The opinion of the Court was delivered by

Action for tort to the person; nonsuit; appeal by the plaintiff.

The particular delict alleged, and that to which the testimony was directed, was the maintenance by the city of. an abandoned water “cut-off” on and nearly midway a pave.ment of one of its principal streets.

The testimony tends to show that the cut-off is two or three inches in diameter; it protrudes two or three inches above the face of the pavement; it has so existed more than 10 years; the obstruction had been reported to the city 'government, and its removal asked for; three other men besides the plaintiff had fallen over it, and one had done so many *492 times; and an old lady fell over it and nearly fell into a near-by ditch.

1, 2 It was for the jury to determine: (1) If-this testimony is true; and (2) if it convicted the defendant of a lack of due care.

The late case of Aughtry v. Columbia, 98 S. E. 195, upon which the Court relied, presented no such facts; and facts make a case.

The nonsuit ought not to have been granted.

The judgment is reversed, and a new trial is ordered.