that time previous? A. Yes, sir; I used to walk that way when I came to town. Q. At and prior to January 10, 1887, continuing for, say, two or three months, what was the condition of that walk? A. There was a plank or two out. That was all. Q. Now, whereabouts in that walk were those planks gone? A. There was one plank gone out near the north end of the walk, near Rstreet." The testimony of these witnesses show that the defect had existed for some time prior to the accident, and that it was apparent. The city was chargeable with notice. Waldron v. St. Paul, 22 N. W. Rep. 6; Troxel v. City of Vinton, 41 N. W. Rep. 580.

Several errors are assigned on the rulings of the trial court upon the objections to the admissions of testimony, which we will now notice. This question was propounded to the witness Byers: "What, if anything, did you do officially with reference to that sidewalk?" To this the defendant objected as incompetent, immaterial, and irrelevant. He also objected "to the witness stating what he had notifiled other people, and for the further reason that they had not fixed the identical place, nor called the witness' attention to it. The objection was overruled, and exception was taken, and the witness answered: "I had notified the agents of the lot, Easterdy Bros., in regard to the condition of the walk,-to repair it." If this ruling was error, it was without prejudice; for the witness afterwards testified, without objection, to the giving of the notice. There was no error committed in permitting the witness Boettcher to testify as to the condition of the walk a week after the injury. It was competent to prove its condition shortly after the accident, as tending to show that the defect existed at the time of the injury. City of Chicago v. Dalle, 5 N. E. Rep. 579.

Dr. B. F. Hart was asked the following question: "Suppose a man 47 years old, weight about 197 or 198 pounds, while walking along and over the sidewalk, should step so far that his foot should slip into a hole in the sidewalk, and he should be violently thrown backward, striking nis back-the small of his back-across the edge of the walk, causing an injury followed immediately by a severe pain in the back. What, in your opinion, would be the probable effect upon the man from such a fall, and such injury?" The record shows that after the question was asked "the defendant renews his motion made last above. Overruled. Exception." This obJection was not specific, and we are unable to determine what the motion was. The question, however, was so framed as to reflect thefacts; and the answer elicited was proper, and competent.

It was not error to permit the Carlisle tables to be introduced in evidence. The proper foundation was laid for their introduction. The plaintiff, at the time of the injury, was in good health; and, there being evidence before the jury tending to establish that his injury was of a permanent character, the tables were proper evidence to go before the jury. Roose v. Perkins, 9 Neb. 304, 2 N. W .Rep. 715.

The defendant was not prejudiced by the

court permitting Mr. Sellick to testify that he had filed the claim of the plaintiff with the city clerk, for the reason that the matters testified to by him were fully alleged in the petition, and not denied in the answer. We are of the opinion that no error was committed in the introduction of testimony, of a nature so serious as to require reversal.

The remaining errors complained of consist in the giving and refusing of certain instructions. The court, at the request of the plaintiff, gave the following instructions, to each of which the plaintiff in error excepts: "First. This is an action brought by the plaintiff, Levi R. Smith, against the defendant, the city of Lincoln, to recover damages from said city for injuries received by the plaintiff, as he alleges, by reason of a fall, on or about the 10th day of January, 1887, upon a sidewalk in said city of Lincoln, on Sixteenth street, be tween Q and R streets, in said city. He alleges that said fall and injury were caused by the negligence or failure on the part of said defendant to keep the said sidewalk in proper repair, and in negligently allowing the accumulation of snow and ice thereon, and says that said sidewalk was defective, unsafe, and dangerous to travelers passing over it in the ordinary mode, and that he had been damaged in the sum of $10,000 by defendant's neglect of duty as alleged. Issue is joined upon these allegations by the answer of the defendant, and plaintiff's reply thereto. Second. Under its charter, and under the law, it was the duty of the defendant city to keep its sidewalks, including that on the west side of Sixteenth street, between Q and R streets, where the alleged injury occurred, in a safe condition for use in the ordinary modes, and free from defects and obstructions dangerous to persons passing along the same with ordinary care; and it is liable to plaintiff for injuries-if you should find, from the evidence, any were sustained by him-resulting from neglect on the part of defendant to perform that duty, unless you find that plaintiff was guilty of contributory negligence, provided said city had notice of the defective and dangerous condition of said sidewalk, or that the said sidewalk had remained in a defective and dangerous condition for such length of time as that said city might, in the exercise of reasonable care, have had notice of the same. Third. If you find from the evidence that the injury to the plaintiff complained of was occasioned by the negligence and want of ordinary care of defendant, you are instructed that the burden of proof is then upon the defendant to satisfy you that the negligence and want of ordinary care of the plaintiff contributed thereto, in order to prevent a recovery in this case. Fourth. (a) Under ordinary circumstances, persons traveling on the streets and sidewalks, by the usual modes, are required to use ordinary care and diligence; and you should presume that plaintiff exercised such care, unless the evidence shows negligence or fault on his part. (b) The plaintiff was not required to anticipate danger, nor to be on the lookout for its existence. (c) Ordinary care on the part of the plaintiff is that de

