Noyes v. White River Turnpike Co.

The opinion of the court was delivered by Bennett, J. The declaration alleges that the injury happened “by reason of the road being out of repair, and the badness thereof,” and it is urged, in argument, that the evidence showing that the road, in its original construction, was insufficient and unsafe, constitutes a variance, though such insufficiency continued down to the time of the injury complained of. Though the law in regard to variances, is, in many instances, very nice, yet, we think this objection without foundation. Notwithstanding the expression, “being out of repair,” may, as has been argued, imply that the road was once sufficient, still, the allegation in the declaration, in effect, is, that the injury accrued by reason of the badness of the road; and whether such badness is the result of an original insufficiency or from a want of repairs, from time to time, can make no difference. If the road was insufficient at the time of the injury, the declaration is substantially proved, notwithstanding it should appear that the road had always been in that condition. It is also said, that the declaration alleges the injury to have occurred on a road laid out in 1803, and that the proof shows that, some four or five years since, the defendants made a slight alteration in the road to avoid a certain hill, and that the injury occurred on this part of the road. We think this is no ground of variance. By the statute of incorporation the defendants are authorized to make alterations in the road, from time to time, as shall be found necessary; and when they shall make slight alterations in the old road, the new becomes incorporated with, and a component part of, the old road, and, so far as their liability is concerned, can constitute but one road. It is said the declaration is insufficient, because it does not state the particular place, in Royalton, where the injury [536] happened, nor the manner in which the road was out of repair. No reason is shown or perceived why this should be necessary, but, if necessary, it would be cured by verdict. -phe judgment of the court below is affirmed.