(concurring.) In form the complaint is undoubtedly faulty, since it alleges two several and distinct wrongs, for each of which only some of the defendants were responsible. As the causes of action so combined do not affect all the parties, they were improperly united; but the appellant’s remedy was by demurrer, and by failure to demur it waived the vice in the pleading. True, the appellant was not answerable for the creation or maintenance of the alleged nuisance in the highway, but the verdict does not proceed upon appellant’s liability for the nuisance. The complaint explicitly imputes to the appellant that it obstructed the sidewalk in so careless, negligent, and unlawful a manner that thereby the plaintiff was precipitated into the excavation. The evidence tended to establish the allegation of- negligence against the appellant, the court submitted the issue of negligence to the *935jury, and the verdict finds the fact of negligence upon sufficient proof. The appellant, however, insists that it owed no such duty to the plaintiff as would support an imputation of negligence. The contention is untenable. Whoever uses the highway, and for whatever purpose, is under obligation so to conduct himself as not unreasonably and carelessly to expose to peril another lawfully engaged on the highway. Indeed, in every situation and relation of life, the law exacts proper care to avoid injury to another. “Sic utere tua ut alienum non laedas” is a principle of universal prevalence. Other exceptions are obviated by the argument in the prevailing opinion.