MARY M. BELTRAN, Appellant,
MILTON L. STROUD and L. L. STROUD, Appellees
APPEAL from a judgment of the Superior Court of the County of Coconino. H. K. Mangum, Judge.
Judgment reversed and case remanded with directions.
Mr. Blaine B. Shimmel, for Appellant.
Messrs. McQuatters & Stevenson, for Appellees.
Morgan, J. Stanford, C. J., and LaPrade, J., concur.
[63 Ariz. 250] This is an action by plaintiff, as the surviving wife of her husband, for damages on account of his alleged wrongful death, under the provisions of Sec. 31-101, 102, Arizona Code Annotated 1939. In her amended complaint, she alleged, in substance, the following: Defendant Milton L. Stroud, the possessor of a tract of land approximately 200 feet in width, fronting on the Oak Creek highway, in the city of Flagstaff, employed defendant L. L. Stroud to construct certain buildings on the tract. A sidewalk, which for many years had been located near the front property line and had been regularly used by residents of the city, including plaintiff and her husband, was removed. The Strouds had knowledge of such use, and it was their duty to provide, in lieu of the sidewalk, a safe passageway along the highway. They failed to do this, and piled dirt, rock and building material on front of the property to within a few feet of the paved portion of the highway, requiring pedestrians "to turn onto and walk on or near the paved portion thereof."
On December 3, 1941, plaintiff and her husband, in walking to the post office and
using the sidewalk on the side of the road on which the Stroud property was located, by reason of the obstruction at a point approximately at the property of the defendant Milton L. Stroud, "were compelled to and did walk along and upon a narrow shoulder near the edge of the paved portion of said highway." At such point, defendant DeWeese, who was driving an automobile [63 Ariz. 251] on the highway, negligently and without warning turned his automobile off the pavement onto the shoulder of the highway, and ran over plaintiff's husband causing injuries which resulted in his death. The injury was proximately caused by the negligence of the defendants Stroud in the obstruction of said highway which caused the plaintiff and her husband to walk dangerously close to the highway, and the negligence of DeWeese in operating his automobile.
On motion of defendants Stroud, the trial court struck from the amended complaint the following allegations:
". . . but on the contrary, proceeded to pile dirt, rock and building materials upon said highway in front of their said property so as to obstruct and make impassable to pedestrians all that portion of said highway from the line of their said property to within a few feet of the paved portion of said highway and pedestrians were required, in passing along said highway, to turn onto and walk on or near the paved portion thereof."
". . . by reason of the obstruction of said highway, as above alleged, . . . ."
". . . in that defendants Milton L. Stroud and L. L. Stroud, by the obstruction of said ...