Uttley

This is an appeal from a judgment in favor of the plaintiff in an action for damages for injuries received by the plaintiff about midnight on February 28, 1932. At the intersection of Tenth Street and Broadway, in the City of Santa Ana, there was at that time a dip or depression across Broadway which had been constructed for the purpose of carrying storm waters. It was stipulated that in October, 1931, this dip had been changed by making the gutter somewhat deeper and by raising the height of one of the shoulders in order to cause the water to flow along Tenth Street instead of along Broadway. It was further stipulated that the condition of the street at this point, as it had existed for three months prior to February 28, 1932, was known to the legislative body of the City of Santa Ana. As an automobile, in which the plaintiff was a guest, was proceeding along Broadway and crossing Tenth Street on the occasion in° question, the plaintiff was thrown to the top of the automobile and then fell to the floor of the car, resulting in the injuries which are the basis of this action.

The first point raised is that the complaint is insufficient in that it fails to allege that a claim…