¶1 The defense of contributory negligence seems to have been submitted to the jury upon the theory that, after due notice of defendant’s intention to excavate near plaintiff’s building, the plaintiff failed to take any precaution or to exercise proper care for the protection of his own property. But the first issue finds that the defendant gave the plaintiff no notice of his intention to excavate near the building in question. Hence, the first and fourth issues, interpreted in the light of the record, would seem to be in conflict. The court instructed the jury: “Now, gentlemen, I want you to answer all these issues, and then, when you answer these issues, the court will determine who recovers and who does not.” In this state of the record, it would appear that a consistent verdict should be rendered to enable the court to determine the rights of the parties. Wood v. Jones, ante, 356. To this end a new trial must be awarded.
¶2 New trial.