(dissenting). This action is one to recover damages in the sum of $3,000, with interest at 6 per cent, from August 24, 1918, on account of the flooding of a certain basement, by a certain rainstorm which occurred at Dickinson, N. D., August 21, 1918. Such flooding, it is claimed, was caused by the blocking or obstruction of a certain channel of drainage, in the city of Dickinson, by a certain embankment of earth, which crosses the channel, upon which embankment the railway is constructed. Through the embankment, over and across the channel, there is no outlet, excepting a small iron culvert. In short, it is claimed that the embankment across the channel completely blocks it, with the exception of the small culvert. The opening or diameter of the culvert is claimed to be about 4 feet.
Damage in the sum of $100 is claimed for removing water from the basement; $150 for damage to certain furniture, damage for the loss of rental value of the basement to the extent of $50 per month, from August 24, 1918, to the date of bringing the action, aggregating $825, and damage to plaintiff’s stock of merchandise in the sum of $2,100.
Defendant, after admitting the appointment of McAdoo and his successsor, Hines, as Director General of Railroads, enters a general denial to the allegations of the complaint. The defendant further alleges that the damage and injury suffered by the plaintiff were occasioned and caused by an unusual and extraordinary rainstorm and flood, which occurred in the city of Dickinson and vicinity on or about the 21st day of August, 1918, and that said damage was in no manner caused through any negligence on the part of defendant.
The case was tried to the court and a jury at Dickinson. The verdict was in favor of the plaintiff for $2,554.24, including costs and interest, and judgment was entered for that amount. The issues of fact were submitted to the jury generally, except special questions were as well submitted. The special questions, which are material for consideration here, and which the defendant has in its brief set forth, are as follows:
Question 1: Was the rainstorm of August 21, 1918, involved in this action, an unusual and extraordinary rainstorm? Answer: Yes.
Question 2: Was the 4-foot cast iron culvert maintained by the de*166fendant of sufficient size and capacity to take care of the storm waters which might reasonably be expected in this locality? Answer: No.
Question 3: Was the double box concrete culvert running east and west, north of the Dickinson Grocery Company building, of sufficient size and capacity to take care of the storm waters which might reasonably he expected in this locality? Answer: No.
Question 4: Was the city culvert crossing Villard street on Second Avenue East at the intersection of Villard street and Second Avenue East of sufficient size and capacity to take care of storm waters which might reasonably be expected in this locality? Answer: No.
Question 5: If you return a verdict for the plaintiff and award him damages for loss of use of basement, how much have you allowed in such verdict for such damages for loss of use of basement? Answer: $165; interest, $5.28. Ered Dohrmann, Foreman.
Subsequent to the entry of judgment, a motion by defendant was made to vacate the judgment entered on the general verdict, and to grant judgment in his favor on the special questions returned by the jury. The motion was heard on August 16, 1920, and by the court denied.
The defendant makes assignment of eight errors, and two specifications of error as to the insufficiency of the evidence to sustain the verdict and judgment. The first five errors assigned relate to alleged errors of the court in its charge to the jury, and they may be considered in the order of their assignment. They are as follows:
“(1) Now, gentlemen, as sworn jurors, it is your duty in this case, as in any other case where an individual is on the one side and a corporation on the other, that you will not allow yourselves to be biased either for or against the corporation, or for or against the individual involved.”
Of course, the railroad company was not a party to the action. The action, in fact, was against the government of the United States, though nominally, it was against the Director General. He, however, as is well known, acted for the government during the period of government control of the railroads. If there were any error in the giving of the instruction, it was error without prejudice.
