#### John O. Anderson, appellee, v. Union Pacific Railroad Company, appellant.

Filed March 11, 1921.

No. 21659.

1. Appeal: Affirmance. A verdict of the jury, which is not contrary to law, will not he set aside, where there is competent evidence to support it, unless this court can, from the record, say that the verdict is clearly wrong, or that it is the result of passion, prejudice or mistake.

*7602. -: Instructions: Presumption. Tliougli it may appear probable, it will never be presumed, that the jury disregarded one of the instructions given by the court, where the record does not positively and affirmatively show such to be the fact.

Appeal from the district court for Dawson county: Hanson M. Grimes, Judge.

*Affirmed.*

*G. A. Magaio, T. M. Hewitt, T. F. Hamer*and *T.*VF« *Boches,*for appellant.

*Gooh $ Gooh*and *W. A. Steioart, contra.*

Flansburg, J.

Action for damages alleged to have been caused to crops and personal property by flood resulting from the defendant’s railroad embankment. Plaintiff recovered a judgment, and defendant appeals.

The defendant’s principal objection is that the evidence is insufficient to support the verdict. Plaintiff’s testimony is to the effect that he is the OAvner of a farm, and that the defendant’s railroad runs across the south part of his land; that the land in this territory slopes from the northAvest to the southeast, and that just north of the railroad is a pond of Avater Avhich is fed by Avatenvays, extending from the northwest. It is the contention of the defendant that the evidence is'insufficient to shoAV that the railroad embankment interrupts any natural Avatenvay. On this question maps were introduced showing elevations, and the testimony in behalf of the plaintiff is to the. effect that the waterway to the north of the railroad, which empties into the pond, can also be identified and traced as it passes to and beyond the railroad to the south. South of the railroad the waterway is said to extend southeast, and appears as a depression, about two feet deep, across a meadow. The rains during the period preceding the flood Avere very excessive, and the water Avas backed up from the defendant’s railroad embankment over the plaintiff’s land and remained there for weeks.' In the face of the testimony in behalf of the plaintiff, we are unable to say that the jury’s verdict, to the effect that the railroad embank*761ment interfered, with a natural waterway and was responsible for the flooding of plaintiff’s crops, is clearly wrong. The trial judge passed upon the testimony and found it sufficient and overruled' the motion for a new trial. We are unable to. say that the verdict should be set aside.

The-defendant further complains that the jury disregarded one of the instructions of the court. By that instruction, the court directed the jury to find for the defendant, in case the jury should determine that the damage to the crops complained of was caused partly by rainfall, for the reason that there was no evidence to separate the damage caused by the back-water.

Plaintiff had claimed damage in the amount of $2,512, but the jury’s verdict was $1,050. The defendant argues that the jury must have arrived at this amount as damages by reason of the finding that the damage had been caused in part by rainfall. Such conclusion does not necessarily follow. It was- shown that other like crops in the vicinity were not injured by the rains. It was within the province of the jury to determine the amount of the plaintiff’s damage, and it may have been that the jury, instead of finding that the total amount of damage was $2,512, as the plaintiff claimed, and that a part of such total damage was caused by rainfall, found that the total damage was $1,050 only.

Defendant raises no other objections, and we See no reason for a reversal of the case. It is therefore

Affirmed.