We have held repeatedly that when a trial justice, on hearing a motion for a new trial, has performed his duty by passing his independent judgment on conflicting evidence and the credibility of the witnesses, his decision will not be set aside unless it is clearly wrong. Aiello v. National-Ben Franklin Fire Ins. Co., 78 R.I. 114; Bradley v. Brayton, 61 R.I. 44. In the instant case, in passing on the credibility of the witnesses and in finding that the evidence was not nearly balanced and that the verdict of the jury on this record was not supported by a preponderance of the credible evidence, the trial justice was performing his duty under the rule.
In such circumstances we cannot disturb the decision of the trial justice on a motion for a new trial unless it is clearly wrong. Aiello v. National-Ben Franklin Fire Ins. Co. of Pittsburgh, Pa., 78 R.I. 114. From our examination of the record we cannot say that he has either overlooked or misconceived any material evidence or that his decision is clearly wrong. Therefore we cannot disturb it, and this exception is overruled.