Triplett v. Goodway Transport

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 29, 2000
• Docket: 99-60711
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60711 Summary Calendar

CHARLIE TRIPLETT,

Plaintiff-Appellant,

versus

GOODWAY TRANSPORT, INC.; SCHANNO TRANSPORTATION, INC.; and GARY LEE BORING,

Defendants,

SCHANNO TRANSPORTATION, INC. and GARY LEE BORING,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Mississippi Lower Court Docket 3:97-CV-317-WS

August 28, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant Charlie Triplett contests the district

court’s denial of his motion for judgment as a matter of law or

for new trial. Finding no error of fact or law, we affirm.

For reasons clearly stated in the district court’s

post-trial opinion, we agree that Triplett failed to preserve at

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. trial his right to move for judgment as a matter of law under

Rule 50(b). We affirm the denial of the motion for judgment as a

matter of law on this ground.

In addition, the district court properly denied the

motion for new trial. Absent "’a clear showing of an abuse of

discretion,’" we will not reverse the trial court's decision to

deny a new trial. Hidden Oaks, Ltd. v. City of Austin, 138 F.3d

1036, 1049 (5th Cir. 1998), quoting Dawsey v. Olin Corp., 782

F.2d 1254, 1261 (5th Cir. 1986). In order to make such a "’clear

showing,’" Triplett would have to demonstrate "’an absolute

absence of evidence to support the jury's verdict.’" Hidden

Oaks, 138 F.3d at 1049, quoting Dawsey, 782 F.2d at 1262.

Triplett is unable to make this showing. At trial, the

defendants offered abundant, if not conclusive, testimony both

that Boring was not negligent and that the accident did not

proximately cause compensable injuries to Triplett. Whether this

testimony was credible was a question for the jury, not for the

courts. The district court could not have abused its discretion

in refusing to find the jury's verdict "contrary to the great

weight of the evidence." Hidden Oaks, 138 F.3d at 1049.

For the foregoing reasons, the judgment of the district

court is AFFIRMED.