The plaintiff alleges that it was error to direct a nonsuit, for the reasons, that the question of contributory negligence on the part of the plaintiff was a question of fact for the jury, and not a question of law; and that the court should have submitted to the jury whether the injury to the cow was not attributable to the gross negligence or willful act of the defendant’s servants. It is also alleged that the court erred in rejecting.evidence offered by the plaintiff.
This court has finally settled the question in this state, that the neglect of a railroad company to fence its road does not mate it liable absolutely for killing or injuring cattle which may stray upon the track for want of such fence; and that in such case, negligence of the plaintiff which directly or proximately contributes to the injury, is a defense to an action to recover for such killing or injury. Lawrence v. Mil., L. S. & W. Railway Co., 42 Wis., 322; Curry v. Railway Co., 43 id., 665. We are not disposed to consider that question as open for discussion in this court.
The question remains, whether, in the case at bar, the evidence shows conclusively that the plaintiff was guilty of such negligence. That question has been very often discussed in this court, and we think is also finally settled, when applied to a case disclosing the facts which were admitted by the plaintiff in this action. In Curry v. Railway Co., the chief justice says: “ In Lawrence v. Railway Co. it was held to be contributory negligence in law, to leave cattle in the morning at large for the day, without purpose, and by mere inadvertence, in midwinter, presumably without food, within seventy rods of a railroad, without fence or obstacle to keep them from it. The facts are, perhaps, not sufficiently stated in the report. The cattle had been housed that season, were taken out that morning to be watered, and were not put back in their stable as intended, by apparent forgetfulness. The inclination of the cattle to wander in such circumstances, and the danger of their coming on the railroad, were strong and obvious, and negligence in so leaving them was patent and gross. Rut perhaps that case went as far as the court would be warranted in going.” *371•The case at bar presents a much stronger case of negligence on the part of the plaintiff than the one above cited. Here the plaintiff turned his cow into the street without any one to look after or watch her, after she had been housed until late in the day, within a few feet of a railroad on either side of the place where she was turned out, and where, in going to water, she would necessarily cross the line of one or the other of the railroads surrounding his premises, and with nothing to hinder her straying upon and along the track of the defendant’s road. The evidence also shows that it was late in the fall, when grass was scarce, and that there was none growing in the immediate vicinity of the plaintiff’s barn, but that there was grass growing along the line of the defendant’s road, where the injury occurred. In view of the danger to the lives of persons traveling upon railroads, which would result from permitting the owners of cattle, residing in their immediate vicinity, to pasture them upon the tracks of such roads, we are inclined to hold to the decisions in Curry v. Railway Co. and Lawrence v. Railway Co., that such acts on the part of the owner of cattle injured amount to contributory negligence in law. Not only the railroad companies, but the people who travel upon railroads, are deeply interested in compelling the owners of animals to use at least ordinary care to prevent them from wandering upon railroad tracks; and when the evidence is clear that there was a want of ordinary care on the part of a plaintiff seeking to recover from a railroad company for an injury to his cattle, which contributed to such injury, it is the duty of the courts to say that no recovery can be had.
Upon the point that the plaintiff should have been permitted to recover because the evidence shows that the negligence of the defendant was gross, if not willful, we think there was a want of evidence that the injury was committed willfully; and that if there was gross negligence on the part of the defendant, there was also gross negligence on the part of the plaintiff, v’hich contributed to the injury. And, in the language of the late Chief Justice JDixoN, in the case of Railway Company v. Goss, 17 Wis., 428: “ If the owner rashly or carelessly allows *372bis oxen or horses to go upon the road, and they are hilled by the gross negligence of the company or its servants, it is gross negligence against gross negligence, and there can be no apportionment of damages. In such cases, it would seem that nothing short of wanton or malicious injury would entitle him to compensation.”
This court has held that slight negligence, or slight want of ordinary care on the part of the plaintiff, which contributed directly to the injury complained of, would-defeat an action even when the negligence of the defendant was gross. Potter v. Railway Co., 21 Wis., 372, and Cunningham and wife v. Lyness, 22 id., 245. Whether that rule should be applied to a case like the one at bar, it is unnecessary to determine, as we are of the opinion that the plaintiff was guilty of more than slight negligence or slight want of ordinary care in this case. There was no evidence to go to the jury upon the question whether the injury was produced by the willful or malicious act of the servants of the defendant; and we think that nothing short of that would have justified a verdict -in favor of the plaintiff.
We do not understand how it would have tended to better the plaintiff’s case had he been permitted to prove that other cattle were in the habit of running at large in the vicinity of the place where this accident happened, and that some of them had been killed upon the track there before this. On the contrary, we are inclined to think that the fact that cattle had run at large in that place, and that occasionally one had been killed on the track, would have tended to show that there was a greater necessity for care on the part of the plaintiff to present a result which past experience had taught him was likely to follow from permitting his cow to be at large.
Upon the whole case, we are satisfied that no error occurred on the trial of this action, and that the circuit judge was right in directing a nonsuit.
By the Court. — The judgment of the circuit court is aU firmed.
Ryan, C. J\, took no part.