dissenting. The issue in this appeal may not seem to be significant and the damages are relatively small, but this is the first small claims appeal we have decided with a published opinion under 12 VS.A. § 5538 stating the standard of review in a negligence case. I write separately because I disagree with that standard.
We are presented with facts that are not challenged as clearly erroneous, yet the Court believes it can decide the outcome of this case with no deference to the judgment of the trial court. It is axiomatic, however, that the ultimate issue in a negligence case is comprised of a mixed question of law and fact. See, e.g., Latremouille v. Bennington & Rutland Ry., 63 Vt. 336, 344-45, 22 A. 656, 658 (1891) (negligence is a “mixed question of law and fact, always, under the decisions of this state, to be submitted to the jury”); Michaud v. Gurney, 362 A.2d 857, 859 (Conn. 1975) (in negligence eases, “the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation.”). Accordingly, we may reverse the judgment only where the facts are so conclusive that but one reasonable inference may be drawn therefrom. See Hudson v. Town of East Montpelier, 161 Vt. 168, 179-80, 638 A.2d 561, 568 (1993) (in reviewing finding of negligence by trier of fact, standard is whether any evidence fairly and reasonably tended to support verdict); LaFaso v. LaFaso, 126 Vt. 90, 96, 223 A.2d 814, 819 (1966) (existence of negligence is ordinarily question for finder of fact, and can be ruled as a matter of law only where facts are so undisputed and conclusive that but one reasonable inference is available).
The salient facts, which were essentially the basis for the trial court’s judgment that the district was negligent, may be briefly summarized.
The sewer backup was caused by at least two probable antecedents, one attributable to the owner of the duplex and the other to the defendant district. The owner violated the sewer ordinance by regularly discharging waste water into the sewer. The cause of the backup, an obstruction in the discharge pipe, may have originated from this practice. The sewer system is old, having been installed in the 1930’s. The line in question, like all such lines, was known to be in “precari*546ous” condition, and there had been considerable construction near the duplex before the backup. Similar trouble at the Maciejko sewer connection occurred five years earlier, yet nothing had been done by the district to inspect the condition of the lines or monitor improper use. There simply had not been enough money in the district budget to inspect, maintain and upgrade the lines. It is readily apparent that had the district inspected and maintained the sewer lines, the improper discharge of waste water by the duplex owner, or whatever else may have caused the backup, might have been discovered and remedied. In fact, the district had been on notice that this was occurring.
This court reverses because “there was no evidence” that lack of inspection and preventative maintenance would have avoided the sewer backup. I submit there could never be such “evidence” because there is no way to back up the clock and implement an inspection and maintenance plan to see if no backup would occur. Rather, logic suggests that, had there been a plan, the chances would have been greatly improved that this accident would not have occurred. That’s the purpose of preventative maintenance.
In short, the district’s negligent maintenance policy deprived the Maciejkos of either (1) protection against illegal and destructive use of the sewer or (2) an upgraded sewer, which could have withstood the abuse. It is not their burden to prove conclusively that an inspection and maintenance would have done so. They need prove only the probability of it.
I would affirm.