### No. 12922 

### INTHE SUPREME COURT OF THE STATE OF MONTANA 1975

VIRGINIA

### MATHIE, Plaintiff and Appellant,
-vs

# - THE MONTANA POWER COMPANY etal., Defendants and Respondents,
Appeal from: District Court of the SixthJudicial District, Honorable Jack D. 

### Shanstrom, Judge presiding. Counsel of Record: For ~~~eilant 

### : McKeon and Skakles

# ,Anaconda, Montana Gregory 

### J. Skakles argued, Anaconda, Montana For Respondent

### : Corette, Smith and Dean, Butte, Montana Kendrick Smith argued, Butte, Montana

Submitted: May 

### 5, 1975 Decided: 

## dub

## 12$!#I Filed: 

# Ji'nW 1.2 1973Mr. Justice John Conway Harrison delivered the Opinion of the Court

# . This 

### is an appeal by plaintiff Virginia Mathie from an order of the districtcourt, Park County, the Hon. Jack Shanstrom, judge presiding, granting summary judgment ina personal injury action todefendant Montana Power Company. Plaintiff is themother of one Ronnie Charles Harris who


### was fatallyinjured on June 21, 1973, while employed by the Brogan Sand and Gravel Company. The amended complaint alleged the death
was caused by the negligence of defendant Montana Power Company and defendantsA, B, and C, (never identified). Several allegations of negligence were alleged astothe Power Company: (1) It negligently advised the owner of the Sand and Gravel Company as tothe proper method of grounding and wiring the crusher, on which decedent was working on or at. (2) It was negligent in supplying electricity tothe crusher when it knew, or should have known, that the crusher was improperly wired and grounded and was dangerous to those who came incontact with it. (3) That defendant Power Company failed toproperly inspect thewiring, grounding and the electrical equipment of the Brogan Sand and Gravel Company and was negligent in supplying electricitywithout proper inspection of the electrical groundings, wirings and appliances. (4) That if the Power Company did inspect the groundings, wiring and electrical appliances, it knew or should have known of the dangerous conditions presented toRonnie Harris and it was therefore negligent in supplying electricity, inview of the defectivecondition of the grounding, wiring and appliances. (5) That the Power Company's negligence was theproximate
cause of the death of Harris.

----*_ - r' The only testimony intherecord 

### isthe deposition of

i-Welch Brogan, owner of the gravel pit, forwhom Harris 

### was working. Plaintiff took the deposition and plaintiff takes
no issue with Brogan's testimony. A reading of Brogan's testimony revealed that he had operated asa small gravel company atCorwin Springs, Montana, since 1952. He purchased the crusher involved inthe accident ineither 1956 or 1957 and atthe 

### timeof purchase it was a diesel operated engine which he personally converted toelectricity, with the help of his employees. Brogan did not know the exact date of conversion but an exhibit, a contract with the Montana Power Company tofurnish electric service, was dated May 7, 1956. He testified that the lasttime defendant energized the line, brought about by a highway change causing certainpoles tobe changed, occurred in 1968 and atthat time defendant put ina servicepole
on hisproperty and he personally grounded the crusher. Further, that the Power Company men were "probably" there atthe 

### timeof the grounding but that they had nothing todo with the grounding of the crusher nor did he ask them how todo it. He thought thatdefendant Power Company knew how the crusher was grounded, but that allthe wiring on the crusher side of the power pole was his, and that he did allthe work. From the interrogatories propounded by both parties and the accident reports of defendant and theMontana Workmen's Compensation Division, the facts of the accident are found. On the day involved Ronnie Harris and a man named John Arabia were working inthe gravel pitand operating the crusher. Harris was on the machine and Arabia was operating a front end loader with which he was loading gravel from thepit into a hopper on the end of the crusher. After fillingthe hopper Arabia could not see Harris
on the crusher and thinking he had wandered away from the site, he got off the loader and went over tothe crusher toengage a clutchto startthemachine. When he started up a ladder on the crusher he got a shock and called tohave thepower turned off. Shortly thereafter Harris was found lying ina small pool of water near the crusher. An autopsy revealed Harris had died of drowning and there 

### were no signsof any electricalburns on his body. On the basis of the heretofore related facts and pleadings, Judge Shanstrom granted summary judgment todefendant Power Company. Plaintiff sets forthonly one issue on appeal--Did the court 

### err in granting summary judgment? This Court has repeatedly upheld summary judgments where the record discloses no genuine issue astoany material fact, holding that the burden 

### ison the opposing party topresent evidence raising the facts of a material and substantial nature. State Mont

# . of Montana ex rel. City Motor Co., Inc. v. Dist. COU~~~O P.TI 486, 32 St.Rep. 34, 36; State ex rel. Burlington Northern, Inc.
v. Dist. Ct., 159 Mont. 295, 496 P.2d 1152; DeWinter v. Capp Homes, Inc., 162 Ivlont. 19, 507 P.2d 1061. We find thatplaintiff had raised no factual issue atthe 

### timeof the motion for summary judgment thatwas either material
or of a substantial nature. From examination of therecord, consisting of thepleadings, answers to interrogatories, and depositions, 

### we conclude the districtcourt was correct indetermining that defendant had borne itsburden and shown therewas no material dispute of fact. Brogan's depositionnegates each of the allegations of negligence on the part of defendant Power Company. Histestimony clearly established the Power Company had nothing todo with the grounding or the wiring of the gravel pitor of the crusher; it
was done by Brogan or some of his employees. There is absolutelyno evidence 

### ia the record that defendant, through its employees, gave advice toBrogan on hiswiring or grounding of the crusher,
nor was there evidence that the Power Company negligently supplied electricitywithout proper inspection by government officials. If any of the equipment, motors, wires or grounds were not properly maintained that was Brogan's fault. During the entirebusiness dealings Brogan had with defendant Power Company from 1956 towhen he sold out sometime after the accident, all did defendant Company/was supply him electricity tothe service pole adjacent to

### his property. Brogan took it fromtiiere and did all of his own installation and service work. The allegationsof the amended complaint standing alone do not raise a genuine issue of material factprecluding summary judgment. The cause of death given by the attending physician
was drowning. The body showed no evidence of any electrical burns. It was an unexplainable industrial accident covered by the provisions of Montana's Workmen's Compensation Act. The districtcourt's order granting summary judgment is affirmed.

We concur: 

# i

Chief Justice

Justices

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