143 two of said notes, to wit, one for forty-five dollars and one for fifty dollars, with interest on both notes from July 5, 1880, are negotiable notes, and are now outstanding, and that plaintiff has either sold the said notes and received the proceeds thereof, or the said plaintiff now holds the said notes against this defendant." The action being upon a note for fifty dollars, it was, of course, canceled by that suit. If the verdict of the jury, to the extent of the amount for which judgment was allowed, was founded upon the matter of damages alone, by the breach of warranty, the judgment, added to the amount of the note and its interest, would be a finding in favor of plaintiff in error to the extent of over $200, as he received an affirmative judgment for $145. But, in any event, the actual recovery in favor of plaintiff in error was the $145. While it is true that the testimony in that case is not all certified o this court in the case at bar, yet it can hardly be supposed that, under the rule stated in Aultman v. Stout, 15 Neb. 580, this amount of damages could have been allowed, without taking into consideration the fact that these notes were outstanding, and were to be paid by plaintiff in error. The defenses in both cases were not simply a failure of consideration, but they were based upon a breach of warranty in the sale of the reaper. Had plaintiff in error brought an independent action for damages growing out of the breach of warranty in the sale of the reaper, and recovered his damages, which he might have done, we think it could not be doubted that such action would bar his right to plead such breach of warranty in this case: McDonald v. Gregory, 41 Iowa, 513. A careful examination of the answer filed in the suit upon the first note to mature, it seems to us, can result in no other conclusion than that it was a count for damages, by reason of a breach of warranty, which incidentally presented the defense of failure of consideration. The contract out of which the indebtedness arose was one and indivisible. It was entered into at one time, between the plaintiff on the one hand and defendant on the other, and upon one consideration. Plaintiff in error's right of action upon it was also indivisible. He could not maintain a cross-action in the former case for his damages by reason of the breach of warranty, plead the execution of the other notes and his indebtedness thereon, recover damages to the full amount of his whole indebtedness upon the theory that the notes outstanding were negotiable and would have to be paid, and again, in this action, maintain the same de

fense. In this particular, his rights were adjudicated by the former action: Geiser Threshing Machine Co. v. Farmer, 27 Minn. 428.

We think the instruction to the jury was correct, and the judgment of the district court will therefore be affirmed.

FORMER JUDGMENT IS RES JUDICATA, AS TO WHAT MATTERS: Bell v. Merrifield, 109 N. Y. 202; 4 Am. St. Rep. 436, and note 444.

VILLAGE OF PONCA v. Crawford.

[28 NEBRASKA, 662.J

MUNICIPAL CORPORATIONS-DEFECTIVE SIDEWALK - CONTRIBUTORY NEGLIGENCE. — Whether a stranger exercising ordinary care and prudence in passing along the sidewalk of an incorporated village after dark should have turned back and abandoned his purpose upon ascertaining that there was an apparent break in the sidewalk, in falling from which he received injury, or should have continued in his endeavor to proceed, is a question for the jury, under proper instructions, and when the latter are given, the verdict will not be disturbed.

MUNICIPAL CORPORATION. SIDEWALK TO BE SAFE need not be wide, very permanently built, of costly material, nor continuous throughout the length of the street; but when built or suffered to remain on a part of the street, its ends or termini must be so graduated to the natural level of the street as to permit pedestrians to safely pass from it without being obliged to climb down over obstructions. MUNICIPAL CORPORATIONS- DEFECTIVE SIDEWALKS — NOTICE. — Sidewalks in incorporated villages are usually built by abutting property owners under ordinances or by-laws, and not from the city s finances. Therefore no amount of knowledge on the part of the plaintiff of the low state of the finances of the village is sufficient to charge him with legal notice of a defect in the sidewalk by reason of which he sustained the injury complained of.

MUNICIPAL CORPORATIONS-NOTICE OF DEFECT IN SIDEWALK. — After a sidewalk has been placed in position, no matter by whom or by what authority, and the city authorities have notice of a defect therein, or it has been built so long that knowledge is presumed, the city is as liable as though the sidewalk had been built by its express authority. VERDICT ARRIVED AT BY EACH JUROR MARKIing a Sum as Damages, the total of which constitutes a dividend, taking their own number as a divisor, and the quotient as their verdict, without prior agreement to be bound by it, will not be disturbed.

EVIDENCE. RULE AS TO PROOF OF WRITTEN INSTRUMENTS and records does not include oral testimony of the existence of such instruments or records, preliminary to their introduction or proof of loss.

ORDER OF ADMITTING EVIDENCE IS DISCRETIONARY with the court. PLEADING AND PRACTICE. ERROR WITHOUT PREJUDICE will not reverno the judgment.

THE plaintiff, Crawford, an entire stranger in the village above named, was passing along a sidewalk on one of the streets thereof on an extremely dark night. The sidewalk suddenly terminated at a height of about three feet from the ground, without any steps or convenient means of getting on or off the sidewalk. Crawford discovered the termination of the walk in front of him, but, supposing that a method of descent had been provided, placed one foot on the walk, and with the other reached down, feeling for the step or means of descent. He lost his balance and fell, striking a saw-bench and other obstructions, causing the injury complained of. The other facts are stated in the opinion of the case here reported.

