### No. 12527 IN

### THE SUPREME COURT OF THE STATE OF MONTANA 1974

ARTHUR S

# .FUNAGAN,Plaintiff and Appellant,

-vs

# - MICHAEL CURRAN, 

### Defendant and Respondent.

Appeal from: District Court of the Eighth Judicial District, Honorable Paul G. 

### Hatfield, Judge presiding. Counsel of Record: For Appellant: Hoyt, Bottomly and Gabriel, Great Falls, Montana John C. 

### Hoyt argued, Great Falls, Montana For Respondent: 

### Smith, Emmons and Baillie, Great Falls, Montana William T. Baillieargued, Great Falls, Montana

Submitted: March 22, 1974

Decided

## 'APR.1'11974. Filed: 

# APR171974Mr. JusticeWesley Castlesdelivered the Opinion of the Court. This 

### is an appeal by the plaintiff ina personal injury action from an order of thedistrictcourt of Cascade County, the Hon. Paul G. Hatfield presiding, granting summary judgment tothedefendant. The plaintiff, Arthur S. Flanagan, was employed by defendant, Michael Curran, asa ranch hand. While so employed he

was run over by a tractor and suffered the injuries complained of in thisaction. Viewed inthe lightmost favorable toplaintiff the circumstances surrounding the accident areas follows: Plaintiff was an "old time" ranch hand who had during most of hisworking lifebeen more involved with horses than tractors

orother thingsmechanical. He did, however, know how tooperate

a tractor and had spent increasingamounts of time doing so over the lastfiveyears. As a part of his duties for defendant, plaintiff operated the tractor involved inthe accident. This use



### was on a daily basis for three weeks proceeding the accident. During thisperiod the plaintiff had difficulty starting the tractor. Another employee showed him how to start it by "jumping" the points of the solenoid with a pair of pliers. Plaintiff used thismethod by standing by the side of the tractor between the front and rear wheel. He did thisduring the entireperiod he used the tractor. The plaintiff informed the defendant's foreman, mechanic and other employees of the starter difficulties. On the day of the accident he parked the tractor with the intention of not using it until the starterdeficiency was repaired. However,

a "rusHtjok came up and plaintiff without checking to see if the tractor was ingear jumped thepoints of the solenoid to startit. The tractor was ingear and when it started ran over plaintiff causing severe injuries. On January 10, 1973, defendant's motion for summary judgmentwas heard arid the district court indicated 'I 

## * * * that I think that thiscase isone for summary judgment asa matter of law 

## * * 

## *." However, because an appeal to the United States Supreme Court was pending in the case of Hammond 

### v. Hager, 160 Mont. 391, 503 P.2d 52, 29 St.Rep. 945, involving the question of the availability of the defenses of assumption of risk and contributory negligence in agricultural employment cases, the district court stayed its proceedings until determination of the appeal by the United States Supreme Court. On April 2, 1973, the Supreme Court dismissed the appeal forwant of a substantial federal question. Hammond v. Hager, U.S. S.Ct. 

## , 36 L ed 2d 303. -1 

### - This dismissal effectively affirmed our determination that the defenses of assumption of risk and contributory negligence were available. On April 5, 1973, the district court entered summary judgment for defendant. Plaintiff raises two issues on this appeal. (1)That the district court erred by granting defendant summary judgment without allowing the plaintiff an opportunity topresent arguments in opposition tothe motion; (2) that the district court erred in deciding that there was no material factual dispute and as a matter of law thatplaintiff was contributorilynegligent or had assumed the risk of his employment. Rule 56, M.R.Civ.P., provides for a hearing on a motion for summary judgment as a matter of right. If in fact the plaintiff was denied the right tobe heard on themeritsof themotion the districtcourt was in error. In thiscase it is clear that plaintiff had an opportunity tobe heard on themerits atthe hearing on January 10, 1973. The transcript of that hearing does not indicate to what extent themeritswere argued since a part of the hearing was off the record. It is, however, recited in the district court's order stayingproceedings that argument had been

