ON REARGUMENT Because some of the judges were of the opinion that the decision holding the defendant bound with notice of the defect should be given further consideration, a reargument was granted. Dickenson, J., could not be present and Cornell, J., a judge of the Superior Court, was designated to take his place. The majority of the court adhere to the decision previously made. Their conclusions, briefly summarized, are these: There was evidence that the sidewalk had been inspected two weeks before the accident by an employee of the defendant charged with the duty of doing that work. If the sidewalk was in substantially *Page 478 the same condition at that time as on the day of the accident, the city was chargeable with notice of the defect. The accident was on June 19, well beyond the period when the frost heaves referred to in Burlant v. Hartford, 111 Conn. 36, 37, 149 A. 132, might have occurred, and there was no evidence of any storm during the two weeks before that day. The only suggestion made by the trial court of any cause which might have resulted in raising the flagstone in question above the level of the stone next adjoining was that a heavy truck might have crossed the curb and run upon the walk; at the argument before us counsel for the defendant were asked if they could suggest any other cause, and they could not. The significance of the photograph was that it showed no disruption of the grass growing between the two flagstones such as would have resulted from a recent change of elevation, and no disturbance of a strip of turf between the sidewalk and the curb which was testified to be about three feet wide. A disturbance must almost certainly have resulted if a heavy truck had run over it. The jury is entitled to found their verdict upon evidence which affords a basis for a reasonable belief in the probability of the existence of the material facts. White v. Herbst, 128 Conn. 659, 661, 25 A.2d 68. In this case we cannot hold that the jury could not reasonably infer that there had been no substantial change in the condition of the walk during the two weeks between the time it was inspected by the employee of the defendant and the day of the accident.
In this opinion BROWN and ELLS, Js., concurred.