gree of care and diligence which persons of | ordinary prudence would usually use under the circumstances in which the plaintiff was placed at the time the alleged injury was received. Fifth. If you find from the evidence that the plaintiff was injured at the time and place, and in the manner, as alleged in his petition, then the plaintiff is entitled to recover, if he was in the exercise of ordinary care and prudence at the time of the injury, and the injury was attributable to the defective condition of the sidewalk, combined with some accidental cause, as the accumulation of snow on said sidewalk, provided said city had notice of the defective condition of said sidewalk, or that the said sidewalk had remained in a defective condition for such length of time as that said city, in the exercise of reasonable official care, might have had notice of the same. Sixth. If you find from the evidence that the sidewalk, where the injury complained of by plaintiff is alleged to have occurred, was in a defective condition, so that the snow which had fallen thereon the night previous to said accident rendered said walk dangerous to foot passengers, and prevented plaintiff from detecting said defect when passing over the same in the ordinary manner of foot travel, and when exercising due care, and that plaintiff had no notice of such defect, then you are instructed that the defendant city would be liable for the injury, if you find that any occurred to plaintiff, occasioned by such defect, and resulting from the same, provided that you further find that the city defendant had notice of such defect in its sidewalk, or that said defect had existed for such a length of time as that said city and its authorities, in the exercise of reasonable care, might have had notice of said defect. Seventh. It is not necessary that actual notice to the municipal authorities of the defective condition of the sidewalk in question be shown. Such notice will be presumed, if you find from the evidence that the said sidewalk remained for a considerable length of time in so defective a condition that it was unsafe to travel over, with ordinary care. Eighth. If you find from the evidence that the street commissioner of the defendant city had actual notice of the defective condition of the said sidewalk, then you are instructed that such notice to said street commissioner is notice to the defendant city. Ninth. If you find for the plaintiff, then, in ascertaining from the evidence the amount he ought to recover, you should carefully consider the nature, extent, and character of the injury sustained; whether the disability is temporary or permanent, partial or total, and what degree of disability exists. And, in considering this, you should take into account the age of the plaintiff, and his reasonable expectancy of life; for you should allow, not only for damages already past, but for all damages which would naturally and reasonably result from the injury, whether in the past or future. You should find from the evidence how much money plaintiff would reasonably have been able, and reasonably expected, to earn, if he had not been injured as alleged, and how much he was and is and will be

able to earn with his reduced capacity resulting from said injury; and the difference between these two aniounts will be the measure of this element of his damages. You should also allow him for any necessary and reasonable expenses incurred for medicines, if any such expenses have been proven. The law fixes no rule by which you are to estimate or fix a price upon bodily pain, suffering, or agony, but leaves it to you to allow plaintiff such reasonable sum for this element of his damages as may be just and reasonable, under all cir cumstances of the case, not exceeding in all the sum of $10,000. Tenth. If you find for the plaintiff, and if you should further find that, by reason of the injury so complained of, the plaintiff has lost his usual means of gaining a livelihood, you should allow him, as this element of his damages, such sum as you find from the evidence that he would have been reasonably able, and reasonably expected, to have earned during the balance of his life, if he had not been injured, as alleged, not exceeding the sum of $10,000 in all."