### heard on the defenses of contributory negligence and assumption of risk. From this it appears that plaintiff had the opportunity to be heard and in factwas heard on the merits of the motion for summary judgment. Plaintiff's second issue on this appeal is whether or not the district court erred in concluding that there was no material dispute of fact and as a matter of law plaintiff was contributorily negligent or had assumed the risk of his employment. Preliminary to a detailed discussion it is necessary to recall the well established rules governing summary judgment. Summary judgment is not a proper tool for resolving disputed issues of fact and is accordingly improper whenever material factualmatter is in dispute. Rule 56(c), M.R.Civ.P., Mustang v. Jos. Schlitz 

### rew wing Co., Beverage Co., 1nc.L Mont

# . , 511 P.2d 1,30 St.Rep. 565; Dunjo Land Co. v. Hested Stores Co., Mont

# . - 

## , 515 P.2d 961, 30 St.Rep. 939. Further, the burden of showing that there is no disputed issue of material fact is on the party seeking summary judgment. Kober & 

### Kyriss v. Billings Deac. Hosp., 148 Mont. 117, 417 P.2d 476; Stensvad 

### v. Miners & 

### Merchants Bank of Roundup, Mont

# . , 517 P.2d 715, 30 

### St.Rep. 1178; Rosen v. Midkiff

## , Mont. 

# - , 519 P.2d 416, 31 St.Rep. 215. From our examination of the record herein, consisting of the pleadings, answers to interrogatories and depositions,we conclude that the district court was correct in determining that the defendant had borne his burden and shown there was no material dispute of factwith regard to the defense of assumption of risk. The showing required to sustain the defense of assumption of risk is set out in D'Hoogev. McCann, 151Mont. 353, 443 P.2d 747, and states: 

### " 

## * 

## * * four elements must be proven by the employer in order to establish assumption of risk by the employee: (1)knowledge, actual or implied, of the particular condition; (2) appreciation ofthiscondition as dangerous; (3) a voluntaryremaining or continuing inthe face of the known dangerous conditions; (4) injury resulting as the usual and probable consequence of this dangerous condition. 

## * 

## * *" Each of these elements 

### is established by plaintiff's answers to interrogatories and by hisdeposition. Plaintiff's knowledge of the starter defect is baldly stated inhis answer todefendant's interrogatory: "4. Did you know prior toOctober 31, 1967, that the Ford dieselhad a defective starting system

## * * * "ANSWER: Yes." Plaintiff's deposition elaborates on this answer and indicates thathe was aware of the starterdefect for atleast three weeks. Appreciation of the startercondition asdangerous is less baldly statedbut equally clear. Plaintiff had been operating tractors forover 5 years. Further he had been operating the tractor involved inthe accident for atleast three weeks. Hehad alsoworked asa truck driver. In his own words, 

### " 

## * * * prior to this I did a lotof trucking

## * * 

## *". While it is asserted that plaintiff was an "old time" ranch hand there isnothing to indicate that he was of less than normal intelligence. It 

### seems clear that a person of normal intelligencewho had operated various types of machinery would appreciate the factthat standing directly in frontof the tireof a tractor while attempting to start it was dangerous. This appreciation of risk can be directly inferred from the plaintiff's statement inresponse toan interrogatory that " 

## * * * we advised them and told them 

### we weren't going to

use it until it was fixed

## * * 

## *." This response was reiterated inplaintiff's deposition. The plaintiff's voluntary remaining in the face of this known danger isobvious. He objected tothe condition of the starter but then proceeded toagain startthe tractor by "jumping" the points of solenoid, thus consenting toaccept risk involved.The finalelement needed toestablishthe defense of assumption of risk, an injury resulting from theknown dangerous condition, is equally clear. The riskof starting a vehicle while standing in front of it is that 

### it may run over the individual who does so. In thiscase the risk was realized when the tractor startedand rolled over the plaintiffThe defenses of contributory negligence and assumption of risk are applicable tocases of agricultural employment, Hammond 

### v. Hager, supra. If either isestablished it 

### willbar plaintiff's recovery, thus negating any issue with regard todefendant's negligence. Since asheretofore indicated the defense of assumption of risk isestablished by the undisputed facts contained in the record, the districtcourt was correct ingranting summary judgment to the defendant. The judgment of the districtcourt is affirmed.

./ -,L,--I--,----L,U'--' 

## ------------ Justice We concur: 

# d--1,,--,,--------.- b-,, 

## - Ch'ef Justice C 

# . 

# ----fi

---- Justices