Towery v. Guffey
| Decision Date | 22 November 1960 |
| Docket Number | No. 38397,38397 |
| Citation | 358 P.2d 812 |
| Parties | Shirley TOWERY, a minor, by and through her next friend and father, Lloyd G. Towery, Plaintiff in Error, v. J. F. GUFFEY, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. 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.
2. Record examined and held: The trial court erred in directing a verdict for the defendant.
Appeal from the District Court of Oklahoma County; Clarence Mills, Trial Judge.
Action for damages for personal injuries. From an order of the trial court directing verdict for the defendant plaintiff appeals. Reversed for a new trial.
Bulla, Melone, Meister & Sheehan, Oklahoma City, for plaintiff in error.
Green & Swidensky, by Clarence P. Green, Oklahoma City, for defendant in error.
Plaintiff brought this action against the defendant for personal injuries she received while skating as a paid patron at defendant's skating rink when she was struck violently from the rear, knocked to the floor and injured by one or more of a group of boys whom, it is alleged, where carelessly and negligently skating at an excessive rate of speed while holding hands, playing a game called 'crack the whip'.
Plaintiff alleged that defendant was negligent in: (a) permitting patrons of his place of business to skate at excessive speeds and with a lack of caution and regard for the safety of others; (b) allowing patrons to engage in boisterous games and activities such as 'crack the whip', and 'tag'; (c) failing to provide supervision and control of the patrons using the skating facilities. Plaintiff asked for damages in the sum of $10,000 for her pain and suffering and temporary and permanent disability.
Defendant filed his answer wherein he admitted that Shirley Towery had suffered an injury in his place of business, but he denied that her injuries were as great as that alleged and denied that they were the result of carelessness or negligence of the defendant. He further alleged that the injuries to Shirley Towery were the result of her own assumption of the normal and ordinary risk of skating on roller skates, namely that of falling down; and that she fell without being pushed, shoved or in any other way touched or interfered with by any other person.
The evidence on behalf of plaintiff disclosed that at the time of the accident in question Shirley Towery was 12 years of age and was a resident of Del City, Oklahoma, living approximately a mile from the Joyland Skating Rink, the place of business of the defendant where the accident occurred. She skated for the first time when she was seven or eight years of age, and had been skating more or less regularly since that time to the date of the accident. She and her friend, Margaret Watts, went to the Joyland Skating Rink to spend the morning skating. This was Shirley's first visit. They arrived at the skating rink at about 9:35 a.m., paid the thirty-five cents admission fee at the door, obtained skates at the skate counter, and began skating. The defendant, J. F. Guffey, was behind the Skate counter, at the time and there were approximately forty boys and girls skating, but no adults; it apparently being the custom to reserve the Saturday morning skating periods for children only.
The skating was divided into periods for different skaters, and for the different types of skating so designated by an electric sign. When the girls began skating, an 'all skate' period (that is for boys and girls) was in progress. The two girls skated together around the rink in a counterclockwise direction in conformity with the skating pattern. This period lasted for about 30 minutes, until approximately 10:00 a. m. The skating period then changed to a 'girls only' period, and Shirley and Margaret continued skating. That period lasted about five minutes, at which time a 'boys only' skating period began. At that point, the girls stopped skating and went to a refreshment counter and bought a coke.
During the period that they had been skating, both girls testified that at no time did they see any adult or any other person on the skating floor or in the skating area supervising the skating activities. Both girls also testified that they did see some boys engaging in rough and fast skating activities. Shirley testified that on at least two occasions during the 'all skate' period, she observed 'about four or five boys and they were going pretty fast and they would stop and the one at the end would swing around'. This is the game I think we all know as 'crack the whip'. Margaret testified that she did observe some of the boys skating fast and holding hands during all skate period. Neither of the girls had had any difficulty in their personal skating activities up to that point.
After the boys' skating period,...
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McClure v. Sunshine Furniture
...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, ¶ 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 ......
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Smittle v. Illingsworth
...and place it within the sphere of legitimate and rational inferences from established facts, a prima facie case is made. Towery v. Guffey, Okl., 358 P.2d 812. Neither can we agree with the defendant that the evidence did not establish a prima facie case of negligence. Plaintiff testified th......
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Goodwin v. Enserch Corp., 88-2204
...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 ......
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Fletcher v. Meadow Gold Co.
...have been reiterated innumerable times. The essential elements of negligence are provable by circumstantial evidence. Towery v. Guffey, Okl., 358 P.2d 812; Coe v. Esau, Okl., 377 P.2d 815. All plaintiff is required to prove to establish causal connection between defendants' negligence and p......