The opinion of the court was delivered by
Barrett, J.
Some features of the argument that has been addressed to us in this and in another cause that has been heard at this term, indicate that to some extent the idea is abroad that the decision of the county court as to the loss of a paper, preliminary to the use of secondary evidence of its contents, is not revisable in this court. Such idea is not correct; for such decision is revisable, and is reversible, also, when it is erroneous in matter of law. The rules of law as to proof of loss are well defined in the books, and their application is illustrated in a great variety of cases.
In Thrall v. Todd, 34 Vt. 100, for instance, one rule is stated and applied, resulting in the reversal of the judgment. The rule stated is: “ Before parol evidence of its contents is admitted, it should be shown that a search for it had been made in good faith and with proper diligence, in the place where it was likely to be found, and that such search proved ineffectual;” and the cases and books are cited in which such rule is established. It is always a question of law in the given case, whether the rule has been acted on and properly carried into effect, and of course it is revisable on exceptions.
That case shows in what respect the rule had not been carried into effect. “ No proof had been offered to show that search had been made for the order or assignment, either among the papers of the treasurer or of the attorneys.” The rule required that such search should have been made. In Vilas et al. v. Moulton, 11 Vt. 474, “ there was no examination of the papers of Judge Collamer, who had been counsel in the case, or of Blake, among whose papers we should expect the note would have been kept.” The rule required this to be done. The remarks of Ch. J. Williams, in Royalton v. Turnpike Co. 14 Vt., are in the same view and to the same effect. If, under that rule, evidence had been given tending to show that search had been made in the places required by that rule, the finding of the court on that evidence would not be the subject of exception and revision in this court.
[104]*104In the case in hand, the court acted upon the recognized rule of law, and so did the counsel, and gave evidence as to the place and kind of inquiry, and extent of the search. On this evidence it was for the court to find the fact of loss. The court failed to find that fact, or rather did find, affirmatively, “ the fact that the loss isn’t proved.” The rule is not, that if evidence is given tending to show such loss, secondary evidence may be admitted; but it is, that if the loss is proved, such evidence may be given. The rule and its application are well shown in Voorhees v. Dorr, 2 Barb. 587. Johnson, J., says: “There was no error in allowing parol evidence to be given of the letter. The witness stated that it was lost, and he could not tell what had become of it. He was not cross-examined for the purpose of ascertaining where he kept his letters, or whether he preserved them at all, or what search he had made; but the objection was, that there was no evidence that it had been destroyed, or that the witness had searched for it where he usually kept his letters. The witness stated generally that it was lost, which was sufficient evidence, prima facie, of loss. A further examination might have disclosed an insufficient search for the letter in the place where such things were usually kept by the witness, but the defendant did not see fit to make the inquiry.”
Also, in Plank Road Co. v. Bryan, VI. Jones. Law (N. C.), 84, where the proxies were clearly proved to have been thrown away as waste paper, it is said: “ Those instruments must therefore be considered as having been destroyed, and it was idle to require proof that they had been searched for,” &c. In that case there was no place of custody of such papers, and so no place to be searched, as being the one where such papers were likely to be kept or found. The cases all recognize the rules of law, and distinguish between them and the discretionary action of the court under them.
As has been often remarked, to a considerable extent each case must stand on its own circumstances as to whether the rules of law governing the subject have been acted on correctly; but whether the court below have found facts correctly from the evidence bearing pro and con upon the existence of the facts of which [105]*105the rule is predicable, it is not the province of this court to en-quire or determine. The exception taken in this respect is not maintained. Where the contents of the paper constitute the effective evidence pertinent to the issue on trial, the rules of law as to proof of loss, before giving secondary evidence of such contents, apply to and govern the subject. 22 Ind. 465, Perkins, J.: “ It is a general rule that the best existing evidence of a fact must by produced to prove it; and where the matter to be proved is the contents of a record, or the terms of a written contract, and they are in existence, the record and contract are the best evidence. In this case it was not the contents of a record or contract of which proof was given,” &c. In 68 N. C. 49, Rodman, J., says: “If the question (even between strangers) be as to the contents of a writing, it must be proved by the production of the writing itself, if within the power of the party.” If it has been lost or destroyed, then the contents may be proved by secondary evidence. The authorities are all to the same effect.
