Hillside Leasing, Inc. v. Sandin , 106 R.I. 369 ( 1969 )

Pee Curiam.

This civil action, originating in the Superior Court, involves a collision between a truck and automobile which occurred about 8:45 a.m. on October 29, 1966, in the town of West Warwick. The truck, owned by one plaintiff and carrying goods belonging to the other, was proceeding easterly on West Warwick Avenue when it collided with the defendant’s automobile which was traveling in the opposite or westerly direction along the same highway. According to the truck operator, his vehicle was at a complete standstill in the eastbound lane when the accident occurred. The defendant, on the other hand, testified that his vehicle did not cross the midline of the highway, and that h,e did not see the truck until it struck his automobile.

The case was submitted to a jury on the issues of negligence, contributory negligence, last clear chance and damages. The verdict was for defendant. On plaintiffs’ motion for a new trial the trial justice reviewed the material evidence, and, in the exercise of his independent judgment, rejected defendant’s testimony. Then, viewing the record thus purged of what had been discarded as lacking credibility, he decided that the verdict was contrary to the great weight of the evidence and granted the motion for a new trial and the defendant appealed.

In our judgment the trial justice correctly performed the duty which was incumbent upon him in considering a motion for a new trial. In setting aside the verdict he neither overlooked nor misconceived any material evidence, nor was he clearly wrong. Under our well-established rule his decision will not be disturbed. Barboto v. Epstein, 97 R. I. 191, 196 A.2d 836.

The defendant’s appeal is denied and dismissed, the judgment granting plaintiffs’ motion for a new trial is affirmed, and the case is remitted to the Superior Court for further proceedings.

Gelfuso and Cappalli, Richard A. Cappalli and Alan P. Gelfuso, for plaintiffs. Keenan, Rice, Dolan & Reardon, Leonard A. Kiernan, Jr., for defendant. Powers, J., did not participate.