Smith by and Through Flowers v. Sistrunk

448 So. 2d 955, 1984 Ala. LEXIS 3993

Opinion

FAULKNER, Justice.

This appeal was filed in the Court of Civil Appeals. That Court determined that it did not have jurisdiction and transferred the case to this Court.

Travis Smith, a child seven years old, was injured at the intersection of Gentry and Dominey Streets in Enterprise, Alabama, on September 19, 1981, while riding a girl’s bicycle. Through his next friend, Willie Pearl Flowers, he sued Earnest Sis-trunk for $5,000.00 damages for injuries allegedly resulting from Sistrunk’s negligence in the operation of an automobile. The complaint was later amended to claim $25,000.00, and the case was transferred from district court to the circuit court for trial. Neither side demanded a trial by jury and the case was tried before a circuit judge sitting without a jury.

At the conclusion of the evidence, the trial judge entered a judgment for Sis-trunk. He overruled a post-trial motion on the ground that the plaintiff had failed in the burden of proof. Additionally, the judge’s order stated that the evidence on the trial of the case did not reasonably satisfy the court that the defendant was negligent.

Upon a review of the evidence, we conclude that the trial judge was correct, and we affirm. A review of the evidence would support the conclusion that Travis skidded his bike into the automobile driven by Sis-trunk, rather than the conclusion that, as Travis contends, Sistrunk “sideswiped” him at the intersection with the automobile. We do not find from the record any evidence that there was any negligence on the part of Sistrunk at that time and place.

The judgment of the trial court is affirmed.

AFFIRMED.

TORBERT, C.J., and ALMON, EMBRY and ADAMS, JJ., concur.