Plaintiff has resided for several years at 1449 Locust Street, Dubuque, in an apartment house he is buying on contract. His property extends through, the block to Bluff Street on the west. In September of 1951 he replaced the old brick sidewalk abutting the north half of his lot' on Bluff Street with a new concrete walk. He built another garage at the same time. He secured a building permit for his garage and a sidewalk рermit for the sidewalk. His contractor was Mr. Henry Kramer, Sr., and when he was ready to build the sidewalk plaintiff testified Mr, Vincent Benda, the city sidewalk inspector, came out and gave Mr. Kramer the grade line on which to build the sidewalk.
The old brick sidewalk was still in place abutting the property immediately to the north of plaintiff. .When Mr. Kramer placed the sidewalk on the grade line, as given him by the side *356 walk insрector, the north end of the new sidewalk was about two and a quarter inches above the brick sidewalk at the center line of the walk.
On October 24, 1956, at about eight o’clock in the evening, plaintiff walked down to a neighborhood tavern to look at the television. He drank two bottles of orange pop. Later in the evening a friend by the name of Mr. Lawrence Nutz came into the tavern. He had his car and offered to take plaintiff home. Plaintiff stopped in at a grocery store and bought a loaf of bread and told his friend they would have a roast beef sandwich when they arrived at his house. Mr. Nutz drove his car up Bluff Street to the west side of plaintiff’s property and drove into his driveway.
When plaintiff alighted from his friend’s car he noticed a rather large piece of whitе paper on the west side of the brick sidewalk about ten feet north of his sidewalk. He walked up and picked it up. He then proceeded to walk back on the center of the brick sidewalk with the loaf of bread under one arm and the piece of paper, which he was going to throw into a wastepaper basket, in his other hand. When he reached the north edge of his concrete walk, where it was two and a quarter inches above the brick walk, he stubbed his right foot and fell. He struck his head on the walk; was knocked unconscious, and fractured the femur of his right leg.
The bills of the hospital and doctor amounted to $1124.90. In his petition he also claimed damages for pain and suffering and permanent injury. The jury returned a verdict in his favor for $15,000. City of Dubuque has appealed.
Appellant assigns four alleged errors. 1. The court should have directed a verdict on the basis of plaintiff’s contributory negligence as a matter of law. 2. The court should have directed a verdict on the basis that plaintiff failed to establish actionable negligence as against defendant. 3. The case should be reversed because the trial court erred iu ruling that all taxpayers оf the City of Dubuque were ineligible as jurors. 4. The court erred, and the case should be reversed, in admitting Exhibits 14, 19, 20 and 22 over defendant’s objections. These were four subpoenas duces tecum directed to city officials and demanding production in court of certain city records.
*357 The statutory basis for claims against cities and towns for defective streets is section 389.12 of the Code, which is as follows : “Thеy shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.”
The statute in substantially the same form has been in effect for one hundred years. It appeared first in the Code of 1860. Almost every type of sidewalk defect has, therefore, had consideration, although each case still depends upon the peculiar facts and circumstances of the particular case.
I. In almost all cases the question of contributory negligence has been raised. The instant case is very close as to this question. When plaintiff built his concrete sidewalk in 1951 he became cognizant of the fact that the brick sidewalk to the north was about two and a quarter inches lower than his sidewalk. Over five years had passed when the accident happened. He claims he had only been out on the walk on Bluff Street twice during that period. This sounds a little incredulous, but as to whether or not he was to be believed was a question for the jury. We realize this could be possible because his apartment housе where he lived was on Locust Street and in walking in or out of his apartment he would normally go out the front way. Otherwise, he would drive his car, which was in the garage abutting Bluff Street. In doing so he would cross his own sidewalk and ordinarily would only see his garage and his sidewalk.
Plaintiff’s testimony as to what happened on the night of his injury is as follows: “I got as far as the walk where the brick sidewalk comes together with the cement and I stubbed my right foot on there and I hit. That is the last I remember. * * # I came to in my basement on my bed.” He further testified: “I could see the area where the brick sidewalk joined the cement sidewalk, but not too well, it was rather dark. I made an effort to step over this difference in elevation and I didn’t step high enough because I was walking natural. It was dark at that time. Q. State whether or not the darkness caused you to misjudge this difference in elevation at the time you stepped over it? A. Yes sir.”
*358 It is necessary to analyze some of the leading decisions, where the question of contributory negligence in connection with injuries, resulting from sidewalk defects has been considered.
One of the early cases, decided in 1902, was Rusch v. City of Dubuque,
The principal contention of the city wаs that in failing to observe the projecting spike she was guilty of contributory negligence and ought not, for that reason, to recover. The court said: “All required of plaintiff was that she exercise the care an ordinarily prudent person would in passing, over the walk.
*
* * While bound to make use of their senses and exercise the caution' ordinarily displayed by persons of prudence, they are not required at their, peril to discover every defect, even though open and visible. Barnes v. Town of Marcus,
In Howard v. City of Waterloo,
In Staples v. City of Spencer,
In Thomas v. Fort Madison,
Plaintiff testified that she walked slowly; as she came to the point where the sidewalk connects with the curb she stepped from the sidewalk to the pavement and caught the heel of her shoe in the defective walk and fell. The court said: “* * * this condition was created by the city and never remedied over a period of more than ten years; that there was a crevice sufficient to catch the heel of a shoe and which, under the undisputed evidence, was the cause of plaintiff’s fall; * * * that plaintiff was walking slowly and carefully at the time — , we are constrained to hold with the trial court that on the questions raised by this appeal the matters were for the determination of the jury.”
