§ 965. Negligence

To entitle the plaintiff to recover damages in action for negligence, he must prove by a preponderance of the evidence the negligence of defendants, and that the negligence alleged and proved was the proximate cause of his injury.84

In an action against a municipality for personal injuries, there is no presumption that either party is guilty of negligence, and to entitle plaintiff to recover he must show that the injuries were caused by reason of the negligence of the defendant, and the burden is on the defendant to prove the plaintiff's contributory negligence. 86

85

84 Lusk v. White, 58 Okl. 773, 161 P. 541; Patterson v. Seals, 51 Okl. 347, 151 P. 591; St. Louis & S. F. R. Co. v. Davis, 132 P. 337, 37 Okl. 340; Atchison, T. & S. F. Ry. Co. v. St. Louis & S. F. Ry. Co., 41 Okl. 80, 135 P. 353, 48 L. R. A. (N. S.) 509.

St.

The mere occurrence of injury creates no presumption of negligence. Louis & S. F. R. Co. v. Fick, 47 Okl. 530, 149 P. 1126; Chicago, R. I. & P. Ry. Co. v. Watson, 127 P. 693, 36 Okl. 1; Chicago, R. I. & P. Ry. Co. v. Tate, 57 Okl. 215, 156 P. 1182.

Const. art. 23, § 6, which requires that the question of contributory negli gence or assumption of risk be left to the jury, does not relieve plaintiff from the burden of proving negligence of defendant constituting the proximate cause of the injury. Chicago, R. I. & P. R. Co. v. Duran, 38 Okl. 719, 134 P. 876.

The principle expressed by the formula "res ipsa loquitur" is that, where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if proper care be used, it affords reasonable evidence, in the absence of explanation by defendant, that the accident arose from lack of proper care. Muskogee Electric Traction Co. v. McIntire, 133 P. 213, 37 Okl. 684, L. R. A. 1916C, 351.

The burden of proving that negligence in running train without headlight was the proximate cause of death is on plaintiff, seeking recovery therefor. Kansas City Southern Ry. Co. v. Langley, 62 Okl. 49, 160 P. 451.

In an action for injury to stock due to defective cattle guards, the burden was on plaintiff to prove the negligence charged; the accident itself raising no presumption of negligence. Midland Valley R. Co. v. Bryant, 131 P. 678, 37 Okl. 206.

85 Oklahoma City v. Reed, 87 P. 645, 17 Okl. 518, 33 L. R. A. (N. S.) 1083. It is incumbent upon the plaintiff to show, if he was injured, that it was caused by reason of the negligence of defendant in not keeping its streets and sidewalks in repair, and that in passing upon the street he used reasonable and ordinary care. City of Guthrie v. Thistle, 49 P. 1003, 5 Okl. 517. 86 Town of Fairfax v. Giraud, 131 P. 159, 35 Okl. 659.

If a person attempts to pass over a sidewalk, bridge or other structure, knowing the same to be in a dangerous condition, and in such attempt receives an injury, his knowledge of the danger will presumptively establish

In a personal injury action against an electric light company, evidence that plaintiff was injured on a public street without fault on his part by improper insulation or derangement of defendant's appliances raises a presumption of negligence by defendant, casting on it the burden of showing that it exercised due care.87 If the evidence of plaintiff shows that plaintiff was guilty of contributory negligence, a demurrer to plaintiff's evidence should be sustained. $8

A child under 7 years of age, or, in the absence of evidence of capacity, between 7 and 14 years of age, is presumed to be incapable of guilt of more than technical trespass, as affecting the question of duty of a landowner as to dangerous condition of the premises.89

contributory negligence; but such presumption is not conclusive. Pitman v. City of El Reno, 37 P. 851, 2 Okl. 414, judgment reversed Pittman v. Same, 46 P. 495, 4 Okl. 638.

87 Shawnee Light & Power Co. v. Sears, 95 P. 449, 21 Okl. 13. The placing and maintaining of electric light wires so close to telephone wire that they come in injurious contact presumably constitutes negligence on the part of the owner of the former. Weleetka Light & Water Co. v.

Northrop, 140 P. 1140, 42 Okl. 561.

88 Pitman v. City of El Reno, 46 P. 495, 4 kl. 638.

89 City of Shawnee v. Cheek, 137 P. 724, 41 Okl. 227, 51 L. R. A. (N. S.) 672, Ann. Cas. 1915C, 290.

(863)

DIVISION IV.-DOCUMENTARY EVIDENCE

Subdivision 1.-Statutes, Ordinances, and Public Records

997. Acts of Congress-Statute books-Legislative journals. Foreign laws.

998.

1037. Separate or subsequent oral contract.

1038. Evidence explanatory of writing.

1039. Evidence showing performance or discharge.

DIVISION VI.-OPINION EVIDENCE

Subdivision I.-Nonexpert Testimony

1040. Conclusions and opinions in general.

1041. Nonexpert witnesses in general.

1047.

1048.

Physical appearances, conduct, and condition.
Financial condition.

1049. Medical and surgical practice.

1059.

Identification.

Dangerous and safe conditions-Negligence,

1060. Competency and skill.

DIVISION IX.-BEST AND SECONDARY EVIDENCE

Necessity of best evidence.

Matters evidenced by writing.

Public records.

Court records.

1074.

1075.

1076.

1077.

1077a.

1078.

1079.

1080.

Copies.

1081.

1082.

1083.

1084.

Evidence at former trial or other proceeding. Contents of writing.

Collateral writings.

Secondary evidence admissible when.

Notice.

DIVISION X.-DEMONSTRATIVE EVIDENCE

Exhibition of person.

Exhibition of articles.