Robinson v. McMahan

181 S.E.2d 147 (1971)

11 N.C. App. 275

Robert C. ROBINSON v. Sherrill D. McMAHAN and Coca-Cola Bottling Company of Asheville, North Carolina, and U. S. Plywood-Champion Papers, Inc.

No. 7128SC293.

Court of Appeals of North Carolina.

May 26, 1971.

*150 S. Thomas Walton, Asheville, for plaintiff appellee.

Van Winkle, Buck, Wall, Starnes & Hyde by O. E. Starnes, Jr., Ashville, for defendant appellants.

PARKER, Judge.

It is not the purpose of the summary judgment procedure to resolve disputed material issues of fact, but rather to determine if such issues exist. "The purpose of the Summary judgment procedure provided by Rule 56 of the Rules of Civil Procedure is to ferret out those cases in which there is no genuine issue as to any material fact and in which, upon such undisputed facts, a party is entitled to judgment as a matter of law. The burden is upon the moving party to establish the lack of a triable issue of fact." Haithcock v. Chimney Rock Company, 10 N.C.App. 696, 179 S.E.2d 865 (decided 31 March 1971).

When a motion for summary judgment is made and supported as provided in Rule 56, "an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." (Emphasis added.) Rule 56(e). In the present case the appealing defendants did not respond to plaintiff's motion "by affidavits or as otherwise provided in this rule." Nevertheless, the summary judgment against them was proper only "if appropriate" under all of the circumstances of this case.

"While neither the federal rules nor the North Carolina rule excludes the use of the procedure (for summary judgment) in negligence actions, it is generally conceded that summary judgment will not usually be as feasible in negligence cases where the standard of the prudent man must be applied." Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425; also see 6 Moore's Federal Practice 2d, § 56.17(42). It is only in the exceptional negligence case that the rule should be invoked. Rogers v. Peabody Coal Company, 342 F.2d 749 (6th Cir. 1965). This is so because even in a case in which there may be no substantial dispute as to what occurred, it usually remains for the jury, under appropriate instructions from the court, to apply the standard of the reasonably prudent man to the facts of the case in order to determine where the negligence, if any, lay and what was the proximate cause of the aggrieved party's injuries. In our opinion, such was the present case. Even accepting as true all facts admitted in the pleadings and disclosed by the affidavit and deposition filed by plaintiff in support of his motion, it is our opinion that reasonable men could reach different conclusions in this case on the issues of negligence and proximate cause. While "[o]rdinarily the mere fact of a collision with a vehicle ahead furnishes some evidence that the following motorist was negligent," Clark v. Scheld, 253 N.C. 732, 737, 117 S.E.2d 838, 842, it does not as a matter of law compel that conclusion. This is particularly so when the collision occurs while both vehicles are moving in an obscuring fog, a circumstance which must be considered, along with all other circumstances disclosed by the evidence, in order to determine whether the drivers of the two vehicles involved were exercising the care which a reasonable and prudent driver would have exercised under the conditions confronting them. See Racine v. Boege, 6 N.C.App. 341, 169 S.E.2d 913. It was for the jury to apply that standard to the facts of this case, and the summary judgment is

Reversed.

MALLARD, C. J., and VAUGHN, J., concur.