(dissenting) :
I cannot concur with the majority in affirming the summary judgment granted below. There are disputed facts in the case which, in my opinion, prohibited the granting of summary judgment.
The plaintiff in his complaint alleged the existence of an oral contract between himself and the defendant employer which provided in part that if he had to move the defendant’s cattle additional help would be provided. The plaintiff claims he informed his supervisor in advance that the cattle would have to be moved. However, the majority of this court base their decision upon the fact that the plaintiff did not specifically request additional help to move the cattle, even though he knew of the necessity to move them, thus allegedly establishing his own contributory negligence. However, it seems to me that this ignores the agreement between the parties, at least as the plaintiff alleges it to be. According to plaintiff’s deposition, the agreement was not that if he asked for help they would provide it, but that if he had to move the cattle the defendant would provide help. Thus a jury would be justified in finding that the plaintiff did not have to request help, but merely to notify the defendant that the cattle had to be moved, which he alleges that he did. Under the agreement, as plaintiff alleges it, the request for help was implicit in the notice of the necessity to move the cattle which plaintiff gave the defendant. At least, a jury would be justified in drawing that inference or conclusion from the testimony as shown by plaintiff’s deposition. Under that state of facts, I cannot agree with the majority’s conclusion that failure to specifically request help, even though notice of the requirement to move the cattle was actually given, constitutes contributory negligence as a matter of law.
Plaintiff’s theory of recovery is substantially the same as that presented in Deshazer v. Tompkins, 89 Idaho 347, 404 P.2d 604 (1965) where this court held that the evidence raised factual questions as to whether the employer had been negligent in failing, among other things, to provide the employee with additional help. In Deshazer this court reversed summary judgment in favor of the employer and said:
“A motion for summary judgment must be denied if the evidence is such that conflicting inferences can be drawn therefrom and if reasonable men might reach different conclusions. (Citing cases).” 89 Idaho 347, at 353, 404 P.2d 604, at 607.
*86It is a rule of long standing in this court that all doubts and all favorable inferences which may be reasonably drawn from the evidence will be resolved against the party moving for summary judgment. Deshazer v. Tompkins, supra; Merrill v. Duffy Reed Construction Co., 82 Idaho 410, 353 P.2d 657 (1960); In Re Kilgore’s Estate, 84 Idaho 226, 370 P.2d 512 (1962); Jack v. Fillmore, 85 Idaho 36, 375 P.2d 321 (1962) ; Sutton v. Brown, 85 Idaho 104, 375 P.2d 990 (1962). It is settled that the possibility that the party opposing summary judgment might not prevail at trial is insufficient to authorize a summary judgment against him. Collord v. Cooley, 92 Idaho 789, at 795, 451 P.2d 535 (1969).
Questions of negligence and contributory negligence ordinarily present questions of fact to be resolved by the jury. The court said in Deshazer, supra:
“It is only when the facts are undisputed and where but one reasonable conclusion can be drawn therefrom that such negligence becomes a question of law.” 89 Idaho 347, at 355, 404 P.2d 604, at 608 and cases cited therein.
More recently this court, in Industrial Indem. Co. v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970), said:
“Questions of negligence and contributory negligence are generally questions of fact to be resolved by the jury, and only when the facts are undisputed and where but one reasonable conclusion can be drawn therefrom does such negligence become a question of law. (Omitting citations.)” 93 Idaho 719, at 726, 471 P.2d 574, at 581
The case is not one where the facts are undisputed, but rather is one where more than one reasonable conclusion can be drawn from the facts. The summary judgment should be reversed and the cause remanded for trial.