¶1The rationale of the majority opinion is summarized in the sentence reading: "There being no duty to repair, defendant incurred no liability by attempting to repair, unless the attempt resulted in the bringing into being of a different or greater danger which was the proximate and producing cause of the accident." The proof was that a hole existed in the sidewalk which defendant undertook to fill with cinders. When the cinders washed out, an attempt was made to repair with a mixture of cement containing no stone. There was testimony that a proper mix should contain part stone and part cement.
¶2The evidence, when the motion to dismiss was granted, took from the jury two questions which were within its province. Was the defendant negligent and, if so, did such negligence "bring into being a different or greater danger?"
¶3I vote to reverse and remand for a new trial.