                    UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                             No. 00-60067
                           Summary Calendar



                              JIMMY BOX,
                                                 Plaintiff-Appellant,

                                VERSUS

BIRMINGHAM SOUTHEAST, LLC, doing business as Birmingham Southeast
         Scrap Yard; INTERNATIONAL MILL SERVICES , INC.,

                                                 Defendants-Appellees.


                            SARAH NELL BOX,
                                                 Plaintiff-Appellant,
                                VERSUS

  BIRMINGHAM SOUTHEAST SCRAP YARD; INTERNATIONAL MILL SERVICES,
                              INC.,

                                                 Defendants-Appellees.




             Appeal from the United States District Court
               For the Southern District of Mississippi
                             (3:99-CV-551)
                           October 19, 2000


Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*


     *
         Pursuant to 5TH CIR. R. 47.5, the Court has determined that

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     Plaintiffs Jimmy Box and Sarah Nell Box appeal the district

court’s order denying their Motion for New Trial and to Correct

Judgment.    Mr.   and   Mrs.    Box   argue    that    the   jury   reached   a

compromise   verdict     and    awarded     inadequate    damages    in   their

negligence suit against the defendants.                We conclude that the

district court did not abuse its discretion and affirm.

                                       I.

     On May 6, 1998, Jimmy Box delivered a load of scrap metal to

Birmingham Southeast’s scrap yard.            Mr. Box parked his tractor-

trailer alongside several railway cars, and the crane operator

unloaded the scrap from Mr. Box’s trailer.             During the course of

the operation, several new railway cars began moving into position

for unloading. At the same time, Mr. Box moved his tractor-trailer

in the way of the oncoming railway cars.         Although the railway cars

were moving only two miles-per-hour, the scrap yard employees could

not bring the cars to a complete stop before the cars hit Mr. Box’s

truck on the passenger side.

     At trial, the parties presented conflicting evidence as to

their respective liability.        Mr. Box claimed that the scrap yard

employees instructed him to move his trailer. Birmingham Southeast

claimed that he moved his truck on his own volition.             Furthermore,

Mr. Box claimed that he received               extensive injuries to his



this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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shoulder as   a   result   of    the   accident.   Birmingham   Southeast

presented testimony that the train’s impact with the truck was

minimal and that Mr. Box        got out of his truck after the accident

and appeared to be unharmed.       The parties also disputed the extent

of Mr. Box’s damages resulting from the accident.

     The jury verdict did not apportion liability to either party,

but awarded $100 to Mr. Box and nothing to Mrs. Box for her alleged

loss of consortium.   The plaintiffs filed a motion for new trial on

the issue of damages pursuant to Federal Rule 59(a), claiming that

the damage award was grossly inadequate and that the award stemmed

from a compromise verdict.       The district judge denied plaintiffs’

motion, and the plaintiffs appealed.

                            II. Discussion

     We review a district court’s order denying a motion for new

trial under an abuse of discretion standard.        See Hidden Oaks

Ltd. v. City of Austin, 138 F.3d 1036, 1051 (5th Cir. 1998).

“[O]ur review is more narrow when a new trial is denied than when

one is granted.” Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th

Cir. 1998).   However, the limits of the trial judge’s discretion

depend on the type of claims raised by the appellants.          See

Yarbrough v. Sturm, Ruger & Co., 964 F.2d 376, 379 (5th Cir.

1992) (applying a totality of the circumstances test to a

compromise verdict claim); Hidden Oaks Ltd., 138 F.3d at 1051

(holding that a jury verdict will support damages unless there is


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an absolute absence of evidence that could form the basis of the

award).

                                 A. Compromise Verdict

       If the record demonstrates that the jury’s assessment of

liability or damages stemmed from a compromise, the aggrieved party

is entitled to a new trial. See Yarbrough, 964 F.2d at 379.                   “[W]e

examine the ‘totality of the circumstances’ and consider any

indicia of compromise from the record . . . that may have caused a

verdict for damages that would be inadequate if the jury actually

found liability.”             Id. (citing Pagan, 931 F.2d at 339).2           If the

jury disregarded uncontested damages or the record demonstrates

that the jury was confused on issues of contributory negligence,

then       an    award   of   nominal   damages    raises   the   suspicion    of   a

compromise verdict.              See id. at 339 n.2 (citing National R.R.

Passenger Corp. v. Koch Indus., 701 F.2d 108, 110 (10th Cir.


