On a motion for a new trial on the ground that the verdict is contrary to the weight of the evidence, the trial justice has the obligation of exercising his independent judgment in passing on the weight of the material evidence adduced at the trial and on the credibility of the witnesses who testified thereat. Cinq-Mars v. Standard Cab Co., 103 R.I. 103, 235 A.2d 81; Martinelli v. Steiner, 84 R.I. 339, 123 A.2d 924. [2,3] It is clear from the record that the trial justice here did consider the weight to be given to the evidence and the credibility of the witnesses.

Having such misgivings, it was his duty to independently weigh the evidence, pass on credibility, and, applying his findings to the law as he gave it to the jury, set the verdict aside if, in his superior judgment, the credible evidence as viewed by him fairly preponderated against the verdict. Dawson v. Rhode Island Auditorium, Inc., 104 R.I. 116, 242 A.2d 407; Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836; Martinelli v. Steiner, 84 R.I. 339, 123 A.2d 924. This he failed to do, and in such circumstance it is the duty of this court to examine the record for ourselves and grant a new trial if the evidence, as we view it, strongly preponderates against the jury's verdict.

The plaintiff's remaining exception is to the denial of his motion for a new trial. In support thereof, he argues that in considering such motion the trial justice did not exercise his independent judgment in passing on the weight of the evidence and on the credibility of the witnesses as he is required to do, citing Martinelli v. Steiner, 84 R.I. 339. Rather, plaintiff contends, the trial justice in effect merely adopted what he assumed to be the findings on which the jury based its verdict. In so doing, plaintiff argues, the trial justice failed to discharge his duty in accordance with our well-settled rule.

He argues, first, that the trial justice failed to comply with the duty imposed upon him in passing upon such motion, that is, to pass upon the evidence, the weight thereof, and the credibility of the witnesses in an independent exercise of his own judgment. Martinelli v. Steiner, 84 R.I. 339. With this we are unable to agree.

The defendants have, however, both briefed and argued two contentions, namely, that the trial justice failed to exercise his independent judgment in passing on the verdicts, since the evidence did not support plaintiff's claim of actual damages amounting to some $4,000; and that the size of the verdicts, even viewing the evidence most favorably to plaintiff, was so grossly excessive as to shock the conscience of the court. They contend that the view of the evidence taken by the jury is so greatly at odds with the testimony of the three doctors and even that of plaintiff, as to demonstrate that the trial justice failed to pass upon either evidence or credibility in the exercise of his independent judgment as required. Martinelli v. Steiner, 84 R.I. 339; Baker v. Kinnecom, 68 R.I. 453. We are not persuaded that the trial justice did not comply with the rule insofar as he was required to give this court the benefit of his independent judgment in passing on the weight of the evidence as well as the credibility of the witnesses.

It appears from the record that the trial justice passed upon the weight of the evidence and the credibility of the witnesses in an exercise of his independent judgment and thus complied with the duty incumbent upon him when passing on a motion for new trial after verdict. Martinelli v. Steiner, 84 R.I. 339. The petitioner argues, as we understand him, that having complied with that duty and having indicated in his decision that on this conflicting testimony the question as to the amount of the damages was for the jury, the trial justice then erroneously proceeded to substitute his own opinion for that of the jury with respect to whether the amount awarded was grossly excessive.

It is the obligation of a trial justice, when considering a motion for a new trial, to pass upon the evidence in an exercise of his independent judgment both as to the weight thereof and as to the credibility of the witnesses. Martinelli v. Steiner, 84 R.I. 339. In the instant case it is argued that while the record reveals a reference by the trial justice to his obligation to so pass upon the weight and credibility, it does not appear therefrom that he did in fact, in an exercise of his independent judgment, weigh the evidence and pass upon the credibility of the witnesses.