Appellant sued the city for damages for negligence in respect to a drain pipe which became stopped up and during a rain failed to carry off the water, which led to appellant's cellar being overflowed and his goods damaged. *Page 222 
The material facts are, that appellant had a store with cellar on the highest point on block number 289 in the city of Laredo, and that in the direction which surface water would take in draining from said block, the streets Hidalgo and Vidaurri had been graded and raised, and in order to prevent overflowing of this and other property a drain pipe had been placed under Vidaurri street at such a level and of such construction and capacity as would effectually prevent flooding the place occupied by plaintiff, if kept in order. Under these circumstances, plaintiff moved into the house located as aforesaid.
Before plaintiff moved to block 289, in 1892, he lived on the block just north of it. In April, 1891, he knew of the drain pipe and its uses. At this time a heavy rain fell (4.97 inches), and the water backed over blocks 289 and 286, the block where plaintiff then resided. Plaintiff ascertained that the flooding was caused by the drain pipe being stopped, and assisted in removing the water by cutting a ditch and opening the drain pipe. On this occasion the water did not cover the place where the house in question was afterwards built.
In May, 1891, another heavy rain fell (2.62 inches), and the drain pipe which was then open carried off the water, without it reaching by six or eight yards the cellar entrance of plaintiff's building.
It seems that this locality did not have rain again until the night of August __, 1893 (2 inches), and in the morning plaintiff discovered that his cellar was flooded and his goods damaged. On this occasion the pipe was stopped up, having become so by droppings from the street.
There was no evidence of actual notice to the city of this defect in the pipe. Plaintiff testified, that he had noticed this condition of the pipe for probably three or four months before, and that he gave no notice of it.
The court rendered judgment in favor of the city.
The court found that plaintiff knew the drain was closed, and also found, that at the time of putting in the drain, Vidaurri avenue (under which the drain ran) was twenty-two inches above the general level of block 289, and about the same elevation above the bottom of the drain pipe; that the elevation of Hidalgo street was considerably higher than Vidaurri avenue, and that the elevation of plaintiff's lot on block 289, and the elevation of the cellar, was somewhat higher than the ground level of block 289, but from eight to twelve inches below the lowest point on Vidaurri avenue.
Appellant's first and fourth assignments state that these findings are not in accordance with the testimony, but we find that there is testimony to sustain them.
The second assignment is as follows: "The court erred in concluding from the facts found, that defendant is not liable and plaintiff can not recover, and that defendant have judgment for costs."
Under this the first proposition is, that the fact that a city lot is below the grade of a street does not preclude its owner from recovering *Page 223 
compensation from the city for injuries to property on such lot resulting from a failure of the city to keep a storm water drain pipe open, if such pipe when open would have prevented the injury. There can be no doubt as to the correctness of this proposition. But we apprehend that the judgment was not given simply because plaintiff moved on or resided on a lot of lower grade than the street.
We are led to believe from the findings of fact that the court based its judgment on other facts tending to show contributory negligence on the part of plaintiff, namely, that plaintiff had reason to know that the block including the place upon which his house stood was liable to be covered by storm water, in the event the pipe became closed, and that for several months before this damage he knew the pipe was stopped up, and neither notified the municipal authorities nor did anything himself in regard to it.
The authorities cited by appellant are not in point upon the facts here. There was no negligence in the construction of the drain pipe, as was the issue in some of the cases cited, and in the other cases the fact did not appear that the owner knew of the defect and danger, and failed to give it attention.
It should be observed that the court did not find that the city had no constructive notice of the defect. It made no finding at all on that question, although it was involved in the evidence. If it had so found, it is clear that the city would be exonerated, without reference to negligence on the part of plaintiff. There may be sufficient evidence to justify us in finding that fact, but we need not undertake to do so. Contributory negligence of the lot owner constitutes a defense in this as in other cases based on negligence. The rule is thus stated by Mr. Dillon: "It is essential to liability that the plaintiff should have been using reasonable or ordinary care to avoid the accident; or in other words, he must be free of any such fault or neglect on his part as will in actions of negligence defeat recovery." Dill. Mun. Corp., sec. 1020. Certainly as great an obligation rested on plaintiff to take reasonable precaution to avoid damage where he had notice of the danger, as on the city to exercise proper care in discovering and remedying the defect.
The facts in this case would clearly justify the finding of negligence on his part as contributing proximately to his injury, and therefore the judgment is affirmed.
Affirmed.
                    ON MOTION FOR REHEARING.