Goede v. City of Colorado Springs

• Decision Date: 21 September 1912
• Docket Number: 5,975.
• Citation: 200 F. 99
• Parties: GOEDE v. CITY OF COLORADO SPRINGS et al.
• Court: U.S. District Court — District of Colorado

200 F. 99

GOEDE v. CITY OF COLORADO SPRINGS et al.

No. 5,975.

United States District Court, D. Colorado.

September 21, 1912

Orr Robinett & Mason, of Colorado Springs, Colo., for plaintiff.

Chinn &amp Strickler, of Colorado Springs, Colo., for defendant Realty Company.

POPE District Judge.

This cause is before the court upon a motion to remand. The cause was removed into this court by the defendant the International Realty Company, a Wyoming corporation, claiming that the controversy between it and the plaintiff is a separable one, and that therefore, notwithstanding the fact that the plaintiff and the defendant, the city of Colorado Springs, are each citizens of Colorado, the cause is removable. The motion to remand raises the question of whether there is a separable controversy between the plaintiff and the Realty Company. This, of course, must be determined solely by the face of the complaint.

The allegations of the complaint show a cause of action as follows: That the defendant Realty Company is the owner of a certain two-story frame building located in the city of Colorado Springs, constructed flush with the public sidewalk along Kiowa street; that the eaves of that building project over said walk to an extent such that, when water drips off the roof of said building, it falls upon said sidewalk near the center thereof and there accumulates and freezes in cold weather; that along the eaves of said building is a tin or zinc gutter, intended for the purpose of catching the drippings from the roof of said building in times of rain or melting snow, and to convey the same to two downspouts located at two of the corners of said building; that said downspouts were fastened to the outside of the building, and were so constructed and maintained by the Realty Company that, when water ran down the same, it would empty upon the walk; that the walk is constructed of flagstones, and is maintained by the defendant Realty Company for the use of pedestrians along said Kiowa street; that said walk was uneven on its surface, sloping downward from the middle and along its center line toward the inside of said walk next to said building, and the blocks of flagstone in said walk were uneven and rough, and so placed together as to form depressions in said walk, into which water from said downspouts and from said eave gutters accumulated along and next to the inner side of said walk the whole length of the building, and in freezing and thawing weather formed an icy coating, slanting each way from the middle of said walk. It is further alleged that for approximately one year prior to March 4, 1912, the gutter maintained by said Realty Company along said building was old, worn, and full of holes, and in such condition as that during from the roof of the building would in winter the water running from the roof of the building would run into the gutter and leak down upon the walk below, and the water that ran down the spouts would empty upon and across the walk, and there accumulate upon the walk, and in cold weather would congeal and form a ridge and coating of ice along the building near the center of the walk. The complaint further avers that on March 4, 1912, the said sidewalk was covered near and along the center thereof with a ridged, rough, and uneven coating of ice, formed by reason of melting snow running from the roof of said building and leaking through said guttering along the eaves, and also from water conveyed down said spouts upon and along said walk, thereby making the walk unsafe for pedestrians; that on the night of March 3d a light snow had fallen, which covered said ice formation on said walk in such a way as to obscure it from view; that plaintiff, while walking along the north side of said building, about 7 o'clock in the morning of March 4 1912, and in the exercise of ordinary care for his own safety, suddenly slipped upon said icy formation, and fell violently upon the walk, sustaining severe injuries. The complaint alleges that all the conditions above described, including that of the guttering and downspouts, and the fact of their leaking and emptying upon said walk, and there accumulating and becoming frozen, with an uneven and rough surface, were well known to both of the above-named defendants, or by the exercise of ordinary care would have been known to them, and each of them, at and for two months or more prior to plaintiff's injury. It is charged that the defendant the city of Colorado Springs had supervision of and control over the manner in which said sidewalk was maintained, and at all times above mentioned had knowledge of the condition of said walk, and the fact that during freezing weather the same would become coated over and ridged up in the middle of the walk with ice caused from water leaking from the guttering and emptying from said downspouts upon said walk. The complaint charges that the injuries received by the plaintiff were the result of the carelessness and negligent manner in which the defendant Realty Company maintained its premises and sidewalk as hereinbefore alleged, and by reason of the careless and negligent manner in which the defendant city permitted the sidewalk to be maintained.

The controlling question is whether the controversy as between the plaintiff and the Realty Company was separable from that between the plaintiff and the defendant city. The decisions of Colorado are to the effect that a suit such as the one above outlined may be maintained either jointly or severally against the city and the abutting property owner. In Elliott v. Field, 21 Colo. 378, 41 P. 504, it is said:

'This may be one of those cases where both the owner of the abutting lot and the city are under a common obligation to keep safe the sidewalk in front of such lot. If so, and if the plaintiff is injured by their failure in this respect, which failure would be a common neglect of a common duty, the plaintiff would have his election to sue the defendants jointly or severally. It is sufficient to say, however, that in effect this complaint in general terms alleges that it was the duty of both the defendants to keep safe this place where the accident happened, which, it is alleged, they did not do, and their failure was the cause of the injury. The gist of the grievance was the common negligence of both defendants in not properly guarding the excavation. This being so, and the complaint also setting forth a state of facts which shows that the city ought to have known of the defect in this street, and repaired the same, prior to the accident, the complaint is sufficient to support the verdict against both the defendants.'

This case quotes and adopts as a correct statement of the law City of Peoria v. Simpson, 110 Ill. 294, 51 Am.Rep. 683. In this latter case, in discussing whether a suit such as this may be maintained jointly against the city and the property owner, the court says:

'Undoubtedly the rule is, for separate acts of trespass separately done, or for positive acts negligently done, although a single injury is inflicted, the parties cannot be jointly held liable to the party injured. If there is no concert of action-- no common intent-- there is no joint liability. This rule is very well settled by authority. (Citing authorities.) But

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