noting that summary judgment should not be granted on claims of contributory negligence except in “extraordinary, unusual, or rare case[s] where the facts are conceded or demonstrated beyond reasonable question, and show a right to summary judgment with such clarity as to leave no room for controversy”
How later courts described this case
- noting that summary judgment should not be granted on claims of contributory negligence except in “extraordinary, unusual, or rare case[s] where the facts are conceded or demonstrated beyond reasonable question, and show a right to summary judgment with such clarity as to leave no room for controversy”
- holding that the trial court erred when it entered summary judgment as there was a genuine issue of material fact on the issue of contributory negligence
- Noting that summary judgment is appropriate on issues of contributory negligence and the reasonable person standard only in the “extraordinary, unusual, or rare case where the facts are conceded or demonstrated beyond reasonable question and show a right to summary judgment with such clarity as to leave no room for controversy.”
- “Contributory negligence to bar recovery must be the proximate cause of the injury ....”
Written by the judges who cited it.
The opinion
HANSON, Presiding Judge
(dissenting).
Summary judgment is a relatively new addition to our rules of civil practice. It may be conceded to be an extreme and drastic pretrial remedy which should be granted only "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." RCP 56(c). Furthermore, issues of negligence, contributory negligence, and proxi *218 mate cause are not ordinarily susceptible to summary adjudication. 6 Moore's Federal Practice 2d Ed., § 56.17(42), pages 2583-2584 and cases cited therein. "Questions like these become matters of law to be decided summarily or after trial only when reasonable minds could not differ as to the facts and the inferences to be drawn therefrom. Thus, a summary judgment, like a directed verdict, is unwarranted unless the court is convinced from the proof that the jury could arrive at but one conclusion, and if it did otherwise the court would be compelled to render judgment n. o. v." Lopez v. Denver & Rio Grande Western Railroad Co., 277 F.2d 830 , 10 Cir. Nevertheless, summary judgment may properly be rendered in personal injury actions where plaintiff's conduct constitutes contributory negligence as a matter of law. This rule has been applied in railway crossing accident cases: Lopez v. Denver & Rio Grande Western Railroad Co., supra; Miller v. Union Pac. R. Co., 196 F.2d 333 , 10 Cir.; and Shelite v. Chicago, Rock Island and Pac. R. R. Co., 307 F.2d 48 , 10 Cir.
The record shows the following undisputed facts:
Plaintiff, Hadleigh C. Wilson, owns and operates a painting and decorating business in Sioux Falls. For many years Robert E. Hegge was employed as foreman. In March 1964 plaintiff obtained a contract to paint a school building in Aberdeen. In performing this work it was customary for plaintiff and Hegge to ride together from Sioux Falls to Aberdeen in a panel truck owned by plaintiff. Generally they took the same route each time and were familiar with Highway 25 where it intersects defendant's railway track near Vienna.
On December 24, 1964, plaintiff and Hegge were returning to Sioux Falls for the Christmas holidays. They left Aberdeen shortly after noon. Hegge was driving the truck as usual and plaintiff was riding in the right front seat. It was a dark, gray day with some snow flurries. However, the highway was clear and visibility was good.
As plaintiff and Hegge proceeded south on Highway 25 about 3 o'clock in the afternoon they carried on a limited con *219 versation. Hegge was driving between 55 and 65 miles per hour. When approximately 100 feet north of the tracks they saw defendant's train for the first time. It was approaching from the southwest about 80 to 100 feet from the crossing. Hegge immediately applied his brakes and tried to avoid the accident. They heard no train whistle or bell. The engine of the train was originally yellow, but was smoked up and tended to blend into the background. The train was traveling about 25 miles per hour. The panel truck collided with the left rear side of the diesel engine. This was the fourth fatal accident at this particular crossing over a period of 16 years.
Defendant's tracks cross Highway 25 where the collision occurred at grade. The tracks run southwest and northeast and are basically level for several hundred feet in both directions. There is a slight rise in Highway 25 south of the tracks, but the highway north of the tracks is fairly level. The crossing was protected by the usual reflectorized cross buck warning sign near the crossing and by a highway warning sign several hundred feet north of the crossing. There were no trees, shrubs, bushes or buildings interfering with visibility. Plaintiff and Hegge had an unobstructed view of defendant's approaching train for a distance of several hundred feet as they approached the crossing from the north.
The law in this state is well settled that it is the continuing duty of a motorist who is familiar with or who knowingly approaches a railway crossing, Johnson v. Chicago & Northwestern Ry. Co., 71 S.D. 132 , 22 N.W.2d 725 , to exercise his senses for the purpose of determining whether or not he can cross the track in safety. Wooley v. Chicago & N. W. Ry. Co., 74 S.D. 203 , 50 N.W.2d 644 ; Schuknecht v. Chicago, M., St. P. & P. R. Co., 74 S.D. 61 , 48 N.W.2d 917 ; and Ulrikson v. Chicago, M., St. P. & P. Ry. Co., 64 S.D. 476 , 268 N.W. 369 . If it is an open crossing in a rural area and there is nothing obstructing the view of an approaching train, it is negligence more than slight, as a matter of law, for such a motorist not to look and see and consequently heed and avoid the approaching danger. Furthermore, the failure of the train engineer to give statutory warning signals does *220 not relieve the motorist of such duty. Schuknecht v. Chicago, M., St. P. & P. R. Co., 74 S.D. 61 , 48 N.W.2d 917 ; and Plucker v. Chicago, M. & St. P. Ry. Co., 52 S.D. 554 , 219 N.W. 254 .
In considering the motion for summary judgment it must be assumed the defendant railroad was negligent as alleged. Nevertheless, the trial court correctly concluded the employee driver, Robert Hegge, was guilty of contributory negligence more than slight, as a matter of law, for failure: to have the panel truck under proper control; to maintain a proper lookout; to see and heed the railway crossing warning signs; and to see an approaching train at an open level rural crossing where it was clearly visible to anyone looking at a time when a collision could and should have been avoided. There is no genuine issue of material facts in this respect and a directed verdict would be obligatory during a trial on this issue according to the well settled law of South Dakota.
Plaintiff concedes Robert E. Hegge was his employee and was acting in the course and scope of his employment at the time of the collision. In rendering summary judgment for defendant the trial court correctly applied our rule that a master is barred from recovery against a negligent defendant by the negligence of his servant acting within the scope of his employment. Restatement of Torts 2d § 486.
In an effort to avoid the imputation of his servant's negligence plaintiff urges the adoption of the rule in Weber v. Stokely-Van Camp, Inc., 274 Minn. 482 , 144 N.W.2d 540 , in which the Minnesota court abandoned the "two way test" of determining whether or not a servant's negligence should be imputed to his master and held the negligence of an employee driving his employer's truck in the course of his employment was not imputed to the employer who was riding in the truck at the time of the accident. Rejection of the Minnesota rule in Weber v. StokelyVan Camp', in effect, is decisive of plaintiff's cause of action.
T would affirm and avoid the futility of a trial.
ROBERTS., J., concurs.