265 A.2d 739

BARBARA RABAU, p.a. et al. vs. CECILE GAUDREAU et al.

Supreme Court of Rhode Island.
May 21, 1970.

PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.

NEW TRIAL. Motion for New Trial. Rule Governing Trial Justice. When trial justice denied motions of plaintiffs for additurs or, in the alternative, new trials, they had the burden of establishing that in denying the motions for new trials the trial justice failed to perform his duty as outlined in Barbato v. Epstein, 97 R.I. 191, 193-94, 196 A.2d 836, 837, or, that in its performance, he either overlooked or misconceived material evidence or was otherwise clearly wrong.

CIVIL ACTIONS, before Supreme Court on appeal of plaintiffs from judgments entered by Del Sesto, J., of Superior Court, heard and appeal denied and dismissed and judgments affirmed.

PER CURIAM.

A jury in the Superior Court awarded Barbara Rabau $200 for injuries sustained when she was struck by a motorcycle owned by one of the two defendants and operated by the other, and it also awarded her mother, Ruth, $427 for consequential damages. Each plaintiff moved for an additur or alternatively for a new trial solely on the issue of damages, and when the trial justice denied their motions they appealed.

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For the plaintiffs to succeed in their appeal they must establish that the trial justice in considering the motion for a new trial failed to perform his duty as outlined in Barbato v. Epstein, 97 R.I. 191, 193-94, 196 A.2d 836, 837, or that in its performance he either overlooked or misconceived material evidence or was otherwise clearly wrong. Handy v. Geary, 105 R.I. 419, 435, 252 A.2d 435, 443; Dawson v. Rhode Island Auditorium, Inc., 104 R.I. 116, 123, 242 A.2d 407, 412; Notarantonio v. Damiano Bros. Welding Co., 101 R.I. 173, 177, 221 A.2d 473, 475. They failed to meet that burden.

The plaintiffs’ appeal is denied and dismissed and the judgments appealed from are affirmed.

Joseph Marran, Jr., for plaintiffs.

Keenan, Rice, Dolan Reardon, Leonard A. Kiernan, Jr., for defendants.