Braatz v. Continental Cas. Co.

• Decision Date: 03 April 1956
• Citation: 76 N.W.2d 303,272 Wis. 479
• Parties: Geraldine BRAATZ, Appellant, v. CONTINENTAL CAS. CO., et al., Defendants, Milwaukee Automobile Ins. Co., Ltd., Mut., a Wis. Corporation, Respondent. Myrtle Kourt, Impleaded Defendant and Respondent. Ralph A. BRAATZ, Appellant, v. CONTINENTAL CAS. CO., et al., Defendants, Milwaukee Automobile Ins. Co., Ltd., Mut., a Wis. Corporation, Respondent. Myrtle Kourt, Impleaded Defendant and Respondent.
• Court: Wisconsin Supreme Court

Page 303

76 N.W.2d 303

272 Wis. 479

Geraldine BRAATZ, Appellant, v. CONTINENTAL CAS. CO., et al., Defendants,

Milwaukee Automobile Ins. Co., Ltd., Mut., a Wis.

Corporation, Respondent.

Myrtle Kourt, Impleaded Defendant and Respondent.

Ralph A. BRAATZ, Appellant, v. CONTINENTAL CAS. CO., et al., Defendants,

Milwaukee Automobile Ins. Co., Ltd., Mut., a Wis.

Corporation, Respondent.

Myrtle Kourt, Impleaded Defendant and Respondent.

Supreme Court of Wisconsin.

April 3, 1956.

Alan Shafrin, Milwaukee, for appellant.

D. J. Regan, Milwaukee, for respondents.

STEINLE, Justice.

The trial court was of a mind that the jury's findings were against the preponderance of the evidence, and principally on that ground, directed that the verdict be set aside. Appellants contend that the trial court was in error in discarding the verdict on such basis. They maintain that the proper test in determining a motion to set aside a verdict is whether there was any credible evidence which supported the jury's answers. Appellants are correct in that contention. A trial court should not assume to set aside a verdict when its ruling would require it to pass upon the credibility of witnesses, or weigh testimony, or would require it to resolve conflicts in the evidence. In Bohner v. Great Atlantic & Pacific Tea Co., 1933, 211 Wis. 501, 503, 504, 248 N.W. 421, 422, it was said:

'If there is credible evidence in the case which sustains the findings of the jury, the court was in error in setting aside the answers to the questions in the special verdict even though the evidence largely preponderated against the findings of the jury. It is not enough that the evidence, contrary to the jury's finding, preponderates or has a greater convincing power; it must make the evidence which tends to sustain the verdict incredible. Even if as triers of the fact, we should upon consideration of the evidence reach the conclusion that the evidence strongly preponderates in favor of the position of the trial court, yet it cannot be said that the testimony supporting the verdict is incredible for some witness may have been mistaken and therefore the result may not have been impossible and plaintiff's statements incredible.'

In Webster v. Krembs, 1939, 230 Wis. 252, 256, 282 N.W. 564, 566, when commenting upon the trial court's change of the jury's finding with respect to an item of negligence inquired about in the special verdict, this court declared:

'In passing upon that contention, it must be noted that the fact that the court considered the jury's finding against the preponderance of the evidence would not warrant discarding that finding. If there was any credible evidence which reasonably admitted of inferences sufficient to sustain the jury's finding then what were the proper inferences to be drawn was for the jury, and its findings could not be discarded by the court, * * *.'

In Trautmann v. Charles Schefft & Sons Co., 1930, 201 Wis. 113, 115, 116, 228 N.W. 741, 742, we held that:

'The rule is well established that if the evidence is conflicting, or if the inferences to be drawn from the credible evidence are doubtful and uncertain, and there is any credible evidence, which under any reasonable view will support or admit of an inference either for or against the claim or contention of any party, then the rule that the proper inference to be drawn therefrom is a question for the jury, should be firmly adhered to, and the court should not assume to answer such question either upon a motion for nonsuit or direction of verdict, or by substituting another answer after the verdict is returned. Reul v. Wisconsin N. W. R. Co., 166 Wis. 128, 163 N.W. 189; Wiesman v. American Ins. Co., 184 Wis. 523, 199 N.W. 55, 200 N.W. 304; Henry v. La Grou 227 N.W. 246. Under that rule, on the appeal of the defendant corporation, the problem is not the broader question of whether the findings of the learned circuit judge are more warranted by the evidence than the answers of the jury, but the inquiry is limited to the narrow issue of whether there is any credible evidence which, under any reasonable view, will admit of inferences which may have been drawn by the jury in finding that Haasch was not guilty of any negligence which was a proximate cause of injury to plaintiff. In other words, the inquiry on this appeal is solely whether there is any credible evidence reasonably admitting of inferences favorable to the contention of the defendant corporation, because of which the jury, proceeding properly, could find that Haasch's driving in excess of 15 miles per hour was not a proximate cause of plaintiff's injury, and that he was not negligent in respect to (1) keeping a proper lookout, (2) properly controlling the truck, or (3) yielding the right of way.'

