UDALL, Justice.
Plaintiffs-appellees Robert L. Weedon and Frances B. Weedon, husband and wife, obtained a judgment against the city of Phoenix, defendant-appellant, for injuries sustained by Mrs. Weedon in a fall caused by stumbling on a raised section of a public sidewalk within the city limits. The city has appealed from this judgment.
The facts, stated in the light most favorable to sustaining the judgment, are as follows: About 8:45 a.m. on June 8, 1948, Mrs. Weedon, aged 62, was unhurriedly walking from the lot where she customarily parked her car to her place of employment on North Second Avenue in the city of Phoenix. Plaintiff was proceeding in an easterly direction on the north side of Adams Street. When she reached a point directly in front of 324 West Adams (Ray Korte Automobile Agency), she had just passed a second person (later identified as Mrs. Cecilia Ann Doyle) walking in the same direction. She then moved over to her right hand edge of the walk to allow another person coming from the opposite direction to pass on her left. Plaintiff, who is a large woman, upon moving to her right, and while six or eight inches from the outer edge of the walk, stubbed her toe on a sharp rise in the pavement at the expansion joint, causing her to fall heavily and sustain serious fractures of both arms, as well as other minor sprains and bruises.
Plaintiff when testifying estimated the rise in the sidewalk to be from one and a half to two inches; Mrs. Doyle thought it was two inches; however, an engineer, testifying for the city, stated that he had measured the rise and that it was seven-eighths of an inch at its highest point and tapered down to nothing toward the inside of the walk. According to the testimony the sidewalk was five to six feet in width at that point.
There was no conflict in the evidence concerning the fact that Mrs. Weedon knew of this defect in the sidewalk and deemed it dangerous. She had known of its condition for approximately eight months, having used this walk almost daily in going to and returning from her place of employment in the license department of the county assessor’s office. Mrs. Doyle testified that she had observed the same defective and dangerous condition continuously for more than two years preceding the accident, and that she had avoided this unsafe spot after having almost stumbled over it herself.
[262]*262The complaint alleged that the city had failed and neglected to keep this sidewalk in good repair or in reasonably safe condition for pedestrians to travel thereon at the place of the accident; that defendant well knew or in the exercise of ordinary care should have known of said dangerous, defective and unsafe condition.
The city pleaded as defenses; (a) denial of plaintiff’s allegations, (b) an affirmative allegation that, if the defect existed, it was a minor and inconsequential defect and defendant had no knowledge of its existence, and (c) contributory negligence on the part of .plaintiff. The case, under proper instructions from the court, was submitted to a jury which returned a verdict in favor of plaintiffs for the sum of $2315. After entry of judgment thereon and a denial of defendant’s motion for a new trial, this appeal was taken. It is not contended that the judgment was excessive.
Although the questions of plaintiff’s contributory negligence and the city’s lack of knowledge or notice of the defective condition in the sidewalk are raised on this appeal, the principal contention- relied upon is that the condition of the walk, according to plaintiff’s evidence most favorably construed, showed such a slight and inconsequential defect that the trial court should have held as a matter of law that the walk was reasonably safe, and defendant’s motion for an instructed verdict should have been granted.
Defendant first contends, in substance, that plaintiff was guilty of contributory negligence. This defense was raised in the court below, submitted to the jury as a question of fact, Const. of Arizona, Art. 18, Sec. 5; Davis v. Boggs, 22 Ariz. 497, 199 P. 116, and determined adversely to defendant by the jury. If the judgment is supported by competent evidence it must be upheld. Atchison, T. & S. F. Ry. Co. v. Hicks, 64 Ariz. 15, 165 P.2d 167. Plaintiff candidly testified that she knew of the defect in the sidewalk, that she used the walk daily in going to and returning from her work, and that she had known of the defect for approximately eight months. She also testified that at the time of the accident :
“ * * * I think my mind must have been distracted by passing these two ladies, therefore, I forgot it for a second or two * * * ”
“I was passing two persons practically at the same time and my attention was diverted and I overlooked that * * *.”
“I don’t remember of noticing it that morning at all, because my mind was distracted by passing both of those women fairly close together.”
The jury determined, upon the question being submitted to it, that this did not constitute negligent conduct on the part of plaintiff. Their determination of this fact is conclus.ve. City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296; 19 [263]*263McQuillin’s Municipal Corporations (3rd ed.), Sec. 54.125, p. 472 ; 40 C.J.S., Highways, §§ 268 and 270.
