Dedra SHANKLIN, Individually and as next friend of her son Jessie Guy Shanklin, Plaintiff-Appellee, v. NORFOLK SOUTHERN RAILWAY CO., Defendant-Appellant.
No. 01-6449.
United States Court of Appeals, Sixth Circuit.
Argued: Oct. 30, 2003. Decided and Filed: May 27, 2004.
369 F.3d 978
Everett B. Gibson (argued and briefed), Ralph T. Gibson (briefed), Bateman, Gibson, Memphis, TN, for Defendant-Appellant.
Before: MOORE and ROGERS, Circuit Judges; FORESTER, Chief District Judge.*
FORESTER, D.J., delivered the opinion of the court, in which MOORE, J., joined. ROGERS, J. (pp. 994-98), delivered a separate concurring opinion except as to Part V.
OPINION
FORESTER, Chief District Judge.
Defendant-Appellant Norfolk Southern Railway Company (“Norfolk“) appeals the district court‘s denial of its renewed motion for judgment as a matter of law filed following a jury trial in which judgment was entered in favor of Plaintiff-Appellee Dedra Shanklin (“Shanklin“) in the amount of $1,434,014.60. In 1993, a train operated by Norfolk struck the vehicle of Eddie Shanklin, Dedra Shanklin‘s husband, killing him. The fatal accident occurred at the Oakwood Church Road railroad crossing near Milan, Tennessee. Shanklin filed an action against Norfolk, asserting various common-law claims based on Norfolk‘s negligence in failing to install adequate warning devices at the crossing and in failing to remove vegetation from the area surrounding the crossing. Shanklin claimed that excessive vegetation and lack of adequate warning devices resulted in Eddie Shanklin‘s failure to perceive the imminently oncoming train prior to his vehicle‘s entry into the crossing, and thus into the train‘s path. In 1996, a jury found in Shanklin‘s favor. This Court subsequently affirmed the verdict, but the Supreme Court reversed with respect to the inadequate warning claim, holding that it was preempted by federal regulations governing the installation of warning devices. Norfolk So. Ry. Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000).
The Supreme Court remanded and the parties tried the vegetation claim before a second jury in 2001. Shanklin presented evidence, over Norfolk‘s objection, which tended to demonstrate that Norfolk knew that overgrown vegetation in the vicinity of railroad crossings could obstruct the vision of both automobile drivers and locomotive engineers approaching said crossings. Specifically, Shanklin showed that such overgrown vegetation existed at the Oakwood Church Road railroad crossing, and that Norfolk failed to remove it. Norfolk filed a motion for judgment as a matter of law before the jury retired to deliberate,
Norfolk now appeals several aspects of the trial, including the district court‘s determination that the vegetation claim was not preempted, the district court‘s admittance of three pieces of evidence tending to show knowledge, the district court‘s decision to read an allegedly irrelevant Tennessee statute to the jury, and the district court‘s determination that the evidence was sufficient to permit a reasonable jury to find in Shanklin‘s favor.
For the following reasons, we AFFIRM.
I. JURISDICTION
The district court had proper original jurisdiction over Shanklin‘s action under
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Oakwood Church Road railroad crossing is located about seven-tenths of a mile from the home Eddie Shanklin shared with his wife, Dedra Shanklin. Eddie Shanklin‘s commute to the restaurant where he worked brought him across the railroad tracks twice a day for the almost four years he and his wife occupied the residence, and his route the morning of October 3, 1993 was no different.
Eddie Shanklin left his home in the pre-dawn darkness of a clear autumn day at 5:15 a.m., and began his journey to work. As Eddie traveled east on Oakwood Church Road toward the railroad crossing, a Norfolk train was simultaneously approaching the intersection, traveling at about 37 miles per hour. Based on the evidence presented at trial, it appears that Eddie Shanklin slowed his car to 20 miles per hour as he entered the railroad crossing, yet never attempted to further slow or stop his vehicle; there were no skid marks leading to the impact zone. The Norfolk train reportedly sounded its horn for approximately eleven seconds before the impact, yet could not avoid broadsiding Eddie Shanklin‘s vehicle, pushing it more than one-quarter of a mile before stopping. Eddie Shanklin died as a result of the accident.
