Wilson v. Great Northern Ry. Co., 10394

CourtSupreme Court of South Dakota
Citation157 N.W.2d 19,83 S.D. 207
Docket NumberNo. 10394,10394
PartiesHadleigh C. WILSON, Plaintiff and Appellant, v. GREAT NORTHERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff and Respondent, v. C. A. CHRISTOPHERSON, Special Administrator of the Estate of Robert E. Hegge, Deceased, Third-Party Defendant.
Decision Date18 March 1968

Willy, Pruitt & Matthews, Gene E. Pruitt, Sioux Falls, for plaintiff and appellant.

Richard V. Wicka, St. Paul, Minn., H. F. Chapman, Sioux Falls, for defendant and third-party plaintiff and respondent.

Woods, Fuller, Shultz & Smith, John B. Shultz, Sioux Falls, for third-party defendant.


This is an appeal from a summary judgment granted to the defendant, Great Northern Railway Company, in an action by plaintiff to recover for personal injuries sustained in a truck-train collision.

The accident occurred about 3:10 p.m. on December 24, 1964, at a railroad crossing on South Dakota Highway #25 about three miles southwest of the town of Vienna. The train was proceeding in a northeasterly direction and the truck approached the crossing from the north. The highway is basically level for several hundred feet north of the crossing. The terrain is also basically level east and west of the highway for a considerable distance north of the railroad track. Immediately south of the crossing the highway and the ground generally on each side thereof, rises, looks dark and as if plowed, and is somewhat higher than the railroad's trackage. There are also some trees and brush south of the railroad and at some distance west of the crossing.

The plaintiff, Hadleigh C. Wilson, was 56 years old at the time of the accident and engaged in the painting and decorating business at Sioux Falls. He contracted a school job at Aberdeen and began work on it in March 1964. Robert E. Hegge was foreman on the job and it was customary for Wilson and Hegge to commute between Aberdeen and Sioux Falls over weekends and for holidays. Hegge usually drove the van type truck involved in the collision over the same route on these trips. Hegge was driving when the accident happened with Wilson seated beside him in a bucket seat. They had never seen a train at the crossing before. Hegge was killed in the accident. That a master-servant relationship existed when the accident occurred is unquestioned.

The complaint alleged that the defendant 'operated its train in a careless and negligent manner in that among other things said defendant operated its train as a dangerous rate of speed in view of the circumstances then existing, failed to keep a proper lookout for users of the highway, failed to have its train under proper control, maintained no warnings, gave no signal to users of the highway of its approach and failed to yield the right-of-way to the vehicle in which plaintiff was a passenger.' Defendant by its answer put in issue the charge of negligence and further pleaded 'that plaintiff's injuries, if any, were caused solely and proximately by the negligence and carelessness * * * in which * * * Hegge, was operating the vehicle in which plaintiff was riding * * * at the time said collision occurred.' Contributory negligence by plaintiff is not alleged. 1 Neither is it specifically alleged that Hegge was contributorily negligent and that such negligence is imputed to plaintiff barring recovery. However, we elect to treat defendant's pleading as placing in issue the defense of Hegge's imputed contributory negligence.

Defendant moved for summary judgment under 56(c) of the South Dakota Rules of Civil Procedure 2 on the ground that there existed 'no genuine issue as to any material fact.' To support his position, the movant relied largely upon a pretrial deposition of plaintiff, an affidavit of an employee of defendant who made a plat of the intersection and took some photographs of the crossing and the area around it on January 5, 1965, which are attached to such affidavit. The record also contains interrogatories submitted and answered by the respective parties. It is admitted this was the fourth fatality at this crossing within a 15-year period.

