Hart v. Neillsville, 141 Wis. 3. ficiency of the system, and alleging that the connection of plaintiff's premises with the system was made by himself without supervision, direction, consent, or interference on the part of the defendant. The cause was submitted to a jury for a special verdict resulting in the following findings: (1) Defendant adopted a plan for the sewer system before it was constructed. (2) At the time and place in question, it was defective and insufficient. (3) Such condition was the proximate cause of the injuries to plaintiff's property. (4) Defendant had notice. of such condition a sufficient length of time before the injuries were caused to enable it by the exercise of ordinary care to have remedied the insufficiency. (5) Defendant was guilty of a want of ordinary care in respect to the construction of the sewer system. (6) Plaintiff's property connection with the sewer system was not insufficient or defective. (7) He exercised ordinary care in constructing and maintaining the connection. (8) Plaintiff was damaged by reason of defendant's negligence $950, as follows: $246 on July 4th and 9th and August 5th, and $704 on September 12, 13, and 14, 1903. In due course, there was a motion for defendant to change the answers to various questions, which was denied, and also for an order setting aside the verdict and for a new trial on several grounds, which was also denied. Judgment according to the verdict was rendered for the plaintiff. For the appellant there was a brief by Homer C. Clark and Geo. L. Jacques, city attorney, and L. M. Sturdevant, of counsel, and oral argument by Mr. Jacques and Mr. Sturdevant. To the point that plaintiff was guilty of contributory negligence and therefore cannot recover, they cited 28 Cyc. 1338; O'Brien v. Worcester, 172 Mass. 348; Valparaiso v. Ramsey, 11 Ind. App. 215, 38 N. E. 875; Guthrie v. Nix (Okla.) 49 Pac. 917; German T. School v. Dubuque, 64 Iowa, 736; Simpson v. Keokuk, 34 Iowa, 568; Hoehl v. Mus Hart v. Neillsville, 141 Wis. 3. catine, 57 Iowa, 444; Fulleam v. Muscatine, 57 Iowa, 457; Cooper v. Dallas, 83 Tex. 239; Dallas v. Cooper (Tex.) 34 S. W. 321; Green v. Ashland W. Co. 101 Wis. 258; Steinhofel v. C., M. & St. P. R. Co. 92 Wis. 123; White v. C. & N. W. R. Co. 102 Wis. 489; Tesch v. Milwaukee E. R. & L. Co. 108 Wis. 593; Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333; Wilson v. Waterbury, 73 Conn. 416; Mayor, etc. v. Small, 108 Ga. 309. That he was guilty of such negligence as a matter of law is shown by the following illustrative cases: Hogan v. Winnebago T. Co. 121 Wis. 123; Bremer v. Pleiss, 121 Wis. 61; Schrunk v. St. Joseph, 120 Wis. 223; Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331; Ray v. Stuckey, 113 Wis. 77; Walters v. C. & N. W. R. Co. 113 Wis. 367; Sheriff v. Oskaloosa, 120 Iowa, 442; Buckley v. New Bedford, 155 Mass. 64, 67. For the respondent there was a brief by S. M. Marsh and O. W. Schoengarth, attorneys, and James Wickham, of counsel, and oral argument by Mr. Marsh and Mr. Wickham. MARSHALL, J. On the former appeal it was held that if, as alleged, appellant failed to duly adopt a plan for its sewer system before constructing the same, or, having so adopted a plan, failed to reasonably construct the system in accordance therewith, it was guilty of actionable negligence and liable to respondent for such damages to his property, as were attributable to such negligence as the proximate cause thereof and were not produced by his own want of ordinary care concurring with appellant's wrong. Further it was held that, if the appellant was free from actionable negligence in respect to the adoption of plans for its sewer system, or execution of the same, yet, in operation, the system proved to be dangerously inadequate for the purpose thereof, and it failed to remedy the deficiency within a reasonable time after actual or constructive notice thereof, it was guilty of actionable negligence, and was liable for any damage to respondent's property, at Hart v. Neillsville, 141 Wis. 3. tributable to such negligence as the proximate cause thereof, and not produced by want of ordinary care on respondent's part concurring with that of appellant. Such is the law from an original standpoint, but, in any event, such is the law of this case. Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563; Darcey v. Farmers' L. Co. 98 Wis. 573, 74 N. W. 337; Collins v. Janesville, 111 Wis. 348, 359, 87 N. W. 241, 1087; Habenicht v. C., St. P., M. & O. R. Co. 134 Wis. 268, 114 N. W. 497. The decision of the jury was in favor of appellant, as to whether plans for the sewer system were adopted, but in favor of respondent, as to whether ordinary care was exercised in constructing the system. It is the opinion of the court that the effect of such findings is that appellant did not follow, reasonably, the adopted plans in constructing the system and putting it in operation. There is ample evidence of that which need not be referred to in detail. Probably the most significant of any is the evidence that the plan did not contemplate connecting the system with Goose creek, which