at

The following instructions were given at the request of the defendant city: "First. The jury are instructed that, to entitle the plaintiff to recover against the city in this case, the evidence should show, to the satisfaction of the jury, one or the other of the following facts, namely, that the city had actual, prior notice of the defect in the sidewalk which caused his injuries, or that such sidewalk had remained in such defective condition for an unreasonable length of time prior to the accident; and, if neither of these facts have been shown by the testimony in this case, the plaintiff cannot recover in this action. "Fourth. If you find that the sidewalk in question was in a reasonably good and safe condition under all circumstances, you will find for the defendant." "Sixth. The jury are instructed that, before they can find for the plaintiff, they must find the plaintiff has suffered injury; that the injury was caused by a defect in the sidewalk; that said defect left the sidewalk in an unreasonably dangerous condition; that the plaintiff did not contribute to said injury by any negligence on his part; that the city authorities had actual knowledge of said defect in time to have repaired same before the accident happened, or that the defect had been notorious and continued for a length of time within which the city authorities, in the exercise of reasonable care and diligence, could have known of the same. Seventh. The defendant is not required to have the sidewalks so constructed as to secure absolute immunity in using them; nor is it bound to employ the utmost care and exertion to that end. Its duty, under the law, is only to see that its sidewalks are reasonably safe for persons exercising ordinary care and caution. Eighth. You are instructed, as a matter of law, though you should find from the evidence that the injury complained of is the combined result of an accident and a defect in the street or walk, yet, if you also found that, by the use of ordinary care and prudence on the part of the plaintiff, the accident might have been avoided, you must find

for the defendant. Ninth. The burden of proving negligence rests upon the party alleging it; and, where a party charges negligence on the part of another as a cause of action, he must prove the negligence by a preponderance of evidence. And, in this case, if the jury find that the weight of evidence is in favor of the defendant, or that It is equally balanced, then the plaintiff cannot recover, and the jury should find the issues for the defendant. If you find that the plaintiff is entitled to recover in any amount whatever, then no allowance can be made for medical services unless the same have been paid, or liability incurred therefor, and such sum must be only a fair and reasonable compensation. În this case, it does not clearly appear from the evidence, the nature and extent of the services rendered; and there is no evidence that any sum was paid, or any specific amount charged or agreed to be paid, nor any evidence of the fair and reasonable value of such services. Therefore, you are instructed to leave out of your verdict any assessment of damages for medical services. There being evidence, however, of money expended by plaintiff for medicines during his sickness, and, should you find from the evidence that he is entitled to recover on account of the alleged injury, then it will be your duty to consider said evidence, and allow plaintiff for money ↑ actually expended for medicine purchased by him on account of such injury."

The second instruction given on request of the plaintiff is complained of because of it does not contain the word “reasonably" before the words "safe condition for use. The law, undoubtedly, is that a city is only required to keep its sidewalks in a reasonably safe condition, and can be held liable only for a failure to exercise ordinary care and prudence. The fourth instruction given at the request of the defendant told the jury that, if the walk in question was in a reasonably good and safe condition, to find for the defendant. By the sixth instruction given on the request of the defendant, the jury was informed that the defect must have left the sidewalk in an unreasonably dangerous condition, before a verdict could be returned for the plaintiff. The seventh instruction for the defendant stated “that the defendant was not required to have its sidewalks so constructed as to secure absolute immunity in using them; nor is it bound to employ the utmost care and exertion to that end. It duty, under the law, is only to see that its sidewalks are reasonably safe for persons exercising ordinary care." We do not see how the defendant could have been prejudiced by the omission of the word "reasonably" from the instruction complained of, on account of its frequent and prominent use in the instruction given at the request of the city. All the instructions must be construed together. Campbell v. Holland, 22 Neb. 587, 35 N. W. Rep. 871.

