an insufficient cast iron culvert under its right of way and a double concrete culvert connecting therewith in the street immediately in front of its property, so as to occasion negligent impounding of waters and flooding of adjacent property, and, further, that the storm which occurred on August 21, 1918, was one which might have been reasonably anticipated. Upon the facts in this record and as found by the jury we are of the opinion that this negligence is not established as a matter either of law or of fact. The jury found that the city culverts were of insufficient capacity. To what extent, if at all, this insufficient capacity of the city culvert operated to contribute to plaintiff’s damage cannot be ascertained except as a question of fact to be determined by the jury. See Boulger v. N. P., 41 N. D. 316, 171 N. W. 634.
The jury found that this storm, which was the fundamental cause of the damage, was an unusual and extraordinary storm. The court charged the jury that to escape the duty to provide for a run-off as charged the burden of proof was upon the defendant to prove that the storm which occasioned this flood was unprecedented; that it could not have been reasonably anticipated ; that unprecedented floods are floods of such unusual occurrence that they could not have been foreseen by men of ordinary experience and prudence; that ordinary floods are those the occurrence of which may be reasonably anticipated from the general experience of men residing in the region’ where such floods happen. In accordance with such instructions it may be fairly implied that the finding of the jury was that this was an unprecedented storm, a flood of unusual occurrence. Soules y. N. P., 34 N. D. 33, 157 N. W. 823, L. R. A. 1917A, 501. Manifestly the contributing factors in flood damage concerning surface waters where run-off drains are concerned are volume, velocity, and intensity of rainfall. Manifestly, again, the capacity of drain channels are not determined alone by cross-sectional areas. The capacity of a run-off channel also reqttires the consideration of the velocity of the water therein in connection with other elements, as well as the cross-sectional area. We are satisfied upon the principles of law stated and upon the facts appearing in this record that. there are questions of fact to be submitted to a jury concerning defendant’s exercise of care, in constructing the cast iron culvert under, and the embankment along, the right of way, and in constructing the double concrete culvert in the street, all in connection with its care and duty involved and to be anticipated to take care of the surface waters from the drainage area concerned in accordance with the