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        We have considered factors such as (1) whether the issue of

liability was strongly contested, (2) whether the jury was confused

concerning contributory negligence, (3) whether either party urged

the trial court to accept the verdict finally rendered, (4) how

long       the    jury   deliberated,     (5)     whether   the   jury   requested

additional instructions, and (6) whether the jury attempted to

qualify its award in any way.            See Pagan, 931 F.2d at 339; Hatfield

v. Seaboard A.L.R. Co., 396 F.2d 721, 723-24 (5th Cir. 1968);

Burger King Corp. v. Mason, 710 F.2d 1480, 1488 (11th Cir. 1983).

                                           4
1983)). “However, a nominal or inadequate finding of damages alone

does not automatically mandate the conclusion that a compromise

verdict produced the award.”          Pagan, 931 F.2d at 339.

     The appellants argue that the $100 damage award represents

less than one percent of the $2,450 that appellants claim is the

amount of     damages   to    which   the    parties    stipulated     at   trial.

Because the damage award suggests that                Birmingham Southeast was

less than one percent liable, the appellants argue that the jury

either (1) disregarded the stipulated evidence of damages or (2)

was confused concerning contributory negligence.                  Therefore, the

appellants argue that the jury compromised in reaching its verdict.

     The appellants’ claim is without merit.                First, the jury did

not ignore stipulated damages.              The defendants’ attorney agreed

that the plaintiff’s income was $1,450 lower after the accident.

However, the parties never agreed that the decline in Mr. Box’s

earnings stemmed from his alleged injury.                    Tr. at 20.         The

defendants conceded that, at the very most, Mr. Box was entitled to

$1,000   in   insurance      deductibles.       Tr.    at   16.     However,    the

defendants argued that this amount could be reduced by Mr. Box’s

own negligence.     Tr. at 584.

     Second, there is no indicia to support a finding that the jury

was confused concerning contributory negligence.                  There was ample

evidence throughout the record to support the jury’s assessment of

damages.      For   example,    the   defendants       claimed     that   Mr.   Box



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fabricated his injury and was capable of performing the same work

as before his alleged injury occurred.             To support their position,

the defendants offered a videotape of Mr. Box working on his bass

boat and using the same arm he claimed was painful to move.                 Tr. at

22-24.    Therefore, the jury could have disregarded any evidence of

Mr. Box’s medical expenses and loss of earning capacity.                       In

addition, the defendants’ attorney asked the jury to consider only

the $1,000 insurance deductible as possible damages, reduced by the

portion of Mr. Box’s own negligence.                 Tr. at 584. The $100 in

damages      awarded   by   the   jury   is    ten   percent   of     the   $1,000

deductible. In light of the testimony presented at trial, the jury

could reasonably find Birmingham Southeast only ten percent liable

for the damage to Mr. Box’s tractor-trailer. Therefore, the record

does not show that the jury was confused concerning contributory

negligence.      Furthermore, the appellants have not argued and the

record does not demonstrate any other basis on which we could

conclude that the jury compromised in reaching its verdict.

                            B. Adequacy of Damages

       In reviewing whether the district court abused its discretion

in denying appellants’ motion for new trial because of inadequate

damages, we determine whether there is an absolute absence of

evidence to support the jury’s verdict.              See Hidden Oaks Ltd., 138

F.3d    at    1051.     “In   addition,       we   will   interfere    with   the

factfinder’s award of damages only in extreme and exceptional cases



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where the award is so gross . . . as to be contrary to right

reason.”   Young v. City of New Orleans, 751 F.2d 794 (5th Cir.

1985) (quoting Baily v. Southern Pac. Transp. Co., 613 F.2d 1385,

1390 (5th Cir. 1980).

     Sarah Nell Box claimed that she suffered damages from loss of

consortium because of her husband’s alleged injury.   However, the

defendants, through cross-examination of Mrs. Box, demonstrated

that Mrs. Box could not attribute her marital problems to her

husband’s injury.   Tr. at 336-42.    She also testified that the

reason she filed the lawsuit was to secure an interest in the

litigation because of her pending divorce proceeding against her

husband. Tr. at 335-36. Therefore, the jury’s verdict is supported

by evidence that Mrs. Box did not suffer damages from loss of

consortium. This is clearly not the type of exceptional case where

the award is so inadequate as to be contrary to right reason.   In

fact, testimony at trial supports the verdict.

     Because the record fails to show that the jury reached a

compromise verdict or that the jury assessed inadequate damages, we

conclude that the district court did not abuse its discretion by

denying the motion for new trial.

AFFIRM




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