[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 136
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 137 For the purposes of this appeal, at least, it must be deemed to be true that the plaintiff fell owing to a protruding nail in the stairs, and the injuries occasioned thereby this defendant should respond for, providing the plaintiff proved that the protruding nail was due to the fault of the defendant, otherwise not. Such fault would have been shown had the plaintiff proved that prior to the accident the defendant or his agent had knowledge of the protrusion of the nail, or that it had been in that situation for such a length of time that the defendant should have known of it. But it was not proved that any one ever saw this nail prior to the happening of the accident. For aught that appears in the testimony it may have been either partly driven into or pulled out of the step within fifteen minutes prior to the accident. It may have been there longer, but whether it was or not the evidence does not disclose; that it had been there longer there is evidence from which a guess might be hazarded, but it would be a mere guess, and guesses have not as yet been, in terms, held to be a proper substitute for proof. The evidence that furnishes an excuse for a guess that the protruding nail may have been in that situation for more than fifteen minutes prior to the happening of the accident is to be found in the testimony of the plaintiff, in which she says, in effect, that some little time previous to the accident a stair carpet had been removed, and thereafter every Friday she swept and scrubbed the stairs, in the doing of which she noticed a large number of nails sticking up, and she spoke to the defendant's agent about it, who told her to drive them in; and she took a hammer and drove in all the nails she could find. On the Friday preceding the accident the plaintiff saw some nails sticking up, but she drove in every one of them. She testified: Q. "Did you drive in more than one nail? A. Yes, *Page 139 sir. Q. All you could find? A. Yes, sir; when I washed the floors or walls, when there was one out I knocked it in or I would spoil my fingers. Q. As a matter of fact you drove in all the nails that were sticking out that you could see? A. That I could see. Q. What part of the stairs was it you drove the nails in? A. In all parts."
Thus it appears from the plaintiff's own testimony that one week before the happening of the accident she personally drove in all the nails she could find. No one contradicts her, nor asserts the fact to be that this nail was left protruding after she had completed the task that she set herself, for the very satisfactory reason given by her that she drove in all the nails she could find. Some readers of the testimony might surmise that notwithstanding all her great care she overlooked the nail that caused the trouble, but others might guess that some child in play had pulled the nail partly out or driven one partly in, for, according to the testimony of plaintiff's husband, the step was "tight," rendering impossible the conclusion that the nail could have worked out by the springing of the step from the riser as people walked over it. But it would be only a surmise after all, for the evidence does not establish either how the nail came to be in the position in which it was, or how long it had been there.
The plaintiff, therefore, failed to meet the burden resting upon her of establishing that the nail causing the mischief had protruded for such a length of time as to charge the defendant with constructive notice of its presence, and the motion for a dismissal of the complaint, therefore, should have been granted.
The judgment should be reversed, with costs.
All concur, except BARTLETT, J., not voting.
Judgment reversed, new trial granted, costs to abide event. *Page 140