On September 26, 1994, Dedra Shanklin filed a wrongful death action in federal court, asserting several common-law negligence claims against Norfolk. Shanklin argued that Norfolk‘s failure to provide adequate warning devices, sound the train‘s horn as it approached the crossing within a reasonable time to give adequate warning, and maintain a safe sight distance by reducing the height of any embankment and/or clearing the vegetation from the existing bank proximately resulted in her husband‘s death. Shanklin also claimed that Norfolk violated
On February 16, 1996, Norfolk filed a motion for summary judgment, arguing that federal regulations covering grade crossings,
Norfolk appealed this denial, renewing its argument that federal law preempted Shanklin‘s claims. This Court affirmed, ruling that government funding of the installation of warning devices at grade crossings did not trigger preemption of state common law claims. Shanklin v. Norfolk So. Ry. Co., 173 F.3d 386, 394 (6th Cir.1999). Recognizing a circuit split on the issue, the Supreme Court granted certiorari, 528 U.S. 949, 120 S.Ct. 370, 145 L.Ed.2d 289 (1999), and reversed. See Norfolk So. Ry. Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). The Court held that common-law claims attacking the adequacy of grade-crossing warning signals were preempted from the time federal authorities approved and committed funding to the installation of warning signals. The Court did not speak explicitly to the vegetation claim, and accordingly remanded the case for rehearing on any remaining claims.
At the second trial, Shanklin asserted her vegetation claim, presenting evidence that Eddie Shanklin‘s view of the approaching Norfolk locomotive and its headlamp was obscured by trees and vegetation located on Norfolk‘s right of way. Key expert testimony indicated that the vegetation surrounding the crossing would have prevented Eddie Shanklin from being able to see the train until he was ninety-four feet (three seconds) from the tracks. Shanklin‘s expert further testified that in order to perceive the threat, react, and stop his vehicle, Eddie, traveling at twenty miles per hour, needed to see the train when he was 135 feet from the tracks. Various additional supporting evidence was admitted over Norfolk‘s objection. The jury found in favor of Shanklin, and judgment was entered against Norfolk in the amount of $1,434,014.60.1
Norfolk now resurrects three evidentiary objections as made at trial. First, Norfolk objects to the introduction of a “sight distance triangle chart,” and accompanying diagram, published in the Federal Highway Administration (“FHA“) Railroad-Highway Grade Crossing Handbook (“Handbook“). Norfolk maintains that the documents do not create a duty with respect to railroads, as the Handbook was written as a guide for traffic engineers. At trial, Shanklin conceded that the evidence did not constitute a legal standard or regulation, but argued that the Handbook had been used by railroads to understand sight distances and thus helped to demonstrate that Norfolk was aware of the sight distance problem. The district court ultimately admitted the documents. Shanklin later introduced, without objection, the deposition of James McCloskey, an attorney for Norfolk serving on the company‘s Crossing Oversight Committee, who testified that Norfolk used the sight distance documents in assessing the safety of particular crossings.
Second, Norfolk objects to the introduction of a “policy” developed by Paul Melander, a manager of the Railroad Safety Division of the Tennessee Public Service Commission (“PSC“), addressing potential hazards created by decreased sight lines at railroad crossings. The policy, essentially a recommendation to the state legislature, incorporated the sight distance chart from
Third, Norfolk objected to the introduction of deposition testimony given by David Goode, the Chief Executive Officer of Norfolk. The testimony was taken in connection with a 1995 Missouri state court action filed against Norfolk, and Norfolk argued that it should not be allowed because Goode had not been deposed in this case and because his deposition did not address vegetation issues but rather discussed Norfolk‘s treatment of grade crossings and its safety record in general. Shanklin responded that the general testimony regarding safety at crossings was relevant to Norfolk‘s awareness of various problems at the crossings. The district court overruled the objection and permitted Shanklin to show a redacted version of the deposition that covered only issues relating to Norfolk‘s general grade crossing policies. However, when Shanklin played the video for the jury, all parties discovered that the videotape technician hired by Shanklin failed to omit an inadmissable part of the deposition in which Goode stated that Norfolk had the worst accident rate in the entire industry.2
Fourth, Norfolk objects to the invocation of what it deems to be an “ancient” and obsolete Tennessee statute,
III. PREEMPTION OF THE VEGETATION CLAIM
Norfolk argues that the district court, in holding that Shanklin‘s vegetation claim was not preempted, improperly limited the scope of the Supreme Court‘s ruling in Norfolk So. Ry. Co. v. Shanklin, 529 U.S. 344, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000). Norfolk contends that the same federal regulations that preempt inadequate warning device claims also preempt
Congress enacted the Federal Railroad Safety Act in 1970, partially to “maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem.”
