Camby v. Southern Railway Co. , 39 N.C. App. 455 ( 1979 )

MARTIN (Harry C.), Judge.

The rules of law governing motions for summary judgment are fully stated by Justice Moore in Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971). It would serve no useful purpose to restate them here.

The trial court found facts in its judgment. This practice is not contemplated in summary judgment proceedings. “ ‘The rule does not contemplate that the court will decide an issue of fact, but rather will determine whether a real issue of fact exists.’ ” Id. at 534, 180 S.E. 2d at 830. The question for the court is whether there is a genuine issue as to any material fact. An issue is material if the facts alleged are of such nature as to affect the result of the action. A genuine issue is one which can be maintained by substantial evidence. Kessing v. Mortgage Corp., supra.

There is a conflict of evidence requiring a determination of the credibility of witnesses concerning the questions of who was the driver of the Camby automobile, and whether the train whistle blew as it approached the crossing. “ ‘If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied.’ ” Id. at 535, 180 S.E. 2d at 830.

Allegations of negligence and of proximate cause of the engineer in the operation of the train require the application of the standard of the reasonably prudent man to the facts in the case under appropriate instructions from the court. This is also true in order to determine the contributory negligence of the driver of the Buick automobile and whether agent Hensley was negligent in giving the green light to the train under the circumstances existing. In such instances, it usually remains for the jury to make this determination. It is only in the exceptional case that summary judgment can be granted where the rule of the reasonably prudent man is to be applied to determine ultimate fact questions. Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E. 2d 147, dis. rev. denied, 279 N.C. 395, 183 S.E. 2d 243 (1971); Edwards v. Means, 36 N.C. App. 122, 243 S.E. 2d 161, dis. rev. denied, 295 N.C. 260, 245 S.E. 2d 777 (1978).

Summary judgment is an extreme remedy. “ ‘If there is to be error at the trial level it should be in denying summary judgment and in favor of a full live trial . . ..’ ” Page v. Sloan, supra at 708, 190 S.E. 2d at 196. Where there are disputed issues of material facts, the plaintiff still may not carry the day with a jury, but he is entitled to try. The factual truth must be clear and undisputed for summary judgment to be granted. It is improper unless the pleadings, evidence and materials offered show there is no genuine issue as to any material fact and that the moving party has shown he is entitled to judgment as a matter of law. In the case at bar, the defendants have failed to carry this burden.

Reversed.

Chief Judge MORRIS and Judge PARKER concur.