Harold L. Hines v. Elmer E. Pollock

This is an appeal from an order sustaining defendant's motion for summary judgment in the district court for Hall County. Plaintiff-appellant, Harold L. Hines, filed a petition on February 19, 1985, alleging that he had sustained personal injuries when he was struck by a truck operated by the defendant-appellee, Elmer E. Pollock. In his petition plaintiff alleged defendant was negligent in failing to keep his vehicle under reasonable control; in failing to keep a proper lookout; and in failing to yield the right of way to plaintiff, a pedestrian. The defendant answered, denying that his truck had struck the plaintiff, and alleging that the sole proximate cause of plaintiff's injuries was the negligence of plaintiff. Both the plaintiff and the defendant filed separate motions for summary judgment. Plaintiff's motion sought a summary judgment on the issue of defendant's liability ""for the reason that the testimony of the Defendant clearly states that he knew the Plaintiff was an incapacitated person and the Defendant had an absolute duty to avoid injury to the Plaintiff, pursuant to Nebraska Revised Statute Section 39-644 . . . ."" On August 5, 1986, the matter came on for hearing on defendant's motion for summary judgment. At the hearing, defendant offered into evidence three depositions in support of his motion. On August 12, 1986, the court sustained the defendant's motion for summary judgment and dismissed the action. Plaintiff appeals, contending that the decision of the trial court is contrary to the evidence and the law and that the trial court erred in granting defendant's motion for summary judgment and in failing to properly apply the provisions of Neb. Rev. Stat. § 39-644 (Reissue 1984). In considering a motion for summary judgment, the evidence is to be viewed most favorably to the party against whom the motion is directed, giving to that party the benefit of all the reasonable inferences which may reasonably be drawn from the evidence. The party moving for summary judgment is entitled to summary judgment if the pleadings, depositions, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, that the ultimate inferences to be drawn from those facts are clear, and that the moving party is entitled to judgment as a matter of law. Hirschman v. Maddox, 223 Neb. 302, 389 N.W.2d 297 (1986); Remelius v. Ritter, 222 Neb. 734, 386 N.W.2d 860 (1986); Neb. Rev. Stat. § 25-1332 (Reissue 1985).