whether the flooding of the premises involved in that case was occasioned by the inadequacy of such culvert; and also whether the storm was of an unusual and unprecedented character.” See 39 N. D. 150, 167 N. W. 139.
I have grave doubts if there is any liability on the part of the defendant in this case. It seems to me rather that the undisputed evidence establishes a state of facts similar to that which the jury found to exist in Boulger v. N. P. Ry. Co., 41 N. D. 316, 171 N. W. 632, and which I described in my dissenting opinion in Reichert v. N. P. Ry. Co., supra. I agree with Mr. Justice Bronson, however, that there must in any event be a new trial for the reasons assigned in § 6 of the syllabus. I believe, also, that the trial court committed prejudicial error in its instructions. The defendant placed upon the witness stand certain civil engineers whose qualifications were unquestioned. They testified regarding the adequacy of the culverts constructed by the defendant. This was the only expert testimony adduced by either party in the case. In its instructions the trial court said:
“Now, in this case, gentlemen, you have heard experts give testimony hour after hour. The court instructs you that testimony has been given by certain witnesses who in law are termed experts, and in this connection I would suggest to you that, while in an action such as the one being tried the law receives the evidence of men expert in certain lines, and as their opinion derived from their knowledge of particular matters, the ultimate weight which is to be given to the testimony of expert witnesses is a question to be determined by the jury, and there is no rule of law which requires you to surrender your own judgment to that of any person testifying as an expert witness or to give controlling effect to the opinion of scientific witnesses. In other words, the testimony of an expert, like that of any other witness, is to be received by you, and given such weight as you think it is properly entitled to, but you are not bound by the testimony of any witness, expert or other. The court instructs the jury that, before the opinion of an expert has any value, the jury must first find to be true the fact upon which such opinion is based.”
The testimony of these civil engineers was highly important to the defendant. It related to the basic point in controversy, the adequacy of the culverts. According to the testimony of these experts, the culverts were wholly adequate. the defendant was not guilty of negligence, and the injury could not have been occasioned by any act of the defendant.
