Alves

Plaintiff appeals from a judgment of non-suit, claiming that as to defendants A. A. Lopez, John and Mary Katsinis and city of San Jose sufficient evidence was introduced to take the ease to the jury.

Lopez is a cement contractor who was engaged by Mr. and Mrs. Katsinis to repair the sidewalk in front of their property in the city of San Jose. On the night of September 29, 1953, plaintiff was walking along the sidewalk from her home adjoining that of the Katsinises when she observed a barrier across the sidewalk which Lopez had repaired. It was dark and there is evidence that there were no warning lights of any kind in the vicinity. Plaintiff went into the street to walk around the barrier. Her foot struck something hard and she fell and injured herself. She could not tell what her foot struck but as she was attempting to get up she felt debris under her hands. She could not determine the nature or extent of this debris.

It is appellant’s theory that sufficient evidence was produced before the jury to support a finding that this debris was broken cement from the old sidewalk which had been removed by Lopez and negligently left in the street.

Only two witnesses gave any evidence…