In this appeal from a judgment based upon a jury verdict, the factual situation was decided by the jury adverse to *387the appellant and there appears sufficient competent evidence to support the same, so that as an appellate court we will not retry the issue of facts. The question of when the alleged negligence occurred, whether at the time of construction of the street or sidewalk or afterwards, becomes immaterial if the defect did in fact exist, as found by the jury. The court’s instruction on contributory negligence was standard and not erroneous. The judgment appealed from is therefore affirmed.