Day, J.
1. jury • taxagainsta°ta<m corporation, I. One Robert Todd was called as a juror, and upon inquiry he stated that he was a resident of the City of Burlington, an owner of property therein, and a taxpayer. Thereupon the plaintiff’s attorney challenged Todd for canse, and the court sustained the challenge. The defendant excepted, and assigns this ruling as error. In Dively v. The City of Cedar Falls, 21 Iowa, 565, it was held that it was no abuse of discretion, under Revision, section 3039, subdivision 2, to exclude for cause from the jury a citizen and tax-payer of the defendant. Subdivision 9, of section 2772 of the Code, is essentially the same, except that it omits the element of discretion. It provides that a juror may be challenged for cause when he “ shows sue-h a state of mind as will preclude him from rendering a just verdict.”
Now, to hold that a person, who shows that he must ultimately contribute to the satisfaction of whatever judgment may be recovered, does not exhibit a state of mind which will preelude him from rendering a just verdict, attributes a keener sense of justice than common jnortals are in the habit of arrogating to themselves. No man ought to be a judge in his own cause. The next sub-division of this section provides that “being interested in a like question with the issue to be tried” is a ground of challenge for cause. This juror was interested not only in a like question, but in the question involved iir the issue. The analogies of the law favor the sustaining of this challenge. Section 2590 provides that a change of the place of trial may be had where a county is a party, if the application be made by the party adversely interested. See, also, Wood v. Stoddard, 2 Johnson, 194; Stryker v. Turnbull, 3 Caines, 103; Fine v. St. Louis, 3 Mo., 173; Rose et al., v. The City of St. Charles, 49 Mo., 570; P. Railway Co. v. Howard, 20 Mich., 18.
There was no error, we think, in sustaining this challenge.
2. evidence: iormer trial, II. The plaintiff produced as a witness G-. S. Grant, who had been a juror upon the former trial of the cause, and who, at that time, as such juror, examined the side walk, and asked him to state the condition of [319]*319the side walk just at the place where the board was nailed across from the railing to the saloon. The defendant objected, because the witness was one of the jurors at the time, and that the witness must confíne himself to the condition of the sidewalk prior to the time of the injury. The objection to the witness was overruled, and he was permitted to answer the question asked upon the statement of plaintiff that he expected to show that the condition of the sidewalk when examined by the witness was the same as when the accident occurred. In this action there was no error. A party cannot be deprived of the benefit of the testimony of a party, simply because he had been a juror upon a former trial of the cause.
As all the testimony in a case cannot be produced at the same moment, its competency cannot always, without great inconvenience, be made to appear at the time when it is offered. In such case it is a common practice, sanctioned by the highest authority, to admit testimony not at the time shown to be competent, upon the statement of the party offering it that he will connect it wdth the case by other testimony. This offer was made, and, as the abstract does not show that it contains all the testimony, we will presume the offer was performed ; at all events, as the testimony was properly admitted, defendant should have asked that it be stricken out, or that the jury be directed not to consider it, if, during the trial, proper facts for its retention were not shown.
III. The court upon his own motion instructed the jury as follows:
3 mmi■Dai^oMemn" stmciion. “6. If the jury find from the evidence that the plaintiff, at the time of alleged injury, taking into consideration the kind °f n'gkt it was, and all the facts and circumstances connected with such injury, as shown by the evjdencei exercised ordinary care, and this is such care as an ordinarily prudent man would exercise under similar circumstances, then he was not at fault or negligent. If, however, he did not exercise such care, and if, by reason of a want of such care, the alleged injury resulted to him, then he is guilty of contributory negligence, and he cannot [320]*320recover in this case. The burden of proving such ordinary care rests on the plaintiff.”
There was evidence tending to show that plaintiff, during the night and before the injury, drank several glasses of beer. Appellant claims that the proper and legitimate construction of this instruction, as applied to the facts of this case, is that ordinary care is such care as an ordinarily prudent man would exercise when in a state of intoxication. This is not its natural import, and we cannot conceive that the jury so understood it. The circumstances which the jury are here directed to consider clearly have no reference to the condition of the plaintiff, but to the kind of night, the place of the injury, and all such circumstances as it might reasonably be supposed would influence the conduct of a man of reasonable care and prudence.
IY. At plaintiff’s request the court gave the following instruction;
“ 4. The defendant in its answer charges that the plaintiff, at the time he was injured, was intoxicated. The actual condition of plaintiff at the time of his injury is a question for the jury to decide from the testimony, and the defendant must show by a fair preponderance of the evidence that the plaintiff was intoxicated. And even if you find from a fair preponderance of the evidence that plaintiff at the time of the injury was intoxicated, then you must further find that on account thereof he became careless or reckless in regard to his safety, and thus caused or contributed to his injury. And, if you believe that the city was negligent, and that plaintiff, as above stated, did not contribute to said injury, then your verdict must be for the plaintiff.”
The giving of this instruction is assigned as error.
