Rutkowski v. Chicago & Northwestern Railway Co. , 1926 Wisc. LEXIS 312 ( 1926 )

Owen, J.

This action is brought by the widow of Joseph Rutkowski, deceased, to recover damages resulting from his death. He was killed in a collision between the automobile which he was driving and a moving .train on a street crossing in the city of- Kenosha. Judgment was rendered in favor of the plaintiff for $10,000 damages, from which judgment the defendant appealed.

The accident in which the deceased came to his death was considered by this court in Rusczck v. C. & N. W. R. Co., ante, p. 130, 210 N. W. 361. The deceased, Rut-kowski, was the driver of the car in which Rusczck was riding at the time of his death. It was there held that, conceding negligence on the part of the railroad company, the negligence of Rutkowski was an intervening negligence which constituted the proximate cause of the collision, and that consequently the plaintiff could not recover. Except in certain unimportant details, the evidence in this case does not differ from the evidence in the Rusczck Case, and the decision in that case must be followed in this. Accordingly, the judgment appealed from must be reversed, and cause remanded with instructions to enter judgment dismissing plaintiff’s complaint.

By the Court. — So ordered.

CROWNhart, J., dissents.