delivered the opinion of the court,
At the trial, the learned judge of the common pleas recognized the rule that a municipal corporation having determined upon the construction of a sewer, is bound to construct it properly and keep it in good condition and repair, and that negligence in the performance of those duties will render the city liable for damages resulting therefrom. He distinctly submitted to the jury to find whether the injury to the houses was caused by the faulty construction of the sewer, or the negligence of the city to keep it in repair, or by the faulty manner of building the houses upon made ground. Their attention was clearly directed to the main point in contention, namely, whether the houses were injured by reason of a break in a defective sewer, negligently unrepaired, or by reason of their own defective construction. With reference to this there is no cause for exception, but the rulings on some other questions are assigned as erroneous.
In answer to the defendant’s fourth point the court charged that if the sewer “was well constructed,'and that the plaintiff has not shown that the city had any notice that it was, prior to the 1st of August, 1878, out of repair, the city is not liable for damage caused by the bursting of the sewer, and the consequent caving in of the street.” Mere absence of notice docs not necessarily absolve the city from the charge of negligence. Its duty to keep its sewers in repair is not performed by waiting until notified that they are out of repair, and repairing them only when the attention of the officials is called to the damage resulting from their dilapidation of obstruction ; but it involves the exercise of a reasonable degree of watchfulness in ascertaining their condition, from time to time, and preventing them from becoming dilapidated or obstructed. When the obstruction or dilapidation is an ordinary result of the use of the sewer, which ought to have been anticipated, the omission to make an occasional examination, and to keep the sewers in apparent good repair, is a neglect of duty which renders the city liable: McCarthy v. City of Syracuse, 46 N. Y. 194. Where the defect is observable and has existed so long as to become notorious, the city is liable as if there had been express notice. The city is presumed to have knowledge of an open defect after a reasonable time has elapsed for its ascertainment and removal: Requa v. City of Rochester, 45 N. Y. 129. Where there is a latent defect which causes an injury the city is not liable for the damages unless it had notice; but a defect is not *108latent which can be seen by the exercise of reasonable care and examination. If the alleged defect in the- sewer where the break occurred was patent for so long a time prior to the injury, that it ought to have been discovered and repaired by the city, the plaintiff may recover without establishing actual notice. It follows that the answer to the defendant’s fourth point was error, and in so far as that ruling pervaded the answers to other points, and the charge, there was error.
.The court charged, in response to the defendants second point, “That if the jury believe the sewer burst only by reason of the unprecedented fall of rain, on August 1st 1878, the city is not chargeable with negligence, such excessive rain-fall being the act of God.” This proposition is sound, yet without explanation it may have been misunderstood and misapplied. There is no evidence that the unprecedented fall of water beyond the capacity of the sewer to receive and carry off, injured the foundations of the sewer or weakened it externally by washing away its supports. It is plain that the large fall of water bursted the sewer, and equally plain, if the testimony is true, that the sewer was in such bad condition as to be likely to break whenever there should be a fall of water equal to the maximum the sewer w¿is designed to receive and carry off. If the sewer was constructed in a workmanlike manner and due care had been taken to keep it in proper order, and it was broken only by a rain-fall so .extraordinary as to be without the range of probability, the city was not chargeable with negligence. But if the break was owing to the defective condition of the sewer, and the city had omitted the duty to examine and keep it in repair, the case is different. If properly constructed and in good repair, would the water which entered its inlets have passed through without causing a break ? If so, the break should not be imputed to an unprecedented rain-fall. The plaintiff complains that said second point had no application to the evidence, but there was some evidence, even if slight, that the rain-fall taxed the sewer beyond its maximum capacity, lie might have secured an instruction appropriate to the case enabling the jury to see the bearing of the proposition, by a point that did not assume that the fact of an unprecedented storm could not be considered ; that fact could not be taken from the jury when there was evidence of it; and one witness said the sewer was “ built for one inch rain-fall; two inch caused it to break.”
A number of the plaintiff’s points were rightly refused because each prayed instruction that the city was liable without stating therein all the requisite facts. For instance, his first point was: “If the jury believe that the culvert, at the place of fracture, where it gave way, was out of repair by rea*109son of decay, and by reason of such decay it failed to carry off the water, then the defendant is liable for the consequences.” Had that been affirmed it would have been unnecessary to determine whether the city bad been notified of the defect, or could have discovered the defect by the exercise of reasonable care and watchfulness.
From the testimony as stated in the bill of exceptions, it does not appear that Ogden gave notice of the bad condition of the sewer to the proper officer — -it was not enough to report it to a member of council — and the refusal to affirm the plaintiff’s third point was not error. Ho part of the answer to said point is embraced in the eighth assignment.
The second and third assignments must be sustained. It was competent for either party to prove the condition of the sewer, at and near the place of the break on August 1st, 1878, previous to that date. If it was in bad condition as long before as 1875, that was a pertinent fact on the question of omission to examine and repair'within a reasonable time.
If 8. E. Cavin had seen the plaintiff’s bouses and bad knowledge of the value of that kind of property in their neighborhood, he could have been asked what they were worth ; but not in chief what he paid for his own property. The fifth assignment is well taken, yet the error of admitting the testimony was not so grave as in itself to require reversal.
The twelfth, fifteenth and sixteenth assignments are to the rulings of the court relating to damages, namely, that the plaintiff can only recover the actual diminution of the value of his property; that he cannot recover for loss of rents, and that •" the city can in no event be held liable for damages resulting to the plaintiff after the morning of August 2d 1878, when the contractor commenced his work.”
The buildings were new and in the market for sale or rent. Compensation for the loss is the measure of damages. Permanent injury done to the buildings, costs of repairs and the loss of rent for the time necessary io make the repairs, are elements affecting the market value, and the difference between that value in their injured condition and such value if uninjured, is compensation. Under the evidence, actual compensation does not include a supposed loss of rents for a longer time than necessary to make the repairs.
But the plaintiff is entitled to recover for all damages directly caused by the defendant’s negligence. The break immediately resulted in a deep pond in front of the plaintiff’s buildings, which could not be removed for considerable time, and which doubtless continually added to the injury until removed. The same cause did the injury on the first of August, which was increased after the next morning. Why divide the *110damages? If the entire injury was done by default of the city bow can the city shift liability for a part. The reasonable time occupied by the contractor in pumping ont the water and tilling the pit with earth, ought not to relieve the party who necessitated that work. There is some difference between the case where the contractor’s negligence causes injury, and the case where a contractor is employed to remove a nuisance which continually increases the extent of an injury until abated. An independent contractor is liable for his own wrongful acts which damage another ; but not for the direct consequences of the negligence of his employer. The defendant’s sixth point should have been refused.
Judgment reversed, and venire facias de novo awarded.