The fifth, sixth, and seventh instructions given on the request of the plaintiff were based upon the evidence, and stated the law correctly. There was evidence before the jury that the hole in the walk was filled with light, dry snow, which concealed the defect. The missing plank in The missing plank in

the walk was the proximate cause of the injury; and, under the authorities cited elsewhere in this opinion, the fact that the defect was concealed by snow does not release the city from liability. These instructions complained of also stated the rule correctly in regard to notice to the city of the defect in the walk. City of Plattsmouth v. Mitchell, 20 Neb. 228, 29 N. W. Rep. 593; Waldron v. St. Paul, 22 N. W. Rep. 6.

Error is also assigned because the court gave the eighth instruction asked by the plaintiff. The first transcript of the record filed in the case in this court omitted from this instruction the words in italics. These words, however, were in the instruction when given by the trial court to the jury, as shown by the amended record now before us. The plaintiff in error, since the filing of the amended record, offers no criticism upon the instruction; and, there being no apparent error therein, we will give it no further consideration. The second and third requests of the city were substantially covered by the instructions given to the jury, and the court properly refused them. Error is assigned upon the refusal to give the fifth, fourteenth, fifteenth, sixteenth, and eighteenth requests of the defendant. We do not think that the court erred in refusing them. So far as they stated the law correctly, and were based upon the evidence in the case, they were substantially given by being embodied in the instructions given. Some of these were not predicated upon the testimony, and for that reason were properly refused. Fitzgerald v. Morrissey, 14 Neb. 198, 15 N. W. Rep. 233.

Complaint is also made of the refusal of the court to give the following instruction tendered by the city: "Tenth. You are instructed that if the plaintiff, by his own negligence, directly contributed to the injury complained of, then he cannot recover. In reaching a conclusion upon this point, it is important to consider the slippery condition of the sidewalk caused by the fall of snow, the fact that the injury occurred in the day-time, and whether the defect in the sidewalk could have been observed by ordinary care and caution. If the injury was caused by the slippery condition of the sidewalk, resulting from a recent fall of snow, or if the plaintiff, by the use of ordinary care and prudence, could have avoided the alleged defect in the sidewalk, then he cannot recover. (Refused. Exception by defendant.)" This instruction assumed a fact not proven. There is no evidence in the record that the sidewalk was in a slippery condition caused by the fall of snow, and it was rightly refused; for an instruction must be based upon the evidence, and not assume facts that have not been proven.

It is urged that the court erred in refusing to give this instruction to the jury: “Eleventh. If you find from the evidence that the alleged defect in the sidewalk existed at the time of the accident or injury complained of, but that the city had no actual notice of such defect, then, before you find for the plaintiff, it must appear that said defect had been notorious and continued for a length of time within which

the city authorities, in the exercise of reasonable care and diligence, could have known the same. In deciding upon this question, it is proper to consider the area and extent of the city of Lincoln, and the number of miles of sidewalk subject to supervision and control of the city, as the existence of the defect in the sidewalks in a small town or village, where the area and extent of sidewalks subject to supervision and control is small, would naturally be discovered in a much shorter time by the municipality than would be the case in a larger city, of greater area, and more extensive streets and sidewalks. (Refused. Exception by defendant.)" This request was properly refused, for two reasons: First, there was no evidence of the number of miles of sidewalk in the city; and, second, the care and diligence required of the city to keep its sidewalks in a reasonably safe condition for travel is not affected or varied by the number of miles of walk therein. In Lindsay v. City of Des Moines, 27 N. W. Rep. 283, the court uses this language: "We think the court should not have allowed the defendant to prove that there are over 150 miles of sidewalk in the city of Des Moines; and the jury ought not to have been instructed that the 'extent of sidewalk in the city, which has to be looked after, may be considered' in deciding whether the city officers used proper diligence in removing the snow and ice. It appears to us that the care and diligence required to keep sidewalks in proper condition cannot be affected or varied by the number of miles of walks in the city. If labor is necessary for the purpose, the force should be commensurate with the work to be done. In other words, a city with 40,000 inhabitants, and 150 miles of sidewalk, should be held to the same degree of care in this respect as the smaller towns, with less extent of sidewalk."

