APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.
Mr. L. C. McNabb, for Appellant.
Messrs. Cox & Moore, for Appellee.
[41 Ariz. 539] ROSS, C. J.
The administratrix, Mayfield, brought this action for damages to the estate of Lena Pearl Gunn, alleging that the latter came to her death through the negligence of the defendant, city of Phoenix; and, from a verdict and judgment in her favor, the city appeals.
The intestate came to her death in an accident at about 9 o'clock in the evening of October 30, 1931, at the junction of Jackson Street and Nineteenth Avenue, when the automobile in which she was riding ran into an open irrigation canal, about 10 feet wide and 4 feet deep, owned and maintained by the Salt River Valley Water Users' Association. The canal parallels Nineteenth Avenue, north and south, and is just inside the eastern limits of that avenue. Its banks rise above the natural grade of the surrounding ground from 1.6 feet on the west to 4.7 feet on the east side thereof.
Nineteenth Avenue is one of the principal thoroughfares of the city. It is about 94 feet wide at this point, with an 18-foot pavement near its center.
[41 Ariz. 540] Jackson Street, as platted, runs through the city east and west, and crosses Nineteenth Avenue at right angles. Coming from the west, it is open and improved for traffic up to the canal on the east side of Nineteenth Avenue. From this point for a distance of 200 feet easterly Jackson Street has not been opened or improved by the city. This space is covered with cinders and slag from a near-by foundry, and is crossed near its east end by the Santa Fe Railroad tracks. Jackson Street from the east end of these 200 feet is open and improved. It was electrically lighted on the night of the accident and being used for traffic both east and west of the unimproved part.
The car in which deceased was riding with four other persons was a 1930 Ford roadster. The deceased and a companion were in the rumble seat. Three persons occupied the front seat, one being Howard Conoway, the driver, a young man 24 years of age. They started from Twenty-First Avenue on Jackson Street, going east, and while traveling, as plaintiff's witnesses say about 20 miles an hour and defendant's witnesses say 40 or more miles an hour, ran into the open canal, and as a result the deceased received injuries from which she later died.
The negligence charged is in leaving the irrigation canal "without any guards or rails or barriers or notice or warning of any kind or character to notify the public of the existence of said precipitous embankment or canal on said street," and in permitting "said street and said irrigating canal to remain in such unsafe condition that one traveling eastward on said Jackson Street and approaching 19th Avenue could look and see and the driver of the car in which plaintiff's intestate was riding, while exercising due care for his own safety and the safety of the passengers in
said automobile, did look eastward and see other automobiles and vehicles approaching from the [41 Ariz. 541] east on said Jackson Street, and it being dark and the light shining on the ground immediately east of said 19th Avenue and Jackson Street made said ground have the appearance of an open street, and by reason thereof the driver of said automobile proceeded on eastward without stopping and said automobile ran into said unprotected irrigation ditch, as aforesaid, causing the injury and death of plaintiff's intestate as above set out."
The defenses consist of a general demurrer, denials and contributory negligence, in that the condition of the street was in plain, obvious, and full view, and was known by the deceased, and notwithstanding she permitted Conoway to drive into the unopened portion thereof at an excessive and dangerous rate of speed and over and against the embankment of ...