4_. ¡ bun?en°o£ prooh We think this instruction is wrong in at least two respects. Whilst the being abroad in the streets of a city, in a state of intoxication, is not negligence as a matter of law, sfc^> ^ *s a circumstance or condition, from which the jury may find the existence of negligence as a fact.
The burden of proof is upon the plaintiff to establish, by a [321]*321preponderance of testimony, the negligence of defendant, and that his own want of ordinary care did not contribute to the injury.
A state of sobriety is the normal condition. It is the condition which is presumed to exist in any given, case. This presumption, like the presumption of innocence, stands in favor of a party in the place of proof. When, however, evidence is introduced tending to show a condition of intoxication, the presumption of a state of sobriety is overcome.
The plaintiff must now rebut the evidence of intoxication.
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Day, J.
1. jury • taxagainsta°ta<m corporation, I. One Robert Todd was called as a juror, and upon inquiry he stated that he was a resident of the City of Burlington, an owner of property therein, and a taxpayer. Thereupon the plaintiff’s attorney challenged Todd for canse, and the court sustained the challenge. The defendant excepted, and assigns this ruling as error. In Dively v. The City of Cedar Falls, 21 Iowa, 565, it was held that it was no abuse of discretion, under Revision, section 3039, subdivision 2, to exclude for cause from the jury a citizen and tax-payer of the defendant. Subdivision 9, of section 2772 of the Code, is essentially the same, except that it omits the element of discretion. It provides that a juror may be challenged for cause when he “ shows sue-h a state of mind as will preclude him from rendering a just verdict.”
Now, to hold that a person, who shows that he must ultimately contribute to the satisfaction of whatever judgment may be recovered, does not exhibit a state of mind which will preelude him from rendering a just verdict, attributes a keener sense of justice than common jnortals are in the habit of arrogating to themselves. No man ought to be a judge in his own cause. The next sub-division of this section provides that “being interested in a like question with the issue to be tried” is a ground of challenge for cause. This juror was interested not only in a like question, but in the question involved iir the issue. The analogies of the law favor the sustaining of this challenge. Section 2590 provides that a change of the place of trial may be had where a county is a party, if the application be made by the party adversely interested. See, also, Wood v. Stoddard, 2 Johnson, 194; Stryker v. Turnbull, 3 Caines, 103; Fine v. St. Louis, 3 Mo., 173; Rose et al., v. The City of St. Charles, 49 Mo., 570; P. Railway Co. v. Howard, 20 Mich., 18.
There was no error, we think, in sustaining this challenge.
2. evidence: iormer trial, II. The plaintiff produced as a witness G-. S. Grant, who had been a juror upon the former trial of the cause, and who, at that time, as such juror, examined the side walk, and asked him to state the condition of [319]*319the side walk just at the place where the board was nailed across from the railing to the saloon. The defendant objected, because the witness was one of the jurors at the time, and that the witness must confíne himself to the condition of the sidewalk prior to the time of the injury. The objection to the witness was overruled, and he was permitted to answer the question asked upon the statement of plaintiff that he expected to show that the condition of the sidewalk when examined by the witness was the same as when the accident occurred. In this action there was no error. A party cannot be deprived of the benefit of the testimony of a party, simply because he had been a juror upon a former trial of the cause.
As all the testimony in a case cannot be produced at the same moment, its competency cannot always, without great inconvenience, be made to appear at the time when it is offered. In such case it is a common practice, sanctioned by the highest authority, to admit testimony not at the time shown to be competent, upon the statement of the party offering it that he will connect it wdth the case by other testimony. This offer was made, and, as the abstract does not show that it contains all the testimony, we will presume the offer was performed ; at all events, as the testimony was properly admitted, defendant should have asked that it be stricken out, or that the jury be directed not to consider it, if, during the trial, proper facts for its retention were not shown.
III. The court upon his own motion instructed the jury as follows:
3 mmi■Dai^oMemn" stmciion. “6. If the jury find from the evidence that the plaintiff, at the time of alleged injury, taking into consideration the kind °f n'gkt it was, and all the facts and circumstances connected with such injury, as shown by the evjdencei exercised ordinary care, and this is such care as an ordinarily prudent man would exercise under similar circumstances, then he was not at fault or negligent. If, however, he did not exercise such care, and if, by reason of a want of such care, the alleged injury resulted to him, then he is guilty of contributory negligence, and he cannot [320]*320recover in this case. The burden of proving such ordinary care rests on the plaintiff.”
There was evidence tending to show that plaintiff, during the night and before the injury, drank several glasses of beer. Appellant claims that the proper and legitimate construction of this instruction, as applied to the facts of this case, is that ordinary care is such care as an ordinarily prudent man would exercise when in a state of intoxication. This is not its natural import, and we cannot conceive that the jury so understood it. The circumstances which the jury are here directed to consider clearly have no reference to the condition of the plaintiff, but to the kind of night, the place of the injury, and all such circumstances as it might reasonably be supposed would influence the conduct of a man of reasonable care and prudence.
