A motion for a rehearing was filed on behalf of the city, upon the filing of the foregoing opinion, accompanied by an elaborate brief, in which the principal questions involved in the case were ably discussed and presented, and a rehearing was granted and the case again argued and submitted. The facts ai’e stated in the former opinion and need not be repeated here. The chief justice, in a lengthy and able dissenting opinion filed herewith, has stated a considerable portion of the evidence and copied the instructions given and refused. It is unnecessary, therefore^ to copy the same here.
*251It will be seen that the instructions of the court were very favorable to the city, and that all the instructions asked were given in other instructions, particularly No. 9 asked by the city and refused.
If, on the facts proved in this case, a plaintiff was unable to recover, the effect would be virtually to exempt municipal corporations from liability where excavations were made in the sidewalks and left without sufficient protection. If such a change in the law is made it should be done by the legislature, and not the courts. The rule as to contributory negligence adopted by this court is conceded in the dissenting opinion to be the correct one, and as the evidence on the part of the plaintiff below not only' failed to show contributory negligence on his part, but.' tended to negative the existence of such negligence the burden of proving the same devolved on the city. The instruction asked, therefore, was properly refused.
It is very clear that justice has been done! The undisputed testimony shows that the plaintiff below, while walking along O street, on his way to the U. P. depot, between 7 and 8 o’clock in the evening, fell into the excavation in question and sustained injuries of a serious character, and which he did not recover from for several months. The clear weight of testimony also shows that the excavation on the whole or a considerable part of the north side of the lot in question was left unguarded — without' barriers to prevent persons from' falling into the same. A person who by night or day passes along a public street open to travel has a right to presume that it is in a safe condition • and if, in the exercise of reasonable care, he falls into* an excavation in the street which was not adequately protected, and sustains injuries, he may in a proper case recover therefor. Barnham v. Boston, 10 Allen, 290. Stinson v. City of Gardiner, 42 Me., 248. Williams v. Clinton, 28 Conn., 264. Tolland v. Willington, 28 Id., 578. We ad*252here to our former opinion, and the judgment must be affirmed.
Judgment affirmed.
Reese, J., concurs.