Triplett v. Goodway Transport, et al

*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this opinion should not be published and is not precedent except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.
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

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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.

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