The undisputed evidence is that the gate through which the plaintiff’s mule and horses escaped from his pasture, when the injury complained of occurred, had been out of repair for several weeks, and that the defendant’s section foreman, whose duty it was to repair it, had timely and repeated notice thereof. That the defendant is chargeable with negligence in not repairing the gate is beyond question. After the gate had become defective, one of the mules of the plaintiff went through it, and later his horses escaped from the pasture through the same gate. Thereupon, and four or five weeks before the injuries complained of were inflicted, the plaintiff fastened the gate with a chain so that his stock could not open it. The gate was kept constantly fastened with this chain until the day of the injury. On that day the two sons of the plaintiff, aged respectively *349nineteen, and seventeen years, who lived with and worked for their father, drove the plaintiff’s stock, including the animals injured, from another field, through such gate, into the pasture. The eldest son shut the gate after the stock passed through it, hut neither of them testified, nor does any other witness, that they-again fastened the gate with the chain. The eldest son said that he fastened the gate, but his whole testimony shows dearly that he only used the defective fastenings appurtenant to the gate, and these were entirely insufficient to prevent the escape of the stock from the pasture.
After testifying that he thought he unhooked the chain and took it off when the stock was turned into the pasture, the same witness was asked whether he afterwards refastened the gate with the chain. He answered: “ I don’t remember for sure. I don’t remember whether I put it on or not. I don’t hardly think I did, because I think if I had they would not have got through.” The plaintiff himself declined to testify that the animals could have escaped had the chain been on the gate. Knowing its defective and unsafe condition, it was negligence if the plaintiff left his stock in the pasture without properly securing the gate. And the negligence of his sons in that behalf is his negligence. The undisputed testimony, and every reasonable inference therefrom, shows that the gate was not properly secured, either with the chain or in any other manner after the stock was driven through it. There is really no evidence to the contrary. The proof that the plaintiff’s, negligence contributed directly to cause the injury complained of being undisputed, the rule of law is elementary that he cannot recover for such injury, although the defendant was also negligent. The motion for a nonsuit should have been granted.
By the Oourt.— The judgment is reversed, and the cause remanded for a new trial.