Green v. Village of Terrytown, 38545

• Decision Date: 09 February 1973
• Docket Number: No. 38545,38545
• Citation: 204 N.W.2d 152,189 Neb. 615
• Parties: Roger L. GREEN, Appellant, v. VILLAGE OF TERRYTOWN, Nebraska, a municipal corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 152

204 N.W.2d 152

189 Neb. 615

Roger L. GREEN, Appellant, v. VILLAGE OF TERRYTOWN, Nebraska, a municipal corporation, et al., Appellees.

No. 38545.

Supreme Court of Nebraska.

Feb. 9, 1973.

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 in the case and where under the facts he is entitled to judgment as a matter of law.

2. The burden is upon the party moving for the summary judgment to show that no issue of fact exists, and unless he can conclusively do so, the motion must be overruled.

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.

4. In considering a motion for summary judgment the court views the evidence in the light most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn therefrom.

5. A motion for a summary judgment is not a substitute for a demurrer or a motion for a directed verdict.

Lyman, Meister & Olsen, Scottsbluff, for appellant.

Wright & Simmons, John F. Wright, John F. Simmons, Scottsbluff, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

CLINTON, Justice.

The question here involved is the propriety of the action of the trial court in sustaining the motion of the defendants Bartow and McGuire for summary judgment. An earlier motion for summary judgment by the Village of Terrytown was sustained and appeal therefrom by the plaintiff to this court was dismissed for having been untimely filed. Green v. Village of Terrytown, 188 Neb. 840, 199 N.W.2d 610.

The plaintiff brought this action against the Village of Terrytown and two of its employees, the present defendants, to recover for personal injuries alleged to have been received when a motorcycle the plaintiff was driving on one of the streets of the Village at about 10:45 p.m. on May 17, 1967, struck a telephone pole lying in the street. It was alleged that the present defendants as employees of the Village had earlier on the day of the accident placed the pole in its position in the street to protect some fresh concrete pavement which they had that day placed in the street. The negligence alleged is the placing of the pole in the street without any light, reflector, or other device or precaution to warn persons using the street. The answer of the two defendants was a general denial.

The only evidence introduced by the defendants in support of the motion for summary judgment was the deposition of the defendant Bartow which had been taken by the plaintiff as part of his discovery procedures. The trial court did not specify in its order sustaining the motion the reason or reasons therefor. The plaintiff and the defendants in their briefs discuss primarily the question of whether or not the evidence conclusively shows that there was no duty on the part of the defendants to place lights, reflectors, or other warning. The briefs are otherwise rather divergent in their approaches.

Bartow testified in the deposition that he was employed by the Village of Terrytown. He was in charge of this particular job insofar as it pertained to the repair of the pavement and was assisted by the defendant McGuire and another unidentified person, who apparently was not a regular employee of the Village. Bartow's testimony was to the effect that they excavated some the asphalt which was bad and replaced it with concrete, and that no one had directed them to place the pole. They did it to protect the cement while it hardened. They finished the work about 4 or 5 p.m. on May 17, 1967. They placed no lights or reflectors. Bartow did not think it was necessary. The street would be well lighted at that point because there was a street light very close. The testimony is not clear, but it would appear that the pole was placed diagonally and extended at least 12 feet into the street. Twelve feet was the minimum width of the patch which apparently narrowed at one end. The pole was about 16 inches in diameter and maybe 20 feet long. One end was on the curb. The pole was well weathered and was the color which such poles are. He did not testify concerning the color of the pavement. In his opinion the pole could be seen by persons down the street as far as you can see around the curve. He was not sure whether or not it was his duty to place lights, reflectors, or other warnings. His testimony further leads to the inference that there were no other employees whose assigned duty it was to place lights or reflectors or otherwise mark the pole.

The following principles are applicable here. The moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact in the case and where under the facts he is entitled to judgment as a matter of law. § 25--1332, R.R.S.1943; Illian v. McManaman, 156 Neb. 12, 54 N.W.2d 244. The burden is upon the party moving for the summary judgment to show that no issue of fact exists, and unless he can conclusively do so, the motion must be overruled. Johnson v. Metropolitan Utilities Dist., 176 Neb. 276, 125 N.W.2d 708. 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. Johnson v. Metropolitan Utilities Dist., Supra. In considering a motion for summary judgment the court views the evidence in the light most favorable to the party against whom it is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn therefrom. Johnson v. Metropolitan Utilities Dist., Supra.

The motion for summary judgment was improperly sustained for at least two reasons. First, although there were before the court no conflicting evidentiary facts, the ultimate inferences to be drawn from those facts are not clear. Second, since those inferences are not conclusively established it cannot be determined whether the defendant is entitled to judgment as a matter of law. It is, for example, not conclusively established by Bartow's testimony that it was not his duty to place lights, reflectors, or other warnings of the barricade. His...