*Pursuant to 5

TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstancesset forth in 5

TH CIR. R. 47.5.4.

 

1 Babin originally filed suit in the 32nd Judicial District Court for the Parish of Terrebonne,

State of Louisiana. Shoney’s, Inc. timely removed the action to the United States District Court for the Eastern

District of Louisiana.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-30280

Summary Calendar

HUGH J. BABIN,

Plaintiff-Appellant,

VERSUS

SHONEY’S INCORPORATED,

Defendant-Apellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 96-CV-2364-L

_____________________________________________________________

February 18, 1999

BEFORE WISDOM, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:*

The plaintiff, Hugh J. Babin, filed suit against the defendant, Shoney’s Incorporated,

seeking to recover damages for injuries allegedly suffered when he slipped and fell on the floor of

a Shoney’s Restaurant.1 Babin sought to recover general damages for three categories of injury

which he alleged to have resulted from the accident: (1) loss of hearing; (2) neck injury and

cervical disk surgery; and (2) low back injury. He also sought special damages for medical

expenses. The case was tried to a jury. Because Shoney’s, Inc. stipulated to liability, the only

issue to be decided by the jury was the extent of damages to be awarded. The jury awarded Babin
 

2 Winter v. Brenner Tank, Inc., 926 F.2d 468, 471 (5th Cir. 1991); Shows v. Jamison Bedding,

Inc., 671 F.2d 927, 930 (5th Cir. 1982).

 

3 Shows, 671 F.2d at 930.

 

4

Id. (quoting Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 363 (5th Cir.

1980)).

2

$8,000.00 for past pain and suffering and $1,000.00 for past medical expenses. The jury did not

award Babin recovery for future medical expenses and future pain and suffering. After the district

court entered judgment on the jury’s verdict, Babin filed a Motion for Judgment as a Matter of

Law, or, in the alternative, a Motion for New Trial challenging the adequacy of the damage

award. The district court denied these motions. Babin timely filed this appeal. We affirm.

We review the district court’s denial of the Motion for a New Trial for an abuse of

discretion.2 “When the trial judge has refused to disturb a jury verdict, all the factors that govern

our review of his decision favor affirmance. Deference to the trial judge, who has had an

opportunity to observe the witnesses and to consider the evidence in the context of a living trial

rather than upon a cold record, operates in harmony with deference to the jury’s determination of

the weight of the evidence and the constitutional allocation to the jury of questions of fact.”3 A

new trial should not be granted “unless, at a minimum, the verdict is against the great -- not

merely the greater -- weight of the evidence”.4

In the instant case, the jury’s verdict was not against the great weight of the evidence. 

Our review of the record indicates that there was more than sufficient evidence presented at trial

to support a jury finding that Babin’s hearing loss and neck and back problems were caused not

by his fall at the Shoney’s restaurant, but by a fall that occurred two years prior while in Missouri. 

The district court did not abuse its discretion.

AFFIRMED.