(after stating the facts). The action was brought to recover damage for injury done to plaintiff’s brick-yard in the year 1885, and again in May, 1887, and to his crops,, by overflows caused by the defective construction of a culvert over a creek on the defendant’s line.
The first and second exceptions present the question,, whether his Honor erred in refusing to submit two additional issues tendered by defendant’s counsel. It was not the design in adopting the new procedure, that parties should be bound by rules so technical as those which governed the old system of pleading. The forms of action being disregarded, and it being requisite only, under The Code, to allege the material facts in the complaint, and to admit or deny the allegations in the answer, ordinarily it must be left to the sound discretion of thenidprius Judge to deiermine, when required or allowed to settle tlu> issues, whether the action can be tried more intelligently and satisfactorily by the jury upon specific issues, submitted for the purpose of eliciting distinct findings in the nature of a special verdict, or by confining the inquiry, in imitation of the old method, to a single issue, or a small number of issues, and pointing out, by instruction, how the conflicting evidence, controverted in the pleadings and on trial, though not involved in the terms of the issues submitted, bears upon the verdict to be rendered in response to them, provided, always, that the issues submitted are raised by the pleadings.
*225It is misleading to embody in one issue two propositions, as to which the jury might give different responses, and on exception taken in apt time, a new trial will in such cases be granted. The facts found by a jury, whether comprehended under one or many issues, must be sufficient to-enable the Court to proceed to judgment. When the judgment can be predicated upon the findings, though it may appear that the Judge who tried the case below refused to-submit more specific issues tendered by a party, yet, if he told the jury how the testimony relating to the issues refused should be considered in connection with the law, in passing upon those submitted, and thereby gave opportunity to enter exception to the instruction given, and to the refusal to give that asked, the appellate Court will not grant a new trial. The Court will impose no limit to the exercise of discretion on the part of the Judge below, in settling the issues, except that the facts established by the responses to them shall constitute a lawful basis for the judgment, and that an appellant was not denied an opportunity to have the law applicable to any material portion of the testimony fairly presented and passed upon by the jury, through the medium of some issue.
The defendant contends that there was error in declining to submit to the jury the two issues offered :
“ 1. What was the depth of rain-fall on 10th of May, 1887 ? Was the rain-fall 10th of May excessive and extraordinary?
“2. What damage did plaintiff sustain by ponding back of the water on that occasion ?”
His Honor presented the whole question of negligence on. the part of the defendant in the first of the five issues, to-which the jury responded, and which is in the following language:
“ Has the defendant negligently ponded water back upon the plaintiff’s land ?”
*226The Judge instructed the jury upon the question of negligence on deferídaut’s part as follows:
“It was the duty of defendant to have constructed its culvert so it would carry off the water of the stream under all ordinary circumstances and the usual course of nature, even to the extent of such heavy rains as are ordinarily expected, unless it. lias the right of grant, actual or presumed, to make it smaller. If the defendant so constructed the culvert that it was not sufficient to carry off the water of the stream undei ordinary circumstances (and by ordinary circumstances is nm;tnt the usual rain-fall), even if such heavy rains are occasional, and by reason of insufficient culvert the plaintiff’s land was overflowed, the answer to the first issue should be 1 Yes,’ unless the defendant had acquired the right to pond water on the plaintiff’s land.”
We think his Honor stated the law correctly, and is sustained by the case of Wright v. Wilmington, 92 N. C., 156, and the authorities there cited; also Woo'd on Railways, vol. 2, sec. 253, p. 873.
By applying the law, as stated by the Court, the jury would naturally determine from the testimony whether the rain-fall of the 10th of Majq 1887, or that in the year 1885, was so extraordinary and excessive that it could not have been reasonably expected to fall, and if such was the character of the rain at either date, they would naturally leave out any injury sustained by such a rain-fall, in making their estimate of the damage; or if they found that all the damage sustained by the plaintiff, both in his brick-yard and as to his crops, was attributable to extraordinary rains, they would of course respond “ No ” to the issue. Plis Honor, in addition to the language quoted from his charge, told the jury that the defendant was “ not negligent, if the overflow was the result of extraordinary and unusual rain-fall.” The •defendant introduced a witness, P. B. Hawkins, who testi*227fied that he built the culvert in 1859, was contractor for the work, and that one Bodwell, a civil engineer, had direction of the construction.
The defendant offered to show by the witness Hawkins “ the reputation of Bodwell as an intelligent and expert engineer.” On objection by the plaintiff, the testimony was held to be incompetent, and the defendant excepted. Counsel on the argument in this Court did not abandon this exception, but failed to cite any authority in support of it; and we cannot see how the fact that the engineer, who had the oversight of the construction of the culvert, was an intelligent and expert engineer, tends to show that the culvert was in fact so constructed as to carry off any but an excessive fall of rain.
