Bowen v. Flint & Pere Marquette Railway Co.

Grant, J. (aftér stating the facts). Plaintiff was permitted to show, under objection and exception, that, ■on several occasions within about a month before the accident, cattle were found upon the track, and driven through the fence at the point where it is insisted the plaintiff’s colts went through. It is insisted that this was error, .under Jebb v. Railway Co., 67 Mich. 160. We think that case does not rule this. The object of this testimony was to show the condition of the fence at the identical spot where plaintiff insists the colts went through. This was not the case in Jebb v. Baihvay Co., in which it appears that the testimony introduced •covered many months prior to the accident, and was not confined to any particular part of the fence. In view of the fact that the defendant’s testimony was to the effect that this fence was in good condition, we think the testimony was competent. [447] It is also insisted that the court erroneously ruled out testimony tending to show that plaintiff’s colts were frequently in the highway, and that they got out of plaintiff’s field over his fence along the highway. If defendant had offered such testimony, it would have been competent, but such was not the question. The question objected to was, “Do you know of Mr. Bowen’s colts coming out and being shut up on the highway?” The •question referred to no time, and was not directed to the plaintiff’s fence. The judgment is affirmed. The other Justices concurred.