Goode v. Tait, Inc. , 36 N.C. App. 268 ( 1978 )

243 S.E.2d 404 (1978)

Raymond C. GOODE
v.
TAIT, INC.

No. 7721SC582.

Court of Appeals of North Carolina.

May 2, 1978.

Eubanks & Walden by Daniel S. Walden, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter and William C. Raper, Winston-Salem, for defendant-appellee.

WEBB, Judge.

The judgment must be reversed. Rule 56(c) of the Rules of Civil Procedure provides in part:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law."

The rule requires that before summary judgment may be had, the materials filed must affirmatively show that not only would the moving party be entitled to judgment from the evidence contained within the materials, but they must also show that there can be no other evidence from which a jury could reach a different conclusion as to a material fact. The rule has been stated to be that the materials must show there is no triable issue. Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415 (1972). Applying the rule to this case, the deposition of the plaintiff can be read to mean he did not know the cause of the accident. For this reason, there is no evidence of negligence as to the loading. After considering the deposition and the pleadings, however, there still could be a triable issue because there could be other evidence that the pumps and tanks were negligently stacked. Thus, the materials relied on by the defendant do not show there is not a triable issue of negligence.

We presume the trial court relied on the rule as stated in Haithcock v. Chimney Rock, 10 N.C.App. 696, 179 S.E.2d 865 (1971) as follows: "[t]he test is whether the moving party, by affidavit, or otherwise, presents materials which would require a directed verdict in his favor if presented at trial", and concluded that if the materials offered had been presented at a trial, a directed verdict would have been proper for defendant. In Haithcock, the plaintiff sued for injuries from a fall on the defendant's premises. She stated on adverse examination that she could not tell what caused her to fall. The facts in that case were such that she was the only one in a position to know what caused the fall. For that reason, summary judgment was appropriate. In this case, there were others who might be able to tell how the pumps and tanks were stacked and for that reason, summary judgment was not appropriate.

Reversed and remanded.

PARKER and VAUGHN, JJ., concur.