I concur in the reversal of this judgment upon the ground that on the evidence the plaintiff was guilty of contributory negligence in voluntarily placing herself in a position of danger by which she assumed the risk incident to that situation. There is no question but that the plaintiff was sui juris and the defendant was entitled to have the court charge that proposition. She was, therefore, bound to exercise the care of an ordinarily prudent person in walking along the sidewalk, and, if the in jury resulted from a risk knowingly and voluntarily assumed by her, she cannot recover. The defendant was erecting a building upon his premises and had the legal right to excavate a cellar. He was also building a new sidewalk in front of his premises, and to accomplish that he had to remove the old sidewalk. While the premises were in this condition, in broad daylight, with the situation apparent to the plaintiff, instead of crossing on the other side of the street where the sidewalk was in order, she selected this sidewalk in course of construction, and to *262avoid wetting her feet -walked on a strip about a foot wide which was immediately adjoining the excavation, and in walking over this strip she slipped and fell. It is not claimed that the plaintiff was not entirely familiar with the situation, or that she did not know that the excavation had been made, but she deliberately selected this place of danger in preference to the other sidewalk or the middle of this sidewalk where she would have been safe. To say that an accident under these conditions was the result of the negligence of the defendant seems to me to contradict all of the conceded facts. The accident really happened because the plaintiff voluntarily placed herself in a place of danger which was perfectly apparent to her, and not through any negligence of the defendant.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.