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 

zj For Appellant: <--i - 

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[ : 

, ?I I James A. Manley, Esq., Manley Law Office, Polson, I II c -J Montana . - . 4- 

- -For Respondents: . I 

<a,) 5 Steven S. Carey, Esq., Garlington, Lohn & Robinson, 

0 2 

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 defendants by 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 the District Court erred in granting 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 the highway where the accident occurred. Defendant Pocha was 

employed by K-Bar at the time. 

Hendrickson, whose vehicle rear-ended Pochals vehicle, 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 for Great Falls. His truck was 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 

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section of 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 the bridge where the accident occurred. Pocha was traveling at 

an undetermined slow rate of speed heading in an easterly 

direction, toward the bridge. 

Shortly thereafter, Hendrickson drove his semi-truck over the 

top of Greenough Hill approximately one-half mile from the bridge 

and heading east as well. Hendrickson testified by 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 in his 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 or by pulling onto the right shoulder of the road due to its 

steep terrain. 

Hendrickson described what happened as follows: 

[Alnd then I seen the tractor just before 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. 

(Emphasis added.) 

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. ~ollowing 
service of 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. The motion was briefed, argued, and on October 

12, 1989, the District Court entered summary judgment on the issue 

of liability in favor of defendants. There being no dispute as to 

the damages awardable to defendants, 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. Hendrickson maintains 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 issues of negligence are not susceptible to 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 eliminatingthe burden and expense of an unnecessary 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 

admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material 

fact and that the moving party is entitled to a judgment 

as a matter of law. 

To satisfy its burden of proof, the movant must provide the 

court with evidence which clearly indicates what 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 the movant has discharged its burden of proof under Rule 

56 (c) , M. R. Civ. P. , it becomes incumbent upon the party 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), 191 Mont. 128, 622 P.2d 228. 

Here, both plaintiff and defendants filed briefs and other 

supporting documents, including sworn 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 not violate 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 to 
Hendricksonls negligence. Pocha was lawfully upon the highway 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's duty to operate his vehicle on the public highway in 

a careful and prudent manner, and at a rate of speed no greater 

than was reasonable and proper under the conditions existing in the 

point of operation, and he was required to drive his truck so as 

not to unduly 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 appropriate reduced speed when approaching a hill crest, or when 

a special hazard 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 in the same direction 

is required to pass to the left thereof at a safe distance, and may 

not again drive to the right side of the roadway until safely clear 

of the overtaken vehicle. 

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 

sufficient distance ahead to permit such overtaking and passing to 

be completely made without interfering with the safe operation of 
either 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 or more clearly marked 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 the highway as reasonably possible. 

Under the foregoing statutes, it was the duty of Hendrickson, 

driving over roadways where the view was obstructed by reason of 

hills or possibly by sunshine, to operate his motor vehicle in such 

a way that he could stop his unit and avoid striking or colliding 
with another vehicle lawfully upon the highway. Clearly he did not 

follow this requirement. 

In Farris and Senecal v. Clark (1971), 158 Mont. 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: 

'!The person passing is negligent if he so carelessly 

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 reasonable men might draw different 

conclusions from the evidence." [Citing case] 

I1'This rule 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 for plaintiffs. 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 . . . . 
This Court has long held'.that violation of a statute 

concerned with highway traffic is negligence as a matter 

of law. Farris should have controlled the courtls 

decision in considering plaintiffs1 motion for a directed 

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 the roadway. His single 

negligence is completely the cause, without any argument. The 

District Court was correct in granting,summary judgment to Pocha 

and his employer. 

Affirmed. 

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We concur: 

Chief Justice 

Justices 

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Justice R. C. McDonough dissents. 

In this era of comparative negligence there are the following 

issues of material fact relative to the defendant's negligence: 

Whether the hazard warning lights were flashing and whether 

slow moving 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's warning flashers and the slow moving 

emblems were partly or totally obscured because of dirt, mud and 

flying hay and debris, in violation of 5 61-9-219(4), MCA. 

Whether defendant was traveling without the exercise of due 

care (too slowly) considering the contours of the highway. See 55 

61-8-311 and 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