“(2) If you find in favor of the plaintiff, and find that, following the flood of August 21, 1918, the plaintiff suffered damage because he was unable to use his basement, by reason of the same being threatened by recurrence of flood, and find that the plaintiff had reasonable ground to apprehend a flood, and that he was in fact in danger of a reflooding *167of said premises, by reason of the defendant not furnishing adequate provisions for the run-off of waters through such drainage channel, then you may allow the plaintiff damages for the loss of the use of said basement during such time as you find that plaintiff was deprived of the full use of said basement. In no event, however, would plaintiff be entitled to recover damages for the use of the basement for a longer period than between the date of August 21, 1918, and the date of the summons in this action, to wit, January 7, 1920, or a greater sum than $30 per month, and if you find the plaintiff is entitled to damages for the loss of his basement, under these instructions you will find the reasonable rental value of said basement, and you will also find the reasonable value of the use and occupation of said basement, and you will take the smaller of these findings and deduct from the sum the value of the use and occupation actually made of said basement, and the difference will be the damages to which the plaintiff is entitled for the loss of the use of said basement.”
The defendant does not seriously argue that the giving of that instruction is error, and we hold there was no error in the giving of it. There was competent evidence of actual damages suffered by plaintiff, other than that which he suffered by the loss of the use of the basement, which were about equal in amount to that stated in the verdict.
“(3) Npw, in this case, gentlemen, you have heard experts give testimony hour after hour. The court instructs you that testimony has been given by certain witnesses who in law are termed experts, and in this connection I would suggest to you that, while in an action such as the one being tried the law receives the evidence of men expert in certain lines, and as their opinion derived from their knowledge of particular matters, the ultimate weight which is to he given to the testimony of expert witnesses is a question to be determined by the jury, and there is no rule of law which requires you to surrender your own judgment to that of any person testifying as an expert witness, or to give controlling effect to the opinion of scientific witnesses. In other words, the testimony of an expert, like that of any other witness, is to be received by you and given such weight as' you think it is properly entitled to, but you are not bound by the testimony of any witness, expert or other. The court instructs the jury that, before the opinion of.an expert has any value, the jury must first find to be true the fact upon which such opinion is based.”
There was no error in giving this instruction. It was merely explana*168tory of the nature of expert testimony. By the instruction the weight to be given to the testimony was left entirely with the jury.
“(4) The Director General of Railroads in maintaining and continuing to keep the grades and embankments of railways under his control is chargeable with the same duty to provide for the run off of waters through the natural channels of drainage through such grades and embankments the same as though the said grades and embankments were under the control of a private individual or a railway company.”
There was no error in giving this instruction. It merely informed.the jury that, as a matter of law, the Director General of Railroads, or, in other words, the United States government, when it took over the operation of the railways, assumed the duty to provide for the run off of water through natural channels of drainage, through grades and embankments such as those under consideration, to the same degree as if the railways were under the control of an individual or the railway company.
“(5) It was the duty of the defendant to provide for the run off and escape of waters, not only from the usual and ordinary rains, but also from such extraordinary rains as might reasonably be expected to occur in this section of the country.”
The giving of this instruction is most emphatically claimed by the defendant to constitute error. The third paragraph of the answer is as follows:
“Defendant alleges the fact to be that the damage and injury suffered by this plaintiff was occasioned and caused by an unusual and unprecedented storm and flood, which occurred in the city of Dickinson and vicinity on or about the 24th day of August, 1918, and said damage was in no manner caused through any negligence on the part of this defendant.”
By this the defendant sought to interpose the defense of vis major. In other words, the defendant attempts to plead that the damages alleged were not occasioned by his negligence, but were due entirely to an act of God. It would appear, however, on full consideration of this alleged defense, that it is not so extensive or complete as to in reality set forth that character of defense. A storm might be unusual and extraordinary, but the existence of those facts would not alone be sufficient to relieve the defendant from liability. The evidence clearly shows the storm was not unprecedented, as there were many rainstorms in the vicinity of Dickin*169son in many preceding years, which were more than equal, in the amount of water precipitated, to the storm in question.
In addition to showing that the storm was unusual and extraordinary, it should be made to appear by the pleading and the proof, and at least by the proof, that the storm was of such unusual and extraordinary character that it could not have been reasonably anticipated. Or, in other words, that it could not be expected that such a rainstorm would occur in that vicinity. The defendant has not pleaded this latter element, and has not offered proof to establish it.
