#### Ray, Respondent, vs. Stuckey, Appellant.

*January 10*—

January *28, 1902.*

*,'Negligence: Fences: Injuries to animals: Contributory negligence: Appeal and error: Practice.*

1. In an action for injuries to plaintiff’s horse, sustained by becoming entangled in a barbed-wire partition fence situated wholly on defendant’s land, no- action will lie, where it appears that, before plaintiff turned the animal into the pasture inclosed by such fence, he knew of the dangerous condition of the fence and had complained thereof to the defendant.

2. Where contributory negligence appears from the undisputed evidence, that question, although not submitted to the jury, nor made the ground of a motion for a nonsuit, is presented by a motion to set aside the verdict and grant a new trial.

Appeal from a judgment of the circuit court for Crawford county: Geo. ClemeNtsoN, Circuit Judge.

*Reversed.*

Eor the appellant there was a brief by *Paul*Meyer, attorney, and *O. B.*Thomas, of counsel, and oral argument by *Mr. Thomas.*

Eor the respondent there was a brief by *Palmer & Whit*man, and oral argument by *Platt Whitman.*

*78Oassoday, C. J.

This is an action to recover damages for injuries sustained by tbe plaintiff’s mare being torn and lacerated June 28, 1898, by reason of becoming entangled in an alleged partition fence built and maintained by tbe der fendant wholly upon bis own land, and wbicb is alleged to bave been so negligently and dangerously constructed as to endanger tbe lives and safety of tbe plaintiff’s borses and other domestic animals pasturing on bis adjoining lands. Tbe defendant answered by way of a general denial. At tbe close of the testimony tbe jury returned a verdict in favor of tbe plaintiff, and assessed bis damages at $40. From tbe judgment entered thereon for that amount, with costs, tbe defendant brings this appeal.

For tbe purposes of this appeal, we assume that tbe defendant was bound to maintain tbe fence in question, and keep the same in good condition and repair, at the time and place of tbe accident, and that be failed and neglected to do so, and that, by reason of such negligence, animals pasturing in tbe adjoining lands were exposed to tbe danger of being injured by tbe barbed wire stretched thereon. But it appears from tbe plaintiff’s testimony, and is undisputed, that tbe plaintiff knew all about tbe condition of tbe fence prior to tbe injury,- that be spoke to tbe defendant at “different times prior to tbe time of this accident, asking him if be would put in a good safe fence there;” and that the defendant told him that “be bad tbe posts all made to put in, and as soon as be got a little time be would do it,” but that be bad “never done it.” With such knowledge, tbe plaintiff caused the mare to be turned into bis own pasture, adjoining tbe fence in question, and thereby exposed her to tbe danger mentioned. Such being tbe action and knowledge of tbe plaintiff, tbe question recurs whether be can recover damages from tbe defendant for tbe injury thus sustained. In obedience to a long line of adjudications of this court, we must bold that be cannot. A few of such eases are here cited. Thus, in an opinion by *79Chief Justice EyaN, reviewing the prior cases, it was held, in effect, that in actions against a railroad company for injury occasioned by a failure to maintain fences on the line of its road, *as in other actions for*negligence, contributory negligence of the plaintiff is a complete defense. *Curry v. C. & N. W. R. Co.*43 Wis. 665, 675, *et seq.*In the opinion it is tersely stated that, “when the negligence of both parties co-operates alike in producing the injury, the action does not lie.” To the same effect, *Carey v.*C., *M. & St. P. R. Co.*61 Wis. 71; *Martin v.*Stewart, 73 Wis. 553; *Peterson v. N. P. R. Co.*86 Wis. 206; *McCann v. C., St. P., M. & O. R. Co.*96 Wis. 664. The trial court may have been misled by the fact that the motion for.a nonsuit was not made upon the ground of the plaintiff’s contributory negligence. The question of contributory negligence was not submitted to the jury, and, as it appeared from the undisputed evidence, the case should not have been submitted to the jury. However, the question is presented" by the motion to set aside the verdict and grant a new trial. Certainly the plaintiff should not recover damages for an injury caused in part by his own contributory negligence.

*By 'the Gowrt.*— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.