It is claimed by the learned counsel for the plaintiff, that, if the defendant allowed the gate at his cross-,, ing to remain open at and before the time the plaintiff’s cows were hilled, and the cows went on the track through such open gate, the defendant is absolutely liable for the loss of the cows, even though the plaintiff was himself guilty of negligence which contributed directly to the loss.
. There is testimony in the bill of exceptions tending to show that the defendant owned and occupied the farm on which the gate in question is located, and that such gate was left open constantly for several days immediately preceding, and down to the time the cows were killed. Also that during such time the sons of the defendant (who probably resided with him) passed through the gate and left it open behind them. With this testimony in the case, we are unable to say that there is no testimony tending to show that the defendant allowed the gate (and therefore the railroad fence of which the gate is a part) to remain open. That there is testimony tending to show that the cows went through the open gate to the railroad track, is indisputable.
We are now to consider whether the liability of the defendant for the loss of the cows is absolute, as it is claimed, or whether his liability depends upon the absence of negligence on the part of the plaintiff contributing proximately to the loss. In considering this question, it will be assumed that the *134defendant allowed the gate to remain open in violation of the statute, and that, had the gate been kept closed, the cows would not have been destroyed.
To support the position that the defendant is absolutely liable, counsel for the plaintiff relies mainly upon the case of McCall v. Chamberlain, 13 Wis., 637. Sec. 1, ch. 268, Laws of 1860, required every railway company to fence its road, and to construct cattle guards, etc., within a prescribed time, and provided that “ until such fences and cattle guards shall be duly made, the railroad company, its agent or agents, the trustees, lessee, or other parties having control and management of any such road, shall be liable for all damages which shall be done by the agents or engines, to cattle, horses or other domestic animals thereon, occasioned by failure to erect such fences or cattle guards as herein required.” It was held in McCall v. Chamberlain, that if the railway company neglected to make such fence within the prescribed time, “it would be liable for all damages to animals straying on the track through the want of such fence, without reference to the question whether there was negligence or want of skill in managing the cars at the time of the injury, or to the question whether such animals were rightfully or wrongfully on the adjoining land from which they escaped on the track.” The above extract is taken from one of the head notes to the case, and it seems to state accurately the points decided. It is not entirely certain that the court intended to hold, in that case, that the owner of the cattle could recover if he negligently permitted them to become trespassers upon the adjoining lands, with knowledge that for want of fences they were liable to go upon the railroad track and to be run over by passing trains. Whatever inferences may be drawn from the language of the opinion in that case, there is no express assertion of any such doctrine.
In the subsequent case of Antisdel v. C. & N. W. R'y Co., 26 Wis., 145, the late Mr. Justice PaiNE (by whom the opin*135ion was prepared in McCall v. Chamberlain) drew a distinction between the liability of a railway company for injuries resulting from a failure to fence the road in the first instance, and liabilities resulting from its failure to keep the fence in repair after its erection, and concedes that in the latter case the question of care and diligence is involved. See also Ward v. The Town of Jefferson, 24 Wis., 342.
In Laude v. The C. & N. W. R'y Co., 33 Wis., 640, also cited and relied upon by counsel for the plaintiff, the colts of Laude escaped from his yard, without his fault, and went upon the track of the railroad from lands upon which they were trespassers, through an opening in the railroad fence, and were run against by a passing train and killed. The opening in the fence had existed for a long time, and was known to the agents of the railway company, who had ample time before the colts were killed in which to repair the fence. It was held that the fact that the colts went upon the track from lands upon which they were trespassers, did not defeat the action; but the doctrine is clearly recognized, that, had the colts escaped because of the fault or negligence of the owner, the action could not have been maintained.
The statute which makes towns liable for injuries caused by defective highways therein, is just as positive and unconditional in its terms as the statute under which it is sought to hold the defendant liable in this action. Its language is: “ If any damage shall happen to any person, his team, carriage or other property, by reason of the insufficiency or want of repairs of any bridge, or sluiceway, or road, in any town in this state, the person sustaining such damages shall have a right to sue for and recover the same against such town, in any court having jurisdiction thereof.” R. S., ch. 19, sec. 120 (Tay. Stats., 513, § 156). Yet in numerous cases brought under this statute, this court has held that if the negligence of the plaintiff contributed proximately to the injury, there could be no recovery. The following are some of the later cases *136in wbicb this doctrine is asserted or recognized: Cremer v. Town of Portland, 36 Wis., 92; Montgomery v. Town of Scott, 34 id., 338; Perkins v. Fond du Lac, id., 435; Hawes v. Town of Fox Lake, 33 id., 438; Burns v. Town of Elba, 32 id., 605; Wheeler v. Town of Westport, 30 id., 392; Houfe v. Town of Fulton, 29 id., 296.
Again, it was enacted in sec. 41, ch. 79, R. S., that no railroad train should go faster than at the rate of six miles per hour in a city until it had passed all the traveled streets therein; and sec. 25 of the same chapter provided that in case of the destruction of life by a violation of that chapter, for every life destroyed the offending party should be liable to the representatives of the deceased in a sum not exceeding $50,000 nor less than $10,000. The case of Langhoff, Adm’r, etc., v. The Milwaukee & Prairie du Chien R’y Co., 19 Wis., 489, and S. C., 23 id., 43, was brought under the above provisions. The evidence tended to show that the death complained of was caused by the violation of the statute by the railway company; but it appeared (as the court held when the case was last here) that the negligence of the deceased contiibuted thereto. Notwithstanding the positive, unconditional terms of the statute imposing the liability, it was held that, because of such contributory negligence of the deceased, there could be no recovery.
The general rule undoubtedly is, that a party cannot recover for an injury of which his own negligence was, in whole or in part, the proximate cause. Cunningham v. Lyness, 22 Wis., 245, and cases there cited. If McCall v. Chamberlain is an exception to this rule, the case seems to stand alone in our reports. And the cases are so numerous in which the rule has been applied, that we do not feel at liberty to make other exceptions to it. We neither affirm nor disaffirm tire doctrine of that case. When another like it shall be presented, the court will determine the scope and extent of that decision, and whether it shall be followed or overruled.
*137We hold that if the plaintiff negligently suffered his cattle to escape from his own premises to the farm of the defendant, he cannot recover in this action, even though in all other respects he may be entitled to judgment.
But it does not necessarily follow that the nonsuit was properly ordered. Unless the testimony showed conclusively that the negligence of the plaintiff contributed directly to the destruction of his cows, the question of negligence was one for the jury, and the court was not justified in taking the case into its own hands and nonsuiting the plaintiff. Jalie v. Cardinal, 35 Wis., 118. See also Vilas and Bryant’s note to Achtenhagen v. Watertown, 18 id., 347. Does the testimony show conclusively that the plaintiff was guilty of such con-, tributory negligence? It certainly tends to show such negligence on his part; and had the jury found him guilty of it, the verdict could not be disturbed on the ground of want of testimony to support it. Yet it appears, or at least there is testimony tending to show, that the plaintiff made some effort to keep his cows on his own premises. He yarded them nights, and made immediate search and inquiry for them on his return home after they escaped from his pasture. Besides, there is some confusion in the testimony concerning the plaintiff’s knowledge that his cattle were accustomed to go upon the defendant’s land, and that the gate at the crossing was habitually left open. These facts seem to render the case a very proper one for the consideration of a jury. Upon the whole case we think the proof of plaintiff’s alleged contributory negligence is not so clear and conclusive as to justify the court in ordering a nonsuit. For this reason there must be a new trial.
By the Cowrt. — The judgment of the circuit court is reversed, and a venire de novo awarded.