*1
HENDRICKSON,
SHANE
Appellant,
Plaintiff and
K-Bar M
POCHA,
Ranch,
TODD A.
Respondents.
Defendants
No. 90-208.
Aug.
Submitted on Briefs
1990.
Decided Oct.
James A. Law appellant. Robinson, Missoula, & for Carey, Garlington,
Steven S. Lohn respondents. defendants and the Court. Opinion delivered the
JUSTICE HARRISON against entered appeal from This is an by the District Court in favor of both defendants plaintiff District, We affirm County in and for the ofMissoula. Fourth Judicial summary judgment. grant Court’s the District *2 on Issue review: granting summary judgment. in the District Court erred
Whether High- on Montana case involves an accident which occurred This 25, and Falls on mile between Missoula Great way post near of the am. At the time February approximately 1988 at 8:15 Hendrickson, long-haul accident, experienced was an plaintiff, Shane (K-Bar) along a ranch K-Bar M Ranch owned truck driver. Defendant Pocha was the accident occurred. Defendant highway the where by K-Bar at the time. employed vehicle, sued for
Hendrickson, rear-ended Pocha’s whose vehicle damages. east-west, It is busy two-lane Highway 200 is a
Montana Missoula Great major long-haul route for trucks between the Falls. 24, 1988, approximately left Dixon at February Hendrickson
On fully truck loaded with a.m., for Great Falls. His was 5:30 bound in truck had new tires was Plaintiff testified that his lumber. mechanical condition. excellent accident, Pocha morning the of the
At 8:15 am. on approximately approx- tractor for feeder with K-Bar’s Ford pulling a round bale was the get another section of imately two miles on by that he did testified affidavit to feed cattle. Pocha ranch pulled onto seven times a week. Pocha six or approximately bridge ofthe where of a mile west highway approximately four-tenths slow traveling at an undetermined accident occurred. Pocha was direction, bridge. easterly in an toward speed heading rate of top over the thereafter, Hendrickson drove his semi-truck Shortly bridge mile from the Hill one-half Greenough approximately he by affidavit that as testified heading east as well. Hendrickson ofcontours see the Pocha vehicle because the hill he did not came over Hendrickson road, respective vehicles. positions and the in the he he first saw the Pocha that when deposition in his stated from it. of a mile” quarter less than a “probably was by either parties agree Both that the accident could not be avoided by pulling on-coming logging into the other lane due to an truck or pulling right steep onto the shoulder of the road due to its terrain. happened
Hendrickson described what as follows: then, I just jumped “[A]ndthen seen the tractor before and then I times, before, I geared couple on the brakes and I down a but as said on, doing approximately I was I 50 miles an and had a load full just enough and there stop.” (Emphasis wasn’t distance between to added.)
Indeed striking Hendrickson was unable to before the Pocha agree morning vehicle from Both that on the behind. of the accident sky dry. was blue and the roads were clear and complaint May 6, Following Hendrickson filed his service process, defendants August filed their answer and counterclaim 5,1988. reply August 1988. Hendrickson filed a to the counterclaim 14,1989, following discovery, On June defendants moved for sum- mary briefed, judgment. The motion argued, and on October the District Court entered judgment on the issue of liability being in favor of defendants. There dispute no as to the damages defendants, judgment awardable to was entered in favor *3 February defendants on 1990. entry judgment 21,1990.
Notice of of February was filed Hendrick- son filed appeal his notice of March 1990.
Upon appeal, only question genuine is whether there is a concerning respective factual issue negligence parties involved. granting summary judg- Hendrickson maintains that in incorrectly ment the District Court concluded that the defendants had demonstrating complete sustained their burden of a absence of any genuine issue of material fact.
Ordinarily negligence susceptible summary issues of are not adjudication. (1983), 367, 665 Hendrickson v.Neiman 204 Mont. P.2d extremely reviewing grants summary We must be cautious in judgment in this area for the issues involved in a determination of negligence are better resolved at trial. 56, M.R.Civ.P.,
The
actions
purpose
dispose
of Rule
is to
of those
fact,
genuine
thereby eliminating
which fail to raise
issues ofmaterial
expense
unnecessary
the burden and
of an
trial. VanUden v.
