We cannot say that the court erred in its decision of this case. Under the facts as found, it does not conclusively appear that the defect complained of was of such a character as to render the town liable for the accident in question, and hence it was competent for the presiding justice to find that there was no negligence on the part of the town. And he having so found, his judgment upon this question, in case there is a petition for a new trial, takes the place of the verdict of a jury and has the same effect. Pub. Laws R.I. cap. 451, § 3. The plaintiff's petition, therefore, cannot be granted unless the decision is clearly wrong, and we do not think it is. It is a close case and one upon which different minds might honestly arrive at different conclusions, as is clearly shown by the fact that it has been tried by three different juries and has resulted in a disagreement on each trial.
The petition for a new trial is denied and judgment ordered for the defendant on the decision.