Hume v. City of Chilton , 167 Wis. 78 ( 1918 )

OweN, J.

A number of questions are presented and argued to which attention is unnecessary, for tbe reason tbat plaintiff’s contributory negligence bars bis right to recover in any view of tbe case. It appears from bis written notice served upon tbe city tbat be understood perfectly tbat the connection of tbe proposed Scbool-street sewer with the State-street sewer was likely to introduce more water into the State-street sewer than could be carried away, and that, as a result, water was likely to back up and flood his basement in times of storm. Not only this, but it appears from the evidence that, upon several occasions before the School-street sewer was constructed, water had backed up into his basement, bringing with it surface debris from the streets, indicating that even before the construction of the School-street sewer the State-street sewer was inadequate. It seems not to have occurred to the plaintiff that he should have done anything to protect his own premises either before or after the construction of the School-street sewer. It appears from the evidence that there is a well known contrivance or device in the nature of a trap which he might have installed in his own drain that would have prevented the backing up of the water into his basement. He says that he did not know there was such a contrivance, "[rat that there is,- is almost common knowledge, and casual inquiry of any plumber would have supplied him with the information. The plaintiff could not lay upon the city the entire burden of saving his property harmless, thereby halting further improvements of community benefit, when he himself could so easily have prevented the damage. The situation called upon him to do what he could to protect his property. He did nothing. He must be held guilty of contributory negligence as a matter of law.

By the Court. — The order granting a new trial is reversed, and the cause remanded with directions to enter judgment for the defendant on the verdict.