, 1917, the plaintiff was driving his automobile northerly in a proper, careful and lawful manner at a speed of about 5 miles per hour at the right hand side of Main street; that the evening was extremely dark; that near the intersection of said streets his automobile crashed into one of the standards which had -been left standing through failure of defendant city to remove the same, and damaged and injured his automobile in the sum of $250; that there were no lights, warning or marking of any kind on said standard and the presence of the same was unknown to plaintiff, and that because of the failure of the defendant city to light -the same or indicate in some way or by some warning the presence of the standard, plaintiff’s automobile was damaged as aforesaid.

We are of the opinion that the petition alleges specific facts making a *prima facie*case of negligence and is not demurrable because negligence is not alleged in terms, and we therefore hold that the demurrer to the petition was improperly sustained in the court below, and its judgment will be reversed and the case remanded for further proceedings.

Grant, J., and Dunlap, J., concur.