Page:North Dakota Reports (vol. 48).pdf/177

 Dickinson and a Railway Co. constructed an embankment and other obstructions in such drainway and installed, in lieu thereof, culverts for the purpose of providing an escape for such surface waters, it is held that the question of its negligence under the principles of law stated is a question of fact for the jury.

Waters and water courses—evidence insufficient to establish negligence of railway company in constructing culverts to carry off flood waters.

6. Where the jury, pursuant to special questions, found that the storm which occasioned the damage was an unusual and extraordinary storm and that culverts installed by the city and which connected with the Railway culverts were of insufficient capacity to handle the surface waters resulting, it is held that the general verdict rendered does not establish the negligence of the Railway Co. and a new trial should be granted.

Action in District Court, Stark County, Lembke, J.

Defendant has appealed from the judgment in favor of the plaintiff.

Reversed and a new trial granted.

Opinion of the Court by Bronson, J.

Young, Conmy, & Young, for appellant.

“When the special findings of fact are inconsistent with the general verdict, the former controls the latter and the court must give judgment accordingly.” § 7633, C. L. 1913.

“Extraordinary or unprecedented floods are floods which are of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence. Ordinary floods are those, the occurrence of which may be reasonably anticipated from the general experience of men residing in the region where such floods happen. Soule v. N. P. Ry. Co. 34 N. D. 8.

“And this is in accordance with the American doctrine as announced ‘by the supreme courts of the various states. The American cases lay down the doctrine that, for damages accruing from extraordinary floods, or other causes that may be attributed to the act of God, or which cannot ordinarily be foreseen or prevented, there can be no liability. China v. Southwick, 12 Me. 238; Bell v. McClintock, g Watts, 119; Bridge Co. v.