Most pertinent to this appeal,
The Supreme Court first considered the preemptive power of the Federal Railroad Safety Act (“FRSA“) in 1993. See CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993). The Court held that for a regulation issued by the secretary of Transportation under FRSA to preempt the duties imposed upon the railroads by common law, that regula-
Later, in reviewing our first Shanklin decision, the Court further analyzed
Because the Supreme Court ruling in Shanklin does not explicitly extend the preemptive reach of
Section 646.214(b)(3) describes under what conditions certain types of warning devices are required; in other words, it “‘cover[s] the subject matter’ of the adequacy of warning devices installed with the participation of federal funds.” Shanklin, 529 U.S. at 358, 120 S.Ct. 1467. Section 646.214(b)(4) mandates that the FHWA determine what types of warning devices should be installed when the circumstances laid out in
Norfolk argues that plaintiff‘s sight distance claim was plainly encompassed by
Additionally, the DOT has promulgated other regulations governing the growth of vegetation, demonstrating that when the Department wants to regulate issues concerning vegetation, it has no problem doing so. In particular,
Norfolk calls to the panel‘s attention two out-of-circuit district court decisions that allegedly preempt sight distance claims based upon the regulations at issue in Shanklin. Norfolk misconstrues these decisions, which are unpersuasive. In a pre-Shanklin case, Bryan v. Norfolk & W. Ry. Co., 21 F.Supp.2d 1030 (E.D.Mo.1997), the district court granted summary judgment to the defendant on a plaintiff‘s claim that a railroad crossing was “extraordinarily hazardous” because the terrain obscured the approach of trains and because there were no automatic gates or flashing signals guarding the crossing. Id. at 1038. The court refused to create “an exception to preemption based on an ultrahazardous condition,” id., but Bryan is distinguishable because, unlike Shanklin, the plaintiff did not articulate a stand-alone vegetation claim, and instead lumped its visual obstruction claim together with a preemptable claim concerning the failure to provide proper warning devices. Id. Norfolk‘s citation to Burlington Northern R.R. Co. v. Deatherage, No. 3:95CV116-B-A, 1997 WL 33384269, (N.D.Miss. May 21, 1997), is equally unavailing, because the
On the other hand, the Third Circuit has specifically addressed the issue of whether sight distance claims are preempted by
While, as Easterwood and Shanklin make clear,
§§ 646.214(b)(3) and(4) substantially altered the landscape of railroad liability, by restricting tort plaintiffs from interposing state law obligations concerning appropriate warning devices, the regulations do not eclipse those duties ensuring safe grade crossings that are unrelated to warning devices, such as the duty to keep visibility at grade crossings free from obstructions. As those regulations cover the subject matter of warning devices, the Strozyks’ claims that Norfolk failed to maintain a safe grade crossing, apart from the warning devices, and relatedly failed to ensure clear sight lines of oncoming trains are not preempted.
Accordingly, because we find that the Supreme Court has neither explicitly nor implicitly preempted state common law vegetation claims, and because the adequate warning regulations contained in
IV. THE EVIDENTIARY HOLDINGS
Norfolk asserts that the district court erred in admitting three pieces of evidence: the FWHA Handbook, the PSC policy, and the deposition testimony of Norfolk‘s CEO. This Court finds that the district court did not abuse its discretion in admitting the challenged evidence.
It is important to note that, under the abuse of discretion standard employed with respect to evidentiary rulings, the district court‘s decision regarding this evidence should remain undisturbed unless this panel is left with the definite and firm conviction that the district court clearly erred in its judgment after weighing the relevant factors, improperly applied the correct law, or inappropriately used the wrong legal standard. United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002). The district court admitted all three pieces of evidence for the specific and limited purpose of showing notice or knowledge, and restricted the evidence to its proper scope.
1. The FHWA Handbook and the PSC Policy
Norfolk argues that the sight distance charts and graphs in the FHWA Handbook and the PSC policy that incorporated the sight distance information from the Handbook were irrelevant to Shanklin‘s claims and were thus erroneously admitted.