In the case of Reichert v. Northern Pacific Ry. Co., 39 N. D. 114, 167 N. W. 127, in an able opinion written by then Chief Justice Bruce, the following language is used:
“The question, to our mind, is one of notice and warning, more than it is of an unusual or extraordinary storm. And although the point is a close one, we do not feel justified in interfering with and overruling the finding of the jury in this respect. * * *
“We must, indeed, hold to what we believe to be the prevailing American rule, that the defense in such cases can only be that of vis major, or the act of God, and that the act of God in its legal sense applies only to events in nature so extraordinary that the history of the climatic variations and other conditions in the particular locality affords no reasonable warning of them, and that damages cannot be avoided on the grounds that the flood was an act of God, where, from-geographical and climatic conditions, the flood might have been anticipated, though it occurred' infrequently.”
We think there was no error in the instruction, as it merely defined to the jury the legal duty of the defendant to provide for the escape of waters from usual and ordinary rains, but as well from extraordinary rains, where they were such as might reasonably be expected to occur in that vicinity.
Mr. Moomaw, superintendent of the State Experiment Farm at Dickinson, produced his records and showed that, in the years from 1907 to 1918, both inclusive, there were nine different rainstorms, which in amount of precipitation equaled or exceeded the one under consideration.
Witness Soules, who has owned the premises in question or a part of them, since 1907, testifies' as to the flooding of the premises in the years 1907, 1909, and 1912.
*170The evidence is sufficient to show, as we view it, that rainstorms, resulting in precipitation equal to or exceeding the one in question, have occurred annually or biennially since 1907, in this vicinity.
This is of such frequency as to impose a duty upon those who have constructed, or who may construct, an embankment across this natural drainway in this vicinity, to anticipate this character of rainstorms as they reasonably may be expected to occur in the vicinity in question, with reasonable regularity, either annually, biennially, or perhaps more often. Though such storms may be unusual and extraordinary, it cannot be said that they should not be anticipated and provision made for taking care of the surplus water precipitated by them, where they occurred with such regularity, and covering such an extensive period, as the evidence in this case shows.
This conclusion leads us to the consideration of the contention of the plaintiff, which is to the effect that the plaintiff cannot recover, by reason of inconsistencies between the special questions and the general verdict. The contention is pressed with much earnestness as to the first question supra.
It- will be observed that the answer to that question determines that the rainstorm was an unusual and extraordinary one. But that question, nor no other question, determines that it was not such a rainstorm as should have been anticipated.
It must be presumed that the last instruction, above mentioned, was followed by the jury. It returned a verdict in favor of plaintiff, and therefore determined that the defendant should have anticipated the storm in question, or otherwise it would have found in defendant’s favor instead of against him.
It may be perfectly true that the storm was unusual and extraordinary, as the jury have said it was in their answer to question i, and yet the defendant be just as liable in damages as if the storm had been an usual and ordinary one, if it were the duty of the defendant, under all the evidence in this case, to anticipate the character of the rainstorm, and the jury, in following the instructions of the court in this regard, have said by the general verdict that such was the duty of the defendant.
We, therefore, are of the opinion that there is no inconsistency between question i and the general verdict. On rehearing in Reichert v. Northern Pacific Ry. Co., supra, this court said:
“It is also the established law that surface waters, having an accus*171tomed flow in a drainage channel or waterway having well-defined banks, may not be stopped by an embankment across the channel so as to divert the waters to the injury of adjoining proprietors. See 40 Cyc. 648; Aldritt v. Fleischauer, 74 Neb. 66, 103 N. W. 1084, 70 L. R. A. 301. It seems to be well established also — and this even where the common-law rule applies — that where a railroad crosses a ravine, gully, or natural depression in the earth, which forms the natural and accustomed channel for the escape of surface waters, it is incumbent upon the company to make provision for the flowage of the same. See Jungblum v. Minn., etc., Railroad Co., 70 Minn. 153, 72 N. W. 971; Smith v. Chicago Railroad Co., 83 Neb. 387, 119 N. W. 669; Quinn v. Chicago, etc., Railroad Co., 23 S. D. 126, 120 N. W. 884, 22 L. R. A. (N. S.) 789; 40 Cyc. 644. The controversy in the case at bar has been mainly over the question of the size of the culvert,” etc.
