Duperre v. International Fueling Co.

272 A.2d 152, 108 R.I. 79, 1971 R.I. LEXIS 1226

• Court: Supreme Court of Rhode Island
• Decided: January 8, 1971
• Status: Published

Opinion

Per Curiam.

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.

Joseph E. Marran, Jr., for plaintiff. Higgins, Cavanagh & Cooney, Joseph V. Cavanagh, for defendants.

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.