with whom BELSON, Associate Judge, joins, dissenting: *
The basis for my dissent appears in the division majority opinion which was vacated before publication. I attach it as an appendix.1
The majority properly bases its holding on the premise that the District is not an insurer of the safety of those who utilize its streets and sidewalks, Washington Gas Light Co. v. Jones, D.C.App., 332 A.2d 358, 361 (1975) (Harris, J., dissenting), and is not responsible for minor imperfections in its streets and sidewalks. Proctor v. District of Columbia, D.C.App., 273 A.2d 656, 659 (1971); District of Columbia v. Williams, D.C.Mun.App., 46 A.2d 111, 112 (1946). The majority also correctly states that whether a particular area has been maintained in a reasonably safe condition is generally one for the jury, and only where no reasonable person could reach a verdict in favor of the plaintiff on the evidence presented, should a directed verdict be granted. Proctor, supra at 659. It is only in such cases that a judgment non obstante veredicto is proper.
It was on exactly such a legal foundation that the division earlier reversed and directed the trial court to enter judgment for the District. The majority of the division held that the evidence disclosed a defect so slight that in the company of all the evidence, as a matter of law, negligence could not be found. It is apparent then that the majority simply desires a different result on the agreed and accepted law. Thus, the majority opinion institutes no major policy shift in the law of negligence from that stated by the division, but rather retains the law and reemphasizes its principles.
Given the court’s unanimous determination that Proctor is not to be repudiated, I share Judge Kern’s dismay over how we consume this court’s resources and energy simply to change a result through a “multifaceted” view of the facts (ante at 656). We seem, in practice, to have violated our en banc rule (Rule 40(c))2 in providing for *659such rehearing when a majority simply wants a different result from that reached by a division through application of the same law.
Since the en banc majority chose to reemphasize rather than repudiate the Proctor rule, I observe that where (unlike here) a genuine issue of material fact exists in a sidewalk injury case of this general type, the jury should be required, under an appropriate instruction, to decide whether the imperfection is so minor as to relieve the District of Columbia of liability. Such an instruction was not in order in the instant case since it was clear as a matter of law that the claimed imperfection was too minor to give rise to liability.
The holding in this case is very narrow. It is limited to a showing of “an area of known irregularity in a walkway, . .. where there was no alternate route of travel, where remedial action was under way, without any notice or warning to that effect. ...” (Ante at 656). Why such a case is appropriate grist for our en banc mill escapes me.
APPENDIX TO DISSENT
NEBEKER, Associate Judge:
This matter arose out of a personal injury action instituted by appellee against the District of Columbia following her fall on a pathway at the Lorton Reformatory. At trial before a jury, appellee posited that her fall and subsequent injuries were proximately caused by the District’s negligent failure to maintain the walkway in a reasonably safe condition. Following denial of the District’s motion for a directed verdict at the close of appellee’s case, and then again at the close of all the evidence, the case was submitted to the jury. A verdict of $30,000 in favor of appellee was returned. Appellant’s ensuing motion for judgment non obstante veredicto having been denied, this appeal was taken.
We are asked to reverse the judgment of the trial court on one of two grounds. First, appellant asserts that appellee failed to adduce substantial evidence demonstrating that her injuries were proximately caused by any negligent act or failure to act on the part of the District. Secondly, appellant asserts that assuming appellee’s evidence was sufficient to establish the existence of a dangerous condition on the Lorton walkway, appellee failed to establish that the District had actual or constructive knowledge of the defect sufficiently in advance of appellee’s fall to give the District a reasonable time within which to take corrective action.1 Finding that no reasonable juror could conclude from the evidence adduced at trial that the District was negligent, we reverse.
