I. E. DOTY and MARY DOTY, his wife, Appellants,
THE SOUTHERN PACIFIC COMPANY, a Corporation, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Dudley W. Windes, Judge. Judgment affirmed.
Messrs. Dykes & Selden, for Appellants.
Messrs. Baker & Whitney, and Mr. Harold E. Whitney, for Appellee.
[59 Ariz. 450] LOCKWOOD, C.J.
I. E. Doty and Mary Doty, his wife, plaintiffs, brought suit against Southern Pacific Company, a corporation, defendant, for damages alleged to have been sustained by the negligence of the latter. After plaintiffs had filed their first amended complaint, defendant moved to dismiss on the ground that it did not state a cause of action, and the motion was granted, whereupon this appeal was taken.
[59 Ariz. 451] The sole question before us is whether the amended complaint states facts showing that plaintiff Mary Doty's injuries were caused by the negligence of defendant. Its allegations, after setting up the capacity of the parties and that defendant operated a railroad system crossing State Highway No. 86, continued, so far as material, as follows:
"IV. That at the said crossing, the defendant,... maintained four railroad tracks including its main line running approximately in an easterly and westerly direction, as the said Highway No. 86 crosses all four of said railroad tracks in approximately a northerly and southerly direction.
"V. That,... a Y or spur track, which runs in in a generally northeasterly direction,... is and was maintained by the defendant at said crossing.
"That to the north and west of said Y or spur track, the said Highway No. 86 is in a long, sweeping curve so that the lights of an automobile approaching said crossing at night are thrown off of the road and to the left side thereof. That there are, and were on November 18th, 1940, no warning signs upon the left side of said highway and to the north of said main crossing or of said spur....
"That immediately after crossing the aforesaid spur track, the aforesaid highway,... does, drop down a steep incline to within a short distance of the aforesaid main crossing over defendant's railroad tracks.
"That at a distance of about forty-six (46) feet from the northermost of said railroad tracks, at said main crossing, there was, at the time of the accident herein complained of, a low place or gully where the road was worn and rough. To the south of this gully, thereto, there was at said time, and had been for a long time prior thereto, to the knowledge of the defendant, a leveling off from the steep descent of the road from the aforesaid spur track, and a rise in said highway to the said crossing, so that the lights of an automobile, after crossing said spur track, would be thrown downwards as far as the bottom of said steep incline and then absorbed in the roadway beyond.
[59 Ariz. 452] "That the crossing sign maintained bythe defendant to the north of said Y or spur track was entirely on the right or west side of the highway,....
"That the crossing sign to warn travelers of the main tracks was also on the west of said Highway No. 86,.... That said Highway No. 86, is and was at all times material hereto, a much used road for both ...