Page:North Dakota Reports (vol. 48).pdf/191

 of 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) Now, 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 be 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-