This cause was tried before a referee; and therefore it becomes our duty, under section 16, chap. 264, Laws of 1860, to examine the testimony, and to decide questions of fact according to the weight of evidence. It is very obvious that this statute has changed the practice in this particular; since, before its adoption, it was a familiar and well settled rule that the appellate court would not disturb the finding of a referee or a judge in common law actions upon questions of fact, upon mere preponderance of testimony. But the law now requires, in cases tried by the court or before a referee, that this court should review questions of fact, as well as of law, decided by the court or referee, where proper exceptions have been taken. See the case of Snyder v. Wright, 13 Wis., 689.
Upon the evidence, we are of the opinion that the plaintiffs cannot recover. In the first place, it is clear that under the circumstances the company was liable only for such injuries as were occasioned by the gross negligence of its servants. The colts had escaped out of a pasture adjoining the railroad track *76on to the track of the road, where they were hit by the train. The referee finds (and we think the finding is in accordance with the proofs in the case upon this point), that the fence was in a good and proper condition, and that the company was in no way chargeable with negligence for failure to keep the same in good repair. This circumstance distinguishes the case from Dunnigan v. The Chicago & North-western R. R. Co., 18 Wis., 28, and Brown v. The Mil. & Prairie du Chien R. R. Co. [ante. p. 39]. But where the company erects and maintains proper fences and cattle guards along its road — keeps them in good condition and repair — and cattle escape from the enclosure adjoining the road, and stray upon the track, they then become trespassers, and the law charges the owner with negligence, although he may not be guilty of any actual carelessness in suffering them thus to escape. And where the negligence of the owner directly co-operates with the negligence of the agents of the company to produce the injury, there no recovery can be had, unless in cases where such agents are guilty of gross carelessness or willful and wanton misconduct. Stucke v. The Milwaukee & Miss. R. R. Co., 9 Wis., 202. In this oase, while there may be some evidence of negligence on the part of the agents of the company in managing the train, yet there is nothing which shows rashness or wantonness of conduct on their part, or that they did not employ the usual means to prevent the injury. When the colts were some distance from the train, the whistle was blown and the brakes put on. The train had a competent number of brakemen, who promptly set the brakes when the alarm was given ; and the track was sanded. The ordinary means were used to stop the train before it reached the colts. But it was a freight train, on a descending grade, and these means proved ineffectual to stop the train in time. It is said that the engineer, if attentive to his duties, must have seen the colts a great distance ahead, and he should have earlier taken steps to stop the train. It is true, the acci*77dent occurred in the afternoon of a clear day in September, and where it appears tbe colts might have been seen by the engineer on the approaching train at a distance of two or thfee miles. But the engineer must necessarily exercise some discretion as to when measures must be taken to prevent a collision ; and although he may misjudge as to the efficiency and success of these measures, and as to his power to control the train, yet we think it too strict a rule to say the company is liable if an injury occurs in consequence of this error of judgment. Besides, the engineer might have seen the witness Westinghouse driving the colts from the track, and have supposed that the colts would be out of danger before the train reached them. In the exercise of a high degree of care and diligence on the part of those operating the train, the injury would undoubtedly have been avoided; but as the negligence of the plaintiffs concurred to produce the result, no recovery can be had upon the facts established by the evidence.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions to give judgment for the defendant.