connection may well have been regarded by the jury as an efficient cause of overloading the system, particularly, on that part of the street on which respondent's property was located. Since the jury found that, although a plan for the sewer system was duly adopted, it was negligently constructed, in that ordinary care was not exercised to execute the plan, it is considered that such want of ordinary care relates to the defective character of the system, which the jury found was the proximate cause of the injury to respondent's property. Therefore, the defect being inherent in the original installation of the system, in that proper regard for the adopted plans was not exercised, notice of the insufficiency which became evident by the operation, necessary to charge it with liability for damages attributable to its negligence as a proximate cause, must be conclusively presumed. The rule applies as in case of imperfect original construction of a highway. Lia Hart v. Neillsville, 141 Wis. 3. bility of the municipality for consequences to travelers proximately caused by original insufficiency commences at once, while, if the construction is free from actionable imperfections at the start, and the highway subsequently becomes unsafe, such liability does not commence till the municipality has actual or constructive notice of the defect and reasonable opportunity to remedy the deficiency, or to efficiently guard against injury happening to users in the exercise of ordinary care. Because of the foregoing, several suggested errors in the admission of evidence, bearing on the question of notice to the appellant of the defective condition of the sewer system, are immaterial. In this connection, we will add that we cannot discover harmful error in any of the complaints as to the reception or rejection of evidence, and with that we will pass the subject, as one not requiring treatment of the numerous incidents in detail, cited to our attention. The most serious matter is involved in the question of whether the evidence shows conclusively that respondent was guilty of contributory negligence, precluding a recovery as to part, if not the whole, of the damages claimed. On that we will refer, briefly, to the undisputed facts and the inferences unmistakably arising therefrom. Appellant knew, as well as respondent, the general conditions rendering the sewer insufficient to carry off all the water and sewage liable to flow into it without danger of overloading, causing the contents to back into drains connected with property abutting on the street, and discharge into basements below the standing level of contents of the sewer and its connections, at the time he made his connection. He knew that the surface drainage from a large territory was into the main on Fifth street by way of street catch-basins and drain. connections with the surfaces of lots and roofs. He knew that the sewage from numerous occupied buildings on the street was discharged into the main. He knew that such ac Hart v. Neillsville, 141 Wis. 3. his cumulations from these and many sources as would necessarily occur, especially during periods of severe rainfall, had no way of reaching the outlet of the sewer system except through the eight-inch main on Fifth street, which served catch-basin connections of the same size and numerous sixinch connections with basements on abutting property. He knew that the drain connections with the main were at the side thereof and that the slope from the basement end of his drain to the top of the main was not much over eighteen inches. He knew, or ought to have known, because he could not have helped it had he paid ordinary attention to the matter, that the slope of the sewer was so slight, the slope from the opening of the basement to the main so little, and the height of water liable to occur in the catch-basin near property, during rainstorms, such that the high point would, necessarily, at times, be above the basement open end of his drain. He must have known that the end of his drain in the basement was only some four feet below the opening in the nearby catch-basin. It had been well known for over a year before he made his connection with the sewer, that, during rainstorms, basements on defendant's street were liable to be flooded from the sewer, unless the connecting drains were armed with checks to prevent it. It seems respondent must have known this, as one or more of his nearest neighbors had suffered, and remedied the difficulty by a check valve in the drain pipe. He knew that water when permitted to flow will move till it comes to a rest, all points within the zone of restraint being at a common level, and that it will move till it reaches boundaries permitting such common level. In that situation he deliberately connected his drain with the main sewer, leaving the basement end open and below the level to which contents of the sewer system and its connections were, with reasonable certainty, liable to frequently reach, in that the end of the six-inch drain pipe was only closed to the extent of inserting therein a four-inch iron pipe, thus leaving |