tbe part of defense the evidence tended to show that tbe stringers upon which tbe planks rested were embedded in tbe ground; that tbe planks rested upon tbe earth, and that tbe grass and sod bad grown over tbe end, so that tbe elevation from tbe earth of the walk to tbe top of tbe plank was but a part of an inch. This question was carefully tried and properly submitted to tbe jury. The removing of a sidewalk is not wrongful under all circumstances. It appears that tbe defendant caused a new walk to be constructed in tbe place of tbe old one. Tbe old walk of necessity bad to be removed in order to give place to tbe new. In tbe construction of buildings in crowded cities it often becomes necessary to temporarily remove a sidewalk in order to excavate cellars and carry in tbe material used in tbe construction of tbe buildings. Such temporary removal does not constitute a nuisance, but tbe person doing it is bound to properly guard and furnish reasonably safe passage for tbe public; and if such provision is made be is not chargeable with a wrongful act or with creating a nuisance, and unless tbe act was wrongful, or a nuisance was created, tbe question of negligence was involved in the case.
Tbe judgment and order should be affirmed.
Smith, P. J., and Bradley, J., concurred. Judgment and order affirmed.