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. Baillie argued, Great Falls, Montana 

Submitted: March 22, 1974 

Decided 'APR.1'1 1974. 

Filed: APR 17 1974 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by the plaintiff in a personal injury 

action from an order of the district court of Cascade County, 

the Hon. Paul G. Hatfield presiding, granting summary judgment 

to the defendant. 

The plaintiff, Arthur S. Flanagan, was employed by defendant, Michael Curran, as a ranch hand. While so employed he 

was run over by a tractor and suffered the injuries complained 

of in this action. Viewed in the light most favorable to plaintiff the circumstances surrounding the accident are as follows: 

Plaintiff was an "old time" ranch hand who had during most of 

his working life been more involved with horses than tractors 

or other things mechanical. He did, however, know how to operate 

a tractor and had spent increasing amounts of time doing so over 

the last five years. As a part of his duties for defendant, 

plaintiff operated the tractor involved in the accident. This use 

was on a daily basis for three weeks proceeding the accident. 

During this period 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 

this method by standing by the side of the tractor between the 

front and rear wheel. He did this during the entire period 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 starter deficiency was repaired. However, 

a "rusHtjok came up and plaintiff without checking to see if the 

tractor was in gear jumped the points of the solenoid to start it. 

The tractor was in gear and when it started ran over plaintiff 

causing severe injuries. 

On January 10, 1973, defendant's motion for summary judgment 
was heard arid the district court indicated 'I * * * that I think 

that this case is one for summary judgment as a 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 for want 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 to present arguments in 

opposition to the motion; (2) that the district court erred in 

deciding that there was no material factual dispute and as a matter 

of law that plaintiff was contributorily negligent 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 to be heard on the merits of the motion 

the district court was in error. In this case it is clear that 

plaintiff had an opportunity to be heard on the merits at the 

hearing on January 10, 1973. The transcript of that hearing does 

not indicate to what extent the merits were argued since a part 

of the hearing was off the record. It is, however, recited in the 

district court's order staying proceedings 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 fact was 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 

factual matter 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. 

Midkif f , - 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 fact with regard to the defense of assumption of risk. 

The showing required to sustain the defense of assumption of risk 

is set out in D'Hooge v. McCann, 151 Mont. 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 of 
this condition as dangerous; (3) a voluntary remaining or continuing in the 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 his deposition. 

Plaintiff's knowledge of the starter defect is baldly 

stated in his answer to defendant's interrogatory: 

"4. Did you know prior to October 31, 1967, that 

the Ford diesel had a defective starting system * * * 

"ANSWER: Yes." 

Plaintiff's deposition elaborates on this answer and indicates 

that he was aware of the starter defect for at least three weeks. 

Appreciation of the starter condition as dangerous is less 

baldly stated but equally clear. Plaintiff had been operating 

tractors for over 5 years. Further he had been operating the 

tractor involved in the accident for at least three weeks. He had 

also worked as a truck driver. In his own words, " * * * prior to 

this I did a lot of trucking * * *". While it is asserted that 

plaintiff was an "old time" ranch hand there is nothing to indicate that he was of less than normal intelligence. It seems clear 

that a person of normal intelligence who had operated various types 

of machinery would appreciate the fact that standing directly in 

front of the tire of a tractor while attempting to start it was 

dangerous. This appreciation of risk can be directly inferred 

from the plaintiff's statement in response to an interrogatory 

that " * * * we advised them and told them we weren't going to 

use it until it was fixed * * *." This response was reiterated 

in plaintiff's deposition. 

The plaintiff's voluntary remaining in the face of this 

known danger is obvious. He objected to the condition of the 

starter but then proceeded to again start the tractor by "jumping" 

the points of solenoid, thus consenting to accept risk involved. 
The final element needed to establish the defense of 

assumption of risk, an injury resulting from the known dangerous 

condition, is equally clear. The risk of starting a vehicle 

while standing in front of it is that it may run over the individual who does so. In this case the risk was realized when the 

tractor started and rolled over the plaintiffThe defenses of contributory negligence and assumption 

of risk are applicable to cases of agricultural employment, 

Hammond v. Hager, supra. If either is established it will bar 

plaintiff's recovery, thus negating any issue with regard to defendant's negligence. Since as heretofore indicated the defense 

of assumption of risk is established by the undisputed facts 

contained in the record, the district court was correct in granting summary judgment to the defendant. 

The judgment of the district court is affirmed. 

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

Justice 

We concur: 

d--1,,--,,--------.- b-,, - ----fi Ch'ef Justice C . 

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Justices