Maeshall, 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 hot 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[9]*9tributable to sueb negligence as the proximate cause thereof, and not produced by want-of ordinary care on respondent’s part concurring with that of appellant Sueh 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, necessaiy to charge it with liability for damages attributable to its negligence as a. proximate cause, must be eonehxsively presumed. The rule applies as in case of imperfect original construction of a highway. Lia[10]*10bility of the municipality for consequences to travelers proxi-inately 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 phrt, 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 dischai’ge 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. lie knew that the Sewage from numerous occupied buildings on the-street was discharged into the main. He knew that such ac--[11]*11cumulations 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 six-inch 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 thé 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 his 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 werej 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 [12]*12over half the area of the opening for the free passage of such ■contents into the basement, upon any occurrence of the main being overloaded so as to cause a substantial standing level in the catch-basins above the open end of the drain.
That he might as well have left the basement end of his ■drain entirely open, as to leave it as he did, seems plain.
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Maeshall, 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 hot 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[9]*9tributable to sueb negligence as the proximate cause thereof, and not produced by want-of ordinary care on respondent’s part concurring with that of appellant Sueh 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, necessaiy to charge it with liability for damages attributable to its negligence as a. proximate cause, must be eonehxsively presumed. The rule applies as in case of imperfect original construction of a highway. Lia[10]*10bility of the municipality for consequences to travelers proxi-inately 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 phrt, 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 dischai’ge 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. lie knew that the Sewage from numerous occupied buildings on the-street was discharged into the main. He knew that such ac--[11]*11cumulations 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 six-inch 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 thé 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 his 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 werej 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 [12]*12over half the area of the opening for the free passage of such ■contents into the basement, upon any occurrence of the main being overloaded so as to cause a substantial standing level in the catch-basins above the open end of the drain.
That he might as well have left the basement end of his ■drain entirely open, as to leave it as he did, seems plain. How can any one reasonably say to thus leave a drain, under the conditions detailed, is consistent with ordinary care? Could one fairly say, in any case, that it would be consistent with ordinary care to leave open the basement end of a drain pipe leading to a small main sewer, designed to serve the purpose of surface and sanitary drainage for a large territory, such basement end being only four feet below the level of surface openings of nearby catch-basins? This question, it seems, must be answered in the negative.
It is a matter of common knowledge that the connections between conveniences on the main floors of dwellings and •other houses and public sewer systems are, universally, supposed to be water-tight, for the purpose, among others, of preventing escape of the contents of the sewer or of the drain connections, at times of temporary overloading of the main, into basements. To leave free openings in such connections below the level which water may reasonably be expected to reach in nearby catch-basins during severe rainstorms, would, it seems, be the height of folly 5 would be negligence of such high degree as to seemingly invite disaster; a reckless disregard of the operation of natural laws.
In view of the foregoing we cannot escape the conclusion that the answer of the jury, wholly acquitting respondent of •contributory negligence, and the answer to the, effect that all the injuries complained of were proximately solely caused by appellant’s negligence, are not supported, at all, by the evidence, and should have been changed to some extent, if not altogether.
As indicated by the fact that the court submitted the case [13]*13to the jury for a finding as to the damages caused to respondent’s property on and prior to August 5, 1903, separately from such as were caused on September 12th to September 14th, inclusive, the circumstances of the latter aré somewhat different from those respecting the former. At the time water and sewage first appeared in the basement, respondent saw it demonstrated that the open end of his drain pipe was the immediate cause of the mischief. By the undisputed evidence, it was apparent to him, or any one by ordinary inspection, that it was perfectly feasible to prevent a recurrence of the back flow from the main sewor by either discontinuing entirely the drain, or sealing up the basement end around the connection with the iron pipe so as to permit water to rise above such end a short distance into, such iron pipe, or by putting in a cheek valve appliance, used in such cases, to allow a flow -of water towards the main sewer but prevent any back flow. He did neither till after August 5, 1903. Then he put in a check valve and made a closed channel from the tile drain- up through the iron pipe connection to the points of use on the floor above. That, by the undisputed evidence, would have prevented any further invasions from the main sewer, had there not been an opening in the drain caused by a fracture in a section of tile, just outside the basement wall, through which opening water and sewage escaped from the main, broke through the wall, and did the damages assessed by the jury at $704.
-On the branch of the case relating to the $704 aforesaid, does the evidence warrant a conclusion, to a reasonable certainty, that the tile, found to be broken, was, to one in the exercise of ordinary care in laying such a drain as that in question, apparently suitable for use when it was put in place by respondent, and it nevertheless broke under back pressure from the sewer, caused by the negligent construction found by the. jury ?
