Page:North Dakota Reports (vol. 48).pdf/199

 or those operating it, all of which at least, it would appear is possible to avoid.

The railroad company or those who operate and control it, will not likely be excused, even though it may by its engineers show that the culvert it has constructed is theoretically sufficient to take care of water which it should anticipate would fall upon the drainage area here under consideration, if, in the face of such proof its culvert does not carry away the water, and it piles up above it to more than 4 inches, and, as in this case the evidence shows, backs into a basement such as the one under consideration, and where all culverts in question here are much larger capacity than it. In all such theoretical calculations, there is very likely one or more unforeseen elements not taken into the calculation. The situation may be somewhat similar to that where engineers figure the number of cubic feet to be heated in a house of a given size, and arrive at a conclusion that a boiler or furnace of a given size would be sufficient to heat that space. The theory is largely correct, but in practice and actual results derived it is largely a failure. To get results that are satisfactory, the boiler or furnace should have a capacity to heat perhaps twice that space.

, J. (dissenting). I disagree with the majority opinion in the holding upon which the reversal is based to the effect that there is an inconsistency between the general verdict and the answer to the first special question. The general verdict must be assumed to be founded upon the evidence, and to be in accordance with the instructions of the court as to the law. The record shows that the court instructed the jury quite fully with reference to the duty of the defendant, and as to the circumstances which would excuse him from liability. The jury were specifically instructed that, if the storm were of such an unusual character that one could not reasonably have expected it to occur, they should find for the defendant. They were told that the defendant was bound to provide for such extraordinary rains as might reasonably be expected to occur. Under these instructions the jury could not render a verdict for the plaintiff unless they believe that the storm though unusual or extraordinary, was one which the defendant was bound to anticipate. There is nothing in the answer to the special question, as I read it, to negative the affirmative finding in the general verdict, for the answer to the question only indicates that the storm, in the judgment of the jury,