The plaintiff had, before the introduction of the witness P. B. Hawkins, “ offered to prove, as tending to show negligence, that, some two hundred yards below, on the same stream, the Roanoke Navigation Company had constructed a culvert before defendant, which was twenty-six feet wide,” but upon objection by defendant the testimony -was then excluded. The witness Hawkins, having qualified himself to speak as an expert, said: “ I think the culvert a sufficiently large culvert for the size of the stream. I thought it sufficient to carry off any rise. It was the largest culvert I ever built.” Subsequently the Court, being of opinion that the defendant, by the examination of Hawkins, had “opened the door” and made the evidence previously excluded competent, allowed a witness to testify, after objection on the part of the defendant, that the culvert built by the Roanoke Navigation Company, two hundred yards below, on the same stream, was larger than that built by Hawkins, and this is the ground of another exception relied on by the defendant. We concur with his Honor in his ruling. Hawkins had qualified as an expert, as we may fairly infer from the record, in part, at least, showing his experience *228as a contractor for work on railways, and at any rate he had been allowed, after stating that he had built that particular culvert, to testify further that it was the largest he had ever built, the natural inference being that he had constructed a number, and this was of unusual capacity. In order to break the force of this testimony, it was competent for the plaintiff to show that another .had been built so near below that the volume of water in the stream would not probably be materially increased before reaching it, or certainty to show that another and larger one was very near, and in that way to meet the argument (which defendant’s counsel might make to the jury) that an expert and experienced engineer had never constructed'one that would allow so much water to pass. Hawkins might have been asked, on cross-examination, with a view to impeach him or destroy the weight of his testimony as an expert, what the dimensions of the lower culvert were. Greenleaf on Ev., vol. 1, sec. 468. But we think that the testimony of Hawkins tended to show that the defendant had not done the work in a negligent or unskillful manner, by impressing the jury with the idea that no larger culvert had ever been constructed, because an educated and intelligent contractor had not, in the years of experience that made him an expert, built one so large. This is only a fair inference from thediestimony, and it would follow that testimony as to the location and capacity of the lower culvert must of necessity tend to remove the incorrect impression made by Hawkins’ testimony, and in that way bear directly upon the question of negligence, involved in the first issue.
The testimony, offered to prove that the stagnant water engendered malaria and caused sickness, was withdrawn from the jury, and the exception growing out of its introduction was not insisted on in this Court.
Counsel for the defendant contends, that there was error in the refusal to give the instruction prayed for in reference to contributory negligence, and in giving that substituted *229by his Honor for it. Indeed, in the argument m this Court counsel went further, and cited a number of authorities to establish the position, that this is a case in which, upon the undisputed facts, the jury should have been told there was contributory negligence on the part of the plaintiff. .
The plaintiff, T. L. Emery, testified, that in the fall of 1885 his brick-yard was overflowed, and in May, 1887, it was again submerged, and that the plaintiff suffered great damage, on both occasions, in the destruction of brick.
In reply to a question, he stated, as a reason why he again made brick at the same place, after the overflow in ls85, that the preparation of the brick-yard had cost him a good deal of money, and that the place selected was the only place suitable for making brick on the land.
It is insisted, that there was a want of ordinary care, shown by plaintiff, in manufacturing brick a second time in a place that had been overflowed nearly two years before.
If the jury had not found that there was negligence on the part of the defendant in response to the first issue, then, under the instruction of his Honor, it would have been unnecessary to proceed to consider the third, which involved the question of contributory negligence. So, we may assume that the jury agreed upon the affirmative answer to the first issue, before discussing the third.
We cannot, upon reason or authority, reach the conclusion that the plaintiff exhibited a want of ordinary care by manufacturing brick in the year 1887, because the brickyard had been damaged in 1885, nor that he was negligent in planting another crop in the latter year on land that had been overflowed two years before, for the reason that the defendant company, by the careless and unskillful construction of its road, in the failure to provide adequately for the escape of the water of the creek, even when there was no extraordinay volume, had subjected the plaintiff to some risk in raising the usual crops on the farm, or attempting to *230utilize the only suitable place for manufacturing brick on that tract of land. It is often difficult to determine when the admitted evidence in a case crosses the shadowy line, and compels the Court to take the case from the jury, and declare, as the law, that contributory negligence has been proven. 'The application' of the rule, that when the facts are ascertained, the question, whether there has been negligence or contributory negligence, is one addressed exclusively to the Court, is attended with difficulty, -because it seldom happens that the material facts in any two cases are precisely the same. When there is any conflict in the testimony the Courts will lay. down the rules of law and define the standard of care necessary, but leave the jury to decide, whether, under the circumstances, ordinary care was exercised by a defendant.
The defendant has no reason to complain that the Court allowed the jury to apply, as the test, the abstract principle that the plaintiffs -were bound to exercise that degree, and only that degree, of care which aman of ordinary prudence would exhibit in the management of his affairs, and refuse to sustain the unreasonable proposition that a prudent man must either allow his land to remain uncultivated, and his brick-yard, with his investment for manufacturing, to be abandoned, or incur the risk of losing the fruits of his labor, because he had some reason to fear that, by the negligent construction of a culvert, the crop or the brick might be injured or destroyed. Wood on Railway Law, sec. 300, and notes.