If

The plaintiff in error makes no complaint in its brief for the refusal to give its twelfth and thirteenth requests, and we will leave them without comment.

Error is assigned because the court refused to give this instruction: "Nineteenth. The jury are instructed that, to maintain his action, the plaintiff must prove that he had, before the filing of his petition, filed a statement giving the full name, and the time, place, nature, and circumstances of the injury or damage complained of, with the city clerk of the city of Lincoln. (Refused. Exception by defendant.)" There was no error committed in denying the request. It was admitted by the pleadings that the plaintiff, before commencing ais action, had filed with the city clerk of the city of Lincoln a statement giving the full name, and the time, place, nature, and circumstances of the injury and the damage complained of. This being admitted, the plaintiff was not required to prove the

same.

The plaintiff in error has no substantial ground for complaint that the jury was not fully and fairly instructed in its behalf. We have given careful consideration to the questions discussed upon the record; and, finding no material error, the judgment will be affirmed. The other judges

concur.

BROWN V. DRAKE.

(28 Neb. 695)

(Supreme Court of Nebraska. Feb. 18, 1890.) SALE-SHORTAGE-EVIDENCE-VERDICT.

The evidence examined, and held to sustain the verdict to the extent of $295.25, but that as to $204.75 of the sum found by the verdict it is not sustained, and the latter sum required to be remitted, or the judgment will be reversed.

(Syllabus by the Court.)

Error to district court, Adams county; GASLIN, Judge.

Capps, McCreary & Stevens, for plaintiff in error. Tibbets, Morey & Ferris, for defendant in error.

COBB, C. J. The plaintiff below alleged that on April 7, 1888, he contracted with the defendant for an exchange of certain real and personal property, and the payment to defendant of $2,000, according to the following stipulation: "Exhibit A. For lots in Omaha city, described as follows: Lot 5, block 5, Kendall's addition; lots 1, 2, 3, 4, B. 8; 12, 18, Bk. 9; 12 and 18, in Bk 27; 8, 9, 10, 11, and 12, B. 34; L. 1, 11, 12, 13, and 14, B. 40; L. 1, 2, 23, and 24, B. 41,-in all 20 lots,-in Boggs' addition to Omaha, and $2,000 cash, I agree to transfer to J. B. Drake all cattle in my herd, not less than 125 head, not including late calves, and including 4 bulls, one span young black mares in foal, one span geldings 4 years old, one span mules 6 or 7 years old, one bay horse 6 years old, four colts 1 to 2 years old,-all good American stock, no pony,-3 wagons, 3 hay-racks, 3 sets of harness, 1 stallion, - Winona, bay; also equity in N. E. quarter section 22, township 7, range 16, Kearney county; incumbrance, $1,000. GEORGE E. BROWN. That in accordance with said agreement the plaintiff paid the defendant the said sum of $2,000, and the defendant delivered to plaintiff what purported to be a bill of sale of the personal property mentioned, referred to as "Exhibit B." It was further verbally stipulated that the cattle mentioned might be left with the defendant until called for, by the 24th April, 1888, and that defendant execute a warranty deed for the premises described in Kearney county, free of all incumbrances, except that of $1,000, with an abstract of title to the premises. That plaintiff fully complied with all the conditions of the contract on his part, and on April 21, 1888, demanded the cattle of the agent of defend-ant, in whose care and possession they were, who refused to deliver the same. That at the time of entering into the contract the defendant falsely represented, for the purpose of defrauding the plaintiff, that the cattle were free of all liens, mortgages, and incumbrances, when, in fact, there were chattel mortgage liens in all amounting to $1,400, then unknown to the plaintiff, which were not entirely discharged until May 14, 1888; and through the failure to deliver the cattle, and discharge the liens thereon, and the consequent loss of time and the additional expense involved, plaintiff suffered damages to the amount of $400. That the whole number of cattle in the herd at the time of the contract, and on April 21st following, was 131 head; but defendant delivered,

on May 14th following, only 118 head, and refused to deliver or to pay for the remaining 13 head of enttle, amounting to $390. That of the enttle delivered, 50 head were not the same mentioned in the contract and bill of sale, but were a different kind and inferior quality, and were worth $500 less than those purchased of defendant, and were not accepted by plaintiff in lieu of those purchased. That there is now due on the land conveyed by defendant to plaintiff the tax-sale, with accrued interest, of 1886, taxes and interest of 1887, and accrued interest on the mortgage of $1,000, amounting to $250.15, valid and exist ing liens, which the defendant has neglected and refused to pay. That defendant failed to deliver an abstract of title to the land, which the plaintiff obtained at his own expense, amounting to $4. Plaintiff asks judgment for the sum of $1,544.15.

