Glen L. Pfeifer, appellant, v. Sylvester Pfeifer et al., appellees, 195 Neb. 369

Buckley, District Judge. Plaintiff, Glen L. Pfeifer, appeals from a

summary judgment dismissing his tort action for damages. The defendants Sylvester, Donald, and Pat Pfeifer, plaintiff’s father and two brothers, respectively, are partners doing business as Sylvester Pfeifer & Sons. They commercially operated a picker-sheller combine. Pat brought the combine to Glen’s farm to pick his corn. Shortly after the picking began, the combine broke down and was taken into a quonset building for attempted repairs. Glen and Pat went onto a platform on the top of the combine.

While Pat was in the process of loosening or removing a safety shield in order to get at the source of the trouble, a large flat washer fell into the shelled corn in the bin. Concerned over the effect of the washer running through a machine or being swallowed by an animal, Glen eventually left the platform and went to the bottom of the bin to try and retrieve the washer. Pat, unaware of this, continued to search for the source of the trouble.

The unloading mechanism of the combine consisted of a horizontal auger at the bottom of the bin, which fed the corn into a second vertical auger inside the bin, which in turn delivered the corn to a third horizontal auger which delivered the corn to the truck. The auger at the bottom of the bin was exposed and in the area of the dropped washer. While Pat continued working on the platform, Glen twice reached into the bin with his left arm but couldn’t reach the washer. He then switched to his right arm for a third attempt.

While he was doing this, Pat, suspecting that one of the augers was broken, went down the platform to the cab, reached in, and engaged the gear which activated the auger in the bottom of the bin, which in turn caught Glen’s right arm, resulting in its ultimate amputation. No reasons were given by the trial court in sustaining the motion for

summary judgment. The evidence consists solely of the deposition testimony of Glen and Pat. Defendants contend that the undisputed facts show that plaintiff’s contributory negligence was sufficient to bar recovery as a matter of law. Defendants also contend that plaintiff assumed the risk of his injury as a matter of law, but this affirmative defense was not pled, and will not be considered. The principles of law involved are set out in Green v. Village of Terrytown, 189 Neb. 615, 204 N. W. 2d 152. The burden is upon the party moving for a

summary judgment to show that no issue of fact exists, and unless he can conclusively do so, the motion must be overruled. Upon a motion for

summary judgment, the court examines the evidence, not to decide any issue of fact, but to discover if any real issue of fact exists. In considering a motion for

summary judgment, the court views the evidence in the light most favorable to the party against whom it is directed giving to that party the benefit of all favorable inferences that may reasonably be drawn therefrom. It is true that the testimony of Glen and Pat as to how the accident happened is essentially without dispute. Glen was generally familiar with the combine, but had never repaired it.

When the washer fell into the bin, Glen immediately told Pat he would go down and get it but Pat said, “just let it go for now.” It was less than 5 minutes later when Pat engaged the gear without ever realizing that Glen eventually had left the platform and was trying to retrieve the washer. As Pat said regarding his lack of effort to see where Glen was, “I just forgot.” From under the bin, Glen could not see Pat up on the combine, but Pat, with little effort, could have looked down and seen the bottom of the bin, the auger, and Glen alongside.

The motor of the combine was running throughout, but Pat gave no warning of his intention to engage the gear. As is so often the case in tort actions, the inferences that may be drawn from established facts go to the heart of the resolution of the issues. Unless these inferences are conclusively established, a

summary judgment cannot be granted. Are the inferences here conclusively established or could reasonable minds differ as to:

(1) Whether Glen had a duty to tell Pat when he left the platform to retrieve the washer.

(2) Whether Glen should have looked to see exactly where Pat was and what he was doing before reaching into the bin.

(3) Whether Pat should have looked for Glen and, noting his absence from the platform, realized he might be down at the bin retrieving the washer.

(4) Whether Pat should have given a warning to Glen of his intention to engage the gear. We find that reasonable minds could differ as to these inferences, and that the defendants accordingly are not entitled to

summary judgment as a matter of law. As we said in Green v. Village of Terrytown, supra: “The primary purpose of the

summary judgment statute is to pierce sham pleadings and to dispose of, without the necessity and expense and delay of trial, those cases where there is no genuine claim or defense. Clark on Code Pleading (2d. Ed.), § 88, p. 557. Properly used it can accomplish that purpose. It can, however, have the opposite effect. In tort cases of the kind where reasonable minds may differ as to whether an inference of negligence is to be drawn from the given set of facts, it can have no .application.

It is difficult to use in many tort cases.” The defendants rely on several farm-accident cases decided by this court, but in each one the trial court sustained defendant’s motion for a directed verdict. This court said in Johnson v. Metropolitan Utilities Dist., 176 Neb. 276, 125 N. W. 2d 708: “A motion for a

summary judgment is not a substitute for a demurrer or a motion for a directed verdict. We do not determine at this time that the plaintiff’s evidence, whatever it will be, will present a jury question. We determine only that the record at this time does not show conclusively that there is no issue of fact in this case.” The judgment is reversed and the cause is remanded. Reversed and remanded.