Kane v. City of Indianapolis, Ind.

Decision Date13 October 1897
Docket Number9,462.
Citation82 F. 770
PartiesKANE V. CITY of INDIANAPOLIS, IND., et al.
CourtUnited States Circuit Court, District of Indiana

Holtzman & Leathers and John W. Kern, for plaintiff.

Miller & Elam, for defendants.

BAKER District Judge.

This is an action instituted in the superior court of Marion county Ind., to recover damages for personal injuries alleged to have been sustained by the plaintiff by a fall caused by a dangerous and defective step in the sidewalk on the south side of Washington street, in the city of Indianapolis. The complaint is in a single paragraph, and says that the defendant Stevenson was the owner of a certain described lot or parcel of real estate situate on the south side of Washington street, having a permanent sidewalk along its front; that the defendant Clark entered into a contract with Stevenson for the erection of a 12-story office building on said lot or parcel of land, agreeing to perform all the work and labor and to furnish all the materials in the construction of said building; that, in performing such contract, it was necessary to remove the sidewalk, and to construct a temporary wooden sidewalk immediately in front of said building. It is further alleged that Clark constructed said temporary sidewalk and a step forming a part of the same in an unskillful and negligent manner, and that they were in certain specified particulars unsafe and dangerous, and likely to cause injury to pedestrians having occasion to use them. The complaint then proceeds:

'Plaintiff further alleges that said temporary wooden sidewalk and said step to be used in connection therewith was (were) made and constructed by defendant C. E. Clark, under the direction and supervision of the defendant the city of Indianapolis through its proper officers and agents; and plaintiff further alleges that said defendants William E. Stevenson, C. E Clark, and the city of Indianapolis had full knowledge and notice that the step used in connection with said temporary wooden sidewalk was, by reason of the negligence and unskillfulness in the construction thereof, an insecure unsafe, and dangerous place for pedestrians to use and step upon in passing along said sidewalk from the time said step was constructed and placed by the defendant C. E. Clark, as hereinbefore described, until plaintiff sustained the injuries hereinafter alleged.'

The complaint then proceeds to show that the plaintiff was, by reason of said dangerous and defective step, thrown violently upon the walk, and seriously and permanently injured, without any fault or negligence on his part. The defendant Clark seasonably filed in the state court his petition and bond for the removal of the suit into the circuit court of the United States, alleging in his petition that he was at the time the suit was brought, and still is, a citizen of the state of Massachusetts, and that the defendants Stevenson and the city of Indianapolis were and are citizens of the state of Indiana, and further alleging that the cause of action was as to him, separable from the cause of action against his co-defendants. The state court granted the prayer of the petition, and made an order transferring the suit into this court. The plaintiff, by counsel, now moves the court to remand the suit to the state court, on the ground that the cause of action disclosed in the complaint is joint, and not separable. Counsel for the defendant Clark insist that the complaint discloses no cause of action against the defendant Stevenson, and that the cause of action, as against Clark and the city of Indianapolis, is not joint, but several. The contention of the counsel for the defendant is that the complaint shows that the defendant Stevenson had let the contract for the erection of the building to Clark as an independent contractor, and that he reserved no right of control over the work of erecting the building, and was in no wise responsible for the manner in which the work...

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