The language of the above quotation is applicable to this case, and here, as there, one of the principal elements of contention is the sufficient size and capacity of the same culvert, as will be seen by an examination of question 2, supra, to which the jury answered in the negative, thus determining that the culvert was of insufficient size and capacity to take care of the storm waters which might reasonably be expected in the vicinity of Dickinson.
From the evidence in this case, and from taking judicial notice of our former decisions in Reichert v. Northern Pacific Ry. Co., supra, Soules v. Northern Pacific Ry. Co., 34 N. D. 7, 157 N. W. 823, L. R. A. 1917A, 501, and Boulger v. Northern Pacific Ry. Co., 41 N. D. 316, 171 N. W. 632, it is clear there is a natural drainway or channel near Villard street and Second Avenue East, and extending thence south and east to the Heart river, a distance of about 700 feet; and that in that distance there is a fall in the channel toward the Heart river of between 30 and 40 feet.
It would seem clear, from the-size and nature of this channel, and the amount of lowland lying south and east from the intei'section of Villard street and Second Avenue East, that the channel, if unobstructed by the railway embankment and the Dickinson Grocery building, etc., would be of sufficient capacity to carry to the Heart l'iver all surface drainage waters within the drainage district of 168 acres here under consideration, and which would naturally empty, if unobstructed, into it, and in such manner and with such rapidity that the water would not back up and cause damage to property of the character alleged and proven in this action; *172and this, we think, would be true even though the rainstorm were unusual and extraordinary.
In this connection, it is also to be observed that the evidence shows that, when the Dickinson Grocery Company building was constructed, the old open ditch which formerly led from near the intersection of Villard street and Second Avenue East was closed. In other words, that building was constructed over part of the old ditch. In its stead, the railroad company constructed two culverts which extend directly east on the south side of Villard street from the intersection of it, with Second Avenue East, approximately 185 feet, where they make an almost right angle turn, due south, for 5 feet, where they empty into a new artificially constructed open ditch, which conveys the water to the iron culvert.
The defendant further denies liability, on the theory that the primary and proximate cause of the flooding and the backing up of the water, which plaintiff claims was the direct cause of his damage, was the inadequacy of the city culverts extending north and south through Villard street, to receive and convey through them the water which naturally drained in that direction, and which necessarily would have to pass through them.
The defendant further maintains that the culverts on the right of way, extending east and west, were of sufficient capacity to take care of 3 inches of rain on the basin of 168 acres which constituted the drainage district, if it came down in a few minutes. If that contention is true, then, certainly, the city culverts should take care of an inch and a half of rain which fell in not less than 40 minutes, and perhaps the time was longer. It also may be noticed that the combined cross-section area of the city culverts on Villard street is 19 square feet. The combined cross-section area of the railroad culverts on Villard street is 24 square feet But in this connection it may also be noticed that the cross-section area of the iron culvert is only a fraction over I2j4 feet, as it was in form circular, and its diameter is 4 feet. And this calculation does not deduct from the diameter of the iron culvert for the 4 inches of cement that was on the bottom thereof at its entrance.
It would seem impossible, therefore, for the iron culvert to receive and convey the body of water issuing from either the twin 'culverts on the railroad right of way, or twin culverts of the city in Villard street, if water were flowing through them to their full capacity.
The evidence, we think, fairly shows that the high-water mark above *173the iron culvert was 4 inches or more. If this be true, and, considering further that the land in that vicinity was low, there must have been quite a body of water spread around, and extending back to the railroad’s twin culverts. Otherwise the water would not have risen above the iron culvert. If this be true this condition would, no doubt, have considerable tendency to retard the issuing of water from the railroad twin culverts. The fact that the water did rise above the iron culvert would show that it was not of sufficient capacity to take away the water, or otherwise it would not have risen above it.
It seems clear that, when the iron culvert was running full, and the water had risen above it, the tendency of the whole situation would be to hold back all water coming from towards the city of Dickinson; in other words, to retard its flow toward the iron culvert.