As Chief Justice Ross pointed out in the leading and well-reasoned case of Dillow v. City of Yuma, 55 Ariz. 6, 97 P.2d 535, there is a wide disagreement between the courts as to when a defect may or may not be declared harmless as a matter of law. In an annotation appearing in 119 A.L.R. 161 the editorial staff has collated representative and divergent cases on the subject. As would be expected the cases relied upon by the city for a reversal in the instant case are to be found under the “insufficient basis” list. For text statements on the province of court and jury see: 63 C.J.S., Municipal Corporations, § 942 ; 40 C.J.S., Highways, §§ 246 and 281; 25 Am.Jur., Highways, Sec. 587; 19 McQuillin’s Municipal Corporations (3rd ed.) Secs. 54.202 and 54.204.
An examination of the reported cases of this type indicates that the courts of New York in favoring municipalities have probably gone furthest in their interpretation as to what degree of inequality in sidewalks must exist before a plaintiff is entitled to have the question of a city’s negligence submitted to the jury. By judicial fiat it is nearly impossible in that jurisdiction for an injured party to recover except in the most flagrant case of municipal negligence. In California similar suits must be brought under the Public Liability Act of 1923, Stats. 1923, p. 675, Sec. 2, Deering’s Gen.Laws 1931, Act 5619, and since a liability unknown to the common law was created thereunder their courts have uniformly held that in its application the statute must be strictly construed against such claims. See Whiting v. National City, 9 Cal.2d 163, 69 P.2d 990. Most of the California reversals are due to plaintiffs’ failures to establish that the city had knowledge or constructive notice of defects as required under their restrictive statute. See Nicholson v.
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UDALL, Justice.
Plaintiffs-appellees Robert L. Weedon and Frances B. Weedon, husband and wife, obtained a judgment against the city of Phoenix, defendant-appellant, for injuries sustained by Mrs. Weedon in a fall caused by stumbling on a raised section of a public sidewalk within the city limits. The city has appealed from this judgment.
The facts, stated in the light most favorable to sustaining the judgment, are as follows: About 8:45 a.m. on June 8, 1948, Mrs. Weedon, aged 62, was unhurriedly walking from the lot where she customarily parked her car to her place of employment on North Second Avenue in the city of Phoenix. Plaintiff was proceeding in an easterly direction on the north side of Adams Street. When she reached a point directly in front of 324 West Adams (Ray Korte Automobile Agency), she had just passed a second person (later identified as Mrs. Cecilia Ann Doyle) walking in the same direction. She then moved over to her right hand edge of the walk to allow another person coming from the opposite direction to pass on her left. Plaintiff, who is a large woman, upon moving to her right, and while six or eight inches from the outer edge of the walk, stubbed her toe on a sharp rise in the pavement at the expansion joint, causing her to fall heavily and sustain serious fractures of both arms, as well as other minor sprains and bruises.
Plaintiff when testifying estimated the rise in the sidewalk to be from one and a half to two inches; Mrs. Doyle thought it was two inches; however, an engineer, testifying for the city, stated that he had measured the rise and that it was seven-eighths of an inch at its highest point and tapered down to nothing toward the inside of the walk. According to the testimony the sidewalk was five to six feet in width at that point.
There was no conflict in the evidence concerning the fact that Mrs. Weedon knew of this defect in the sidewalk and deemed it dangerous. She had known of its condition for approximately eight months, having used this walk almost daily in going to and returning from her place of employment in the license department of the county assessor’s office. Mrs. Doyle testified that she had observed the same defective and dangerous condition continuously for more than two years preceding the accident, and that she had avoided this unsafe spot after having almost stumbled over it herself.
[262]*262The complaint alleged that the city had failed and neglected to keep this sidewalk in good repair or in reasonably safe condition for pedestrians to travel thereon at the place of the accident; that defendant well knew or in the exercise of ordinary care should have known of said dangerous, defective and unsafe condition.
The city pleaded as defenses; (a) denial of plaintiff’s allegations, (b) an affirmative allegation that, if the defect existed, it was a minor and inconsequential defect and defendant had no knowledge of its existence, and (c) contributory negligence on the part of .plaintiff. The case, under proper instructions from the court, was submitted to a jury which returned a verdict in favor of plaintiffs for the sum of $2315. After entry of judgment thereon and a denial of defendant’s motion for a new trial, this appeal was taken. It is not contended that the judgment was excessive.
