Rehearing Denied June 15, 1954.
[77 Ariz. 147] Laurence H. Whitlow, City Atty., Jack D. H. Hays, George T. Fike, Arthur B. Parsons, Jr., Asst. City Attys., Phoenix, for appellant.
V. L. Hash and Virginia Hash, Phoenix, for appellee.
LA PRADE, Justice.
This is an appeal by the City of Phoenix from a judgment for $10,000 secured by the personal representative of the estate of Helen Lopez, deceased, for the claimed unlawful death of his decedent, alleged to have been proximately caused by the negligent manner in which the city maintained its streets. The death had its origin in an automobile accident at the intersection of West Van Buren Street and 19th Avenue in the City of Phoenix at 1:00 a. m. on March 7, 1946. At this time and place the deceased was a guest passenger in an automobile being driven east on West Van Buren and approaching 19th Avenue where the two streets intersected each other at right angles. Approximately 36 feet west of the west boundary line of 19th Avenue [77 Ariz. 148] the Santa Fe Railroad maintained a single track running north and south parallel to 19th Avenue. The roadbed of this track was 4 1/2 feet higher than the street level at the center of the intersection. The incline up to the track began at a point 90 feet
west of the track. The track was 65 feet from the center of the intersection. 19th Avenue north of Van Buren Street was 66 feet wide, the paved portion being 36 feet wide, and the paved portion south of Van Buren Street being 22 feet in width.
The paved portion of West Van Buren for some blocks west of the track was 56 feet in width. At a point 80 feet west of the track the pavement began to narrow, the loss in width coming off the south side of the street until at the track it was approximately 52 feet in width, a loss in width of 4 feet.
The north curb line of Van Buren east of 19th Avenue was 8 feet farther north than the same curb line west of 19th Avenue. This in effect made Van Buren 55 feet wide at the east boundary line of 19th Avenue, relatively the same width it had west of 19th Avenue. From the southeast corner of the intersection Van Buren Street (going east) began to narrow, the loss in width coming off the south side, on a diagonal line. The loss in width was at the rate of 3 feet in 10, until at a point 40 feet east of the east curb line of 19th Avenue the street had narrowed to a width of 43 feet. For all practical purposes Van Buren Street west of 19th Avenue was a 4-lane highway, and a 3-lane highway east of 19th Avenue.
On the south side of Van Buren Street from 19th Avenue going east there was a parkway approximately 20 feet wide in which was included a sidewalk. The area (14 feet) between the curb and sidewalk was either dirt or covered with grass. In this parkway area the telephone company had installed a telephone pole, at the bottom of which were three or four guard posts (each 4 inches X 4 inches) painted white and on each of which were glass reflectors. Attached to the telephone pole was a guy wire.
From the evidence it appears that the automobile in which the deceased was riding was being driven east on Van Buren Street in the south lane thereof; that it crossed the railroad track at a speed of 65 to 70 miles per hour, continued to 19th Avenue, then through the intersection to the southeast corner of the intersection where it leaped the curb, smashed the guard posts and on into the telephone pole which by the impact was broken off at or near the ground. From the pole it continued east 80 to 100 feet in the parkway and on the sidewalk, when the left front wheels dropped off the curb. At this point the car 'fell over and sort of spun half around' and then 'went angling across the street' to the north side where it came to rest on its side, a distance of 250 feet from the intersection. The car burst into flames, burning to death the two occupants, one of [77 Ariz. 149] which was plaintiff's decedent. This automobile entered upon Van Buren Street at 23rd Avenue. At 22nd Avenue it had gained a speed of 55 miles per hour, where it passed a bus, then weaved back and forth gaining speed all the time until it passed over the tracks at a 'terrific speed' or at a speed of '65 to 70 miles per hour'.
Plaintiff claims that the deceased, in travelling east on Van Buren Street in the south lane thereof, had no warning of the fact that the same continuous south lane east of 19th Avenue would not be open to travel and that the comparable area would be used as a parkway containing a telephone pole. He contends that the reduction in width of the highway from a 4-lane to a 3-lane highway created a latent condition of danger, which danger was magnified by the fact that these physical conditions were not discernible until his decedent had crossed over the elevated railroad track with no possibility of retrieving herself and of which conditions there had been no notice. Plaintiff's witness testified that automobile lights at night were deflected upward in the air as one approached the elevated track from the west, and were of no benefit in illuminating the physical conditions east of the tracks.
At the conclusion of appellee's case and at the conclusion of all of the evidence defendant moved for a directed verdict which was denied. Judgment was entered on the verdict and thereafter motion for a new trial was denied. From the order denying the motion for a new trial and the judgment defendant perfects this appeal.
The negligence alleged was:
(1) 'Negligently and carelessly maintaining and permitting to exist a high embankment over which the track of the Santa Fe travelled';
(2) Constructing Van Buren Street in such a manner as to reduce its travel width from a 4-lane ...