Summary judgment is a comparatively new procedure in this state and became a part of our practice when we adopted the federal rules of civil procedure with a few minor variations. Consequently we turn to the federal court decisions for guidance in their application and interpretation. In an opinion rendered shortly after the adoption of the federal rules, the late Judge Gardner wrote: 'The question presented by such a motion is whether or not there is a genuine issue of fact. It does not contemplate that the court shall decide such issue of fact, but shall determine only whether one exists.' 3 The trial court chose to enter findings of fact and conclusions of law. Since a summary judgment presupposes there is no genuine issue of fact, findings of fact and conclusions of law are unnecessary. 4

Certain guiding principles on the use of summary judgment have evolved. They are: (1) The evidence must be viewed most favorable to the nonmoving party; 5 (2) The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; 6 (3) Though the purpose of the rule is to secure a just, speedy and inexpensive determination of the action, it was never intended to be used as a substitute for a court trial or for a trial by jury where any genuine issue of material fact exists. 7 (4) A surmise that a party will not prevail upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them. 8 (5) Summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant. 9 (6) Where, however, no genuine issue of fact exists it is looked upon with favor and is particularly adaptable to expose sham claims and defenses. 10

Summary judgment may be used in all types of litigation, but there are some kinds of cases which lend themselves more readily to summary adjudication than others. Statistics show it is granted more frequently in actions on notes and for debts than in other kinds of cases. Three classes of litigation which are not usually suited for summary disposition are (1) negligence actions, (2) actions involving state of mind, (3) equitable actions. 11

Summary judgment is generally not feasible in negligence cases because the standard of the reasonable man must be applied to conflicting testimony. 12 Issues of negligence and such related issues as wanton or contributory negligence are ordinarily not susceptible of summary adjudication either for or against a claimant and should be resolved by trial in the ordinary manner. 13 Summary judgment should not be granted on the ground of contributory negligence except in an extraordinary, unusual, or rare case where the facts are conceded or demonstrated beyond reasonable question and show a right to summary judgment with such clarity as to leave no room for controversy. 14 Contributory negligence to bar recovery must be the proximate cause of the injury and since both are fact questions generally are not subject to summary adjudication. 15

This court has repeatedly said that issues of negligence, contributory negligence, and the comparative extent thereof, and proximate cause are ordinarily questions of fact and it must be a clear case before a trial judge is justified in taking these issues from the jury. It is only when the evidence is such that reasonable men can draw but one conclusion from facts and inferences that they become a matter of law and this occurs rarely. 16

For the purpose of the motion, as defendant states in its brief, plaintiff's allegations of negligence are admitted, but it is claimed that Hegge's negligence was more than slight as a matter of law and proximately caused or contributed to cause the accident and barred plaintiff from recovering. Our attention is directed to numerous railroad crossing cases decided by this court and defendant argues therefrom that Hegge's contributory negligence is so clearly established by plaintiff's pretrial deposition and the plats and photographs submitted so as to preclude plaintiff from proceeding to trial. No particular benefit would be derived from reviewing or analyzing the considerable number of cases where jury verdicts against railroads have been set aside and the few cases where recovery has been allowed. Suffice it to say none was disposed of by a summary judgment.

The rule is well established in this state that if Hegge saw, or in the exercise of ordinary care should have seen, the approaching train and heedlessly and carelessly drove the truck onto the track so as to collide with the on-coming train, such negligence would bar recovery. However, if he was unaware of the approach of such train and in the exercise of ordinary care could not have seen and discovered such train, he would not necessarily be negligent, or more than slightly negligent.

In several cases involving motor vehicle collisions, this court has had occasion to consider the duty to see factor and excuses for not seeing. 17 In Dwyer, Judge Rentto wrote for the court: 'If an object is so well camouflaged as not to be discernible within the range of a driver's vision he may not be held to the duty of seeing it. On the other hand a driver may not be excused for failing to see an object on the road ahead which because of lights or other devices is or should be readily apparent to him. These are the extremes of discernibleness. In between these extremes fall the cases in which it is impossible to say, as a matter of law, what the driver's duty of discernment is. In those instances the determination is for the jury. Under the circumstances here...

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