There is no direct evidence -that the section of tile which [14]*14■was found broken was perfect, or apparently perfect, when it was put in place. The flange end only was fractured. There is no proof that the disengaged part lay in place, or near by, indicating that the breakage occurred after the drain was completed. The record is silent as to these matters, though respondent, and no one else, could have made proof on the subject. For aught that appears, the tile when put in place had a broken flange end. Was it not incumbent on respondent to give some explanation of the cause of the defect, showing affirmatively that the tile was in good condition when laid and was afterwards broken ? True, the presumption, in absence of any evidence to the contrary, would be in favor of the drain having been free from defects when laid, and the •burden of proof be on appellant to establish contributory negligence. But when respondent made proof that the drain tile was, in fact, defective, and that such condition permitted the sewage to escape into the basement, and that he, himself, laid the drain, and there were persuasive indications that the tile was imperfect from the beginning, was not the burden then cast upon him to rebut that situation, at least to the extent of showing that the piece broken out of the tile was in place or near by as if separated by some inward force ?
As the case went to the jury, there was no definite evidence as to how the tile may probably have been broken after being laid. True, there was proof that the action of water, under some circumstances, produces peculiar, and sometimes un-looked for and not easily explainable, results; but no satisfactory'proof was given that the pressure of water caused by a head of five feet — which from the evidence is the ultimate that could have been produced, since the location of the broken tile was about that distance below the point of relief at tbe ■street opening of a nearby catch-basin — could cause any such ■consequences as the breaking of an ordinary six-inch tile at the flange. The flange, if the tile were properly laid, was wholly outside the one inserted into it, so the pressure of water [15]*15■from within the drain was communicated to the Range only by pressure against the in-surface of the nonelastie pipe which it ■encircled. Does not that indicate that the flange was broken before the tile was laid, at least so as to call for some explanation from respondent? Under the circumstances, was there more than room for conjecture that the back water from the sewer caused the fracture? If it was as reasonable to con■clude that the tile was imperfect when laid as that it was fractured thereafter, then there was no jury question on the evi•dence. Surely if respondent was so reckless as to place a broken tile in the drain pipe, obviously, he must take the consequences.
It is an established rule of law that, in a case of this sort, if the circumstances leave the question of whether the negligence of the defendant was the proximate cause of the injury without contributory negligence on the part of the plaintiff, wholly a mere matter of conjecture, there can be no recovery. That is, as applied to the facts here, if the immediate proximate cause of the damage was the broken tile, and it is as reasonable to conclude that the existence of the defect was caused by negligence of the plaintiff, as that it was caused by negligence of the defendant, so that one can only conjecture where the truth lies, it is impossible to reach a conclusion in respect to the matter with that reasonable certainty requisite to a verdict, and, therefore, no jury question was presented.
The principle stated was declared in Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729, with many supporting authorities from this and other courts. It was there said, in a case of this sort, it is incumbent upon the plaintiff to show, by evidence, with reasonable distinctness, how and why the damages occurred. To present two or more states of the case, each equally with the other pointing to the proximate cause of the injury, thus only putting one conjecture against another as regards the real cause of the mischief, comes far short of establishing a cause of action.
[16]*16It is difficult to reach the conclusion, in the absence of any definite explanation of how the tile came to he in place with the piece broken out of the flange; any affirmative evidence' that it was not in that condition when laid; not even that the' disengaged piece was in place or around, indicating a recent break, or that it was found at all, in face of the fact that pres-' sure of water in the drain could not well have affected the', flange end without first fracturing the end of the pipe, which, so far as appears, was perfect — that back water from the' sewer had anything to do in producing the defect. The major probabilities weigh very heavily on the side that plaintiff' is responsible therefor, having laid the tile in the defective condition it was found. Certainly, it seems that, respondent was bound to furnish some definite evidence to rebut the inference of his fault arising from the situation described, be-fore_charging appellant with responsibility for a result which, would not have happened but for the opening in his drain pipe upon his own property, which appellant had nothing to do with and had no right to interfere with.
In view of the foregoing the opinion of the court is, that the-verdict should have been corrected so as to find respondent guilty of contributory negligence, and that judgment should have been rendered on the corrected verdict for defendant.
By the Court. — The judgment is reversed, and the cause remanded witib^ directions to correct the verdict in accordance with this opinion and to render judgment in favor of the defendant.
Winslow, C. J., and Dodge, I., dissent.