Wile

Action for damages incurred by plaintiff in tripping on a large nail projecting from one of a number of planks placed upon the cement sidewalk to admit of the approach of teams temporarily to defendant’s building while the same was in course of construction. The plaintiff had a verdict and judgment in his favor. The appeal is by the defendant from the judgment and from an order denying him a new trial.

The main contention of appellant is that the evidence is insufficient to support the verdict as a matter of law, but we think this contention cannot be upheld. The board which contained the offending nail was part of a driveway to defendant’s property, constructed for a temporary use in connection with said property. From this a presumption arises that it was defendant’s driveway, defendant’s board, and defendant’s nail, all maintained there by defendant and with defendant’s knowledge. The duty was cast, in the first instance at least, upon the trial court to determine whether the testimony of the manager and two or three other agents and employees of the defendant, to the effect that they did not place the boards there and did not know who placed them there, was sufficient to…