The trial seems to have proceeded on an assumption by both parties that the defendant was bound to erect and maintain fences on the sides of its railroad, in accordance with the provisions of the Pub. Sts. c. 112, § 115, which were first enacted in the St. of 1846, c. 271; and such an assumption was warranted by the facts stated in the bill of exceptions.
The gates on the sides of the railroad at the plaintiff’s private crossing were put in by the railroad company ten or twelve years ago, and the evidence offered to show that bars had previously been used there instead of gates was immaterial. The defendant contends that the evidence was competent, as tending to show that the plaintiff had not acquired a prescriptive right to have cattle guards maintained there as well as gates; but the plaintiff’s case does not rest on the acquisition of a right to have the protection of cattle guards, but on the alleged neglect of the defendant to perform its duty to maintain a proper gate, or other barrier, on the westerly side of the railroad.
The question whether the plaintiff ever requested the defendant to repair the gate before the accident was immaterial to the issue, and the answer to it would have shown no more than a collateral fact which might or might not have borne upon the plaintiff’s credibility. It was asked in cross-examination, and we are of opinion that it was within the discretion of the court to admit or exclude it.
There was evidence tending to show that the gate had for a long time been suffered by the defendant to be out of repair and unfit for use. It had remained open nearly all the time for about two years, and the defendant’s section-master had repeatedly passed through it without attempting to shut it. There was testimony from different witnesses that it was in such a condition that it could not be opened or shut by a reason*302able effort on the part of those having occasion to pass through it. The jury might well find that the defendant neglected the duty to keep the gate in proper repair imposed upon it by the statute.
The mere fact that the plaintiff’s horse escaped from control and passed through the gate to the defendant’s tracks did not make him a trespasser, or preclude the plaintiff from recovery. Browne v. Providence, Hartford, & Fishkill Railroad, 12 Gray, 55. Towne v. Nashua & Lowell Railroad, 124 Mass. 101. Amstein v. Gardner, 132 Mass. 28.
The most difficult question in the case is whether the plaintiff showed that he was in the exercise of due care in the use of the gates. If he was negligent in failing to close the gate, and that negligence contributed to the accident, he cannot recover. There is much evidence indicating that he did not perform his duty in this respect. It was admitted that he and others, who were accustomed to use the crossing, had habitually left the gate open for two years or more, and there was evidence that the sagging of the gate was caused by its being left open. On the other hand, the plaintiff testified that he and his servants always closed the gate during the first five or six years after it was erected, that it was left open because it was difficult to shut, and that he used to shut and open it when he could. The testimony of the plaintiff’s servant was, to the extent of his knowledge, of a similar character. We are of opinion that the questions whether the plaintiff exercised due care in the use of the crossing in view of the condition of the gate, and whether the defendant’s negligence in failing to repair the gate was the sole cause of the accident, were properly left to the jury. They might well have found that the plaintiff failed to use such care as he ought to have done, but we cannot say that there was no evidence to warrant a verdict in his favor. For cases in support of our views, see Eames v. Boston & Worcester Railroad, 14 Allen, 151; Estes v. Atlantic St. Lawrence Railroad, 63 Maine, 308; Aylesworth v. Chicago, Rock Island, Pacific Railroad, 30 Iowa, 459; Perry v. Dubuque Southwestern Railway, 36 Iowa, 102; Hammond v. Chicago & Northwestern Railway, 43 Iowa, 168; Toledo, Wabash, & Western Railway v. Cohen, 44 Ind. 444.
Exceptions overruled.