*1 flooding. of com- measure This is the and after farms before governs permanently part is of a tract pensation which county damaged. it would follow From this taken right being permanently required pay flood for the flooding here involved. in- these farms to the extent judgments junctive mandatory provisions are these in- right. with such consistent Bogue compensa- Clay County, supra, the award of injunctive consistent with the relief because
tion was held to be taking temporary in nature. It consisted there involved was flooding crop year. acres for one In such cases the mea- damages taking permanent. sure of is different than when the 142; 29A See Eminent Domain Nichols on Eminent Do- § C.J.S. main, Ed., Bogue 3rd 12.5. The case also indicates in- junctive damage property relief would not issue when the to the logical. enjoin permanent. party This we think is To causing right acquired water to flow onto an area that it had permanently flood would create an anomalous situation. Be- judgments provisions they incompatible cause the of these must be reversed. Judges
All the concur.
WILSON, Appellant Plaintiff and COMPANY, GREAT NORTHERN RAILWAY Third-Party Defendant Respondent v. Plaintiff CHRISTOPHERSON, Third-Party Defendant
(157 19) (File Opinion 1968) No. 10394. filed March *3 Matthews, Pruitt, Falls, Willy, plain- Sioux Pruitt & Gene E. for appellant. tiff and Wicka, Paul, Minn., Chapman,
Richard V. St. F. Sioux H. Falls, third-party plaintiff for defendant respondent. Woods, Fuller, Smith, Falls, Shultz, Shultz & Sioux for B. John
third-party defendant.
HOMEYER, Judge. appeal granted
This is from a to the defendant, Railway Company, Great Northern in an action injuries personal to recover for sustained in a truck- train collision.
The accident p. occurred about 3:10 m. on December crossing at a railroad Highway on South Dakota about #25 three miles southwest of the town of Vienna. pro- The train was approached
ceeding northeasterly truck direction and the in a crossing highway basically is level the north. crossing. The terrain is north of also hundred feet several highway basically considerable and west level east Immediately track. south north the railroad distance ground generally on each side and the rises, thereof, plowed, as if somewhat dark and looks trackage. higher There are also some trees the railroad's than the railroad and at some distance west brush south of arid crossing. Wilson, Hadleigh years plaintiff, old at C. was 56 engaged painting in the and decorat- the accident time of job ing school at Aber- at Sioux Falls. He contracted a business Hegge began F. work on it in March Robert deen and Hegge job customary and was for Wilson and on the foreman Falls over weekends between Aberdeen and Sioux to commute Hegge holidays. usually type truck in- drove the van and for Hegge trips. over route on these in the collision the same volved driving happened seated with Wilson when They a train at him in seat. had never seen beside a bucket accident. That a before. was killed relationship occurred existed when the accident master-servant unquestioned. *4 alleged "operated complaint that its train the defendant among things negligent manner in other a careless and that in dangerous speed operated of its train at a rate said defendant existing, keep a of the circumstances then failed to in view highway, proper lookout for users of the failed have its gave control, warnings, signal proper maintained no no under yield approach of its and failed to the to users of the plaintiff right-of-way passenger." was a the vehicle which charge negligence by put its answer issue of Defendant injuries, any, pleaded plaintiff's were caused further "that and negligence solely proximately by and and carelessness * * * * * * Hegge operating the ve- in which ** * riding plaintiff at time said which hicle in negligence Contributory by plaintiff is not occurred." collision alleged alleged.1 specifically was con- is it that Neither negligent plain- imputed to tributorily and that such barring However, recovery. defendant's elect to treat tiff we Hegge's imputed pleading placing defense of as issue the negligence. contributory 56(c) judgment summary of under
Defendant moved ground that South Dakota Rules of Civil Procedure2 on the there genuine any support To existed "no issue as to material fact." largely deposition position, upon pretrial his the movant relied plaintiff, employee of an of an of who made affidavit defendant plat photographs of some of the intersection and took 5, 1965, January area which around it on interroga- attached to such affidavit. also The record contains by respective parties. tories submitted answered It is fatality admitted this fourth at this a 15- within year period.