The Federal Rules of Evidence define relevant evidence broadly as evidence having “any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.”
Because the sight distance information in the Handbook, and as incorporated into the PSC policy, helps to illuminate the notice issue, and because the district court specifically instructed the jury that neither established a legal standard, this evidence was properly admitted.7
Norfolk objects to the introduction of video deposition testimony given by David Goode, the Chief Executive Officer of Norfolk. The testimony was taken in connection with Lohman v. Norfolk & Western Ry. Co. on August 25, 1995, and concerned a grade crossing accident in Missouri. Norfolk argues that the portions of Goode‘s video deposition testimony admitted at trial were irrelevant and unduly prejudicial. Furthermore, Norfolk asserts that the testimony cannot properly be admitted as an admission of a party opponent because the case in which the deposition was taken and the current matter do not share the same identity of issues.
This Court must first examine whether Goode‘s deposition testimony, taken in connection with an earlier trial, can be entered as evidence in a subsequent trial.
Under
Alternatively,
Second, the relevance of Goode‘s testimony must be assessed. Similar to the Handbook and the PSC policy, Goode‘s deposition presents facts of consequence with regard to Norfolk‘s knowledge of the dangers of grade crossings. All of Goode‘s deposition testimony introduced during the trial of this case related to the fact that Norfolk recognized the importance of identifying and eliminating hazardous conditions at its grade crossings prior to the collision at issue in this case. Thus the district court cannot be said to have abused its discretion in admitting Goode‘s testimony for the limited purpose of showing knowledge.
Third, this Court must determine whether Goode‘s testimony should have been excluded under
THE COURT: Ladies and Gentlemen, during the recess, we spent the better part of an hour ruling on objections, taking things out of the deposition that weren‘t relevant or weren‘t admissible under the rules of procedure. Through an oversight, one small bit of information got into the deposition that should have been deleted but was not. The only way to cure it at this point is for me to tell you to disregard that last minute or so of the deposition you just saw and the memorandum that was showed to you on the screen. And any reference to it or any testimony about it, you‘ll disregard it. And if you don‘t remember what it was, that‘s good because you don‘t have to forget it then.
J.A. at 342-43. Even where evidence is erroneously admitted, the striking of evidence combined with instructions to the jury to disregard the evidence will usually cure the error, unless the evidence is so prejudicial that a new trial must be granted. United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir.1997). Notwithstanding the undoubtedly prejudicial nature of the erroneously admitted information, this Court must assume that the jury in this case followed the instruction given it by the court. See Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Therefore this Court finds the district court did not abuse its discretion in admitting Goode‘s video deposition testimony. No unfair prejudice resulted to Norfolk as a result of Goode‘s testimony regarding safety measures in general, and with respect to the erroneously admitted evidence, the district court properly responded to the mistake such that the prejudice to Norfolk was minimized.
Norfolk further contends that the district court erred in permitting the jury to consider
Under Tennessee law, actions for failure to comply with statutory duties are limited in scope. The Plaintiff must prove that she is the intended beneficiary of a statute before that statute can be used to establish a duty on the part of Defendant. See Bivin v. S. Oil Serv., Inc., 54 Tenn. App. 678, 394 S.W.2d 141, 148 (Tenn.Ct. App.1965). Thus Norfolk initially argues that the statute, which the Tennessee legislature adopted in 1870, does not apply because it is supposed to protect train passengers from derailments caused by stray tree branches on the tracks, not motorists.
