The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1917-09-28
From stark County.


Henry l. Reichert and william G..
Ray, co-partners doing business un-
der the firm name and style of Reich
| ert & Ray. plaintiffs and respondents,
vs. Northern Pacific Railway Co., a
corporation, defendant and appellant.
Syllabus:
/. Under the facts of the case, it
was not reversible error to fail to
instruct the jury as to what cdlsti-
tuted natural water course or drain
way. no specific instruction being
asked. ..
2. Where a railway company con-
structs an embankment across a nat
ural drainway, 1t is it's duty to pre-
pare a culvert or other outlet suffi-
cient for any food which may reason
ably be anticipated, and where the
culvert or outlet is in fact insufficient
for such purposes, the mere fact that
competent engineers are employed or
that the embankment is constructed
in the manner usually adopted by rail-
way companies will not save such
company from liability. .-
3. The opinions of experts cannot
prevail over actual facts. ~
4. A verdict for damages OCCASION
ed by the obstruction of a natural
drainway will not be set aside merely
because the evidence shows that the
loss might just as we'll have been oc-
casioned by some other cause.
s. plaintiff is not bound to ex-
clude the possibility that the accident
complained of might have happened
in some other way than that contend
ed for by him. He is merely required
to satisfy the jury by a fair prepon-
derance of the evidence of the truth
of his contention.
s. Where property is flooded by the
tnadequacy of q culvert in railway
embankment which is constructed
across a natural drainway, the bur
den of proof to show that the rainfall
gaFn nal - Il I'D
that it need not have been anticipated
Is upon the defendant, and the fact is
one primarily for the jury and not the
court to pass upon.
Z. The mere fact that a GOOD is un-
usual does not absolve a railway
company from liability IL its culverts
in an embankment across
natural drainway are inadequate to
carry of the wafer and to save the
adjoining property from loss. The
binary anticipation.
8. The same rule of liability ap-
plies in cases of the obstruction of
natural water courses and of natural
dratnways. --- r-
Q. 1t is not necessary to the proof
of a natural drainway that there
should be proof of water flowing at
all times or OF wearing away OF
the grass at the bottom. In treeless
areas, such as those in North Dakota,
the courts must take eognizance of
the natural topography of the coun-
try and OF it's climatic condition and
that large volumes of water rush
down such drainways in a few days
or hours which in wooded areas would
form continuous streams and take
months to pass away.
10. Where I'm an action I'm tort in
which, under the provisions of section
7i43 of the compiled laws of 1918, in
terest is allowable in the discretion of
the jury, and in which the complaint
asks for interest and the jury returns
a verdict in excess of the ad damnum
but not in excess of the ad damnum
and interest thereon. il interest has
been allowed, the court will presume,
In the absence of any objection at the
time of the rendition of the verdict
or request to have the same made
turned included interest and the YER
dict will not. for the reasons given, be
set aside.
IL. Argument by counsel on q spe-
cial verdict held, under the facts OF
the case, not to constitute prejudicial
or reversible error.
10. The refusal OF certain offered
instructions held not to have been
prejudicial.
Action to recover damages for the
flooding of a building.
Appeal from the district court of
Stark county; w. c. Crawford. j.
Judgment for plaintiffs. Defendant
appeals.
Affirmed.
Opinion OF the court by Bruce. G. J..
Christianson and Robinson, il, dis
sent