Summary comparatively proce new part practice dure in this state became of our when we adopted procedure the federal rules of few civil with a minor Consequently variations. we turn to the federal court decisions guidance application interpretation. in their opin shortly rules, ion adoption rendered after the of the federal Judge late question presented by Gardner wrote: "The such a genuine motion is whether not there is a issue of fact. It does contemplate fact, not the court shall decide such of issue but shall determine whether one exists."3 trial findings chose to enter of fact and conclusions of law. Since a summary genuine presupposes there is no issue of fact, findings unnecessary.4 of fact and conclusions law are 2. The 1. The trial N.W.2d 924 —on a matter of law ment would not be RCP; Order case. South court determined However, see Rule Dakota Rules duty although Supreme it is our justified occupant Court Civil pleaded. opinion on this basis. dated March Procedure as himself was compared We upon find it were See the record before to driver. guilty unnecessary Hanisch made They effective to discuss Body, will us, July hereafter S.D. phase judg- cited as 3. 4. Ramsouer Dulansky v. Iowa-Illinois v. Midland *5 Valley Gas & R. Electric Co., 8 Cir., Co., [8] Cir., [135] F.2d [191] F.2d 101. 881. See also 52(a) RCP. 212 summary guiding principles the use on Certain (1) They must be The evidence
judgment are: evolved. have (2) nonmoving party;5 The burden to the favorable most viewed clearly no there is upon show proof movant to is judg to genuine entitled that he is fact and issue of material (3) law;6 Though purpose of the rule is to as a matter of ment action, just, inexpensive speedy determination secure trial for a used as substitute intended to be it was never genuine by jury any of material fact issue for a trial (4) prevail upon party trial is A surmise that a will exists.7 grant which are not the motion on issues not sufficient basis sham, it ob frivolous or so unsubstantial is shown to be (5) judgment try Summary futile to them.8 is vious it would be remedy when the and should be awarded an extreme touching is clear and reasonable doubts the existence of truth genuine against as to material fact should be resolved issue (6) Where, however, genuine movant.9 issue of fact exists no upon particularly adaptable is looked with favor and expose sham claims and defenses.10
Summary types may used in all liti gation, but some of cases which lend them there are kinds adjudication readily Sta selves more than others. granted frequently tistics show it is more on
213 conflicting negligence testimony.12 applied Issues to be negligence contributory or are as wanton related issues such adjudication summary ordinarily susceptible either not against by should be trial in the a claimant resolved or granted Summary ordinary should manner.13 ground negligence contributory except extra on the unusual, ordinary, are conceded or rare case where the facts right beyond question and show a or demonstrated reasonable summary clarity with such as to leave no room negligence recovery controversy.14 Contributory to bar must proximate injury be the cause and since both are fact subject adjudication.15 questions generally summary are not negligence, repeatedly This court has said that issues of negligence, contributory thereof, comparative and the extent proximate ordinarily questions cause are of fact and it must be judge justified taking a clear case before a trial is these is jury. from sues It is such when the evidence reasonable men can draw but one conclusion from facts and they inferences become a matter of law and this occurs rarely.16 motion, purpose
