Page:North Dakota Reports (vol. 48).pdf/190

 fendant 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 be 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. Fred 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