The authorities cited by defendant do not sustain the position, either that the Court erred in refusing to give the instruction asked, or in the failure to go further in that given, and tell the jury that the admitted facts were sufficient proof of contributory negligence. The authority to which counsel refers us is not applicable to the facts of this case. Beach on Contributory Negligence, secs. 12 and 13.
*231The same author says, section 162: “ It is for the Court to say, in a majority of instances, what is and what is not negligence, as an abstract proposition. When, therefore, the facts of a giren case are vndisputid, and the inferences or conclusions to be drawn from the facts indisputable — when the standard of duty is fixed and defined, so that a failure to attain it is negligence beyond a cavil, then contributory negligence is matter of law. When the facts are unchallenged, and are such that reasonable minds could draw no other inference or conclusion from them than that the plaintiff teas or was not at fault, it is the province of the Court to determine the question of contributory negligence as one of law.” He cites Field on Damages, p. 519, to the effect that, “ to justify a nonsuit on the ground of contributory negligence, the evidence against the plaintiff should be so clear as to leave no room for doubt, and all material facts must be conceded, or established beyond controversy.” The learned author concludes that, “in a majority of cases, the question of the plaintiff’s negligence will be one of fact, to be ultimately determined by a jury.”
In Detroit R. R. Co. v. Von Steinborg (cited by the author), Judge Cooley says: “The case must be a very clear one, which would justify the Court in taking upon itself this responsibility.” * * * Speaking of the finding by the Court that there was contributory negligence in any given case, the learned Judge says further: “ He thus makes his own opinion of what would be generally regarded as prudence a definite rule of law. It is quite possible that if the same question of prudence were submitted to a jury, collected from the different occupations of society, and, perhaps, better competent to judge of the common opinion, he might find them differing with him as to the ordinary standard of proper care.”
The last exception grows out of the refusal to give the instruction asked, that “ if the defendant has used its culvert, as it now is, since 1859, then the law presumes it has a *232grant to do so, and the plaintiff cannot recover.” The injury resulting from the unskillful construction of culverts cannot be estimated as a part of the damage for right of way, and the grant from the land-owner or the proceeding for condemnation, to which he and the corporation were! parties, would not operate as an estoppel in an action brought by him for injuiy caused by the unskillful construction of culverts and consequent damage to land located beyond the right of way. The owner of adjacent land can, of course, resort to common law remedy for damage sustained by him in the overflow of his land, directly consequent upon such carelessness on the part of a railroad company in the construction. Wood on Railway Law, sec. 253, vol. 2, p. 876. His recovery can be defeated only by proof of a prescriptive right, acquired by user, to maintain the culvert in its present state, with the consequent injury. The right by prescription could be acquired by the defendant by user for twenty years, and the user, in order to raise the presumption of a grant from the quiet enjoyment of the easement, must have been such as to have subjected the claimant to an action any time for twenty years before his right to the easement was controverted by the bringing of this action. The defendant must show, too, in order to establish his right to the easement, “ that the user, at the time when the action was brought, was not substantially in excess of that which he had exercised during the period requisite to the right.” Sherlock v. Railway Co., supra To apply that rule to this case, the burden is on the defendant to show, not that the overflow has constantly extended over a fixed territory, on the plaintiff’s land or varied only with the water-mark for twenty years, but that at regular or irregular intervals the water has overflowed the very land on which the bricks were destroyed or the crops injured, and to the very same extent, so as to have made the defendant liable in an action for or in the nature of trespass, by the feme plaintiff and those under whom she claims, at any time during that period.
*233The floods occurring at intervals must have always covered the land on which the crops were raised, or the bricks were made, in order to establish an easement, that would prove available as a defence to the one ground of action or the other. Wood on Lira, of Actions, §182, p. 377; Sherlock v Railway Co. (and Reports); Northwestern Reporter, vol. 17, No. 2, p. 171.
The defendant has not attempted to establish the prescriptive right, by offering any testimony to show that the land has been overflowed. So far as we can judge from the' report of the evidence, which does not purport to be full, there was no proof offered as to the nature or extent of the overflow, except that offered by plaintiff in support of his ■demand for damage, and covering only three years prior to the bringing of the action. The proof by the plaintiff, that ordinary rains, for four years prior to the bringing of the •action, had been sufficient to cause the overflow of the brickyard and the cultivated land of the feme plaintiff, does not supply the omission of the defendant company, or relieve it ■of the burden. It does not follow that the overflow has been uniform so as to subject the company to an action in favor of those under whom she claims, for the previous time, extending back twenty years; for changes in the system of drainage by land-owners above, and the clearing of lands, might have increased the volume of water in the creek and caused it to overflow more readily. But such alterations would not have relieved the defendant company of liability resulting directly from the insufficiency of its culverts to discharge the water. No such testimony having been offered by the defendant, the complaint, that his Honor left the jury to pass upon the question whether an easement had been acquired, ought not to come from it.
We conclude, therefore, that there was no error, and the judgment must be affirmed.
No error. . Affirmed.