We see no reason to change our views concerning the testimony. Our remark, that the trial court did not find that the city had no constructive notice of the defect, had in view the rule, that notice to the city may be implied from the length of time the defect may have existed. This would be controlled by the *Page 224 attending circumstances, as for example the position of the defective object. If it were in an exposed place in the main part of a city, a shorter time would justify that conclusion than if in a remote and unfrequented locality. The record leaves the impression on our mind that the latter was the case here. Appellant argues that we should, from the time the defect was shown to have existed, find as a matter of law that the city knew of the defect. This form of notice is a question of fact, and we are not able to say from what is before us that the conditions were such as to make proper such finding.
The appellant argues, that the court has erred in taking into consideration plaintiff's negligence.
The District Court concluded, that plaintiff knew that the drain pipe was closed, and substantially that the city did not.
The evidence will reasonably support these findings. Authorities are cited in the motion for rehearing in support of the proposition that, although a different rule might apply in the case of defective highways, a plaintiff may recover in a case of negligence on the part of a municipality to perform a duty in reference to sewers and drains, irrespective of the knowledge or omission of plaintiff. We do not recognize any difference in principle between the cases. Appellant quotes from the case of Spangler v. San Francisco: "The plaintiff had the right to assume that the agents of the city would attend to duty and repair the broken and dilapidated sewer. He had a right to act on this assumption. Certainly there was no duty on him to remove the obstruction from the sewer and repair it himself, nor would he be chargeable with negligence if he did not do so." 23 Pac. Rep., 1093. This quotation, taken by itself, would establish everything that appellant claims for it; but taken in connection with the rest of the opinion, and the very paragraph in which it occurs, it means nothing to this case. It there appears that the city had long had notice of the defects from which the injuries resulted, and failed to make the needed repairs, and these were such that the plaintiff could not reasonably be expected to remedy. The court saw fit to mention the fact that to do so would have cost a considerable sum of money — may be more than the plaintiff's property was worth. The cases are not alike, nor the opinions necessarily in conflict.
The pipe having been properly constructed, of adequate capacity, it became the duty of the city to exercise due diligence to keep it in repair and free from obstructions. The obligation would not be to absolutely insure these conditions, unless a statute so declared. The authorities generally hold that negligence is not attributable to the city, unless it has had notice of the trouble and has failed to act. This rule applies to obstructions in sewers and drains, as well as to highways. McCarthy v. City of Syracuse, 46 N.Y. 194; Kiesel v. Ogden City, 30 Pac. Rep., 759; Tate v. City of St. Paul, 58 N.W. Rep., 158; Kiernan v. Jersey City, 13 Atl. Rep., 170; Fort Wayne v. Coombs, 5 West. Rep., 229. It does not appear that the city had knowledge of *Page 225 the obstruction, while on the other hand it does appear that plaintiff knew of it and was aware of the danger its existence was to his property, and under these circumstances omitted both to notify the authorities and to take any steps to avoid injury.
The evidence shows, that when the pipe was stopped up on a previous occasion, plaintiff, with another person, readily opened it, and it appears that the obstruction in question could have been remedied by slight diligence or effort on the part of plaintiff.
It is our opinion, that under the facts of this case the judgment was correct.
The motion is overruled.
Overruled.