The opinion of the court was delivered by
Powers, J.The recital of the facts and circumstances attending a personal injury in cases of this kind, necessarily involves the conduct of the plaintiff, or some one for whose conduct the plaintiff is answerable. A recovery can be predicated only upon a state of facts, that enables the jury to say that the injury happened, in the language of the statute, “ by means of” the insufficiency of the highway. If it be said that the burden is to show that the insufficiency of the highway was the sole, operative cause of the injury, this is equivalent to saying that no want of due care on the part of the plaintiff helped to produce it; or in other words, that the injury is not the joint product of the plaintiff’s lack of prudence and the defendant’s negligence. If the rule seems to require the plaintiff to prove a negative, such burden often arises, and no violence is done to the rules of evidence.
Notwithstanding what has been said in some of the cases respecting the burden of proof upon the question of contributory negligence in this class of actions, we do not understand that any case in this State has decided that it rests anywhere except upon the plaintiff. The judges who heard this case are all agreed that such burden is upon the plaintiff. The story of the accident settles this question. Witnesses describe the condition of the road, and from such description the jury find whether insufficiency is proved'. No witness is allowed to say that it is or is not sufficient. In like manner witnesses describe the acts and conduct of the plaintiff at the time of the accident. They are not allowed to say that the plaintiff’s conduct was prudent or otherwise. Nevertheless the jury must be able to say that the highway was insufficient, and the *190plaintiff’s conduct was prudent; and it is the duty of the plaintiff to produce such a state of evidence as will enable the jury to find both these questions in favor of the plaintiff. Walker et ux. v. Westfield, 39 Vt. 246.
It is argued that this error of the court in telling the jury that this burden of proof did not rest upon the plaintiff, was cured by the succeeding instruction that the whole case must show that no want of due care on the part of the plaintiff contributed to her injury. The latter instruction was correct; the former erroneous. Circumstances might possibly occur where such inconsistent instructions might not work confusion in the minds of the jury ; but in this case the jury came into court from their jury-room, and inquired specially where this burden of proof upon this question rested ; thus indicating that they had some idea of the force of this rule, and its importance as applied to the case then in hand. In answer to such inquiry these contradictory instructions were given and the jury, as in Alexander v. Blodgett, 44 Vt. 476, were left to adopt which one they pleased. This exception is therefore sustained.
Upon the question of damages the fact of Mrs. Bovee’s miscarriage was made prominent at the trial. In the notice a threatened miscarriage is set forth, and in the declaration the actual fact is alleged as one of the injuries sustained. The proofs disclosed the fact that this plaintiff was prematurely delivered of twin living-children. The plaintiff was entitled to recover all damages that were naturally and legitimately consequent upon the negligence of the town. If the violence done her person resulted in the miscarriage, the miscarriage was a legitimate result of such negligence. Any physical or mental suffering attending the miscarriage is a part of it, and a proper subject of compensation. But the rule goes no farther. Any injured feelings followivg the miscarriage, not part of the pain naturally attending it, are too remote to be considered an element of damage. If the plaintiff lamented the loss of her offspring, such grief involves too much an element of sentiment to be left to the conjecture .and caprice of a iury. If like Rachael, she wept for her children and would not be *191comforted, a question of continuing damage is presented, too delicate to be weighed by any scales which the law has yet invented.
The language of the charge is, “ If this miscarriage was brought about by this injury, any suffering occasioned thereby, any injury to her feelings, . . . should be compensated.” If the court used the words italicized as synonymous with the term “ suffering,” which had already been specified, the jury might not have been misled. But in view of the prominence given to the fact of the miscarriage, the jury might easily understand that the plaintiff’s injured feelings, induced by reflecting upon her great calamity and grieving over her disappointed hopes, was a matter proper for their consideration. We think the charge was misleading in this respect.
The judgment is reversed and a new trial granted.