We think no error was committed in admitting the evidence of Bowman, for the sole purpose stated. The defence were making a point against the plaintiffs as to the extent of the injury to the wife, as affecting the extent of the damages proper to be recovered, on the score of a recent refusal of the wife to submit to a further examination of her person by doctors; and it was by way of arguing that the reason of such refusal was a fear on her part that such examination would show her real injury to be less than she was pretending and claiming. The evidence by Bowman was offered to just that point, viz., to countervail the effect of such an argument against her, as it obviously would have a tendency to do, if it should be found that, in fact, at any time after the injury, and the bringing of the suit, she was inviting examination to be made by some good physicians to be sent by the railroad company, whom the defendant had vouched in to defend the suit, and that, too, in connection with a negotiation for settlement of the claim between the plaintiff and the agents of the parties interested to defend against and reduce the claim. The propriety of this evidence could not be made plainer by discussion. It is clear [106]*106upon principle and the reason of the thing, and fully approved by the analogy of decided cases.
As to the fourth request. If the facts embraced in that request had constituted all the elements of which the law would take cognizance, as affecting the sufficiency of the highway at that point, it might with better show of reason be claimed that the court should have undertaken to determine as matter of law the sufficiency of the highway. But to all persons familiar with Vermont winters, it is plain that several other items would, as a practical matter, bo for consideration in determining the question of sufficiency; and some of such items are presented by the evidence detailed in the cause.
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The opinion of the court was delivered by
Barrett, J.
Some features of the argument that has been addressed to us in this and in another cause that has been heard at this term, indicate that to some extent the idea is abroad that the decision of the county court as to the loss of a paper, preliminary to the use of secondary evidence of its contents, is not revisable in this court. Such idea is not correct; for such decision is revisable, and is reversible, also, when it is erroneous in matter of law. The rules of law as to proof of loss are well defined in the books, and their application is illustrated in a great variety of cases.
In Thrall v. Todd, 34 Vt. 100, for instance, one rule is stated and applied, resulting in the reversal of the judgment. The rule stated is: “ Before parol evidence of its contents is admitted, it should be shown that a search for it had been made in good faith and with proper diligence, in the place where it was likely to be found, and that such search proved ineffectual;” and the cases and books are cited in which such rule is established. It is always a question of law in the given case, whether the rule has been acted on and properly carried into effect, and of course it is revisable on exceptions.
That case shows in what respect the rule had not been carried into effect. “ No proof had been offered to show that search had been made for the order or assignment, either among the papers of the treasurer or of the attorneys.” The rule required that such search should have been made. In Vilas et al. v. Moulton, 11 Vt. 474, “ there was no examination of the papers of Judge Collamer, who had been counsel in the case, or of Blake, among whose papers we should expect the note would have been kept.” The rule required this to be done. The remarks of Ch. J. Williams, in Royalton v. Turnpike Co. 14 Vt., are in the same view and to the same effect. If, under that rule, evidence had been given tending to show that search had been made in the places required by that rule, the finding of the court on that evidence would not be the subject of exception and revision in this court.
