Page:North Dakota Reports (vol. 48).pdf/192

 tory 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-