IY. At plaintiff’s request the court gave the following instruction;
“ 4. The defendant in its answer charges that the plaintiff, at the time he was injured, was intoxicated. The actual condition of plaintiff at the time of his injury is a question for the jury to decide from the testimony, and the defendant must show by a fair preponderance of the evidence that the plaintiff was intoxicated. And even if you find from a fair preponderance of the evidence that plaintiff at the time of the injury was intoxicated, then you must further find that on account thereof he became careless or reckless in regard to his safety, and thus caused or contributed to his injury. And, if you believe that the city was negligent, and that plaintiff, as above stated, did not contribute to said injury, then your verdict must be for the plaintiff.”
The giving of this instruction is assigned as error.
4_. ¡ bun?en°o£ prooh We think this instruction is wrong in at least two respects. Whilst the being abroad in the streets of a city, in a state of intoxication, is not negligence as a matter of law, sfc^> ^ *s a circumstance or condition, from which the jury may find the existence of negligence as a fact.
The burden of proof is upon the plaintiff to establish, by a [321]*321preponderance of testimony, the negligence of defendant, and that his own want of ordinary care did not contribute to the injury.
A state of sobriety is the normal condition. It is the condition which is presumed to exist in any given, case. This presumption, like the presumption of innocence, stands in favor of a party in the place of proof. When, however, evidence is introduced tending to show a condition of intoxication, the presumption of a state of sobriety is overcome.
The plaintiff must now rebut the evidence of intoxication. And, as a state of intoxication may justify the inference of a want of ordinary care, and it is incumbent upon the plaintiff to prove that no fact existed from which a want of ordinary care may be inferred, in order that he may; occupy a position in which the jury cannot attribute to him negligence, it must appear, from a preponderance of the whole testimony that plaintiff was not intoxicated at the time of the injury. In other words, the presumption of sobriety makes for the plaintiff a prima facie case. When this presumption is overcome, the burden of proof is shifted to the plaintiff, and the party having the burden of proof must establish by a preponderance of testimony the fact respecting which the burden exists. We do not mean to say that it is necessarily negligent to be on a dangerous street in a state of intoxication; but that, from being in such a place in such a condition, the jury may find that the plaintiff was negligent, and that, when a case arises in which the jury may fairly find negligence from a state of intoxication, in order to prevent the possibility of such an inference, it s'hould appear on behalf of the plaintiff, either from the presumption which exists in his favor, or, when the defendant’s testimony successfully meets and overcomes this presumption, then by a preponderance of all the testimony taken together, that he was not, at the time of the injury, in an intoxicated condition.
In other words, when it is negligence to be in a particular place in a state of intoxication, and some evidence is introduced, tending to show that the plaintiff was in that condition, [322]*322then it must appear, from a preponderance of the evidence, that he was not intoxicated, in order that he may recover.
The jury should have been instructed that, if they should find it would be negligent to be in the place in question in a state of intoxication, then they must find from a preponderance of the evidence that the plaintiff was not intoxicated; and that the intoxication of plaintiff should not defeat his recovery, if it did not contribute to the injury which he sustained.
6_:_:_. Again, this instruction directs that, in addition to the existence of a state of intoxication, the jury must further find that on account thereof plain tiff became careless or reckless in regard to his safety, and thus caused or contributed to his injury. This was error. An intoxicated person might become neither careless nor reckless, and at the same time might so far lose control of his muscular action as to be unable to avoid injury. If, under such circumstances, he should stumble or stagger over a dangerous precipice, his want of ordinary care may have contributed to the injury, no matter how much he may have wished and endeavored to avoid the danger.
7. practice: repetition. Y. The defendant asked the court to instruct as follows: “ 3. The burden of proof is upon the plaintiff to show that at the time he received the injury complained of, he was m the exercise ot ordinary care, and that his negligence in no manner contributed to the injury he received, if any; and if he has failed in this, you may find for the defendant.” This instruction presents the law of ordinary care in a clear and succinct form; but the court, in the sixth instruction given upon his own motion, and above set out, directed the jury that the burden of proving ordinary care rests upon the plaintiff. It was not error for the court to refuse to repeat this direction.
s. itbgmnSipaf cor-' Sence.on V1 YI. The defendant asked the court to instruct as follows: “ 13. The condition of the set-off prior to the injury cannot be considered by you in determining whether or not the city has been negligent, if you should find that the set-off complained of as dangerous was, on the evening of the alleged injury, barricaded or protected [323]*323so as to be reasonably safe to persons walking on the sidewalk there, in the exercise of due care, or such care as an ordinary prudent man would exercise, taking into consideration the kind of night it was.” This instruction ought to have been given. It is the condition of the sidewalk at the time the injury was sustained, upon which the question of the liability of the defendant depends. Its condition before may be shorvn for the purpose of showing the knowledge of defendant of its condition at the time the injury was sustained. Still, if it was barricaded or protected in such manner as to be reasonably safe on the night the injury was sustained, it cannot be claimed that the defendant can be held liable for negligence, because the sidewalk was in an unsafe condition at some prior time.
¥e have examined the entire record, and discover no other material error.
For the errors discussed, the judgment is
Eeversed.