[104]*104In the case in hand, the court acted upon the recognized rule of law, and so did the counsel, and gave evidence as to the place and kind of inquiry, and extent of the search. On this evidence it was for the court to find the fact of loss. The court failed to find that fact, or rather did find, affirmatively, “ the fact that the loss isn’t proved.” The rule is not, that if evidence is given tending to show such loss, secondary evidence may be admitted; but it is, that if the loss is proved, such evidence may be given. The rule and its application are well shown in Voorhees v. Dorr, 2 Barb. 587. Johnson, J., says: “There was no error in allowing parol evidence to be given of the letter. The witness stated that it was lost, and he could not tell what had become of it. He was not cross-examined for the purpose of ascertaining where he kept his letters, or whether he preserved them at all, or what search he had made; but the objection was, that there was no evidence that it had been destroyed, or that the witness had searched for it where he usually kept his letters. The witness stated generally that it was lost, which was sufficient evidence, prima facie, of loss. A further examination might have disclosed an insufficient search for the letter in the place where such things were usually kept by the witness, but the defendant did not see fit to make the inquiry.”
Also, in Plank Road Co. v. Bryan, VI. Jones. Law (N. C.), 84, where the proxies were clearly proved to have been thrown away as waste paper, it is said: “ Those instruments must therefore be considered as having been destroyed, and it was idle to require proof that they had been searched for,” &c. In that case there was no place of custody of such papers, and so no place to be searched, as being the one where such papers were likely to be kept or found. The cases all recognize the rules of law, and distinguish between them and the discretionary action of the court under them.
As has been often remarked, to a considerable extent each case must stand on its own circumstances as to whether the rules of law governing the subject have been acted on correctly; but whether the court below have found facts correctly from the evidence bearing pro and con upon the existence of the facts of which [105]*105the rule is predicable, it is not the province of this court to en-quire or determine. The exception taken in this respect is not maintained. Where the contents of the paper constitute the effective evidence pertinent to the issue on trial, the rules of law as to proof of loss, before giving secondary evidence of such contents, apply to and govern the subject. 22 Ind. 465, Perkins, J.: “ It is a general rule that the best existing evidence of a fact must by produced to prove it; and where the matter to be proved is the contents of a record, or the terms of a written contract, and they are in existence, the record and contract are the best evidence. In this case it was not the contents of a record or contract of which proof was given,” &c. In 68 N. C. 49, Rodman, J., says: “If the question (even between strangers) be as to the contents of a writing, it must be proved by the production of the writing itself, if within the power of the party.” If it has been lost or destroyed, then the contents may be proved by secondary evidence. The authorities are all to the same effect.
We think no error was committed in admitting the evidence of Bowman, for the sole purpose stated. The defence were making a point against the plaintiffs as to the extent of the injury to the wife, as affecting the extent of the damages proper to be recovered, on the score of a recent refusal of the wife to submit to a further examination of her person by doctors; and it was by way of arguing that the reason of such refusal was a fear on her part that such examination would show her real injury to be less than she was pretending and claiming. The evidence by Bowman was offered to just that point, viz., to countervail the effect of such an argument against her, as it obviously would have a tendency to do, if it should be found that, in fact, at any time after the injury, and the bringing of the suit, she was inviting examination to be made by some good physicians to be sent by the railroad company, whom the defendant had vouched in to defend the suit, and that, too, in connection with a negotiation for settlement of the claim between the plaintiff and the agents of the parties interested to defend against and reduce the claim. The propriety of this evidence could not be made plainer by discussion. It is clear [106]*106upon principle and the reason of the thing, and fully approved by the analogy of decided cases.
As to the fourth request. If the facts embraced in that request had constituted all the elements of which the law would take cognizance, as affecting the sufficiency of the highway at that point, it might with better show of reason be claimed that the court should have undertaken to determine as matter of law the sufficiency of the highway. But to all persons familiar with Vermont winters, it is plain that several other items would, as a practical matter, bo for consideration in determining the question of sufficiency; and some of such items are presented by the evidence detailed in the cause. It is clear that no rigorous rule of law can be formulated by which it can bo determined that a given width of travelled track in a certain depth of snow, and bounded by banks of a given height and slope, constitutes a highway in good and sufficient repair, under the events and circumstances that constituted and characterized the accident in question. The best that can be done by the court, as the mouthpiece of the law, is, to express to the jury, as appreciably as may be, the sense and meaning of the law as applicable to the subject, and leave it to the jury to sayón the evidence whether the condition of the road realizes and fulfils that sense and meaning of the law. This is the net result of all the cases, and no more specific reference is called for.
