The opinion of the court was delivered by
Alms, J.The motion in arrest was properly overruled. The declaration in describing the road and its defects uses very general terms. It does not describe what the defects were, nor where they were. But such generality in the description has been in common use in such declarations, and is found in the forms most commonly adopted in practice. But even if open to objection on demurrer, the defects are those merely of defective description, and are cured by verdict.
A more important question in the case is, is the place where the injury was occasioned a part of the bridge, or of the highway? *49If a part of the bridge, then the four towns are jointly liable ; — if the highway, then Woodstock may be sued alone.
The claim of Woodstock, that it is a part of the bridge, rests upon the report of the committee which ordered the bridge to be built, and upon their construction of it. After directing the bridge to be built, and that there should be au abutment on the south side of the river, the report orders a wing wall to be built from each end of the west abutment to the bank, and “to be filled up with stone and gravel well compacted.” The defendant claims that the space enclosed between these two wing walls and the bank to which they extend and the bridge, and which was to be thus filled up, was a part of the bridge, and that what now appears as the road for about thirty-six feet from the wooden end of the bridge is really bridge as established by the committee. Adopting this construction, and measuring from the end of one wing wall in a straight line to the end of the other, the place where the accident happened falls within the space so enclosed, and therefore the four towns, and not Woodstock alone, should have been sued.
In giving construction to the report we must have regard to all they did, and endeavor to give to it all a consistent meaning, and the one they intended. They also” laid a road from the old highway over the place now in question, and so on over the bridge. If this road extends to the abutment and wooden part of the bridge, then Woodstock alone is liable ; for it is for the bridge only and not for the road that the four towns are liable. The road so laid is chargeable upon Woodstock alone.
In building the wing walls and in ordering the space between them to be filled with stone and gravel, the committee intended to secure the bridge from injuiy — to preserve the abutment from being hurt by the action of the water in the stream. This could be well done by filling in the space with stone and gravel, and yet not preparing the surface of it for a road. The filling might be left wholly unsafe for travel, and yet secure the bridge. But by laying a road over it they secured the working and smoothing of the surface for a road. Hence the space might be filled and there be no road, and the road when laid and made might extend to the wooden part of the bridge. This we think was their intent. Construing the language of the *50report in its plain and ordinary sense no one could regard the open space of road for thirty-six feet south of the bridge as being “bridge” and not “road”. So other passages in the report which speak of the bridge refer plainly to the bridge as usually understood, and not to the abutments and wing walls and the area thereby enclosed. In this view the locus in quo was in the road and not in the bridge, and it is needless to consider whether the court was correct in holding as matter of law that the road at this point had been adopted by the town. We may remark, however, without restating the facts of the case, that we all concur in holding the facts shown as sufficient to constitute a legal adoption of the road so as to make the town liable to travellers for injuries occasioned by defects in it.
The last question is as to the charge of the court as to the burden of proof. The charge we think is misconstrued by the counsel for the defence. Substantially and by fair construction the court in their charge adopted the very rule for which the defendant contends.
The court told the jury that “the plaintiff must show that apparently his injury was caused by the defect in the road, and without any fault on his part.” If the plaintiff is to show that there was no fault on his part, what is that but using other words to say that he must by affirmative evidence show he was not wanting in ordinary care. This proof, “that the injury was caused without any fault on his part,” he must make in the outset. The court do not tell the jury that if there is no proof on the subject negligence will not be presumed ; but positively that he must prove in the outset that the injury happened without-fault on his part. The plaintiff making this proof and resting, if the defendant do not rebut it and show negligence, this point is made out for the plaintiff. The expression used by the court that “the burden of proof would be cast on the defendant to show” that the plaintiff had been guilty of neglect, taken in connection with what he had already told the jury the plaintiff must show in order to recover, is not, we think, fairly susceptible of the meaning the defendant attaches to it, viz : that upon considering all the evidence the defendant must show by a fair balance of proof that the plaintiff was guilty of negligence. It is not telling the jury where the burden of proof rests when all the evidence is in, but only where it rests in that stage of the trial.
*51He proceeds to tell the jury that upon the whole evidence if it appeared that the plaintiff’s injury, was in any part caused by his own neglect or want of care he could not recover. It is true' that this does not tell the jury upon whom the burden of proof rests to make this appear — whether upon the plaintiff by a fair balance of proof to show that there was no want of care, or upon the defendant by fair balance of proof to show that there was want of care.
But it does not appear that there was any request that the court should instruct the jury as to this point. In the absence of a request on this point, and of a refusal to' comply with the request, we cannot say that error appears in the charge. The court may have charged either way, — we are not to presume they charged wrong. Especially would this be unjust when the court told the jury that the plaintiff, in order to recover, must in the outset show there was no fault on his part, — and when we know that it is the familiar rule of law that what the party must show in the first instance to recover he must sustain by a fair balance of proof.
As to the question whether the burden of proof, when all the evidence is in, rests upon the plaintiff' to show no want of care, or upon the defendant to show negligence, we do not propose to pass upon it now. However clearly the rule may be established in England, and in Massachusetts and some of the other states, it is known that there has been diversity of opinion among the judges in this state, and diverse rulings in trials in the county court. The conflicting opinions of Judge Eedfield and Judge Bennett, as they appear in the two cases cited from the 27th Vermont illustrate this. It is obvious that there is a difference of opinion in New York among their judges. The note at the end of Button v. The Hudson River R. R. Co., 18 N. Y. 259, indicates this. Lester v. Pittsford, 7 Vt. 158,—Judge Phelps.
Judgment affirmed.