For the as defendant states its brief, allegations plaintiff's admitted, but it is Hegge's negligence slight claimed that was more than as a mat- ter proximately of law and caused or contributed to cause the recovering. plaintiff and barred from Our attention is directed to numerous by railroad cases decided argues Hegge's court and defendant therefrom that clearly by plaintiff's so pretrial deposi- established plats tion and the photographs preclude submitted so as to proceeding particular to trial. No benefit would be reviewing derived from analyzing the considerable number 12. 14. 13. 15. Stygles 35B C.J.S. [3] S.D. N.W.2d Gauck F.2d [6] Barron Moore’s 20. v. 859; Bogh v. Holtzoff, & Meleski, Federal Ellis, Federal S.D. [80] Civil [5] Practice, Cir., Beadles, Federal Procedure, 346, [346] 2d [123] Practice F.2d Ed., N.W.2d S.D. 433. 1181, § & 56.17(42). 348; Procedure, p. 587; N.W.2d Raverty Kennedy Rules 342; Bothem v. Goetz, Ed., v. Bennett, § 82 S.D. 1232.1. Peterson, [8] Cir., [143] [261] against jury railroads have been set verdicts
of cases recovery Suf- has been allowed. few cases where and the aside judgment. say disposed of fice none was *7 this if state rule well established seen, ordinary saw, have the should of care or in the exercise carelessly heedlessly drove the approaching and train and on-coming train, as to collide with the onto the track so truck However, recovery. he was un if would bar such approach of ord the train and in the exercise of of such aware train, inary such he not have and discovered care could seen negli negligent, slightly necessarily more than would not be or gent. collisions, involving vehicle several cases motor
In duty see factor and to the to court has had occasion consider seeing.17 Judge Dwyer, In Rentto wrote for the excuses not object camouflaged as to discern- court: "If an is so well not range may he not be ible within of a driver's vision held the seeing may duty of not be the it. On the other hand driver failing object on the road ahead which be- excused see lights readily apparent or other devices should be cause In to him. are the extremes of discernibleness. between These say, impossible fall cases in which it is these extremes the law, duty as the of discernment is. a matter of what driver's jury. the the is for the Under cir- those instances determination existing say here we cannot as a matter law cumstances slight negligence." guilty of the more than driving, although deposition plaintiff, repeatedly In his coloring train, consistently and of the maintained because trackage area, skyline, topography the location otherwise, until almost on the train not discernible crossing. following questions and answers are illustrative:
"Q Wilson, now, you you please, Will tell us Mr. what approached you
recall about this accident going south? Northern tracks from the north Great S.D. Winburn Vander Vorst, A.L.R.2d S.D. 59 N.W.2d 819; Dwyer Christensen, Well, you you is that are familiar all I can tell "A change location, you know that there is a
with the bed, road south of the tracks is level greater north, yet than at elevation right 'place takes at bottom of this intersection along abrupt space rather so there is a rise coming you cannot see a so ears, upon your you depend must and in this case whistle; people did their the railroad not blow so quite surprize then to us to see a train most appear and we couldn't cleared, but we didn't stop quite soon make enough. it. [*] al-We * * "Q orange green you Did that this observe was an Engine pulling
Great Northern that was this train? orange green. pretty "A It' isn't It blends well with *8 landscape. basically the or It the was yellow, pretty but so smoked that it well blended * * * landscape day. the on with a winter's "Q Wilson, back, you Mr. please, would think to the us, immediately prior
time to the accident and tell recall, you your it what was that directed atten- you tion the Great Northern train when first ob- crossing you approached served it as from the going north south? Well, you
"A can it see but too it late as comes around
the contour of the earth." resisting
His
affidavit
the motion for
import. Additionally
of like
in his
he
affidavit
swore "it was a
dark,
day
gray
flurries,
with some snow
as a
result
conditions,
atmospheric
good
such
visibility was not as *
upon
would
day;
have been
a clear
He also stated
photographs
therein that
employee
taken
defendant's
about
weeks
two
after the accident were taken under different
atmospheric
portray
conditions and did not
the situation as it
Commenting
day.
existed that
photographs
use of
in a rail-
crossing
case,
& N. W.
C.
road
we said
Johnson
at,
Co.,
"Photographs
Ry.
