Plaintiff was injured by falling on a defective sidewalk.; he sued defendant city and recovered a verdict, upon which judgment was entered. Defendant contends plaintiff wras so plainly guilty of contributory negligence that judgment should be granted against him n. o. v.

Appellant admits that “the morning of the accident was foggy and there were no street lights burning.” The day was October 25,1922, the hour 5:50 a. m., and it was still dark; plaintiff was on his way to work, and testified that, because of attending conditions, he walked carefully. On this state of the record, even though plaintiff may have had previous knowledge of the pavement, and other facts may have existed which, under different circumstances, might have told strongly against his right of recovery, or under the evidence as presented might have been accepted by a jury as indicating a lack of due care on plaintiff’s part, yet his alleged contributory negligence was, as said in the opinion of the court *332 below, “a pure question of fact and could not have been determined......as a matter of law.”

The judgment is affirmed.