C. R. BREEDON, Appellant,
L. M. WHITE, Doing Business as L. M. WHITE CONTRACTING COMPANY, Appellee
APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge.
Judgment reversed and case remanded with directions.
Mr. Fred V. Moore, for Appellant.
Mr. Theodore G. McKesson, and Mr. Thomas P. Riordan, for Appellee.
Morgan, J. Stanford, C. J., and LaPrade, J., concur.
[62 Ariz. 257] This is an appeal from an order of the superior court sustaining a motion to dismiss plaintiff's amended complaint. Plaintiff having stood on his complaint and refusing to amend, judgment was entered dismissing his action.
The sole question for determination here is, did the amended complaint state a claim upon which relief could be granted? The facts as set forth in the complaint are:
For some months prior to and on April 17, 1943, the defendant, a contractor, was engaged in the building or reconstruction of 7 1/2 miles of U. S. Highway No. 60 -- 70, in Maricopa County, south of Wittman. Under its contract with the highway department, defendant constructed an oiled surface detour paralleling the highway project for the use of the public. On the 17th of April defendant opened the new or reconstructed highway for travel, but failed to place a barricade across the detour, or any sign or notice indicating that [62 Ariz. 258] it was closed. On the 17th of April, and for sometime prior thereto, this way was being used by the public. Plaintiff about 11 o'clock that night was traveling south along the highway and followed the detour. After traveling over it for approximately 4 miles he drove his car into a pile of black-top material the defendant had placed across the entire width of the detour. No notice or warning of the obstruction was given by flares or otherwise. Plaintiff sustained personal injuries and his car was damaged.
Plaintiff alleged that defendant was negligent in two particulars: First, in failing to put up any sign or barricade to give notice that the detour had been closed; and second, in placing an obstruction on or across the detour without any warning thereof, such as lights or signs.
Section 66-401, Arizona Code Annotated 1939, gives the following definition of a highway:
"'Highway' shall mean any way, road or place of whatever nature, open to the use of the public as a matter of right for the purpose of ...