Farro v. Rubottom, 41795
| Decision Date | 17 January 1979 |
| Docket Number | No. 41795,41795 |
| Citation | 274 N.W.2d 149,202 Neb. 120 |
| Parties | Dominic FARRO, Appellant, v. Craig W. RUBOTTOM, Wayne L. Beitel, State of Nebraska, and Sue Coffee, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. The moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact and where under the facts he is entitled to judgment as a matter of law.
2. Summary judgment is an extreme remedy and should be awarded only when the issue is clear beyond all doubt. Any reasonable doubt touching the existence of a material issue of fact must be resolved against the moving party.
3. Upon a motion for summary judgment the court examines the evidence, not to decide any issue of fact, but to discover if any real issue of fact exists. In this respect the court should take that view of the evidence most favorable to the party against whom the motion is directed, giving to that party the benefit of all favorable inferences which may reasonably be drawn from the evidence. If, when so viewed, reasonable men might reach different conclusions, the motion should be denied and the case tried on its merits.
Roger C. Lott, Lincoln, for appellant.
Russell E. Lovell, Scottsbluff, on brief, for appellee Sue Coffee.
Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ., and KUNS, Retired District Judge.
This is an action to recover damages for personal injuries sustained by Dominic Farro, plaintiff, when he was struck by a vehicle operated by Craig W. Rubottom and owned by Wayne L. Beitel, his employer. Sue Coffee was the operator of a vehicle which had stopped in front of the Rubottom vehicle immediately before the accident. The District Court sustained Coffee's motion for summary judgment after reviewing the depositions and interrogatories, and dismissed the action against her. Plaintiff prosecutes this appeal from that dismissal. We affirm.
At the time of the accident, Farro was working as a flagman for the State of Nebraska Department of Roads. He was at the east end of a resurfacing project on State Highway No. 2 in Box Butte County, Nebraska. The construction area was about 9 miles in length from the west edge to the east edge.
When defendant Coffee entered the construction project a flagman gave her a signal ring with flag attached. This ring indicated she was the last car from the west through the project. When Coffee was partly through the construction area she saw a yellowish-red International pickup approaching from her right on a side road. This truck turned onto State Highway No. 2 in front of her, proceeding east at a speed she estimates to be 10 to 15 miles per hour. She followed the truck for a time and then passed it at a speed between 25 and 30 miles per hour.
Rubottom, the driver of the pickup, testified he stopped before entering the highway from a graveled road. He did not see any traffic or signs of road construction. The Coffee vehicle came up behind him very quickly after he had traveled one-half to three-quarters of a mile. He estimates his speed at this time at 40 miles per hour. The Coffee vehicle passed him, going about 60 miles per hour. Shortly after being passed he noticed some "Men Working" signs along the side of the road. At this time he could not yet see any construction equipment, and the Coffee vehicle had disappeared from his view over a hill or around a curve. When he next saw the Coffee automobile its brake lights were on and it was slowly approaching the plaintiff. He was less than a quarter of a mile away at that time. When he saw the car, he let up on the gas. Before letting up on the gas, he was still traveling at 40 miles per hour.
Rubottom saw plaintiff standing next to the Coffee vehicle, near the middle of the road. Plaintiff was facing south toward the car. A truck belonging to the State was parked off the road to the south of Coffee's car. He saw Coffee hand the ring or flag to the plaintiff. At some point he attempted to apply the brakes on the truck, but the pedal went all the way to the floor. There was no brake pressure. He pumped the brake pedal. As he turned to the north to avoid hitting the car, plaintiff also stepped to the north, backing away from the car. He did not think plaintiff saw him until immediately before impact. He hit plaintiff with the front of the truck, near its center. After hitting plaintiff, he drove off the north edge of the road. Plaintiff was carried for a distance on the front of the truck until Rubottom jerked the truck back onto the road so plaintiff would not fall underneath it. He stopped the truck after traveling 50 to 100 feet on the road.
Following the accident a state patrolman tested the brakes and told Rubottom he could not drive the truck. The patrolman issued a ticket for tailgating or following too closely, to which Rubottom pled guilty. After the accident Rubottom parked the pickup on a nearby farm. He could not recall whether he had any trouble with the brakes while parking it. He testified he had not had any trouble with the brakes prior to the date of the accident.
Beitel, his employer and owner of the truck, testified he inspected the truck sometime after the accident and it had brakes. The truck also passed a safety inspection after the accident, with no repairs being made to the brakes. Rubottom did not tell him either before or after the accident that the brakes were defective.
Coffee testified she could not estimate the number of miles she traveled after passing the International pickup, but it seemed quite a distance. When she reached the eastern edge of the construction area and stopped to give the flag to the flagman, she did not know how far the truck was behind her. It had to be some distance because she had time to stop her car, roll down her left window, and give the flag to the flagman. She then drove forward about 3 feet, when her car was struck on the left rear bumper by the truck. When she stopped her car to give the flag to the flagman, she applied her car brakes, which were in good working order, so the brake lights were visible to anyone behind her.
Farro was wearing an orange vest and holding a sign 2 feet wide. One side said "Stop;" the other side said "Go." Farro testified Sue...
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