W. E. Gantt, for the plaintiff in error.

L. S. Fawcett and A. E. Barnes, for the defendant in error.

COBB, J. The cause was before this court on the record of a former trial in the district court of Dixon County, when the judgment was reversed and the cause remanded for further proceedings, in case reported in 18 Neb. 551.

From the record now before us, it appears that, upon the cause again coming up in the district court, the defendant, on leave, filed an amended answer. The plaintiff's cause of action, as set out in his petition, being for personal injuries suffered within the corporate limits of the defendant village of Ponca, by the plaintiff falling off the end of an elevated sidewalk, over and upon certain obstructions there being, etc. The defendant, by its amended answer, denied that at the time of the happening of the accident to the plaintiff, as set out in his amended petition, to wit, on April 8, 1879, or at any time previous thereto, said defendant was a corporation. Defendant also alleged that the sidewalk upon which plaintiff claimed to have sustained injuries was built by one Samuel Gamble, who then and now owns the lot along which the same was constructed, and who built the same without authority from the defendant; and that the defendant never authorized said sidewalk to be built; that the defendant never in any manner exercised authority or jurisdiction over said sidewalk; that it never made, or had made, any repairs upon the same; that said sidewalk never was in line with, nor in any manner connected with, any sidewalk over which defendant at any time, or in any manner, exercised jurisdiction or control,concluding with a general denial.

AM. ST. REP., VOL. VIII.-10

There was a new trial to a jury, which found for the plaintiff in the sum of $950. Defendant's motion for a third trial being overruled, plaintiff had judgment, and defendant again brings the cause to this court on error, assigning the following errors: 1. That the verdict is not sustained by sufficient evidence; 2. That the verdict is contrary to law; 3. For error of law occurring at the trial, duly excepted to; 4. The damages are excessive, appearing to have been given under the influence of passion or prejudice; 5. For misconduct of the jury in this, to wit, that the verdict was arrived at by the jury, by each member marking a certain sum or amount, and then adding all of the twelve amounts together, and dividing the aggregate sum thereof by twelve, and thus arriving at the sum of $950, which said sum they adopted as their verdict, all of which is more fully set out and substantiated by the affidavit and exhibit hereto attached; 6. The court erred in refusing to give the sixth and seventh instructions asked for by defendant; 7. The court erred in giving instructions numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, asked for by plaintiff; 8. The court erred in giving instructions numbers 1 and 3, on its own motion; 9. There were irregularities in the proceedings, in this, that said jury arrived at its verdict by adding twelve several amounts each, one given by each juror, and dividing the aggregate amount therefor, to wit, $11,400, by twelve, and thus getting the sum of $950, which said last sum the said jury adopted, and presented to the court as its verdict.

The first, second, and fourth assignments will be considered together. Under this head, counsel for plaintiff in error, in their brief, insist that the facts, as stated by the plaintiff in his testimony at the trial, disclose contributory negligence on his part which should prevent his recovery. The act of the plaintiff, suggested as constituting contributory negligence, is that of not turning back and abandoning his walk along the sidewalk and street when he discovered that the sidewalk did not continue on the same unbroken level. Whether a person of ordinary care and prudence, of the knowledge of and acquaintance with the streets and sidewalks of a village, or the want of either, which the plaintiff was shown to have possessed, would have turned back and abandoned his purpose in proceeding along the street on ascertaining that there was an apparent break in the sidewalk, or would have continued. his endeavor to proceed, is a question of fact for the jury, proper for their consideration and determination, under proper

instructions. Such instructions were given, and I think their conclusion is fully justified by the evidence. Attention is called to the consideration of the condition of the finances of the defendant, in common with other villages in the early stage of their corporate existence, rendering a complete system of sidewalks impracticable. To this it must be replied, that, to be passable and safe, a sidewalk need not be wide, very permanently built, nor of costly material. Neither need it be continuous throughout the length of the street; but when one is built, or suffered to remain on a part of the street only, its ends or termini must be so graduated to the natural level of the street as to permit pedestrians to safely pass from it, and without being obliged to climb down over obstructions. Furthermore, sidewalks in villages are not, ordinarily, built from the public finances, but by the abutting property holders, in obedience to appropriate ordinance and by-laws. It must be conceded, then, that no amount of knowledge on the part of the plaintiff of the low state of finances of the defendant, or of villages generally, would be sufficient to charge him with legal notice of the defect in defendant's sidewalk, by reason of which he sustained the injury complained of. The evidence seems to leave no doubt that the sidewalk in question was built on the side of and projecting into the street from the line of an abutting lot, the position in which public sidewalks are placed, if at all. When this walk had been placed in that position, by whomsoever, or by whatever authority, and the village authorities had notice of it, or it had been built so long in that position that such authority ought to be presumed to have knowledge of it, the village would be equally liable as though the walk had been built by its express authority. Having carefully examined the evidence as to the nature and extent of the plaintiff's injuries, I fail to see that the damages allowed by the verdict are excessive or unjust.

As to the point raised by the first denial in the answer of defendant, its corporate existence at the date of the negligence complained of, the corporate existence de facto of the village of Ponca, at least since the year 1876, was sufficiently proved to sustain the verdict; such being the case, the erroneous admission of evidence tending to prove the regular incorporation of the village, even if such there was, would be error without prejudice.

As to the third assignment, it is sufficient to say that no