(after stating the facts). The negligence of the defendant, through his employés, in not guarding the excavation, is admitted. The defendant requested the court to instruct the jury that the plaintiff was guilty of contributory negligence, and could not recover. The question of his contributory negligence was left to the jury, under the usual and proper instructions. The theory of the defendant is that walking is the ordinary method of traveling upon sidewalks, and that, where one falls in consequence of running, the municipality is not liable. The act of running in this case was not per se negligence. One has a right to run upon the streets and sidewalks in order to escape from the assaults of others, and for many other reasons, and in such cases the question of contributory negligence is for the jury.
The judgment is affirmed.