(1980),
Hendricksen
The burden as stated in Rule M.R.Civ.P.,is:
220 pleadings, if the rendered forthwith judgment sought
“The shall be file, on to- interrogatories and admissions answers to depositions, genuine issue affidavits, any, if show that there is no gether with the to a moving party is entitled any material fact and that the as to a matter of law.” judgment as the court provide must satisfy proof, its burden of the movant
To is, the truth and which clearly which indicates what with evidence genuine a issue real as to the existence of any excludes doubt P.2d at 222. fact. VanUden at 615 material Rule under discharged proof has its burden of Once the movant opposing the 56(c), M.R.Civ.P., party incumbent it becomes genuine raising a with substantial evidence motion to come forward 56(e), M.R.Civ.P.;Riley Carl material fact. Rule issue of P.2d 228. Mont. support- other
Here, defendants filed briefs and plaintiff and both affidavits, motion defendants’ documents, including sworn with ing summary judgment. for in of material fact finds that there is no issue
This Court The evidence properly granted. case and operating in his single traffic law that Pocha did not violate shows hand, the evidence occurred. On the other when the collision that every on the books Hendrickson violated law clearly shows that passing overtaking possibility another with a to a vehicle pertains it. per at 5 to 10 miles driving his farm vehicle
Whether Pocha was as to hour, makes no difference per 30 miles or 20 or lawfully upon negligence. Pocha was Hendrickson’s striking his vehicle while duty Pocha to avoid owed a Hendrickson lawfully it was on the causing the colli- following statutes violated the
Hendrickson sion: statute, Hendrickson’s it was MCA. Under this
Section in a careful and public highway his vehicle on the duty operate reason- manner, speed greater no than was and at a rate of prudent opera- existing point in the under the conditions proper able unduly not to his truck so as tion, required to drive and he was *4 rights of life, limb, or other endanger property unreasonably Further, under highway. the street or to the use of persons entitled speed reduced statute, appropriate to drive at an required he was this approaching crest, when a hill special or when a hazard existed with respect to other highway. traffic then on the 61-8-323, statute,
Section MCA. Under this the driver of a vehicle overtaking another proceeding vehicle in the same direction is re- quired pass distance, to the left may thereof at a safe again not right drive to the roadway side of the until safely clear of the overtaken vehicle. 61-8-325, statute,
Section MCA. Under this Hendrickson was forbidden pass to overtake and Pocha unless the left side of the roadway clearly visible and free oncoming traffic for a suffi- cient permit distance ahead to overtaking such passing to be completely made without interfering with the safe operation of either oncoming vehicle or the vehicle being Moreover, overtaken. under statute, this the vehicle was not to be driven roadway to the left ofthe attempt pass or when approaching the crest grade upon of a curve ofthe or where the driver’s view was obstructed within such distance as to create a hazard in the event another might vehicle approach from the opposite direction. 61-8-328,
Section MCA. This statute requires that where the roadway is divided in two or clearly traffic, more marked lanes for the vehicle shall be driven as nearly practicable as entirely within a single lane, and shall not be moved from such lane until the driver has first ascertained that such movement can safety. be made with 61-8-329,
Section requires This statute that the driver of a motor vehicle shall not follow another vehicle closely more than is prudent, reasonable and and with due regard speed to the of such vehicle and the traffic and the condition of
Section statute, MCA. Under this the driver of a motor traveling vehicle through valleys, canyons narrow or on mountain highways shall hold such motor vehicle under control and as near the right-hand edge of the highway reasonably as possible. foregoing statutes,
Under the duty Hendrickson, it was the driving roadways over where the view was obstructed by reason of hills or possibly by sunshine, operate his motor vehicle such a way that he could his unit striking and avoid or colliding with another lawfully upon vehicle highway. Clearly he did not follow requirement.
In Farris and Senecal v. Clark 487 P.2d 1307, upheld this Court a judgment in favor of the overtaken stating:
222 long ago liability person negli- the of a who
“This Court ruled on attempting pass. with another vehicle while to In the gently collides Smith, 542, 545, 550, 544, P. this McDonough case v. 86 Mont. 284 Court held: “ carelessly if negligent so directs or person passing ‘The is he results, if he attempts his automobile that a collision or to manages ” reasonably pass in a time or under conditions which are not safe.’ Broadcasting Corporation v. Brewer 163 Again, Custer again P.2d this Court Mont. 518 stated: verdict, “Considering granting the a directed this propriety Honda, 272, 275, 142 Mont. 385 P.2d Court in Holland stated: “ ‘ jury case should ever withdrawn from the when reason- “No be [Citing might able draw conclusions from the evidence.” men different case] “ firmly by corut, of this rule is other decisions ‘This established unnecessary.’ point the and feel that further citation on is we “However, following a in cases where a driver of vehicle is another primary duty closely, we the doctrine that the vehicle too follow the driver. avoiding following a collision rests Clark, 33, 37, and 487 P.2d “In Farris Senecal v. case, the trial a rear end this Court sustained corut’s recent collision There summary judgment for we re- grant plaintiffs. decision to case, except that here the fact situation not unlike instant viewed it ... daytime nighttime it accident and in Farris was was a long has held that violation ofa statute concerned with “This Court matter Farris should have negligence traffic is as a of law. motion for a considering plaintiffs’ the court’s decision in controlled directed verdict.” 521-22, Broadcasting 163 at 518 P.2d at Corporation, Mont.
Custer driving case, is that he was In Hendrickson’s own admission lumber in a manner that even a and trailer loaded with such tractor bring not unit speed of miles an he could his at his claimed colliding with another quarter a of a mile without within is roadway. single negligence completely His lawfully on correct in cause, any The District Corut was argument. without employer. to Pocha and his granting Affirmed.
CHIEF and JUSTICE TURNAGE JUSTICES SHEEHY HUNT concur. McDONOUGH, dissenting:
JUSTICE following In of comparative negligence this era there are the issues fact negligence: material relative the defendant’s lights warning flashing Whether hazard were and whether moving slow emblems were affixed the back of both the tractor and 61-9-219(4) feeder, in compliance bale with §§ warning Whether the defendant’s moving flashers the slow partly dirt, totally emblems were because of mud and obscured *6 flying debris, 61-9-219(4), hay and in violation of MCA. § traveling
Whether defendant was without the exercise of due care (too slowly) considering contours of the See 61-8-311 §§
These prohibit summary issues material fact I judgment, and would proceedings reverse remand for further and trial. BARZ
JUSTICES and WEBER concur in foregoing dissent.