Carver v. Detroit & Saline Plank-Road Co.

Montgomery, C. J. This case originated in justice’s-court, where the plaintiff recovered a judgment for $10 for damage to a horse by reason of the defective condition of defendant’s road. The defendant removed the case to the circuit court by certiorari, and, on the judgment being there affirmed, has brought the case here on error. It is alleged that the proof was insufficient to support the plaintiff’s averments, and it is said there was no proof, except an inference, that plaintiff’s horse had stepped into a hole in defendant’s road. But the affidavit for certio [459] rari sets out plaintiff’s testimony, in which he testified, “My horse slipped into a hole on the defendant’s road on the 30th day of March.” The defendant is bound by the averments in its own affidavit. It is also said in the brief of counsel that the declaration is not sufficient to admit the proof. The particular defect is not pointed out, nor have we been able to discover it. The other questions relate to rulings on the offer of testimony. There was no conflict in proof as to the fact of the horse stepping into a hole in defendant’s road. The rulings on the admissibility of testimony did not affect this question, and we are not able to see that any injury was done the defendant. The language of Justice Campbell in Cheney v. Russell, 44 Mich. 620 (7 N. W. 234), which need not be here repeated, is quite appropriate to this case. This appeal is wholly without merit, and the judgment will be affirmed, with $25 additional costs. The other Justices concurred.