In Beach v. City of Des Moines,
Quoting from Markle v. Chicago, R. I. & P. Ry. Co.,
In Taylor v. City of Sibley,
Other cases as to the same general effect are: Geagley v. City of Bedford,
On the basis of observing the rule that the evidence must be viewed in the light most favоrable to plaintiff, and in view of the decisions in the above typical and somewhat similar eases, we hold the question of plaintiff’s contributory negligence in the instant case ivas properly submitted by the trial court to the jury.
II. The statutory provision with reference to the obligation of cities and towns to care for, supervise and control streets includes the sidewalks. A city is liable to pedestrians who are injured through hazards, entrapments of some type, and substantial defects in sidewalks, subject to the prerequisite that the city has had notice of the defect, actual or constructive. Patterson v. City of Council Bluffs,
The submission of this eаse to the jury by the trial court, as to the question of negligence of defendant, was clearly correct. The city sidewalk inspector provided the contractor with a grade, which placed plaintiff’s concrete sidewalk 2% inches above the old brick city walk to the north. The sidewalk inspector, who had responsibility on behalf of the city with reference to the care of sidewalks, permitted this evident hazard to exist. He had actual knowledge of the defect and apparently either did not report the fact to the proper authorities so it could be corrected, or if he did the matter did not have attention. It was a question for the jury as to negligence of city in *362 leaving the old brick sidewalk lower than the concrete walk for a period оf over five years without giving the matter attention. Should the city have ordered in a new concrete walk on the same level as plaintiff’s walk, immediately after the erection of plaintiff’s concrete walk in 1951 ? For a period of five years, or until plaintiff had his serious accident, nothing was done by the city. The jury could hold negligence by the city, and the circumstances involved in the situation could form the basis for both actual and constructive notice to the city.
In Thomas v. Fort Madison, supra, the court stated at page 827 of 225 Iowa, page 751 of 281 N.W.: “At the point where a new brick walk joined an old plank walk there was a perpendicular offset of nearly four inches and with reference thereto the court said: ‘That such an offset is more or less dangerous is amply demonstrated by the accident to the plaintiff. Whether such an offset is so dangerous as that to permit it is negligence depends upon the surrounding circumstances, such as the proximity of lights, the amount of travel, and the like. We think it was for the jury to determine, in the light of the circumstances, whether the city was negligent in permitting this offset, # * # > »
In Welsh v. City of Des Moines, supra, we said: “We cannot hold, however, as a mаtter of law that a municipality may never be charged with negligence, in case of injury, by permitting elevations or depressions of 1% to 2 inches in sidewalks to remain therein indefinitely after notice, actual or constructive, thereof. The question is one peculiarly for the jury, * *
In Howard v. City of Waterloo, supra, at page 1113 of 206 Iowa, this court said: “While the city is not bound to maintain perfection in its sidewalks, it is bound to exercise reasonable care to maintain its walks in a reasonably safe condition. * * * It was for the jury to say whether the officers of the defendant city, with the description of the place, as given by the plaintiff, * * * could reasonably have anticipated an injury to someone who was exercising due care, such as befell the plaintiff.”
III. Appellant’s counsel raises the question that the court erred in excluding all Dubuque taxpayers as jurors. The regular jury panel subject to the call at the commencement of the trial consisted of 49 persons. It developed that 35 were real *363 property owners and paid taxes in Dubuque. The court instructed the sheriff to call talesmen. Fifty-eight were called. Thirty-two of the talesmen were Dubuque real property owners. This left 14 prospective jurors in the regular panel and 26 in the talesmen list, or a total of 40. From this group a jury was properly and regularly selected.
Appellant’s complaint is that in cross-examination of many of the jurors who were property owners, about 25% said they thought they could fairly try the case even though they were Dubuque taxpayers, and that they should have been permitted to serve.
Throughout the history of the state it has been customary that where a claim for damages is made against a city, property owners in the city are disqualified as jurors. The basis for the disqualification is that they have a vital interest in the outcome of the case. If a judgment is rendered against the city the property owner as a taxpayer will be obligated to pay a part of it. Even though a peculiarly fair-minded juror might state that he would not be prejudiced, yet it is an unfair position in which to place a juror, and the plaintiff in the case. Kendall v. City of Albia,
Not only is it customary and for the best interest of all parties concerned that jurors under the circumstances above outlined be excused, but the selection of jurors is peculiarly within the discrеtion of the trial court.
Furthermore, in the case at bar there is no showing as to any prejudice suffered by appellant because the taxpaying jurors were excused.
In Johnson v. City of Waterloo, supra, at page 671 of 140 Iowa, the court said: “The defendant had no right to a trial before any particular juror or jury. All it could insist upon was a competent and impartial jury, and, as the record does not' affirmatively show that it exhausted the peremptory challenges to which it was entitled, the jurors before whom the case was tried are presumed to have been acceptable to it.” Appellant made no showing in the case at bar that the peremptory chai *364 lenges were exhausted after the talesmen had been called. We further stated in the same ease (page 672) : “* * * though a qualified juror be excused, another equally competent and fair minded will be selected in his stead, and, if a competent and impartial jury is finally secured before whom the cause is tried, neither party is in a situation to complain.” This assignment of error by appellant does not justify reversal.
IV. For some reason plaintiff offered in evidence four subpoenas duces tecum which had been served on city officials to appear and bring certain city records. The court admitted them and appellant contends this was error. We are at a loss to see where there was any particular materiality as to these exhibits. We cannot see that they have any bearing upon any issues in the case. On the other hand, there was no prejudice in their admission. The fact that certain city officials were called and were requested to bring certain city records was not in any manner prejudicial to defendant. The fact that the jury had these subpoenas in the jury room was of no importance or consequence as to either party in the case. The admission of the exhibits does not constitute any basis for reversal.
The judgment on the verdict is affirmed.- — Affirmed.