C. C. Natvig's Sons, Inc. v. Summers

255 N.W.2d 272, 198 Neb. 741, 1977 Neb. LEXIS 997
CourtNebraska Supreme Court
DecidedJune 29, 1977
Docket41052
StatusPublished
Cited by28 cases

This text of 255 N.W.2d 272 (C. C. Natvig's Sons, Inc. v. Summers) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C. C. Natvig's Sons, Inc. v. Summers, 255 N.W.2d 272, 198 Neb. 741, 1977 Neb. LEXIS 997 (Neb. 1977).

Opinions

Brodkey, J.

C. C. Natvig’s Sons, Inc., plaintiff and appellant herein, appeals from a summary judgment entered by the District Court for Holt County in favor of defendants Larry Summers and George Van Conet in a motor vehicle negligence action. The District Court found that the contributory negligence of plaintiff’s driver, LaVerne Overweg, was more than slight as a matter of law, and dismissed plaintiff’s petition. Plaintiff has appealed from that finding, contending it was error to dismiss its petition. We reverse and remand for further proceedings.

The evidence offered and received in this case in support of defendants’ motion for summary judgment consisted of the depositions of defendant Van Conet, who was operating a vehicle owned by defendant Summers; and of Overweg, plaintiff’s driver. We first summarize the testimony of Overweg.

On February 22, 1971, Overweg was transporting eggs from Kimball, South Dakota, to Ravenna, Nebraska, in a truck-tractor and trailer. As Overweg [743]*743was traveling south from Spencer, Nebraska, toward St. Paul, Nebraska, on U. S. Highway No. 281, weather conditions were unfavorable due to blowing snow. Although the wind was blowing snow across the road, the road surface was in good condition, and Overweg was not concerned with being able to see or operate his truck and trailer. He was driving at a speed of approximately 30 to 35 miles per hour.

The accident in this case occurred 9 miles north of St. Paul, at approximately 10 o’clock a.m. As one approaches the accident site from the north, there is a bend in the road and a small knoll or hill. Beyond the knoll is a slope to the south, and the accident in this case occurred about halfway down the slope. As Overweg came over the knoll his visibility was reduced to about 60 feet for several seconds due to blowing snow. Overweg immediately let up on the accelerator and began to gently apply his brakes. The road ahead was snowpacked, but Overweg was having no difficulty controlling his truck. He then observed Van Conet and his truck-tractor about 200 to 300 feet away, blocking the entire highway. Overweg stated that he had no time to downshift, and could not go around Van Conet’s vehicle because there were ditches or banks on both sides of the road. Overweg continued to apply his brakes, but collided with defendant’s vehicle, traveling about 10 to 15 miles per hour at the time of impact. Overweg stated it was difficult to see defendants’ vehicle because it was “silhouetted” too much with the white background. He did not see any lights on defendants’ vehicle, nor did he see any warning signals indicating that defendants’ vehicle would be blocking the road.

Van Conet testified that he became stuck in a snowdrift at the accident site at approximately 6:30 a.m. He was driving a truck-tractor without a trailer; and while it was stuck, it was blocking only part of the south-bound lane. Van Conet went to the [744]*744nearest farm residence, owned by Lyle Tomsen. Van Conet had breakfast, helped Tomsen take care of his chores, put chains on his farm tractor, and charge the battery of the tractor. At approximately 10 a.m. Tomsen and Van Conet went to the truck-tractor to pull it out of the snowdrift. It had stopped snowing at that time, although the wind continued to blow snow across the highway.

When they arrived at the snowdrift, they found a north-bound car stuck in the drift, and Tomsen pulled the car free. A truck pulling a grain trailer then passed through the accident site, coming from the north, and avoiding Van Conet’s truck by using the passing lane. Tomsen then pulled Van Conet from the drift, moving the truck-tractor in an easterly direction. When Van Conet’s truck came out of the drift, it stopped about 5 feet from the east edge of the highway, resting crossways on the highway. It was at that point that Overweg collided with Van Conet. Van Conet stated that he did not see Overweg’s vehicle before the collision, although he did state that he could see to the top of the knoll when he looked to the north. Van Conet testified that the lights to his vehicle were on at the time of the collision, but the evidence was unclear as to whether the lights could be seen by one approaching from the north since the truck-tractor was facing to the east. Van Conet acknowledged that he was unfamiliar with safety laws applicable to truck drivers, and that he set no flares or warning signals at any time, athough his vehicle was equipped with flares. After considering the above testimony, the trial court found that the “contributory negligence of LaVerne Overweg as shown by his testimony in the depositions is more than slight as a matter of law”; and dismissed plaintiff’s petition. Plaintiff contends that this finding and the dismissal of its petition were erroneous.

The issue in this case is whether summary judg[745]*745ment was properly granted in favor of defendants because Overweg was guilty of contributory negligence more than slight as a matter of law because he could not stop his vehicle within his range of vision. The rules with regard to summary judgment are well-established in this jurisdiction. “The moving party is not entitled to summary judgment except where there exists no genuine issue as to any material fact in the case and where under the facts he is entitled to judgment as a matter of law.” Green v. Village of Terry town, 189 Neb. 815, 204 N. W. 2d 152 (1973). The issue on a motion for summary judgment is whether or not there is a genuine issue as to any material fact, and not how that issue should be determined. In considering such a motion, the trial court must take that view of the evidence most favorable to the party against whom summary judgment is directed, giving to that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. Reeves v. Associates Financial Services Co., Inc., 197 Neb. 107, 247 N. W. 2d 434 (1976). Summary judgment is not appropriate, even where there are no conflicting evidentiary facts, if the ultimate inferences to be drawn from those facts are not clear. It is an extreme remedy which should be awarded only when the issue is clear beyond all doubt. Barnes v. Milligan, 196 Neb. 50, 241 N. W. 2d 508 (1978). We have pointed out that summary judgment is difficult to use in many tort cases. Pfeifer v. Pfeifer, 195 Neb. 369, 238 N. W. 2d 451 (1976).

In the present case defendants contend that the deposition testimony received by the trial court on their motion for summary judgment shows that Overweg was guilty of contributory negligence more than slight as a matter of law because he was unable to stop his vehicle within his range of vision. They rely on the long-standing general principle that it is negligence as a matter of law for a motorist to drive [746]*746his vehicle on a highway in such a manner that he is unable to stop or turn aside in time to avoid a collision with an object within his range of vision. See, Duling v. Berryman, 193 Neb. 409, 227 N. W. 2d 584 (1975); Botsch v. Reisdorff, 193 Neb. 165, 226 N. W. 2d 121 (1975); Guynan v. Olson, 178 Neb. 335, 133 N. W. 2d 571 (1965); Pool v. Romatzke, 177 Neb. 870, 131 N. W. 2d 593 (1964). This rule has been applied to driving where vision is impaired by storms or weather conditions such as snow, ice, or fog. Such factors are held to be conditions and not intervening causes, and require drivers to exercise a degree of care commensurate with the circumstances. See, Duling v. Berryman, supra; Newkirk v. Kovanda, 184 Neb. 127, 165 N. W. 2d 576 (1969); Pool v. Romatzke, supra.

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Bluebook (online)
255 N.W.2d 272, 198 Neb. 741, 1977 Neb. LEXIS 997, Counsel Stack Legal Research, https://law.counselstack.com/opinion/c-c-natvigs-sons-inc-v-summers-neb-1977.