Although the pleadings were oral, the action was stated to be one to recover damages “for personal injuries resulting from a nuisance established or maintained by defendants,” and was strictly tried upon the theory of a nuisance, and not for negligence. The proof introduced by the plaintiff shows that the defendants had obtained a contract from the city for the purposé of laying a sidewalk around the Tombs building, then in course of construction; that during the progress of the work of laying the sidewalk a number of flagstones were piled up near the curb, leaving considerable space between the pile and the building or house line; and that plaintiff’s injuries were caused by his stumbling over the pile of stones.
It is well settled that a temporary obstruction of the street or highway, when it appears that the act was done with the consent
Judgment affirmed, with costs.