Berry, J.
This action is brought to recover damages for running into the plaintiff’s cattle with a railway train, and killing them, upon the track of the Hastings & Dakota Railway, which was being operated by defendant.
The complaint is framed upon the idea that sections 1 and 2, e. 25, Laws 1872, entitled “An act to compel all railroad companies within this state to build proper cattle guards and fences, ” apply to the Hastings & Dakota Railway Company. Judicially speaking, this is to be presumed to be the fact, in the absence (as in the case at bar) of any charter provision, pleaded and proved, by virtue of which such company is taken cut of the operation of said sections.
Section 1 provides that “all railroad companies in this state shall, within six months from and after the passage of this act, build, or cause to be built, good and sufficient cattle guards at all wagon crossings, and good and substantial fences on each side of such road. ”
Section 2, that “all railroad companies shall be liable for domestic animals killed or injured by the negligence of such companies, and a failure to build and maintain cattle guards and fences, as above provided, shall be deemed an act of negligence on the part of such companies.”
The court charged, among other things, that the omission to build and maintain a fence was in itself negligence on the part of .the railroad company.
This is unquestionably a correct statement of the rule of law presented by section 2 above cited, but there was evidence in the case going to establish the following state of facts;
*404The plaintiff was the owner of a tract of land used by him as a pasture, which was divided into two parts by the Hastings & Dakota Bailroad, running easterly and westerly. The water for stock pastured was upon the south side of the track. The company built a board fence upon both sides of its road through plaintiff’s land, leaving at one place in the south fence a bar-way. The plaintiff, for his own convenience, and of his own motion, removed the boards from the north fence, opposite the bar-way in the south fence, and made a bar-way there also. For some considerable time he made use of the place where the bar-ways were as a crossing for his stock from one side of the road to the other, and kept up the bar-ways for that purpose. The bars were frequently broken down by his cattle. Yet for about two years the plaintiff kept them up, but finding this to be troublesome he abandoned the idea of keeping them up, and for some four or five years, and up to the time of the injury complained of in this action, they were suffered to be down, so that during such period the plaintiff’s cattle could pass, and did pass, back and forth over the crossing at will, and without any obstruction. To this condition of things no objection appears to have been made, either by the plaintiff or by the company. From these facts we are of opinion that a jury would have been warranted in inferring that so much of the fences as consisted of the bar-ways was, by the common consent of the plaintiff and the company, opened and left open, so as to furnish a convenient crossing for the plaintiff’s accommodation. In other words, that it was so opened, and left open, upon and in pursuance of a tacit understanding between the parties that it should be for the purpose mentioned. Though this understanding may never have been expressed in any set form of words, it would, nevertheless, possess the element of an agreement or license, and be such in legal effect.
Now section 2, of the act of 1872, declares that “all railroad companies shall be liable for domestic animals killed or injured *405by the negligenee of such companies, and a failure to build and maintain cattle guards and fences, as above provided, shall be deemed an act of negligence on the part of such companies.” But, though the failure to, build and maintain fences is thus made an act of negligence on the part of the companies, this does not exclude the operation of the general rule regarding contributory negligenee, and its effect as respects a right of recovery. Where the very “act of negligence” on the part of the company, to-wit, the neglect to build or maintain a fence, has been assented to, agreed to, and licensed by the land owner whose cattle has been killed in consequence of such neglect, the ease is one in which he has contributed to the very act of negligence of which he complains. The act may be said to be his own as well as that of the company, and by his participation in it he disentitles himself to recovery for its consequences. The application of the maxim, quilibet jcotcst renunciare juri pro se introducto, leads to the same result. As between the land owner and the company the understanding in pursuance of which the building or maintenance of the fence is dispensed with has relieved the company from its obligation to build or to maintain. Some of the instructions given by the court to the jury, as well as one or more of the refusals to instruct as requested by defendant, are inconsistent with these views of the proper rules of law applicable to the evidence, and must, therefore, be held erroneous, and for this reason there must be a new trial. This disposes of what appears to us to be the principal questions in the case as it stands. Hocum v. Weitherick, 22 Minn. 152" court="Minn." date_filed="1875-08-24" href="https://app.midpage.ai/document/hocum-v-weitherick-7963068?utm_source=webapp" opinion_id="7963068">22 Minn. 152, determines that contributory negligence is not required to be disproved by the plaintiff, in the trial of an action of this kind, to make out a prima facie case.
With reference to the point that the charter of the Hastings & Dakota Bailway Company contains a special provision as to fencing which exempts the company from the operations of sections 1 and 2 of the act of 1872, we observe that if such *406provision is relied on it should be pleaded and proved, as the charter is not, so far as we discover, made a public act.
The order denying a new trial is reversed, and a new trial directed.