in case in which defendant’s negligence in driving automobile through plate glass window was followed by plaintiff police officer’s attempt to knock down hanging broken glass pieces, ultimately resulting in injury to the police officer, the court reversed the entry of summary judgment in favor of the defendant, stating: “whether the conduct of the plaintiff was a sufficient intervening cause ... should be left to the jury” and “[wjhether the defendant should have foreseen the probable consequences of his negligent act ... is for a determination of the jury”
How later courts described this case
- in case in which defendant’s negligence in driving automobile through plate glass window was followed by plaintiff police officer’s attempt to knock down hanging broken glass pieces, ultimately resulting in injury to the police officer, the court reversed the entry of summary judgment in favor of the defendant, stating: “whether the conduct of the plaintiff was a sufficient intervening cause ... should be left to the jury” and “[wjhether the defendant should have foreseen the probable consequences of his negligent act ... is for a determination of the jury”
Written by the judges who cited it.
The opinion
TEIGEN, Chief Justice
(dissenting).
I dissent. The defendant has moved for summary judgment and has the burden of demonstrating clearly that there is no genuine issue of fact. The evidence presented must be construed in favor of the party opposing the motion. The plaintiff must be given the benefit of all favorable inferences which can reasonably be drawn from the deposition and the interrogatories that indicate the presence of genuine issues of fact. Mondy v. Gjesdal, N.D., 123 N.W.2d 33 ; Temme v. Traxel, N.D., 102 N.W.2d 1 ; Feather v. Krause, N.D., 91 N.W.2d 1 . I find he has sustained the burden placed upon him.
The facts presented in this case are not in conflict. The deposition and the interrogatories supplied establish that there is no genuine issue as to any material fact between the parties. In that situation, if the defendant is entitled to a judgment as a matter of law, it is a proper case for the application of the rule governing summary judgment. Rule 56, N.D.R.Civ.P., extends to a party against whom a claim is asserted the authority to move for a summary judgment in his favor upon all or any part thereof at any time after the expiration of twenty days from the commencement of the action or after service of a motion for summary judgment by the adverse party.
Rule 56(c) provides:
Judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. * * * (emphasis added)
The purpose of Rule 56 is to afford procedure for the just, speedy, and inexpensive disposition of actions in which there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Mondy v. Gjesdal, supra.
The defendant has pleaded the affirmative defense of contributory negligence, *183 which, if found to exist as a matter of law, is an absolute bar to recovery in this state. Where the plaintiff’s own negligence contributes to the injury which he sustains, he is not entitled to recover therefor. Renner v. Murray, N.D., 136 N.W.2d 794 ; Wolf v. Northern Tank Lines, Inc., N.D., 113 N.W.2d 675 ; Moe v. Kettwig, N.D., 68 N. W.2d 853 ; Bagg v. Otter Tail Power Co., 70 N.D. 704 , 297 N.W. 774 ; Engen v. Skeels, 60 N.D. 652 , 236 N.W. 240 ; Sherlock v. Minneapolis, St. P. & S. S. M. R. Co., 24 N.D. 40 , 138 N.W. 976 .
The questions of negligence, contributory negligence, and proximate cause are ordinarily questions of fact for the jury, unless the evidence is such that reasonable men can draw but one conclusion therefrom. Grenz v. Werre, N.D., 129 N.W.2d 681 ; Mondy v. Gjesdal, supra; Erdahl v. Hegg, N.D., 98 N.W.2d 217 ; Goulet v. O’Keeffe, N.D., 83 N.W.2d 889 .
But when the facts and circumstances are such that only one inference can fairly and reasonably be drawn therefrom with respect to either the negligence of the defendant or the contributory negligence of the plaintiff, the matter becomes a question of law for the court, and this is true irrespective of a jury’s verdict. Schnell v. Northern Pac. R. Co., 71 N.D. 369 , 1 N.W.2d 56 ; Stelter v. Northern Pac. R. Co., 71 N.D. 214 , 299 N.W. 310 ; Logan v. Schjeldahl, 66 N.D. 152 , 262 N.W. 463 ; Bratvold v. Lalum, 68 N.D. 534 , 282 N.W. 514 .
Therefore, under summary judgment procedure it is proper to expedite disposal of the action by a dismissal if contributory negligence is established as a matter of law.
The fact that the plaintiff was an on-duty police officer does not absolve him from acting as an ordinarily prudent man under the same or similar circumstances. I realize that a police officer may be called upon to perform hazardous work as a part of his duty, but there is no reason why he should not use the same ordinary prudent care for his own safety as is required of any other citizen. Brunner v. Yellow Cab Company, 13 Ill.App.2d 255 , 141 N.E.2d 658 ; Sherrod v. Saunders, 106 Cal.App.2d 160 , 234 P.2d 693 ; 65A C.J.S. Negligence § 126 (1966).
Police officers are not put in a special class because of their position. This is indicated by their being generally classified as licensees upon entering a person’s property, and therefore they are in no better position than the average person. See cases cited in 86 A.L.R.2d 1221 ; 13 A.L.R. 651 . Although the plaintiff was a police officer and in the process of investigating an accident, there is. nothing in this record to indicate, and no-authority has been pointed out nor found in; any of my research, that it became the duty of the policeman to remove the glass from the window. His duty was to investigate an accident, to gather the facts, and, if appropriate, to make an arrest. In my opinion, when he attempted to remove the glass, he became a volunteer.
The plaintiff argues that an emergency situation existed, that in such case a police officer had the duty to alleviate the emergency, and that therefore he should not be held to the same degree of care as an ordinary person. However, this is not the case. The facts clearly show that everything was in a static condition and no emergency existed. No one’s life or property was in imminent danger. The plaintiff had time in which to deliberate and to exercise good judgment as to all circumstances confronting him. He volunteered an overt act when he grasped the broken glass and applied force in attempting to remove it. The action taken by the plaintiff disturbed the status quo of what was then a static condition, which under the circumstances was negligence and was legally a contributing cause cooperating with the previous act of the defendant in bringing about the plaintiff’s injury.
In my opinion there was no question of fact for the jury to decide. The plaintiff knew or ought to have known there was danger in removing the glass. He grasped *184 the broken glass and applied pressure, moving it back and forth to maneuver it so it would drop outside the cafe. His choice involved a hazard which no ordinarily prudent person would have assumed under similar circumstances. One cannot shield himself behind an emergency created by his own negligence. Bolton v. Wells, 58 N.D. 286 , 225 N.W. 791 . Attempting to break out a piece of plate glass hanging from the top of a window frame is dangerous without the use of proper methods and implements. This is known to every person, and no prudent person would attempt to remove it in the manner employed by this plaintiff. I feel he assumed the risk .incident to the danger which confronted him. It was a position which he voluntarily took and which he alone controlled. He should not be permitted to shift the responsibility and the result which followed to the defendant. In my opinion he was contributorily negligent as a matter of law, which is a complete bar to recovery. For these reasons I would affirm the summary judgment of dismissal of the plaintiff’s action.