WILLIS v. EXCELLO BOTTLING & ICE CO. et al.

(81 South. 15) WILLIS v. EXCELLO BOTTLING & ICE CO. et al. (4 Div. 690.) (Supreme Court of Alabama. Feb. 13, 1919.) Appeal and Error &wkey;>9Bl(l) — Presumptions Favoring Trial Court — Finding on Issues oe Fact. Where evidence was in sharp conflict, and numerous witnesses were examined on each side, judge trying case without jury having advantage of observing their demeanor on stand, presumption on appeal is in favor of correctness, of his finding on issues of fact. Appeal from Circuit Court, Henry County; H. A. Pearce, Judge. Suit by T. T. Willis against the Excello Bottling & Ice Company and another. From a judgment for defendants, plaintiff appeals. Affirmed. Appellant brought suit against the Excello Bottling & Ice Company and one T. H. MeGriff to recover damages for injuries to himself and his car in an accident occurring on the public roads of Henry county, which he charges was caused hy the wrongful conduct of the servant or agent of the defendants. The evidence for the plaintiff tended to show that while he was driving an automobile along the public highway he met an auto truck driven by defendants or their agent, whereupon plaintiff turned to the right to allow passage; but the driver of said auto truck failed or refused to turn to the right and give plaintiff any road, and thus forced plaintiff off an embankment, causing his ear to turn over, producing the injuries set forth in the complaint. His .evidence further tended to show that it was about dark at the time of the accident, and that the auto truck was being driven with only one light on the front, which was also a proximate cause of the injury. The defendants’ evidence tended to show that the auto truck was being run at a moderate rate of speed, with two lights burning on the front, and that upon meeting the plaintiff’s ear the auto truck turned to the right, giving ample room for passage.. Defendants’ evidence further tended to show that plaintiff was driving a Ford car at a rate of 25 or 30 miles an hour and after passing said auto truck made a sudden turn upon seeing another car, thus producing the accident. There was judgment for the defendants, from which plaintiff prosecutes this appeal. D. G. Halstead, of Headland, and Lee & Thompkins, of Dothan, for appellant. T. M. Espy, of Dothan, for appellees. [MAJORITY — GARDNER, J.] GARDNER, J. This cause was tried upon oral testimony before the court without the intervention of a jury, and this appeal presents only the question as to whether or not the finding of the court below on tbe issues of fact should be disturbed. The evidence for the respective parties was in sharp conflict, and numerous witnesses were examined upon each side of the case. The trial judge had the witnesses before Mm and the advantage of observing their demeanor upon the stand, and, under the long-established rule in this court, under such circumstances, the presumption is in favor of the correctness of Ms ruling. Price v. Price, 199 Ala. 433, 74 South. 381. We have given the evidence careful consideration, and are not persuaded that the finding of the court below should be disturbed. The judgment will accordingly be affirmed. Affirmed. ANDERSON, O. J., and McOLELLAN and SAYRE, JJ., concur.