Opinion
December 10, 1965.
PRESENT: Roberts, Paolino and Joslin, JJ.
EXCEPTIONS. Decision by Trial Judge. Conflicting Evidence. Where evidence heard by trial judge was sharply conflicting as to how automobile collision occurred, and the fact issue created turned on credibility, Held, that having conceded the legal conclusion as to liability was correct if predicated on the facts as found, the party attacking the decision has the burden of showing the judge either misconceived or overlooked material evidence, or was clearly mistaken in his judgment of the credibility of the witnesses.
TRESPASS ON THE CASE for negligence actions heard in superior court by Perkins, J., before supreme court on exception to the decision in each case in favor of Feole. Exception in each case overruled and each case remitted to superior court for entry of judgment on the decision.
Guy E. Gallone, Martin E. Zucker, for Antonio Feole.
Gunning LaFazia, Raymond A. LaFazia, for Mario A. Pagano.
These cross actions of trespass on the case for negligence were consolidated for trial and heard before a justice of the superior court sitting without a jury. In each case the decision was for Feole, and in the case he prosecuted it was for $20,000. Each case is before us on Pagano's exception to the decision.
The causes of action arose out of a head-on collision between motor vehicles owned and operated by the respective parties. No purpose will be served by detailing the sharply conflicting evidence as to how the accident happened, it being sufficient to observe that the fact issue created turned on credibility. The trial justice in his bench decision summarized and evaluated the testimony and accepted Feole's version of the accident. In these circumstances, Pagano, having conceded that the legal conclusion as to liability is correct if predicated on the facts as found, is burdened under our rule with establishing that the trial justice in the course of the fact-finding process either misconceived or overlooked material evidence, or was clearly mistaken in his judgment of the credibility of the witnesses. Krall v. M.A. Gammino Construction Co., 97 R.I. 495, 199 A.2d 122. He has failed to meet that burden and the decision in each case must therefore stand.
In each case the exception is overruled, and each case is remitted to the superior court for entry of judgment on the decision.