Deltic Farm & Timber Co. v. Manning

• Decision Date: 05 April 1965
• Docket Number: No. 5-3446,5-3446
• Citation: 389 S.W.2d 435,239 Ark. 264
• Parties: DELTIC FARM & TIMBER CO., Inc., and R. C. Brown, Jr., Appellants, v. Mrs. Madie MANNING, Adm'x, Estate of Roy Manning Deceased, Appellee.
• Court: Arkansas Supreme Court

Page 435

389 S.W.2d 435

239 Ark. 264

DELTIC FARM & TIMBER CO., Inc., and R. C. Brown, Jr., Appellants, v. Mrs. Madie MANNING, Adm'x, Estate of Roy Manning Deceased, Appellee.

No. 5-3446.

Supreme Court of Arkansas.

April 5, 1965.

Rehearing Denied May 17, 1965.

Crumpler & O'Connor, William J. Wynne, El Dorado, for appellants.

Bernard Whetstone, El Dorado, for appellee.

HOLT, Justice.

This action resulted from an almost direct head-on collision between two trucks. The appellee brought this action seeking to recover damages resulting from the death of her husband, Roy Manning, alleging that the collision was caused by the gross and culpable negligence of the appellant, R. C. Brown, Jr., who was an employee of appellant Deltic Farm and Timber Company, Inc. The appellants answered denying any negligence on their part and pleaded Manning's carelessness and negligence in bar of appellee's right to recover. The appellants filed a motion for a summary judgment pursuant to Ark.Stat.Ann. § 29-211 (Repl.1962). The motion was overruled by the court. Immediately prior to trial appellants renewed their motion for a summary judgment and again it was overruled by the court. The appellee filed no formal answer or counter affidavits to either motion. At the close of appellee's testimony and again at the conclusion of all the testimony appellants filed motions for directed verdicts both of which were overruled by the court. The jury returned a verdict in the amount of $2,500.00 for the benefit of the estate and nothing for the widow and children. From the judgment on this verdict appellants bring this appeal. There is no cross-appeal.

For reversal appellants first contend the court erred in refusing to grant their motion for a summary judgment. Appellants argue that the pleadings, depositions and affidavits reflect that no genuine issue as to any material fact exists and, therefore, as a matter of law the court should have rendered a summary judgment. We think the trial court correctly refused appellants' motion for a summary judgment. It is well settled that any testimony submitted with a motion for a summary judgment must be viewed in the light most favorable to the party against whom the motion is made with all doubts and inferences being resolved against the movant. Russell v. City of Rogers, 236 Ark. 713, 368, S.W.2d 89. With this in mind we proceed to review the evidence in the light most favorable to appellee.

The deposition of the appellant R. C. Brown, Jr., was one of the depositions submitted by the appellants in support of their motion for a summary judgment. According to appellant Brown's deposition, an employee of appellant Deltic Farm and Timber Company, Inc., he was driving their truck to work early in the morning when the accident occurred on a clear day upon a straight stretch of a rural gravel road; the road was of average width with enough room for two vehicles to meet and pass each other; appellant Brown met a school bus which was creating a dense cloud of dust; the school bus was of unusual width as compared to a normal vehicle; there were shallow ditches on both sides of the road; appellant Brown, traveling approximately 30 to 35 miles per hour, did not reduce his speed as he approached, passed the school bus and entered the cloud of dust so dense that he could not see more than 10 to 15 feet ahead of him. Before entering the dust he never saw the truck being driven by the deceased who was following the school bus. According to appellant Brown there was no difference in the density of the dust from the point where he first observed the approaching bus until he passed it. He didn't know how much visibility he had into the dust before entering it. According to him, 'I wasn't watching the dust. I was watching the bus and the road.' The collision occurred almost immediately as he entered the cloud of dust and just as he saw the outline of the deceased's truck in front of him partially blocking his path and before he had time to put his foot on the brake. According to appellant Brown the impact of his truck knocked the deceased's truck backward approximately 6 feet and to Brown's left. Appellant Brown's vehicle followed the backward direction of Manning's vehicle for the 6 feet and to appellant's left.

A motion for a summary judgment is an extreme remedy and the burden of demonstrating the nonexistence of a genuine fact issue is upon the party moving for the summary judgment. Wirges v. Hawkins, 238 Ark. 100, 378 S.W.2d 646. Further, where the evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably the drawn and reasonable men might differ, then a motion for a summary judgment is not proper. Winter Park Telephone Co. v. Southern Bell Telephone & Telegraph Co., 181 F.2d 341 (5th Cir.1950). We are of the view that the testimony of appellant Brown as reflected by his deposition is alone sufficient to raise a factual issue about which the minds of reasonable men might differ whether controverted or not. We cannot say that as a matter of law appellants were entitled to a judgment.

Appellants further contend for reversal that the appellee has not met the required burden of proof to establish appellants' negligence and that such negligence was a proximate cause of the alleged...