Rippy v. Blackwell

62 N.C. App. 135 | N.C. Ct. App. | 1983

VAUGHN, Chief Judge.

The sole issue is whether the trial court erred in granting defendant’s motion for summary judgment. Summary judgment may be rendered if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” G.S. 1A-1, Rule 56(c). The purpose of summary judgment is to bring the case to a decision on the merits without the expense of a trial when there are no material facts in issue. Kessing v. National Mortgage Corporation, 278 N.C. 523, 180 S.E. 2d 823 (1971). In a negligence case, summary judgment should not be rendered for the movant unless the evidence shows lack of negligence by the movant, there is no contradictory evidence, and there is no question as to the credibility of the witnesses. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979).

There are clearly conflicts in the evidence. The case is, therefore, not one for summary judgment. There is evidence that would permit, but not compel, the jury to find that defendant, while the truck was safely resting on the blocks, jacked it up off the blocks and caused it to fall. Plaintiff had warned him not to jack it up off the blocks again. Defendant’s own evidence tends to show that he jacked it up at a time when he knew plaintiffs finger was in a position of danger. There is also evidence that while he was jacking the truck off the safety blocks, he tried to move the spring with a crowbar. This evidence leaves issues of material fact as to defendant’s negligence and does not show plaintiffs alleged contributory negligence as a matter of law. Summary judgment must, therefore, be

Reversed.

Judges Hedrick and Arnold concur.