Auster v. Zaspel

• Decision Date: 28 June 1955
• Citation: 270 Wis. 368,71 N.W.2d 417
• Parties: Kathryn AUSTER, Appellant, v. Betty Jo ZASPEL, by John P. McEvoy, her guardian ad litem, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 417

71 N.W.2d 417

270 Wis. 368

Kathryn AUSTER, Appellant, v. Betty Jo ZASPEL, by John P. McEvoy, her guardian ad litem et al., Respondents.

Supreme Court of Wisconsin.

June 28, 1955.

Rehearing Denied Sept. 13, 1955.

Morrissy, Morrissy & Zastrow, Elkhorn, Leo E. Vaudreuil, Kenosha, for appellant.

Kenney, Korf & Pfeil, Elkhorn, for respondent.

BROWN, Justice.

If there is any credible evidence which, under any reasonable view, fairly admits of an inference that supports the jury's finding, neither the trial court nor an appellate court has any authority to change the jury's answers or findings. Millard v. North River Ins. Co., 1930, 201 Wis. 69, 228 N.W. 746; Trautmann v. Charles Schefft & Sons Co., 1930, 201 Wis. 113, 228 N.W. 741. The jury's verdict should not be disturbed where there is credible evidence to support it. Sovich v. Loewn, 1929, 198 Wis. 89, 223 N.W. 429. The parties agree that 'The only issue involved on this appeal is whether or not there was credible evidence to authorize the jury to find that the defendant Walter Auster was negligent as to control. Answered by the court--No.'

The following facts are not only supported by testimony that the jury had a right to believe but are practically undisputed.

Plaintiff was a guest in an automobile driven by her husband, defendant Walter Auster. As Auster drove east in rolling country at a speed of 40 to 50 miles per hour he and his wife saw a westbound automobile coming over a hill on the road ahead of them and then distant approximately 2,200 feet. They observed this car was zig-zagging from side to side and twice came over into Auster's proper lane of travel. Auster remarked to his wife that the driver of the other car must be very drunk. Mrs. Auster told him that he had better slow down and take it easy. This other car came down the hill and disappeared into the valley which lay between the hill just mentioned and the high ground where Auster was. Disregarding Mrs. Auster's warning Auster proceeded at his former speed. The top of the westbound car reached a position where it could have been seen by Auster when it was 519 feet from him and it was wholly visible when the cars were 250 feet apart. At these times the westbound car was in its proper lane and travelling about 40 miles per hour. When it was 100 feet distant from Auster it turned suddenly into Auster's path. He then put on his brakes but the cars collided on Auster's side of the road and Mrs. Auster was injured. It then developed that the westbound automobile was not operated by a drunken driver, as Auster had thought, but by a fourteen year old girl, Sharon Laughlin. She had driven automobiles only once or twice before and had never driven this one. She had taken the car without the consent of the owner. She was accompanied by Betty Jo Zaspel, fifteen years old, equally inexperienced, and just before the collision Betty Jo said it was her turn to drive and attempted to take the steering wheel. Betty Jo disputed this testimony but the jury found against her.

The trial court considered that Auster was confronted...