The facts are undisputed. At approximately 7:00 p. m. on March 9, 1977, Mary Cooper and a companion, Frances Fuller, arrived at the Lorton Reformatory for the purpose of visiting an inmate. After being admitted to the facility, the two women emerged from the visitors’ trailer onto a brick walkway which leads to the visitors’ lounge. Cooper testified that she took approximately two steps and then “left level ground and went to unlevel ground.” She testified that she fell on a portion of the walkway where the bricks had been replaced by an aggregate compound of packed dirt, sand, and gravel. Cooper landed on her hands and knees, and testified that her forehead hit the ground. Other testimony indicated that the aggregate compound was either level with or one-eighth inch lower than the abutting bricks.
The crucial question in this case is whether there was sufficient evidence of the District’s negligence to create a jury issue; stated otherwise, whether no reasonable juror could conclude from the evidence that the District was negligent.
The District is not an insurer of the safety of those on the streets and sidewalks, *660though it is required to maintain the same in reasonably safe condition. Proctor v. District of Columbia, D.C.App., 273 A.2d 656, 659 (1971); District of Columbia v. Williams, D.C.Mun.App., 46 A.2d 111, 112 (1946).
The question whether a particular area has been maintained in a reasonably safe condition is generally one for the jury. Only in exceptional instances, where no reasonable person could reach a verdict in favor of the plaintiff on the evidence presented, should a directed verdict be granted, Proctor, supra at 659, and only in such cases is a judgment non obstante veredicto proper.
Jurors are the triers of fact, and where there is any evidence upon which a jury can properly proceed to reach a verdict for the plaintiff, the question must be left to the jury. Id. at 659; Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 103, 143 F.2d 142, 143 (1944).
This does not imply that all cases must go to the jury, of course. The trial judge, while avoiding broad rules of thumb, must examine the specific evidence in each case and determine whether the jury could reasonably find negligence. [Klein v. District of Columbia, 133 U.S.App.D.C. 129, 132, 409 F.2d 164, 167 (1969).] Bearing this essential framework in
mind, a judgment notwithstanding the verdict will be warranted where no reasonable juror could conclude from the facts presented that the defendant was negligent. A “mere scintilla of evidence” will not be sufficient to permit a verdict to stand. American Marietta Co. v. Griffin, D.C.App., 203 A.2d 710, 711 (1964). As explained in Shewmaker, supra:
The rule applicable in the District of Columbia on a motion for a directed verdict [and on a motion for a judgment notwithstanding the verdict], in an action founded upon negligence, is that the evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted; a mere scintilla of evidence is not sufficient; the question is not whether there is any evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party upon whom the onus of proof is imposed; the burden being upon the plaintiff to establish the negligence and injury alleged, if the evidence fails adequately to support either element the motion should be granted. [Id. at 103, 143 F.2d at 143 (footnote omitted).]
Adopting this approach, supported time and again by decisions of this court, we avoid broad rules of thumb and instead look to the specific evidence of negligence on the record.
Because the determination of reasonable care depends on many factual circumstances, courts may not establish rules denying the jury its traditional function of determining negligence. Klein, supra at 132, 409 F.2d 167; see, e.g., Turner v. District of Columbia, D.C.Mun.App., 144 A.2d 699 (1958); Williams, supra. “The key must remain ‘negligence.’ Without it there cannot be liability.” Washington Gas Light Co. v. Jones, D.C.App., 332 A.2d 358, 362 (1975) (Harris, J., dissenting).
We are not persuaded that Proctor stands for the proposition that a one-quarter inch depression, rise, or inconsistency in pedestrian pathways is, as a matter of law, a reasonably safe condition as regards the District’s maintenance responsibilities. In Proctor, the court stated:
We do not believe that we should get into the position of arbitrarily determining that the maintenance of a particular defect such as a hole of a certain depth or a raised brick protruding a certain height above the surrounding bricks constitutes negligence.... [Id. at 658-59.]
Rather, we agree with appellee that Proctor held only that evidence of a brick protruding one-quarter inch, alone, did not demonstrate negligence on the part of the Dis*661trict. Proctor explicitly declined to establish an arbitrary negligence determinant in the height or depth of defects in city sidewalks. Id. We are also not disposed to establish such a determinant, and thus we look to the full panorama of evidence in the case at bar.