Although the questions of plaintiff’s contributory negligence and the city’s lack of knowledge or notice of the defective condition in the sidewalk are raised on this appeal, the principal contention- relied upon is that the condition of the walk, according to plaintiff’s evidence most favorably construed, showed such a slight and inconsequential defect that the trial court should have held as a matter of law that the walk was reasonably safe, and defendant’s motion for an instructed verdict should have been granted.
Defendant first contends, in substance, that plaintiff was guilty of contributory negligence. This defense was raised in the court below, submitted to the jury as a question of fact, Const. of Arizona, Art. 18, Sec. 5; Davis v. Boggs, 22 Ariz. 497, 199 P. 116, and determined adversely to defendant by the jury. If the judgment is supported by competent evidence it must be upheld. Atchison, T. & S. F. Ry. Co. v. Hicks, 64 Ariz. 15, 165 P.2d 167. Plaintiff candidly testified that she knew of the defect in the sidewalk, that she used the walk daily in going to and returning from her work, and that she had known of the defect for approximately eight months. She also testified that at the time of the accident :
“ * * * I think my mind must have been distracted by passing these two ladies, therefore, I forgot it for a second or two * * * ”
“I was passing two persons practically at the same time and my attention was diverted and I overlooked that * * *.”
“I don’t remember of noticing it that morning at all, because my mind was distracted by passing both of those women fairly close together.”
The jury determined, upon the question being submitted to it, that this did not constitute negligent conduct on the part of plaintiff. Their determination of this fact is conclus.ve. City of Phoenix v. Mayfield, 41 Ariz. 537, 20 P.2d 296; 19 [263]*263McQuillin’s Municipal Corporations (3rd ed.), Sec. 54.125, p. 472 ; 40 C.J.S., Highways, §§ 268 and 270.
As Chief Justice Ross pointed out in the leading and well-reasoned case of Dillow v. City of Yuma, 55 Ariz. 6, 97 P.2d 535, there is a wide disagreement between the courts as to when a defect may or may not be declared harmless as a matter of law. In an annotation appearing in 119 A.L.R. 161 the editorial staff has collated representative and divergent cases on the subject. As would be expected the cases relied upon by the city for a reversal in the instant case are to be found under the “insufficient basis” list. For text statements on the province of court and jury see: 63 C.J.S., Municipal Corporations, § 942 ; 40 C.J.S., Highways, §§ 246 and 281; 25 Am.Jur., Highways, Sec. 587; 19 McQuillin’s Municipal Corporations (3rd ed.) Secs. 54.202 and 54.204.
An examination of the reported cases of this type indicates that the courts of New York in favoring municipalities have probably gone furthest in their interpretation as to what degree of inequality in sidewalks must exist before a plaintiff is entitled to have the question of a city’s negligence submitted to the jury. By judicial fiat it is nearly impossible in that jurisdiction for an injured party to recover except in the most flagrant case of municipal negligence. In California similar suits must be brought under the Public Liability Act of 1923, Stats. 1923, p. 675, Sec. 2, Deering’s Gen.Laws 1931, Act 5619, and since a liability unknown to the common law was created thereunder their courts have uniformly held that in its application the statute must be strictly construed against such claims. See Whiting v. National City, 9 Cal.2d 163, 69 P.2d 990. Most of the California reversals are due to plaintiffs’ failures to establish that the city had knowledge or constructive notice of defects as required under their restrictive statute. See Nicholson v. City of Los Angeles, 5 Cal.2d 361, 54 P.2d 725, and Whiting v. National City, supra. However, the California courts have no reluctance in submitting to the jury the issue of negligence when the degree of defectiveness is such that reasonable men could differ about it.
As is shown by the opinion in the Dillow case, supra, Arizona has no such controlling statute, and we have aligned ourselves with the majority of appellate courts by adopting a common-sense and middle-of-the-road approach to the matter. We regard the Dillow case as having established or reaffirmed the following principles of law:
(1) A municipality vested with power to improve and control its streets and sidewalks is liable for injuries sustained because of a failure to keep them reasonably safe for travel.
(2) No hard and fast rule can be laid down in such cases as to the character or extent of the defect in the street or [264]*264sidewalk necessary to form the basis for actionable negligence, but each case must stand upon its own particular facts.
