Kern v. Thompson Starrett Co.

The defendant does not ask for a new trial, and in my opinion it is quite clear that the motion for judgment cannot be granted. Two witnesses testified directly that a hole in the wooden sidewalk existed, and although the defendant offered a good deal of testimony to the contrary the question was necessarily for the jury.

The only question that is seriously raised by the motion relates to the lack of evidence from which the defendant’s knowledge of the defect might be inferred; but as no such question was raised at the trial, either in the examination of the witnesses, or in the argument of counsel, or in requests to the court for instruction, it is obviously too late to raise it now. It may be said, however, that even if the question were properly before the court the plaintiff’s evidence tended to show that the hole in the sidewalk was a defect of original construction, and if • this be so it is clear that the rules relating to actual or constructive notice have no application.

The motion for judgment notwithstanding the verdict is refused,.