Beltran v. Stroud, Civil 4712

• Decision Date: 14 July 1945
• Docket Number: Civil 4712
• Citation: 160 P.2d 765,63 Ariz. 249
• Parties: MARY M. BELTRAN, Appellant, v. MILTON L. STROUD and L. L. STROUD, Appellees
• Court: Arizona Supreme Court

160 P.2d 765

63 Ariz. 249

MARY M. BELTRAN, Appellant, v. MILTON L. STROUD and L. L. STROUD, Appellees

Civil No. 4712

Supreme Court of Arizona

July 14, 1945

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.

OPINION

Morgan, J.

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 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 highway, . . . ."

Motions to strike the entire complaint and for a more definite statement were denied. Defendants answered, and took and filed plaintiff's deposition. They then moved for judgment on the pleadings and for summary judgment, upon which latter motion summary judgment was granted in favor of the defendants Milton L. and L. L. Stroud. From this judgment, plaintiff appealed. Defendant DeWeese is not a party to this appeal.

Plaintiff assigns error in the granting of the motion to strike the portions of the complaint heretofore quoted, and in the granting of defendants' motion for summary judgment. Propositions of law in support of the assignments are to the following effect:

(1) The rights of the public to the use of streets and highways are paramount; the right of an abutting owner to non-public use of the highway is not to be determined by the necessities of his business but by the public convenience and he must exercise his rights with due regard to the safety of the highway users, and not interfere unreasonably with such use; building material may be piled on the highway only in a reasonable manner for a reasonable time, under proper precautions, and it is a question for the jury to determine whether the placing and maintenance was unreasonable.

(2) The question of whether the piling of obstructions on the highway concurred with the negligent operation of the driver in causing the death of the decedent, as alleged, was for the jury. The negligent piling of obstructing material, the removal of the sidewalk and the negligent driving of the automobile were the concurring, proximate causes of the death of plaintiff's husband, for which all defendants are liable.

It is obvious that plaintiff's cause of action is based upon the fundamental facts that due to the unreasonable action of the defendants in obstructing the highway, deceased, a member of the public having the paramount right to its use, was required to walk in a place of danger; that if deceased had not been compelled by the wrongful action of the defendants to put himself in danger, he would not have been injured by the negligently operated automobile of the defendant DeWeese. In other words, that the accident would not have occurred had it not been for the concurring causes of the negligently operated automobile and the unreasonable obstruction to the highway by defendants Stroud.

It is the settled law that the right of the public to use of streets for the purpose of travel and transportation is paramount to that of an individual to occupy them for other purposes. Garibaldi & Cuneo v. O'Connor, 210 Ill. 284, 71 N.E. 379, 66 L. R. A. 73; Pugh v. City of Des Moines, 176 Iowa 593, 156 N.W. 892, L. R. A. 1917F, 345; Etchison v. Frederick City, 123 Md. 283, 91 A. 161, L. R. A. 1916C, 561. It also seems to be the law that the right of an abutting owner to the use of the street or highway is not to be determined by the necessities of his business, but by public convenience. Brauer v. Baltimore Refrigerating, etc., Co., 99 Md. 367, 58 A. 21, 66 L. R. A. 403, 105 Am. St. Rep. 304. While the abutting owner has the right to deposit, temporarily, building material in the street in front of his premises, and thus incommode the public, he must see to it that such right is exercised with due regard to the safety of the public, and in such a manner as not to interfere unreasonably with the public use of the highway. Brauer v. Baltimore Refrigerating, etc., Co., supra; Callanan v. Gilman, 107 N.Y. 360, 14 N.E. 264, 1 Am. St. Rep. 831; Culbertson v. Alexander, 17 Okl. 370, 87 P. 863, 10 Ann. Cas. 916.

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