(3) If it appears from the evidence that reasonable men might arrive at different conclusions with regard to whether the defect is sufficient in character or extent to form the basis of actionable negligence, the question is one of fact for the jury.
(4) If the defect is so slight and inconsequential that reasonable men could not differ, the question is one of law for the court.
(5) A city is not liable for injuries resulting from every slight defect in a street or sidewalk, i. e., it is not an insurer of its public ways and is not bound to keep them so as to preclude the possibility of injury or accident therefrom. See City of Phoenix v. Mayfield, supra; 19 McQuillin’s Municipal Corporations (3d ed.), Sec. 54.11, p. 48; Kuntz v. City of Pittsburgh, 123 Pa.Super. 394, 187 A. 287.
If we assume, for the purpose of this appeal, that the actual measurement of the defect made by the city’s engineer is correct and prevails over plaintiff’s “estimates,” see Balkwill v. City of Stockton, 50 Cal.App.2d 661, 123 P.2d 596; Terry v. Village of Perry, 199 N.Y. 79, 92 N.E. 91, 35 L.R.A.,N.S., 666; Kuntz v. City of Pittsburgh, supra, then the question presented is whether this variation of seven-eighths of an inch is a defect of such degree that the municipality’s liability for negligence should be submitted to a jury. The true rule as to when it is a question of law for the court is succinctly stated in 19 McQuillin’s Municipal Corporations (3rd ed.), Sec. 54.204, p. 612, as follows:
“Although the question of the municipality’s negligence i.s generally a question of fact for the jury, yet where only one inference can be drawn from the evidence, the question of negligence becomes one of law for the court. In other words, when it is made to appea.r that the case is one upon which reasonable minds would not arrive at a different conclusion with regard to whether the maintenance of a particular defect in a street or sidewalk constituted negligence on the part of the municipality, the question may then be one of law.” Cf. Rush v. City of Globe, 56 Ariz. 530, 109 P.2d 841.
In the instant matter the learned and experienced trial judge considered that it was a “shadow zone” case, which under the holding in the Dillow case, supra, is required to be submitted to a jury, and after verdict the court denied defendant’s motion for a new trial. Ten of the twelve jurors believed that liability on the part of the city was adequately shown. That the sharp rise in the walk was dangerous was testified to by both plaintiff and Mrs. Doyle. It cannot be gainsaid that plaintiff fell as a result of stubbing her toe thereon and that she was seriously injured. Under these circumstances we cannot say, as a [265]*265matter of law, that reasonable minds might not differ on whether the defect which is here involved was dangerous.
In a similar case, Ray v. Salt Lake City, 92 Utah 412, 69 P.2d 256, 258, 119 A.L.R. 153, the Supreme Court of Utah stated: “ * * * The whole situation is summed up in a statement quoted in the case of City of Tulsa v. Frye, 165 Okl. 302, 25 P.2d 1080, 1082. ‘It would be a serious inroad on the province of the jury if, in a case where there are facts from which negligence may 'be reasonably inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence- ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever.’ To attempt to fix an arbitrary height or depth of irregularity applicable to all cases would be more intolerable than either. * * * ” (Emp. sup.)
See also Dillow v. City of Yuma, supra, and Balkwill v. City of Stockton, supra.
As to the matter of the city’s alleged lack of knowledge or notice of the defect, this issue was squarely presented to the jury by the following instructions:
“ * * * To constitute negligence on the part of the City of Phoenix, plaintiffs must prove to you by a' preponderance of the evidence that: first, the sidewalk in question contained a substantial and dangerous defect, and, second, that the defendant, City of Phoenix, had knowledge of such substantial and dangerous condition, or that such condition existed for a sufficient length of time, from which you may infer that by the exercise of reasonable diligence the defendant should have known that said defect existed. Before these elements are proven to your mind by a preponderance of the evidence, there-must be no recovery by the plaintiffs against the City of Phoenix.”
“There is no proof of actual notice to the City. However, notice may be implied, that is to say, if you find from the evidence-that said sidewalk was in a dangerous and unsafe condition at the time of, and previous to the injuries complained of, for such, a length of time that the City or its officers or agents, in the exercise of ordinary care and diligence, should have discovered a dangerous and unsafe condition thereini and remedied it, then notice to the City is implied and the defense of lack of notice has not been sustained by the City.”
The jury’s determination of this issue, adverse to defendant, is binding upon this court. Judgment affirmed.
STANFORD, PHELPS and DE CONCINO, JJ., concur.