The exception is only to the refusal of the court to charge as requested. The case does not show that such refusal was error. The court did charge the jury on the subject of said request, but the charge is not detailed. No exception was taken to that. It is therefore presumable that it was answerable to the well-known rules and usages in such cases, in serving up for the consideration of the jury such questions, mixed of law and fact.
As to the fifth request. Mutatis mutandis, the remarks just made apply to this request; so there was no error in the refusal to comply with it. Exception is taken to the charge upon the subject of that request, as given in the copy before us. It is not claimed that what the court said to the jury was not true, both as to the law and the facts. The principal claim and complaint is, that he did not say more. What the court said, embraces the ultimate [107]*107doctrine of the law of the subject, very comprehensively stated. It is difficult to say that the court committed revisable error in not developing and amplifying that doctrine, and indicating, at least, pertinent considerations that would bear upon its "application and the results of it, in view of the evidence in the cause. How far the court will go in that respect, and with what light reflected upon the merits in controversy, is generally a matter of discretion, influenced or controlled by various considerations. Sometí es it depends on the faculty and facility of the judge; sometimes on the views lie entertains of the merits of the case ; sometimes on the manner in which the case has been presented in the trial and argument and requests; sometimes on the supposed intelligence, character, and disposition of the jury. However it may seem to us that the presiding judge might properly, and even ought to have, said more, and in some respects differently, in order more assuredly to secure in the end justice, both legal and impartial, it is not for us to impute legal error, upon the mere conjectuie that his mode of putting the case would have been better if differently done, unless it appears that the jury have been misled by the. manner in which he did put it.
I, and no-doubt my associates, have often taken great pains to make the law of cases intelligible and appreciable by juries, and have found in the result that we have not succeeded to any flattering extent. This may not be attributable to fault of either judge or jury. Of course most of the principles and rules of the law that are involved and have to be specifically applied in the trial and decision of cases, are of novel impression with most jurymen, and not so readily apprehended and appreciated by them as by judges and lawyers who give their minds studiously to the subject. What seems to the professional man very simple and easy to understand and apply, may be very dark and complicated and difficult of application to the juryman, whose attention is first called to the subject in the trial of the pending cause. It is not strange that often the most painstaking development and explanation of the law of the case to the jury, sometimes, or often, fails to be so adequately comprehended and understood as to insure [108]*108the most desirable and adequate results in the use and application in the particular case.
I have often queried whether on the whole it would not be quite as likely to serve the ends of legal justice, to state comprehensively the naked propositions of the law applicable to and controlling the points of fact upon which they were to pass on the evidence, as to go into a sort of elementary teaching of the jury in the law, its reasons, applications, and results. I have reason to suppose that juries are quite as often misled by impressions made by the judge in his efforts to make everything > plain by elaborate exposition and discussion, as in his comprehensive charges, stating only the propositions applicable to the points, without exposition or discussion. As said before, short of legal error, the manner and matter of a charge to the jury is so much within the discretion of the judge, as not to be cause for reversal of judgment, however it may seem to counsel to be the subject of speculative and conjectural or even cesthetie criticism.
It would seem that the fifth request did not involve, or direct the attention of the court to, the subject of burden of proof on the question of contributory negligence’; nor was the attention of the court called to any omission in this respect in the charge as given. It is presumable that proper instructions were given in the course of the charge, as to what was needful to be proved by the plaintiffs in order to make out a case entitling a recovery; and this would be one of the subjects of proof by them, to such an extent that the jury should be able on the whole evidence to find that negligence of plaintiffs did not contribute to the happening of the accident. It is sufficient to say that the exceptions do not show that the court omitted to give proper instructions on that subject.
Judgment is affirmed.