Flansberg v. Montana Power Co., 11614

• Decision Date: 27 October 1969
• Docket Number: No. 11614,11614
• Citation: 154 Mont. 53,460 P.2d 263
• Parties: John FLANSBERG, Jr., Plaintiff and Appellant, v. The MONTANA POWER COMPANY, a corporation, Defendant and Respondent.
• Court: Montana Supreme Court

Page 263

460 P.2d 263

154 Mont. 53

John FLANSBERG, Jr., Plaintiff and Appellant, v. The MONTANA POWER COMPANY, a corporation, Defendant and Respondent.

No. 11614.

Supreme Court of Montana.

Oct. 27, 1969.

Hoyt & Bottomly, Great Falls, R. V. Bottomly (argued), Great Falls, for appellant.

Garlington, Lohn & Robinson, Missoula, Robert H. Robinson (argued), Missoula, for respondent.

HASWELL, Justice.

This is an appeal by plaintiff from a summary judgment for defendant entered by the district court of Missoula county, the Honorable E. Gardner Brownlee, district judge, presiding.

The damage action forming the basis of this appeal was instituted in March 1967 in the district court. Plaintiff sought recovery therein for personal injuries allegedly caused by defendant's negligent acts and omissions occurring in June 1964.

The basic facts and chronology of events involved here indicate that in June 1964, defendant Montana Power Company, through subcontractors Billingsley Construction Company, Missoula, and Mountain States Maintenance Co., Billings, was engaged in enlarging its East Missoula water system. In preparing a site for a water tank on a mountainside near East Missoula, defendant was to provide an access road while the subcontractors were to be responsible for the actual construction of the tank.

Prior to the tank construction, a base of sand permeated with oil was to be laid at the construction site. The sand was delivered to the site in two trucks of M & S Ready Mix Co. of Missoula. One of these trucks was driven by plaintiff John Flansberg, Jr., an employee of M & S. The record is not clear as to who had the responsibility for preparing this base, or who placed the order for the sand from M & S. However on the day in question, June 12, 1964, the sand was delivered to the construction site.

Two trucks were used to deliver a total of three loads of sand, with plaintiff hauling only one load. The record indicates that the hour was after 6:00 p. m. on Friday; that neither truck was able to negotiate the access road under its own power that an employee of defendant, a heavy equipment operator, was called from his home where he was eating supper to the scene to aid in pulling the trucks with a small 'cat'; that eventually all three loads of sand were delivered to the construction site; and, that the subcontractors were anxious to have the sand at the site so they could continue working through the weekend.

Plaintiff's testimony indicates that on his first try up the hill, his truck did not have enough power to make it so he backed it down to the highway level. On the second try, the 'cat' and truck were hooked together by a small chain which immediately broke. Subsequently a 5/8 cable was used and after some difficulty plaintiff's truck reached the construction site and he delivered the sand. It was during this final attempt that plaintiff alleges he was injured through the negligent acts and omissions of defendant and its employees.

As the 'cat' and truck moved up the hill, plaintiff attempted to keep the cable taut to obtain maximum pulling power from the two units. In an effort to watch the cable, plaintiff testified by deposition that he leaned out of his truck door while trying to operate the truck in low gear. A short distance up the hill the truck began to move slightly faster than the 'cat' causing slack in the cable. This difference in speed was explained by the difference in gearratios between the two units. However, plaintiff alleges it was caused by the inability of the 'cat' to move fast enough to do a proper job and the failure of defendant's employee to properly use the equipment.

At about the same time several things happened: (1) the truck driven by plaintiff powered out and the motor died; (2) plaintiff applied his brakes to prevent the truck from rolling down the mountain; (3) the 'cat' picked up the slack in the cable, still moving forward at a very slow speed; (4) the cable slipped when three 'U' clamps gave way without breaking the cable and the truck began to roll slightly backwards; (5) plaintiff let out the clutch on his truck knowing the truck was in low gear and wanting that assistance in braking the truck's movement, and (6) both units came to an abrupt halt

The above conditions combined almost simultaneously, allegedly resulting in plaintiff being thrown against the door post of the truck hitting his head and back with great force. Little comment was made of the incident by plaintiff at the time and after minor repairs to the cable, the ascent to the construction site was successfully completed. Thereafter plaintiff left the site and returned to Missoula with his truck.

Neither defendant nor its employees herein involved were aware of plaintiff's alleged injuries until the time this action was filed. Plaintiff alleges negligence on the part of defendant in the following particulars: (1) failure to provide a proper or adequate access road to be used by plaintiff in delivering the sand for the benefit of defendant; (2) failure to provide a safe place for plaintiff to work; (3) failure to provide proper equipment to tow plaintiff's truck or to warn plaintiff of this situation; (4) improperly towing plaintiff's truck, and (5) having undertaken to tow plaintiff's truck, defendant did not use the equipment and appliances properly.

Defendant answered denying knowledge of the alleged incident; denying negligence on the part of any agent or employee of defendant; and alleging that if there was any negligence on the part of defendant, the plaintiff was guilty of contributory negligence in the operation of his truck proximately causing any injuries he may have suffered.

In preparation for trial of this action many depositions were taken. Upon these depositions, the pleadings, and the admissions contained in answers to interrogatories, defendant moved for summary judgment contending that in the first instance there was no genuine issue of material fact on which any negligence on the part of defendant could be based; that if there was any negligence involved in the incident it was the negligence of the plaintiff that was the proximate cause of his injuries as a matter of law, or in the alternative, that if negligence was attributable to the heavy equipment operator who was defendant's regular employee, it was not chargeable to defendant as such employee was a 'loaned servant'.

The district court granted defendant's motion for summary judgment holding, inter alia, that:

'(T)he reason for the alleged injury was not that the cable parted, but that plaintiff did not properly handle his truck and allowed it to proceed up the hill on its own power with the...