Burke v. Werlein

MONROE, J. Plaintiff demands damages of defendant, on the ground that he (defendant) owns certain premises on Bienvillestreet, in this city, in front of which he-caused an excavation to lie made, and unnecessarily and illegally left open, and had. covered it with boards, which appeared to be intended, and to be safe, for pedestrians to-walk on, but which broke when so used by him (plaintiff), whereby he was precipitated, into the excavation and injured. By supplemental petition, plaintiff alleges that there-was a building contract between Werlein and James Geary, which necessitated the making of the excavation referred to in the original petition; that Werlein, as owner, reserved to himself “complete control and supervision of the work to be performed thereunder,” and caused said excavation “to be-dug through the agency of said Geary”; that “across said excavation the defendants had placed boards, for the purpose of permitting pedestrians to cross the said sidewalk over-said excavation”; that he met with the accident whilst walking along the sidewalk and exercising due caution; and he prays for judgment against the parties named, in so-lido. Werlein filed exceptions of vagueness- and “no cause of action,” and Geary of misjoinder and no cause of action; and, the exceptions filed by Geary having been maintained, and the suit, as to him, dismissed,plaintiff has appealed. One who causes an excavation to be made-in a sidewalk, and covered with boards, which invite a pedestrian to walk on them, but which break beneath his weight, precipitating him into the excavation and injuring-him, and one who actually does the thingsméntioned, may be held liable, in solido, to-the person injured; and, as they may be sued together originally, there is no reason why they should not be brought together, as-defendants in the same suit, by supplemental petition, seasonably filed. The exceptions of misjoinder and no cause of action were-therefore improperly maintained, and the judgment appealed from is accordingly' avoid [441] ed and reversed, the exceptions overruled, and tlie case remanded to the district court •for further proceedings according to law.