No. 12922 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

VIRGINIA MATHIE, 

Plaintiff and Appellant, 

-vs - 

THE MONTANA POWER COMPANY et al., 

Defendants and Respondents, 

Appeal from: District Court of the Sixth Judicial 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 1973 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court . 

This is an appeal by plaintiff Virginia Mathie from an 

order of the district court, Park County, the Hon. Jack Shanstrom, 

judge presiding, granting summary judgment in a personal injury 

action to defendant Montana Power Company. 

Plaintiff is the mother of one Ronnie Charles Harris who 

was fatally injured 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 defendants A, B, and C, (never identified). Several allegations of negligence were alleged as to the Power Company: 

(1) It negligently advised the owner of the Sand and 

Gravel Company as to the proper method of grounding and wiring 

the crusher, on which decedent was working on or at. 

(2) It was negligent in supplying electricity to the 

crusher when it knew, or should have known, that the crusher was 

improperly wired and grounded and was dangerous to those who came 

in contact with it. 

(3) That defendant Power Company failed to properly inspect the wiring, grounding and the electrical equipment of the 

Brogan Sand and Gravel Company and was negligent in supplying 

electricity without 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 to Ronnie Harris and it was 

therefore negligent in supplying electricity, in view of the defective condition of the grounding, wiring and appliances. 

(5) That the Power Company's negligence was the proximate 

cause of the death of Harris. 

--- - *_ 

- r' 

The only testimony in the record is the deposition of 

i- 
Welch Brogan, owner of the gravel pit, for whom 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 as a small gravel company at Corwin Springs, Montana, 

since 1952. He purchased the crusher involved in the accident 

in either 1956 or 1957 and at the time of purchase it was a diesel 

operated engine which he personally converted to electricity, 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 to furnish electric service, was dated May 7, 1956. He 

testified that the last time defendant energized the line, brought 

about by a highway change causing certain poles to be changed, 

occurred in 1968 and at that time defendant put in a service pole 

on his property and he personally grounded the crusher. Further, 

that the Power Company men were "probably" there at the time of the 

grounding but that they had nothing to do with the grounding of 

the crusher nor did he ask them how to do it. He thought that defendant Power Company knew how the crusher was grounded, but that 

all the wiring on the crusher side of the power pole was his, 

and that he did all the work. 

From the interrogatories propounded by both parties and 

the accident reports of defendant and the Montana 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 in the gravel pit and operating the crusher. Harris was on 

the machine and Arabia was operating a front end loader with which 

he was loading gravel from the pit into a hopper on the end of 

the crusher. After filling the 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 to the crusher to engage a clutch 
to start the machine. When he started up a ladder on the 

crusher he got a shock and called to have the power turned off. 

Shortly thereafter Harris was found lying in a small pool of 

water near the crusher. An autopsy revealed Harris had died of 

drowning and there were no signs of any electrical burns on his 

body. 

On the basis of the heretofore related facts and pleadings, Judge Shanstrom granted summary judgment to defendant 

Power Company. 

Plaintiff sets forth only 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 as to any material fact, 

holding that the burden is on the opposing party to present 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 that plaintiff had raised no factual issue at the 

time of the motion for summary judgment that was either material 

or of a substantial nature. 

From examination of the record, consisting of the pleadings, answers to interrogatories, and depositions, we conclude 

the district court was correct in determining that defendant had 

borne its burden and shown there was no material dispute of fact. 

Brogan's deposition negates each of the allegations of 

negligence on the part of defendant Power Company. His testimony 

clearly established the Power Company had nothing to do with the 

grounding or the wiring of the gravel pit or of the crusher; it 

was done by Brogan or some of his employees. There is absolutely 
no evidence ia the record that defendant, through its employees, 

gave advice to Brogan on his wiring or grounding of the crusher, 

nor was there evidence that the Power Company negligently supplied 

electricity without 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 

entire business dealings Brogan had with defendant Power Company 

from 1956 to when he sold out sometime after the accident, all 

did 

defendant Company/was supply him electricity to the service pole 

adjacent to his property. Brogan took it fromtiiere and did all 

of his own installation and service work. 

The allegations of the amended complaint standing alone 

do not raise a genuine issue of material fact precluding 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 district court's order granting summary judgment is 

affirmed. 

We concur: i 

Chief Justice 

Justices 0