taken
71 S.D.
N.W.2d 725:
evidence;
accident,
are admissible
about
time of
explana
photographs
usually
are received in
it is
held that such
developed
upon ’trial. Note
tion of
facts and circumstances
photographs
con
do not
Plaintiff also contends had rely largely upon doctrine chance. For this he must of last clear interrogatories: defendant's answers "Q. prior you did first to the accident When see 24, 1964? A. Plaintiff's motor vehicle
of December approaching from the north was seen Railway Company's Great as defendant Northern approached the west. train engine "Q. from the What distance was the was the Wilson ve- intersection and what distance you it? hicle from the when first saw intersection Railway A. When defendant Great Northern Com- pany's approximately train was 200 feet from crossing, approximately plaintiff's motor vehicle crossing." north of the 300 feet traveling plaintiff's about The record further shows vehicle was moving per 55 to 60 about 25 miles miles hour the train per hour. *9 infrequently doctrine of last chance has been
The clear many applied by when courts in this state and not cases developed require the doc facts have been submission under Nevertheless, recognized trine. it has that under certain been might jury province factual situations be "within the of discovering negligence plain to find that after defendant injuries."18 peril proximate tiff's of her Because cause aspect the limited record before of the case us on 18. 68 S.D. 104, 299 N.W. Richman, Nielsen pertaining fully probability will developed facts thereto trial, applicability. express opinion upon no relative its we to argument
Much of the the trial court and in this contributory negligence, pertained not the to whether or if Hegge, any, imputed plaintiff. to there was The court has to the recent been referred Minnesota case where that court involving repudiated "both-ways" limits has within test relationship.19 master-servant The trial court considered negligence imputed plaintiff. We hold there was regard. relationship no error in this of these men and the justify when the facts attendant collision occurred were such to stating trial court any as matter of law that imputed plaintiff. of the driver was upon giving
We hold that the record before us and benefit a most view of favorable the evidence may and all reasonable inferences which be drawn therefrom genuine there is issue of material fact on the issues of contributory comparative and the extent thereof and proximate Consequently, cause. the trial court erred when it judgment dismissing plaintiff's entered action. judgment is reversed and the cause remanded for trial. BIEGELMEIER, JJ„
RENTTO and concur.
HANSON, J., ROBERTS, J., P. dissent.
HANSON, Presiding Judge (dissenting).
Summary relatively is a new addition to our rules practice. may of civil It be conceded to be an extreme and dras- pretrial granted remedy tic which should be plead- "if the ings, depositions, interrogatories, answers and admissions file, together affidavits, any, with the show that there is no genuine any issue as to moving material fact and that party 56(c). is entitled to aas matter of law." RCP Further- more, negligence, issues of negligence, proxi- 19. Weber Stokely-Van Camp, Inc., 274 Minn.
218 adjudica- summary susceptible ordinarily cause mate 56.17(42), Ed., pages 2583- 2d Practice Federal Moore's 6 tion. "Questions these mat- like become therein. cited cases and summarily trial when after decided to be of law ters the facts and the infer- not differ as to could minds reasonable judgment, Thus, summary like a therefrom. to be drawn ences verdict, the court is convinced unless is unwarranted directed a conclusion, jury one at but proof could arrive from the compelled to render would be it otherwise the court did and Lopez Western Rail- Denver & Rio Grande n. o. v." Nevertheless, 830, Co., F.2d 10 Cir. road injury plain- may personal properly actions where rendered in as a matter conduct constitutes tiff's railway applied rule has been law. This Co., Railroad Lopez & Rio Grande Western v. Denver cases: Cir.; Co., and supra; R. 196 F.2d Union Pac. Miller v. Co., Chicago, Pac. R. R. 307 F.2d Rock Island and Shelite v. 10 Cir. following undisputed facts: record shows the Wilson,
Plaintiff, Hadleigh operates painting owns and C. decorating many years in Sioux For Rob- business Falls. Hegge employed plain- as foreman. In March was ert E. building paint Aberdeen. school a contract to tiff obtained Hegge customary plaintiff and performing work was together panel truck Falls to Aberdeen in Sioux to ride Generally they by plaintiff. route each took the same owned Highway with 25 where it intersects were familiar time and railway Vienna. track near defendant's Hegge 1964, plaintiff were December return- On ing holidays. They left Aber- Sioux Falls the Christmas Hegge driving shortly truck as usual after noon. deen riding dark, right plaintiff It in the front seat. was However, gray day with some snow flurries. good. visibility was
clear and Highway proceeded south on As they con- in the carried a limited 3 o'clock afternoon about
219 driving Hegge per 55 and 65 was between miles versation. approximately they 100 feet north of tracks hour. When approaching It the first time. was saw defendant's crossing. Hegge feet from from the southwest about 80 100 immediately applied his brakes and tried to avoid the accident. engine They heard no train whistle or bell. The of the train yellow, originally up but was smoked tended blend background. traveling per into the train was about 25 miles panel hour. The truck collided with left of rear side engine. particu- This was the fourth fatal diesel at this crossing period years. 16 lar over of Highway tracks 25
Defendant's cross the collision grade. at occurred The tracks run southwest and northeast basically level for several hundred both feet directions. slight tracks, Highway There is rise in 25 south of the but crossing highway fairly north the tracks level. The sign by warning protected usual reflectorized cross buck warning sign near several hun- crossing. trees, shrubs, dred feet north There were no buildings interfering visibility. bushes or with Plaintiff and approaching had an unobstructed view of defendant's train for they approached a distance several hundred feet as the cross- ing north. continuing law state is well settled that it is the
duty of a
motorist who is familiar with or who
knowingly
ap
crossing,
proaches
railway
Chicago
v.
