Opinion
January 8, 1971.
PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher. JJ.
NEW TRIAL. Motion for New Trial. Duty of Trial Justice. Where the trial justice granted defendants' motion for a new trial unless plaintiff remitted all of verdict in excess of a certain amount, Supreme Court was not satisfied that plaintiff on appeal sustained burden of showing the trial justice failed to perform the duties required of him on a motion for a new trial, or that having done so, he had overlooked or misconceived any material evidence on a controlling issue or was otherwise clearly wrong.
CIVIL ACTION, before Supreme Court on appeal of plaintiff from judgment entered following decision by Fanning J., of Superior Court, granting motion of plaintiff for a new trial on the issue of damages unless he filed a remittitur, heard and appeal denied and dismissed, judgment affirmed and case remitted to Superior Court for further proceedings.
Joseph E. Marran, Jr., for plaintiff.
Higgins, Cavanagh Cooney, Joseph V. Cavanagh, for defendants.
In this civil action for personal injury sustained in a rear-end collision a jury in the Superior Court returned a plaintiff's verdict for $45,000. Thereafter the defendants' motion for a new trial was granted on the issue of damages only, unless the plaintiff remitted all of the verdict in excess of $12,500. The plaintiff refused to file the remittitur and appealed.
On this appeal he has not persuaded us that the trial justice failed to perform the duties required of him as prescribed in Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836, or that, having done so, he overlooked or misconceived any material evidence on a controlling issue or was otherwise clearly wrong. To carry that burden is the initial responsibility of one who challenges the decision of the trial justice on a motion for a new trial. Labbe v. Hill Brothers, Inc., 97 R.I. 269, 197 A.2d 305; Barbato v. Epstein, supra. It was not satisfied in this case, and, therefore, the plaintiff's appeal is denied and dismissed, the judgment appealed from is affirmed and the case is remitted to the Superior Court for further proceedings.