#### GEORGE W. MORDECAI, FRANK E. MORDECAI and SAMUEL F. MORDECAI, Co-partners Trading as HAYES-BARTON SWIMMING POOL, v. NORFOLK SOUTHERN RAILWAY COMPANY.

(Filed 19 April, 1950.)

Appeal by plaintiff from Grady, Emergency Judge, November Term, 1949, of Wake. No error.

Plaintiffs instituted this action to recover damages for injury to their property by water alleged to have resulted from the negligent construction and maintenance by the defendant of a culvert and drainway under its roadbed, insufficient to carry off the waters flowing through a small stream when swollen by rain. It was alleged that following heavy rains water was backed up over plaintiffs’ land causing substantial damage. Defendant denied negligence and further alleged that any injury suffered by plaintiffs was caused by an unprecedented and unpredictable downpour, constituting an act of God for which defendant was not liable.

The following issue was submitted to the jury: “Were the lands of the plaintiffs flooded and their property injured by the negligence of the defendant as alleged in the complaint?” The jury answered the issue “No,” and from judgment on the verdict, the plaintiffs appealed.

Cheshire & Ellis for plaintiffs, appellants.

Simms & Simms for defendant, appellee.

Per Curiam.

Plaintiffs noted numerous exceptions to the judge’s charge, but a careful examination of the record leaves us with the im*734pression that the case was fairly submitted to the jury, and that no error which would warrant us in awarding a new trial has been disclosed. We are not inclined to disturb the result.

No error.