
    PENROSE v. FEHR.
    Personal Injuries — Unguarded Excavation — Running on Sidewalk-Contributory Negligence.
    Running upon the sidewalk, in order to avoid being struck by a snowball, is not per se such an act of negligence as will bar a recovery for injuries received from falling into an unguarded excavation.
    Error to Gpgebic; Haire, J.
    Submitted June 16,1897.
    Decided June 28, 1897.
    Case by Wesley Penrose, an infant, by William Pen-rose, his next friend, against Fred Fehr, for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff, who was 17 years of age, about 8 o’clock on the evening of December 6, 1894, stood at the intersection of two streets in the city of Ironwood. Several boys were throwing snowballs. Plaintiff, with others, ran along'the sidewalk, to escape the snowballs, and fell into an excavation, which had been made by the defendant. This excavation was 8 feet wide, 12 feet long, and 3 feet 8 inches deep. It was made for the purpose of drawing dirt from an adjoining lot. There were. electric lights at each end of the block, and one near the center. Plaintiff testified that he saw the excavation as he approached it, but not in time to stop. Other witnesses also testified that it'was so light that they could see it. Plaintiff testified that, if he had been walking, he thought he would figve seen it in time to stop. Plaintiff recovered verdict and judgment.
    ‘ C. E. Miller, for appellant.
    
      Julius J. Fateh (Charles A. Withey, of counsel), for appellee.
   Grant, J.

(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.

The other Justices concurred.  