The defendant claims that, notwithstanding the water was 4 or 4^ inches above the iron culvert, it still was 6 inches lower than the floor of Henderson’s store, at the front thereof; and that for this reason the water could not have backed up, or have been retarded, so that it would overflow and go into the basement of his store.
But, as against this, there is positive testimony of Henderson that he was at his store at the time of the rainstorm, and saw the water back up from the east, and he describes how eventually it poured into his basement, flowing over the angle irons and breaking in windows, filling his basement in a very few minutes. He was in the basement at the time, and took the freight elevator to the next floor, and according to the tenor of his testimony the water followed the elevator right up, and covered the first floor to the depth of several inches.
All of this evidence, as well as the evidence of all the facts, was for the jury. They have found favorably for plaintiff. The defendant challenges the sufficiency of the evidence to justify the verdict, on the theory that the testimony shows the loss in question was occasioned and caused by an unusual and extraordinary storm and flood, and that for the same reason, it is insufficient to sustain the judgment. What we have above said with reference to the character of the rainstorm, and the duty of the defendant to anticipate it, is a sufficient answer to these specifications.
It may be claimed that the damages are to some degree speculative, in that part of the plaintiff’s claim is for loss of use of the basement, he not using it because he was afraid to do so for fear of a recurrence of *174rainstorms which would inflict damages of a similar nature as those he had sustained. We think there is no merit in such claim in this case, as the evidence shows the actual damages sustained to the merchandise and property of the plaintiff, and the time and money spent in cleaning up the basement and store after the storm, together with interest thereon and costs, approximately equals the judgment recovered.
There is no inconsistency between question 4 and the general verdict. The evidence, as a whole, as we view it, clearly shows that the embankment constructed and maintained across the channel, the natural water drainway, and the inefficiency by the iron culvert to convey, with sufficient rapidity, the water precipitated by the rainstorm here under consideration, were the proximate cause of the damages sustained by the plaintiff.
It would appear that this particular iron culvert .has been the source of considerable litigation, as is evidenced from the cases above cited, and which deal with damages claimed to have arisen from that source. It would seem, so far as we are able to determine, that there was no litigation, with reference to damages resulting from overflowing or banking up of waters in this particular channel while the bridge described in the evidence was across that channel at or near where the iron culvert is now located, which bridge was in length some 45 feet on top and from 16 to 20 feet underneath, and of sufficient height so that one on horseback could ride under it.
The origin of the litigation seems to be coeval with the installing of the iron culvert. The continued maintenance of the culvert in its present condition, and in view of prior litigation, it would seem, is fast approaching the nature of a nuisance.
From an examination of the weather reports, showing the rainfall in the vicinity of Dickinson, it may be reasonably expected that a rainfall such as that of August 21, 1918, will occur most every year. Hence it is reasonable to anticipate there will be much more litigation in the future from the same source as this. This continued litigation, not only likely imposes loss on the property holders, or business men, or some of them, in the city of Dickinson — for, even though they finally succeed in being partly compensated in damages, litigation, as a rule, is both disagreeable and expensive — but as well imposes great expense on Stark county, and not the least result of all is to impose heavy losses on the railroad company, *175or those operating it, all of which at least, it would appear is possible to avoid.
The railroad company or those who operate and control it, will not likely be excused, eyen though it may by its engineers show that the culvert it has constructed is theoretically sufficient to take care of water which it should anticipate would fall upon the drainage area here under consideration, if, in the face of such proof its culvert does not carry away the water, and it piles up above it to more than 4 inches, and, as in this case the evidence shows, backs into a basement such as the one under consideration, and where all culverts in question here are much larger capacity than it. In all such theoretical calculations, there is very likely one or more unforeseen elements not taken into the calculation. The situation may be somewhat similar to that where engineers figure the number of cubic feet to be heated in a house of a given size, and arrive at a conclusion that a boiler or furnace of a given size would be sufficient to heat that space. The theory is largely correct, but in practice and actual results derived it is largely a failure. To get results that are satisfactory, the boiler or furnace should have a capacity to heat perhaps twice that space.