In Covington Coal Prods. Co. v. Stogner, 1937 OK 559, 72 P.2d 491, the failure to exercise due care, the place of the injury and the manner in which the injury was sustained were subject to proof by circumstantial evidence and the Court approved. See Miller v. Dobbs, 1937 OK 500, ยถ 5, 71 P.2d 737, 738 ("Whether there has been an exercise of proper care in a given case is ordinarily a question of fact to be determined by a jury or where a jury is waived by the court from all of the circumstances surrounding the transaction.") The Court, in Towery v. Guffey, 1960 OK 242, ยถ 13, 358 P.2d 812, 814-15, ruled: The law does not require every fact and circumstance which make up a case of negligence to be proved by direct and positive evidence or by the testimony of eye witnesses.
See Miller v. Dobbs, 1937 OK 500, ยถ 5, 71 P.2d 737, 738 (โWhether there has been an exercise of proper care in a given case is ordinarily a question of fact to be determined by a jury or where a jury is waived by the court from all of the circumstances surrounding the transaction.โ) The Court, in Towery v. Guffey, 1960 OK 242, ยถ 13, 358 P.2d 812, 814โ15, ruled: The law does not require every fact and circumstance which make up a case of negligence to be proved by direct and positive evidence or by the testimony of eye witnesses.
E.g., McKellips v. Saint Francis Hosp., Inc., 741 P.2d 467, 470 (Okla. 1987); Thompson v. Presbyterian Hosp., Inc., 652 P.2d 260, 263 (Okla. 1982). If Goodwin presented sufficient prima facie proof, then the issue of negligence properly was a question for the jury to resolve. See, e.g., Towery v. Guffey, 358 P.2d 812, 814 (Okla. 1960) (reversing directed verdict for defendant because plaintiff established prima facie case of negligence); Julian v. Sinclair Oil Gas Co., 168 Okl. 192, 32 P.2d 31, 37 (1934) (reversing ruling that plaintiff's evidence was insufficient to go to jury where escaping gas from leaky pipeline caused explosion and resulting personal injuries). A showing by circumstantial evidence is a permissible method of proving breach of duty. See, e.g., Fletcher v. Meadow Gold Co., 472 P.2d 885, 887 (Okla. 1970) ("essential elements of negligence are provable by circumstantial evidence"); Safeway Stores, Inc. v. Fuller, 118 P.2d 649, 651 (Okla. 1941) ("primary negligence may be established by circumstantial evidence"); see also Nye v. Cox, 440 P.2d 683, 685 (Okla. 1968) (explaining plaintiff may establish prima facie case of negligence through circumstantial evidence) (syllabus by the court).
Evidence of physical facts and circumstances may be sufficient for that purpose." Chicago Rock Island & Pac. R.R. Co. v. Consumers Coop. Ass'n, 180 F.2d 900, 904 (10th Cir. 1950); see Towery v. Guffey, 358 P.2d 812, 814 (Okla. 1961). Accordingly, the Court finds that genuine disputes of material facts preclude summary judgment on Plaintiff's negligence claim regarding Mr. Kaya's conduct.
The action of appellant, James Lang (Lang) for damages for personal injuries was terminated at the close of his evidence when the trial court sustained separate demurrers to the evidence which were entered by all appellees. The demurrers were sustained on the grounds that there was no evidence of primary negligence on the part of any of the appellees that had any causal connection with Lang's injury and that he had assumed the risk based on Hull v. Oklahoma City Baseball Co., 196 Okla. 40, 163 P.2d 982 (1945). Appellant argues that the court should reserve ruling on the demurrers until the defendants presented their proof based on Towery v. Guffey, 358 P.2d 812 (Okla. 1961). In that case the court waited until after defendants offered proof to grant dismissal.
The essential elements of negligence are provable by circumstantial evidence. Towery v. Guffey, Okla., 358 P.2d 812; Coe v. Esau, Okla., 377 P.2d 815. All plaintiff is required to prove to establish causal connection between defendants' negligence and plaintiff's injury is to make it appear injury, in whole or in part, resulted from defendants' negligence. J.J. Newberry Co. v. Lancaster, Okla., 391 P.2d 224. The degree of foreseeability for all consequences of negligence is stated in syllabus 2 in Oklahoma Nat. Gas Co. v. Courtney, 182 Okla. 582, 79 P.2d 235. This extends to all circumstances which exist whether they could, or could not have been, ascertained by reasonable diligence.
The law does not require every fact and circumstance which make up a case of negligence to be proved by positive evidence. Proof of such facts may rest entirely in circumstances; in other words, circumstantial evidence alone may authorize a finding of negligence. Towery v. Guffey (1961), Okla., 358 P.2d 812; 38 Am.Jur. "Negligence" ยง 333, page 1032. We are of the opinion the trial court did not err in overruling the City's demurrer to the evidence of the plaintiff.
Where the evidence is conflicting, all facts and inferences unfavorable to the plaintiff must be disregarded, leaving for consideration that evidence only which is favorable to the plaintiff. If there is any competent evidence tending to show a right to recover under any view of the evidence so considered, the matter should be left for the jury. Towery v. Guffey, Okla., 358 P.2d 812; Price v. Smith, Okla., 373 P.2d 242. Where the relation of invitor and invitee exists, the law casts on the invitor the duty to exercise reasonable care to make such parts of the premises as are ordinarily used by invitees reasonably safe for their use. While the duty so imposed does not require the invitor to protect the invitee from dangers which are so apparent and readily observable that one would reasonably expect them to be discovered, it does apply to conditions or instrumentalities which are in the nature of hidden dangers, traps, snares, pitfalls and the like.
We have carefully considered all of the arguments made by defendant in its briefs and have concluded that a prima facie case of negligence was established by the plaintiff. In Towery v. Guffey, Okla., 358 P.2d 812, wherein plaintiff was injured by other patrons in the skating rink, we quoted from American Jurisprudence as follows: "The law does not require every fact and circumstance which make up a case of negligence to be proved by direct and positive evidence or by the testimony of eye witnesses.
CONCLUSIONS In Towery v. Guffey, Okla., 358 P.2d 812, we held: "This court has consistently followed the rule that in passing upon a motion for directed verdict, the trial court must consider as true all the evidence favorable to the party against whom the motion is directed, together with all inferences that may be reasonably drawn therefrom, and disregard all conflicting evidence favorable to the movant, and the matter should then be left to the jury if there is any competent evidence tending to show a right to recover under any view of the evidence so considered."