with whom NEBEKER, Associate Judge, joins, dissenting:
I join in Judge Nebeker’s dissent, and also share Judge Kern’s puzzlement over why this case was reheard en banc. It seems to me that the proper course for the court at this time is not to issue its ruling en banc, but rather to issue an order stating that rehearing en banc was granted improvidently. This is so not only because such reconsideration cannot be justified under the provisions of our Rule 40(c), but also because the decision of the majority of the original division was demonstrably correct.
I will not belabor the points made in Judge Nebeker’s dissent or in the original division’s majority opinion appended thereto. However, a few additional points might assist in demonstrating that the majority opinion fails to explicate any basis for upholding the jury verdict in favor of appel-lee. As will be shown, there was not sufficient evidence of negligence to warrant placing the case before the jury.
We deal here with a temporary sidewalk, in area approximately four feet wide and six feet long, which was replacing the usual brick surface in that area until warmer weather would permit resurfacing with brick. The temporary portion of the sidewalk was, according to plaintiff/appellee, made of a compound of dirt, sand and little rocks. Witnesses for the defendant/appellant testified to placing sand in the walkway, but they were not asked to specify whether the sand was coarse or fine. The record contains no evidence to the effect that the material was loose or its surface so coarse as to cause a pedestrian such as plaintiff/appellee to lose her footing. While appellee testified that she “left level ground and went to unlevel ground there was no evidence tending to show that the temporary sidewalk surface was “unlevel” in any respect other than that it was, according to appellee, one-eighth of an inch lower than the surface of the brick sidewalk of which it was a part. There was no evidence that its use by other visitors on the day of appellee’s fall had rendered the surface unsafe. The fact that appellant took the precaution of having the temporary portion of the sidewalk inspected once every day, and would retamp the surface whenever it was necessary, does not at all show that the temporary portion of the sidewalk was uneven or unsafe at the time of appellee’s fall. Indeed, the sidewalk had been inspected earlier the same day, according to one of appellant’s witnesses, and found in good order. No evidence produced by appellee suggested to the contrary.
What then is the evidentiary basis upon which the en banc majority would permit the verdict for appellee to stand? Preparatory to identifying that basis, the majority opinion distinguishes Proctor v. District of Columbia, D.C.App., 273 A.2d 656, 659 (1971), where it was held that evidence of negligence was insufficient to go to a jury when it established only that one brick protruded a quarter of an inch above the surface of a brick sidewalk. The en banc majority then states:
[I]n the instant case, the evidence of negligence is not a mere minor differential in the elevation of bricks in a brick sidewalk, but an area of known irregularity in a walkway, where the jury reasonably could infer that the temporary walkway area was predominantly sand, 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.]
In analyzing the majority’s reasoning, it is important to remember that the area of “known irregularity” in the instant case was itself a temporary sidewalk, made, according to plaintiff, of a combination of sand, little rocks and dirt, which had not itself been shown to be at all unsafe or *663defective for walking. The “remedial action” which was underway, was not a short-term attempt to repair any defect in the temporary sidewalk, but rather was the longer-term effort to replace the temporary sidewalk with a permanent brick si,dewalk when warmer weather came. There was no showing of anything defective or unsafe about the temporary sidewalk which needed to be remedied. Thus, there was no showing of a need for a notice or warning.
The majority goes on to state “Given the fact that repair work was under way, which required visitors to walk from the brick walkway to a sand path, with minor elevation change, a reasonable person could find that these conditions, in toto, were sufficient to warrant some warning to the visitors.” Ante at 656. Passing by the fact that the temporary portion of the sidewalk cannot fairly be referred to as a “sand path,” we must once more ask what appel-lee had shown that warranted a warning. Was it that a brick sidewalk led onto a composition sand, rock and dirt sidewalk? Certainly that cannot be the ease, since it is a common practice on public space in the Washington Metropolitan area to have brick or other hard surface walkways adjoin walks made of compounds including rock or dirt.1 No signs mark such places, and none are needed.
The only other evidentiary basis that the majority opinion refers to in support of its conclusion that a verdict for appellee was justified by the evidence comes near the end of its opinion where it notes that although District employees testified that the temporary sidewalk was “even with the brick walkway before, during, and after visiting hours on the day appellee fell,” ante at 656, there was other testimony that indicated that “approximately 200 people had stepped across the sand-filled area, thereby creating some indication that a depression had formed.” Ante at 656 (emphasis supplied). No testimony by any witness who saw the temporary sidewalk at or about the time of appellee’s fall supports the suggestion that “a depression had formed.” This supposition is at odds even with appellee’s modest assertion of a one-eighth inch variation.
Thus it is clear that the majority opinion fails to identify record evidence upon which a reasonable person could conclude that the District had failed to maintain the walkway in a reasonably safe condition and that its failure to do so proximately caused appel-lee’s injuries. The circumstances brought out at trial, considered in the light most favorable to the appellee, fail to show that there was any condition in existence at the time of appellee’s fall about which appellant was obliged to warn pedestrians. Thus, there was no negligence in failing to warn. Unfortunately, the fact is that persons often fall in the absence of negligence on anyone’s part. So far as the evidence of record shows, that is what happened here.
I respectfully dissent.
. The answer is the same if the jury concluded that, contrary to plaintiffs/appellee’s testimony, the temporary sidewalk was made entirely of sand, for there was no evidence as to whether any sand used was fine or coarse or whether it was loose or cohesive in consistency.