Barbato v. Epstein
| Decision Date | 20 January 1964 |
| Docket Number | Nos. 10437,10438,s. 10437 |
| Parties | Joseph BARBATO v. Joseph D. EPSTEIN. Robert BARBATO p.a. v. Joseph D. EPSTEIN. Ex. |
| Court | Rhode Island Supreme Court |
Anthony Grilli, McGee & Doorley, Frank J. McGee, Providence, for plaintiff.
Carroll & Dwyer, John G. Carroll, Providence, for defendant.
These are two actions of trespass on the case for negligence brought by a father and his minor son. The cases were tried to a jury in the superior court together with a third case brought by the operator of the Barbato motor vehicle against the defendant. In each case a verdict for the defendant was returned and the plaintiff filed a motion for a new trial. The trial justice denied the motion in the case of the operator, but granted it in each of the instant cases which are not before us on the defendant's single exception thereto. Since liability in both cases is dependent upon our decision in the case of Robert Barbato we shall discuss only his case, but our decision will apply with equal force to both.
The relevant evidence in substance shows that on January 30, 1959 at about 1:30 p. m. the Barbato car in which plaintiff was a passenger stopped for a red traffic light as it reached the intersection of Fountain and Eddy streets in the city of Providence. It was the car first in line and was followed by a truck operated by defendant. The testimony on behalf of plaintiff is that the Barbato car stopped for the traffic light and that while its operator was giving directions to the occupants of a motor vehicle in the next traffic lane, and before it again proceeded, it was struck in the near by defendant's truck.
The defendant, on the other hand, testified that the Barbato car remained stationary after the traffic light changed from red to green; that he could not pass it because of traffic conditions; that be blew his horn about ten times; that thereafter it started up slowly; and that when it stopped suddenly without signal or warning it was hit in the rear by his truck which was proceeding slowly and in first speed. This was the evidence considered by the trial justice on plaintiff's motion for a new trial.
The duty of a trial justice in considering such a motion and the rules to be applied by him were determined more than half a century ago in McMahon v. Rhode Island Co., 32 R.I. 237, 78 A. 1012, Noland v. Rhode Island Co., 30 R.I. 246, 74 A. 914, and Wilcox v. Rhode Island Co., 29 R.I. 292, 70 A. 913, and have many times been repeated.
His duty is to consider in the exercise of his independent judgment all of the material evidence in the case in the light of his charge to the jury and to pass on its weight and the credibility of the witnesses. Cottrell v. Lally, R.I., 182 A.2d 302; McLain v. Tripp, 73 R.I. 105, 53 A.2d 919. In discharging that duty he can accept some or all of the evidence as having probative force; or he can reject some of the testimony because it is impeached or contradicted by other positive testimony or by circumstantial evidence, or because of inherent improbabilities or contradictions which alone or in connection with other circumstances satisfies him of its falsity, Somerset Realty Co. v. Shapiro, 51 R.I. 417, 420, 155 A. 360, or because it is totally at variance with undisputed physical facts or laws, Gallo v. Simpson Spring Co., 55 R.I. 410, 417, 181 A. 915; or he can add to the evidence by drawing proper inferences therefrom and giving weight thereto. Potemkin v. Leach, 65 R.I. 1, 9, 13 A.2d 250.
It is only after the completion of this process of acceptance, rejection, and addition that it becomes opportune for the trial justice to determine which of the two well-settled rules to apply. Stated otherwise, the application of the appropriate rule is made on the evidence accepted and inferences drawn therefrom and exclusive of so much thereof as may have been rejected. On that evidence he decides whether to approve the verdict even against doubts as to its correctness because the evidence is nearly balanced, or is such that different minds can naturally and fairly come to different conclusions thereon; or, in...
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King v. Huntress, Inc.
...v. University of Rhode Island, 880 A.2d 853, 856 (R.I.2005); Pollard v. Hastings, 862 A.2d 770, 777 (R.I.2004); Barbato v. Epstein, 97 R.I. 191, 193–94, 196 A.2d 836, 837 (1964). When making this independent appraisal, the trial justice must weigh the evidence and assess the credibility of ......
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State v. Ahmadjian, s. 77-129-C
...assess the credibility of the witnesses, and draw any inferences that can reasonably be drawn from the evidence. Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836 (1964). After performing these functions, if the trial justice is convinced that there is sufficient evidence to submit the case to ......
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King v. Huntress, Inc.
...University of Rhode Island, 880 A.2d 853, 856 (R.I. 2005); Pollard v. Hastings, 862 A.2d 770, 777 (R.I. 2004); Barbato v. Epstein, 97 R.I. 191, 193-94, 196 A.2d 836, 837 (1964). When making this independent appraisal, the trial justice must weigh the evidence and assess the credibility of w......
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DeCarvalho v. daSilva, 77-332-A
...116 R.I. 685, 699-700, 360 A.2d 540, 547 (1976), Gordon v. Campanella Corp., 112 R.I. 417, 311 A.2d 844 (1973), and Barbato v. Epstein, 97 R.I. 191, 196 A.2d 836 (1964). He specifically found that the defendant believed what he said to be true and that there was an absence of evidence of ac......