Appellee testified that her companion the evening of the accident left the trailer first, three or four steps in front of her. As appellee emerged from the trailer, according to her testimony, she saw that some of the bricks in the walkway had been taken up. She took one or two steps down from the trailer onto the walkway, and then she took two more steps along the part of the walkway where the bricks remained. She testified that she then fell upon the portion of the walkway where the bricks had been replaced with the aggregate material. She testified that the portion of the walkway filled by the gravel was “lower” than the portion of the walkway where the bricks remained. Appellee estimated that the gravel portion of the walkway was “[a]bout an eighth of an inch” lower than the bricks, though she was not sure of the exact difference in elevation.
Appellee’s companion testified that she almost tripped over the same area. She turned, however, to warn appellee, only to see her fall, “[h]er head hitting the cement.” The companion testified that no signs were posted, nor was she given any warning by any Lorton employee.
A bricklayer testified on behalf of the District that he had performed repair work on the walkway a few days before and had inspected it that very afternoon. He testified that he checked the compound’s level daily, and if the area needed additional sand, he added it “and tamped it down and kept it with the level of the bricks.”
A correctional supervisor, James A. Meyer, testified that he observed appellee trip and fall on the walkway. He agreed that she put out her hands as she fell, hitting the ground on both her hands and knees; but he indicated that appellee did not strike her head. According to his testimony, the gravel area of the walkway where appellee fell was level with the brick.
Sergeant Harold S. Nelson also testified on behalf of the District. On the day in question, he was assigned to the visiting checkpoint. His responsibilities included inspection of the area for “safety and health violations.” At the beginning of his shift, he had noticed the area filled with the gravel compound. He testified that it was “up to the surface of the remaining bricks and the borders and it was packed.” Further, he testified that the walkway was in this same condition almost two hours after appellee’s fall.
Accepting appellee’s contention that the “depressed” area was an eighth of an inch below the abutting bricks, we do not see how a reasonable juror could conclude that the condition of the walkway constituted negligence on the part of the District. Ap-pellee, nevertheless, argues that the condition of the repair area in toto constitutes negligence. She points to the size of the repair area (4' by 6'), the change in lighting, and the variety in walkway surface to support her claim.
But this is a case involving such a slight variation in depth or height that it must be said that reasonable persons would not differ. See Proctor, supra at 659. The change in lighting and walking surface which ap-pellee alleges as significant are due to her emerging from the light of a trailer and a flat floor to the artificial light thrown by the electric lamp upon the brick pathway. These conditions are hardly attributable to negligent repair of the walkway, nor are they so apparently dangerous as to require warning. In fact, appellee admitted that she saw the repair area in the walkway before descending onto it. The mere happening of an accident does not impose liability or reveal proof of negligence. See District of Columbia v. Davis, D.C.App., 386 A.2d 1195, 1200 (1978), and cases cited there.
In sum, testimony indicated that the District had taken every precaution in its repair of the brick walkway. Further, the bricklayer checked daily for variations and repaired them when they became apparent. *662When viewed in the light most favorable to appellee, the evidence here discloses a defect so slight that in the company of all the evidence, as a matter of law, negligence cannot be found. The case is remanded and the trial judge is directed to enter judgment for appellant.
Reversed.
Associate Judge HARRIS was a member of the original division majority and concurred in this dissent prior to his retirement from the court on February 5, 1982.
. Our specially concurring colleague has belatedly created a new issue — hard or soft surface. Such question has played no part in the case until now.
. D.C.App.R. 40(c) states:
WHEN HEARING OR REHEARING EN BANC WILL BE ORDERED. A majority of the judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court en banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is neces*659sary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.
. There is no merit to the District’s notice argument. By admission, the District had actual knowledge of the defect and took what it perceived as reasonable corrective action.