Page:North Dakota Reports (vol. 48).pdf/197

 the 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 414 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