No. 90-208 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

SHANE HENDRICKSON, Plaintiff and Appellant,

-vsTODD A. POCHA, and K-BAR M RANCH, Defendants and Respondents.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Douglas G. Harkin,Judge presiding.

COUNSEL OF RECORD:bFiled: :rT zjFor Appellant: <--i - .'I. c-7 [ :



# , ?II James A. Manley, Esq., Manley Law Office, Polson, I II c -J Montana

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. 4- - -ForRespondents:

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### 5 Steven S. Carey,Esq., Garlington,Lohn & Robinson, 02 Ll-! t- Missoula, Montana

Submitted on Briefs: August 23, 1990 Decided: October 25, 1990~ustice John Conway Harrison delivered the opinion of the Court.
This is an appeal from summary judgment entered against the plaintiff in favor of both defendantsby the District Court of the Fourth Judicial District, in and for the County of Missoula. We affirm the District Court's grant of summary judgment. Issue on review: Whether theDistrict Courterred ingranting summary judgment. This case involves an accident which occurred on Montana Highway 200, near mile post 25, between Missoula and Great Falls on February 24, 1988 at approximately 8:15 a.m. At the time of the accident, plaintiff, Shane Hendrickson, was an experienced longhaul truck driver. Defendant K-Bar M Ranch (K-Bar) owned a ranch along thehighwaywhere theaccident occurred. Defendant Pocha was employed by K-Bar at the time. Hendrickson, whose vehicle rear-ended Pochalsvehicle, sued for damages. Montana Highway 200 is a busy east-west, two-lane highway. It is the major route for long-haul trucks between Missoula and Great Falls. On February 24, 1988, Hendrickson left Dixon at approximately 5:30 a.m., bound forGreat Falls. His truckwas fully loaded with lumber. Plaintiff testified that his truck had new tires and was in excellent mechanical condition. At approximately 8:15 a.m. on the morning of the accident, Pocha was pulling a round bale feeder with K-Bar's Ford tractor for approximately two miles on the highway to get to another 2I'I ' 1 r sectionof the ranch to feed cattle. Pocha testified by affidavit that he did this approximately six or seven times a week. Pocha pulled onto the highway approximately four-tenths of a mile west of thebridge where the accident occurred. Pocha was traveling at

an undetermined slow rate of speed heading in an easterly direction, toward the bridge. Shortly thereafter,Hendricksondrovehis semi-truck over the top of Greenough Hill approximately one-half mile from the bridge and heading east aswell. Hendrickson testifiedby affidavit that as he came over the hill he did not see the Pocha vehicle because of contours in the road, and the positions of the respective vehicles. Hendrickson stated inhis deposition that when he first saw the Pocha vehicle he was "probably less than a quarter of a mile" from it. Both parties agree that the accident could not be avoided by either pulling into the other lane due to an on-coming logging truck orby pulling onto the right shoulder of the road due to its steep terrain. Hendrickson described what happened as follows:

[Alndthen I seen the tractor justbefore then,and then I jumped on the brakes and 

### I geared down a couple of times, but as I said before, I was doing approximatelv 50 miles an hour, and I had a full load on, and there just wasn't enough distance in between to stop. (Emphasisadded.) Indeed Hendrickson was unable to stop before striking the Pocha vehicle from behind. Both agree that on the morning of the accident the sky was blue and the roads were clear and dry. Hendrickson filed his complaint May 6, 1988. ~ollowingserviceof process, defendants filed their answer and counterclaim August 2, 1988. Hendrickson filed a reply to the counterclaim August 5, 1988. On June 14, 1989, following discovery, defendants moved for summary judgment. Themotion was briefed, argued, and on October 12, 1989, the District Court entered summary judgment on the issue of liability in favor of defendants. Therebeing no dispute as to the damages awardabletodefendants, judgment was entered in favor of defendants on February 15, 1990. Notice of entry of judgment was filed February 21, 1990. Hendrickson filed his notice of appeal March 6, 1990. Upon appeal, the only question is whether there is a genuine factual issue concerning the respective negligence of the parties involved. Hendricksonmaintains that in granting summary judgment the District Court incorrectly concluded that the defendants had sustained their burden of demonstrating a complete absence of any genuine issue of material fact. Ordinarily issuesof negligence arenot susceptibleto summary adjudication. Hendrickson v. Neiman (1983), 204 Mont. 367, 665 P.2d 219. We must be extremely cautious in reviewing grants of summary judgment in this area for the issues involved in a determination of negligence are better resolved at trial. The purpose of Rule 56, M.R.Civ.P., is to dispose of those actions which fail to raise genuine issues of material fact, thereby eliminatingtheburden and expense ofanunnecessary trial. VanUden v. Hendricksen (1980), 189 Mont. 164, 615 P.2d 220.The burden upon the moving party as stated in Rule 56(c), M.R.Civ.P., is: The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissionson file,together with theaffidavits,ifany, show that there is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law. To satisfy its burden of proof, the movant must provide the court with evidencewhich clearly indicateswhat the truth is, and which excludes any real doubt as to the existence of a genuine issue of material fact. VanUden at 167, 615 P.2d at 222. Once themovant has discharged its burden of proof under Rule 56(c)