The defendant answered in a general denial of the plaintiff's cause of action. The defendant further set up that after the alleged cause of action accrued, and before the action was brought, on May 14, 1888, at Hastings, Neb., all matters of difference and damages alleged in plaintiff's petition, the feeding of stock, death of stock, herding of cattle in question, cost of deed, abstract, back-entries, and taxes, and all other matters in difference, were settled and fully adjusted between the parties; and the plaintiff at that time drew and delivered to defendant his check on the Omaha National Bank for the sum of $25, in payment of the balance then found due from him, in full satisfaction and discharge of the damages in the petition claimed and demanded of the defendant. The plaintiff replied in a general denial of the defendant's answer. There was a second trial to a jury, a new trial having been granted on the motion of the defendant, with findings for the plaintiff, and verdict for $500 damages. The defendant's motion to set aside the verdict being overruled, judgment was entered for that amount, and costs. The plaintiff in error presents 13 separate assignments to the sufficiency of the evidence and the instructions of the court to the jury.

witness came up from his residence, in Omaha, to defendant's residence, in Hastings, to receive the cattle, and there was some conversation then had as to the deeds witness was to make under the stipulation, or rather that two lots had, by mistake, been left off his deed. He told defendant he would send and have the deeds sent up the next morning, but he would not wait, and witness took the next train to Omaha, and came back with the deeds, and delivered them to defendant's wife, who gave witness an order on the man in charge of the cattle to turn them over to witness, but the man refused, saying that Mr. Graham told him not to, as he had a chattel mortgage on them for $1,080. Witness returned to Hastings, and saw defendant's wife, and in a few days afterwards the mortgage matter was arranged by her, and about the 1st of May witness made a second demand for the cattle, which the foreman refused, on his claim for a feed bill of $100, which witness said he would pay under protest. The plaintiff does not testify that he paid the $100, but that the agent refused, for the reason that Mr. Radford owned part of them. He further testified that defendant was for a portion of time between April 23d and May 12th absent in Chicago. In reply to inquiry from his counsel, he stated that he returned with the deed for the two lots that were lacking, he thought, on April 25th; that he demanded the cattle on May 1st, and that he obtained them on May 14th; that from April 25th to May 14th he was between Newark, where the cattle were in herd, and Hastings, a part of the time at either place, using every endeavor "to get things straightened up, so he could get possession of the cattle. "Question. What claim, if any, did Brown make on you from the 25th of April to the 14th of May? Answer. He made a claim for the feed and keeping of the cattle. Q. What conversation did you have with him on April 20th, when you first came here for the cattle? A. Not very much." Witness first met him at his house; the next time at the depot, as he was taking the train for Chicago; and he refused to deliver the cattle until the deeds were delivered. Witness offered to secure him, through the bank here, for the lots, and have the deeds for him the next morning, but he would not do that, nor give an order to take the cattle when witness should get the deeds. "Q. What kind of cattle did you view, when down there, on the 7th of April, with Brown? A. I viewed 122 or 123 of the 125 head. They They were good cattle, mostly large. Not over 20 or 25 young cattle, yearlings. The rest were cows and twoyear-old steers." The plaintiff also testified that he knew the value of cattle in the markets of that season; that he was buy

ue was about $27 per head; that when he received the cattle there were 117 head,an inferior lot of cows; the steers were as first inspected, and the balance a very inferior lot of yearling steers and heifers; of the original herd inspected, he thought there were 35 or 40 head of cows taken out, and an inferior lot of yearlings substituted; that the 35 cows taken out were