Hubbard v. Williamson

• Decision Date: 19 August 1981
• Citation: 404 So.2d 690
• Parties: Rayford D. HUBBARD v. Tommy Ray WILLIAMSON. Civ. 2798.
• Court: Alabama Court of Civil Appeals

Page 690

404 So.2d 690

Rayford D. HUBBARD v. Tommy Ray WILLIAMSON.

Civ. 2798.

Court of Civil Appeals of Alabama.

Aug. 19, 1981.

Rehearing Denied Sept. 23, 1981.

Jim Zeigler, Millbrook, for appellant.

Richard A. Lawrence, Montgomery, for appellee.

BRADLEY, Judge.

This is an appeal from a judgment in favor of plaintiff in a negligence action.

Tommy Ray Williamson sued Rayford W. Hubbard for damages resulting from a collision between his motorcycle and Hubbard's car allegedly caused by Hubbard's failure to yield the right-of-way. Hubbard counterclaimed contending Williamson negligently collided with his car.

The case was tried before the court sitting without a jury on February 20, 1981. Judgment was entered on March 2, 1981 in favor of Williamson for the sum of $3,500 and costs. Hubbard filed a motion for new trial alleging newly discovered evidence and an alternative motion for reconsideration. Both motions were denied on April 8, 1981. Hubbard appealed.

The record reveals the following facts. Williamson was on his way to work at approximately 4:30 a. m. on March 4, 1981 when he was involved in a collision with an automobile at the intersection of Highway 14 and Brownwood Road in Elmore County.

The record tends to show that Williamson was riding his motorcycle down Highway 14 toward the intersection of Highway 14 and Brownwood Road. The motorcycle's headlight was on and he was wearing an orange vest. Hubbard pulled up to a stop sign at this intersection and waited for a couple of cars to pass and then pulled out onto Highway 14. As Hubbard pulled out into the intersection, Williamson hit his car in the vicinity of the right rear passenger door. Williamson was thrown from his motorcycle and had to be taken to the hospital where he was treated and released. Hubbard was not injured.

Williamson testified that he saw Hubbard pull up to the stop sign and stop. Williamson then glanced at his tach gauge and when he looked back up Hubbard had pulled out in front of him and he had no time to stop or avoid a collision. Hubbard testified that he looked both ways after the two cars had passed and he did not see Williamson.

Williamson incurred a serious cut to his left elbow, requiring medical attention. He suffered considerable pain and discomfort.

Williamson lost fourteen days from work which cost him about $722. He also received a doctor's bill of $415 and a hospital bill of $174. The repair estimate for his motorcycle was $1,222.

The state trooper who investigated the accident testified without objection that in his opinion Hubbard's vehicle failed to yield the right-of-way to Williamson.

Appellant's first issue is whether the trial court erred in refusing to view his damaged automobile. In a nonjury case the trial judge has the discretion to make an out-of-court view. Fowler v. Fayco, Inc., 290 Ala. 237, 275 So.2d 665 (1973); Monroe Bond & Mortgage Co. v. State, ex rel. Hybart, 254 Ala. 278, 48 So.2d 431 (1950); Gamble, McElroy's Alabama Evidence § 208.02 (3d ed. 1977). In the case at bar appellant, after he had rested, made a statement to the trial court that the vehicle damaged in the collision was available for inspection; he did not request the court to view the vehicle. Nevertheless, the trial court declined to do so.

Whether plaintiff in fact requested the court to view the vehicle or whether he merely informed the court that the vehicle was available for viewing is not determinative for the reason that the trial court exercised its discretion and declined to view the automobile. Such action was not an...