Appellants contend that the jury's findings are supported by credible evidence. They submit that the evidence clearly establishes that Mrs. Myrtle Kourt, the hostdriver, increased the danger which the guest, Geraldine Braatz assumed when she entered the car, and that Mrs. Kourt was causally negligent with respect to the management and control of the car. They maintain further that Mrs. Kourt failed to exercise the skill and judgment that she possessed in the management and control of the car.

It is the position of the respondents, Myrtle Kourt and her carrier, that the evidence establishes as a matter of law that the host did not increase the danger which her guest assumed when she entered the car, and that she was devoid of skill and experience in handling her car with relation to the situation that confronted her immediately before and at the time that Mrs. Braatz was injured.

Of record, there is evidence which the jury was entitled to deem credible to the effect that on May 20, 1953, Mrs. Braatz accompanied Mrs. Kourt on a trip from Milwaukee to Burlington, a distance of about 30 miles, in a Studebaker pickup truck driven by Mrs. Kourt. The trip was made to enable Mrs. Kourt to purchase some eggs. At about 4:15 p. m., when on their way back and while proceeding in a northerly direction on highway 100 (North 108th Street), several blocks south of the Bluemound Road in Milwaukee county, the truck in which they were traveling collided with a southbound vehicle driven by Gerald Bartholomew, and Mrs. Braatz was injured. The highway consisted of three lanes, each ten feet wide. The pavement was dry and the weather was clear. Northerly traffic was light, southerly traffic had been becoming heavier. Mrs. Kourt had been driving at about 25 to 30 m. p. h. in the east lane of the highway before the collision. Just prior to the collision a 1 1/2 ton flat-top Chevrolet truck loaded with rolled sod and driven by the defendant Joseph Takacs, which for several miles had been following the truck driven by Mrs. Kourt, passed it, and continued on for a considerable distance until stopped by an unnamed motorist who told Takacs to return to the scene of the collision in question, which he did.

Mrs. Kourt testified that when the sod truck was passing her, she felt some of the sod brush her arm, and that the sod truck turned sharply in front of her, and she became frightened and pulled off to the east shoulder. While driving on the shoulder, she noticed a car parked on the shoulder ahead of her. She steered her vehicle back onto the highway. She crossed the highway to the west lane and collided with a car driven by Bartholomew. Mrs. Kourt also stated that she did not remember whether she applied her brakes or whether she continued to accelerate her vehicle from the time Takacs passed her until the impact. There was no contract between the sod truck and the host vehicle. At the time of the accident Mrs. Kourt had a temporary permit to operate an automobile. The permit had been issued to her two days before. She testified that she had taken driving lessons three or four days per week for a period of two or three weeks immediately before obtaining the permit. She also stated that 25 years previously she had driven a great deal--about five times a week for a period of approximately three years, in the country and in town near where she lived.

Mrs. Braatz testified that she herself had been a truck driver until a short time before the accident; that Mrs. Kourt is a sister of Mrs. Braatz's husband; that Mrs. Kourt had invited her to go along for the ride; that she knew that a person who held a temporary license had to have a licensed driver along when driving; that Mrs. Kourt was not learning how to drive, she knew how to drive; that Mrs. Kourt had driven automobiles while she still lived on the farm years before. Specifically she testified:

'Well [she] used proper precaution, like I would drive or you-anybody else that used proper precaution. She didn't violate any rules or anything like that. She drove like anybody would drive that knows how to drive, I mean.'

Mrs. Braatz also testified that as they were riding along, the sod truck passed them quite closely; that Mrs. Kourt drove off onto the shoulder to the road; that she moved back to the pavement after traveling on the shoulder for 50 feet and when about 100 feet from the car parked on the shoulder; that the witness thought that the driver moved back to the pavement in order to avoid hitting the parked car; that when back onto the pavement she moved back and forth until her truck struck the car in the west lane; that Mrs. Kourt did not apply the brakes and that the witness believed that she continued to use the accelerator.

The principal issue before us is whether the evidence so appearing of record is adequate to sustain the findings of the jury. The credibility of this evidence and the inferences to be drawn therefrom were clearly matters for the jury's determination.

The trial court in its memorandum decision stated:

'The court believes that this accident was caused by the host's, Myrtle Kourt's, inexperience as a driver, that the faulty judgment which she exercised by...