& Northwest
Johnson
Co.,
132,
Ry.
725,
ern
71 S.D.
22 N.W.2d
to exercise his senses
determining
purpose
for the
whether or not he can cross the
Chicago
Wooley
safety.
Co.,
203,
track in
Ry.
v.
& N. W.
74 S.D.
644;
Chicago, M.,
Co.,
50 N.W.2d
Schuknecht
v.
St. P. & P. R.
74
61,
917;
Chicago, M.,
S.D.
and Ulrikson v.
St. P. &
Co.,
Ry.
open
P.
S.D.
268 N.W.
If
nothing obstructing
a rural area and there is
the view of an
train,
approaching
slight,
it is
more than
aas matter
law,
for such a
consequently
motorist not to look and see and
danger.
approaching
Furthermore,
heed and avoid the
the fail
engineer
give
warning signals
statutory
ure of the train
does
Chicago,
duty.
Schuknecht
of such
the motorist
not relieve
917;
Co.,
M.,
and Plucker
S.D.
48 N.W.2d
R.
St. P. & P.
Co.,
Chicago,
Ry.
S.D.
Plaintiff concedes acting employment scope of his at in the course and rendering of the collision. In for de- time correctly applied the trial our rule that master fendant against negligent recovery defendant is barred from acting negligence scope employ- his servant within the of his ment. Restatement of Torts 2d imputation negli effort to avoid the of his an servant's
gence urges adoption Stokely- of the rule in Weber v. Inc., Camp, 274 Minn. 144 N.W.2d Van which the determining way court abandoned "two Minnesota test" of imputed whether servant's should be to his driving employee master and held his em ployer's employment imputed in the truck course of his was not riding employer who was the truck at the time of the Rejection accident. Stokely Minnesota rule in Weber v. effect, Camp', plaintiff's Van is decisive of cause of action. futility T would affirm and avoid the of a trial.
ROBERTS., J., concurs. actions notes litigation for debts than in other kinds of Three classes of cases. (1) neg usually summary disposition which are not suited for ligence (2) (3) actions, involving mind, equitable actions state of actions.11 negli generally Summary not feasible gence cases because the standard of the reasonable man must
Notes
[6] & Practice, Holtzoff, Ed., 1235, Ed., 56.15(3); 5. Moore’s Federal 2d Barron Rules § and cases cited in each text. Valley supra; Corp., 6. Gas Sartor Co., Ramsouer v. Midland R. Natural v. Arkansas 321 U.S. 64 S.Ct.
[88] 967. L.Ed.
[9]
[203] 637. Co., Cir., Trading 7. Hoffman v. Babbitt Bros. F.2d 8. & Co.
[8]
[218] 553. Cir., Co., Union Transfer v. Riss F.2d 9. Sarnoff
[3]
[165] 167. Ciaglia, Cir., F.2d Surety
[20]
[110] Fazel, D.C., Iowa, (action Co., amount to recover American F.R.D. paid bond).
[1232]
[3] & & Procedure, Holtzoff, Ed., et Barron Federal Practice Rules I sen.