### ,M.R.Civ.P.

### , it becomes incumbentupon theparty opposing the motion to come forward with substantial evidence raising a genuine issue of material fact. Rule 56(e), M.R.Civ.P.; Riley v. Carl (1981), 191Mont. 128, 622 P.2d 228. Here, both plaintiff and defendants filed briefs and other supporting documents, includingsworn affidavits, with defendants' motion for summary judgment. This Court finds that there is no issue of material fact in this case and summary judgment was properly granted. The evidence shows that Pocha did notviolate a single traffic law in operating his vehicle when the collision occurred. On the other hand, the evidence clearly shows that Hendrickson violated every law on the books that pertains to a vehicle overtaking another with a possibility of passing it. Whether Pocha was driving his farm vehicle at 5 to 10 miles per hour, or 20 or 30 miles per hour, makes no difference as toHendricksonlsnegligence. Pochawas lawfully upon thehighway and Hendrickson owed a duty to Pocha to avoid striking his vehicle while it was lawfully on the highway. Hendrickson violated the following statutes in causing the collision: Section 61-8-303, KCA. Under this statute, it was Hendrickson'sduty to operatehis vehicle on thepublic highway in a careful and prudent manner, and at a rate of speed no greater thanwasreasonableandproper under the conditionsexisting in the point of operation, and he was required to drive his truck so as not tounduly or unreasonably endanger the life, limb,property or other rights of persons entitled to the use of the street or highway. Further, under this statute, he was required to drive at

an appropriatereduced speed when approachingahill crest, orwhen a specialhazard existed with respect to other traffic then on the highway. Section 61-8-323, MCA. Under this statute, the driver of a vehicle overtaking another vehicle proceeding inthe samedirection isrequired topass to the leftthereof at a safedistance,andmay not again driveto the right side of theroadway until safely clear of the overtakenvehicle. Section 61-8-325, MCA. Under this statute, Hendrickson was forbidden to overtake and pass Pocha unless the left side of the roadway was clearly visible and free of oncoming traffic for a sufficientdistance ahead topermit suchovertaking and passing to be completely made without interferingwith the safe operation ofeither the oncoming vehicle or the vehicle being overtaken. Moreover, under this statute, the vehicle was not to be driven to the left of the roadway or attempt to pass when approaching the crest of a grade or upon a curve of the highway or where the driver's view was obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction. Section 61-8-328,MCA. This statute requires that where the roadway is divided in two ormore clearlymarked lanes for traffic, the vehicle shall be driven as nearly as practicable entirely within a single lane,and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. Section 61-8-329,MCA. This statute requires that the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, and with due regard to the speed of such vehicle and the traffic upon and the condition of the highway. Section 61-8-361,MCA. Under this statute, the driver of a motor vehicle traveling through narrow valleys, canyons or on mountain highways shall hold such motor vehicle under control and

as near the right-hand edge of thehighway asreasonably possible. Under the foregoing statutes,itwas theduty of Hendrickson, driving over roadways where the view was obstructed by reason of hills orpossibly by sunshine,to operatehismotor vehicle in such

a way that he could stop his unit and avoid striking or collidingwith another vehicle lawfully upon thehighway. Clearlyhedid not follow this requirement. In Farris and Senecal v. Clark (1971), 158Mont. 33, 37, 487 P.2d 1307, 1309, this Court upheld a judgment in favor of the overtaken vehicle stating: This Court long ago ruled on the liability of a person who negligently collides with another vehicle while attempting to pass. In the case of McDonough v. Smith, 86 Mont. 545, 550, 284 P. 542, 544, this Court held:'!Theperson passing isnegligent ifhe socarelessly directs or manages his automobile that a collision results, or if he attempts to pass in a time or under conditions which are not reasonably safe." Again, in Custer Broadcasting Corporation v. Brewer (1974), 163 Mont. 519, 518 P.2d 257, this Court again stated: Considering the propriety of granting a directed verdict, this Court in Holland v. Konda, 142 Mont. 536, 541, 385 P.2d 272, 275, stated: "'"No case should ever be withdrawn from the jury when reasonablemen might draw different conclusions from the evidence." [Citing case]

I1'Thisrule is firmly established by other decisions of this court, and we feel that further citation on the point is unnecessary. However, in cases where a driver of a vehicle is following another vehicle too closely, we follow the doctrine that the primary duty of avoiding a collision rests upon the following driver. In Farris and Senecal v. Clark, 158 Mont. 33, 37, 487 P.2d 1307, a recent rear end collision case, this Court sustained the trial court's decision to grant summary judgment forplaintiffs. There we reviewed the fact situation not unlike the instant case, except that here it was a daytime accident and in Farris it was nighttime

# . . . .ThisCourthas longheld'.that violation ofa statute concernedwith highway traffic isnegligence as amatter of law. Farris should have controlled the courtls decision inconsideringplaintiffs1motion for adirected verdict. Custer Broadcastinq Corporation, 163 Mont. at 521-22, 518 P.2d at

In this case, Hendrickson's own admission is that he was driving a tractor and trailer loaded with lumber in such a manner that even at his claimed speed of 50 miles an hour, he could not bring his unit to a stop within a quarter of a mile without colliding with another vehicle lawfully on theroadway. His single negligence is completely the cause, without any argument. The District Court was correct in granting,summaryjudgment to Pocha and his employer. Affirmed.

/5 We concur:

Chief Justice

Justices 9I Justice

### R. C. McDonough dissents.

Inthis era of comparative negligence there are the following issues ofmaterial fact relative to the defendant's negligence: Whether the hazard warning lights were flashing and whether slowmoving emblems were affixed to the back of both the tractor and the bale feeder, in compliance with 55 61-9-219(4) and 61-9- 415,MCA. Whether the defendant'swarning flashers and the slowmoving emblems were partly or totally obscured because of dirt, mud and flyinghay and debris, inviolation of 

### 5 61-9-219(4), MCA. Whether defendant was traveling without the exercise of due

care (too slowly) considering the contours of thehighway. See 55 61-8-311and 61-8-303,MCA. These issues of material fact prohibit summary judgment,and I would reverse and remand for further proceedings and trial.

Justice 

# B'
Justices Diane G. Barz and Fred J. Weber concur in the foregoing dissent. I