In determining whether or not
The legislative history fails to provide any additional insight. The statute was originally passed in 1870 before the invention of the automobile; however the Tennessee legislature retained the statute in 1932 without significant comment, after the advent of the automobile.11 Therefore,
Even if Norfolk could craft a colorable argument that Eddie Shanklin was not an intended beneficiary of this statute, and thus that the district court clearly erred in instructing the jury to consider Norfolk‘s negligence under
VI. THE SUFFICIENCY OF THE EVIDENCE
Lastly, Norfolk argues that because Eddie Shanklin was the sole cause of the accident, the district court erred in denying Norfolk‘s Rule 50(b) Motion for a Judgment as a Matter of Law. We review Rule 50(b) motions de novo. K & T Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.1996). When a Rule 50(b) motion is premised on a challenge to the sufficiency of the evidence, we apply the standard of review employed by the courts of the state whose substantive law controls the action, Tennessee in this instance. Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir.1998). In undertaking this review, “it is not the office of an appellate court to weigh the evidence. Rather, it must take the strongest legitimate view of the evidence in favor of the plaintiff, indulging in all reasonable inferences in his favor, and disregarding any evidence to the contrary.” Williams v. Brown, 860 S.W.2d 854, 857 (Tenn.1993). A motion for judgment as a matter of law is proper only if, after assessing all the evidence in the manner described, the court can determine that reasonable minds could not differ as to the conclusion to be drawn from the evidence. Eaton v. McLain, 891 S.W.2d 587, 590 (Tenn.1994). Additionally, an appellate court is not permitted to reallocate fault in contravention of a jury verdict, even if the reviewing court disagrees with that apportionment. Turner v. Jordan, 957 S.W.2d 815, 824 (Tenn.1997).
In order to bring a successful negligence claim under Tennessee law, a plaintiff must show (1) a duty of care owed to the plaintiff by the defendant and (2) a breach of that duty, which in fact and proximately caused an injury or loss. Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn.2000). A risk is “unreasonable and gives rise to a duty to act with
There is evidence of Norfolk‘s negligence such that reasonable minds could reach differing conclusions about Norfolk‘s liability. The Handbook and PSC policy, while not legally requiring Norfolk to take any action, made Norfolk aware of the danger of reduced sight lines and of the sight distances needed to ensure that motorists could see oncoming trains at grade crossings. There is also evidence showing that Norfolk failed to clear vegetation near the track, and that Eddie Shanklin‘s sight view of the oncoming train could have been impeded thereby.13 Given the extreme and inevitable injury that could result from a train-on-car collision, a jury could easily conclude that the foreseeable probability and gravity of harm outweighed the burden of clearing the vegetation on Norfolk‘s right of way. Reasonable minds could also reach different conclusions about whether Norfolk breached that duty and whether the breach caused Eddie‘s death.14
VII. CONCLUSION
Accordingly, we AFFIRM the judgment of the district court.
ROGERS, Circuit Judge, concurring.
I concur in the majority opinion except for Part V. In my view, a plain reading of Tennessee‘s tree cutting statute,
(a) Every company or person operating a railroad in this state shall cut down all trees standing on its lands which are six (6) or more inches in a diameter two feet (2‘) above the ground and of sufficient height to reach the roadbed if they should fall.
(b) A failure to comply with subsection (a) will render the company liable for all damages to person or property resulting therefrom; also to a penalty of one hundred dollars ($100), to be recovered on suit brought in the name of any citizen before any tribunal having jurisdiction, one half (1/2) of which shall go to the treasury of the county in which said provisions may have been disregarded, and the other one half (1/2) to the plaintiff.
(emphasis added). Subsection (a) of
Because the language of the statute clearly indicates that Mr. Shanklin was not within the class that
The district court, however, did not instruct the jury that the Norfolk Southern‘s failure to comply with the tree cutting statute constituted negligence per se. Instead, the district court read
Tennessee law is not clear on the question of whether a statutory obligation that protects against different harms may nonetheless be considered by a jury as part of its analysis of whether the defendant violated the common law standard of care. While a number of Tennessee tort cases deal with statutes that arguably pro-
Almost eighty-five years ago, the Tennessee Supreme Court held that a statute requiring automobile drivers to stop at railroad crossings was intended to protect against collisions between automobiles and trains, and not to protect against other traffic accidents that happen to occur at a railroad crossing. Carter v. Redmond, 142 Tenn. 258, 218 S.W. 217, 218 (1920). The court concluded not only that the trial judge erred in giving a negligence per se instruction, but that the trial judge also erred in refusing to give a tendered instruction that the “statute had no bearing on the case before them.” Carter appears to support the conclusion that the district court in this case should not have read the tree cutting statute to the jury, but the case is hardly on all fours. Defendant in this case did not tender a limiting instruction, although defendant did object to having the statute read to the jury. More importantly, the ultimate basis for reversal in Carter was the erroneous instruction regarding negligence per se, not the failure to instruct that the statute had no bearing. The Carter court found that the trial court‘s error was material because the erroneous negligence per se instruction “practically necessitated a verdict against” defendant. The statement approving the tendered instruction was arguably dictum, inasmuch as the court did not need to reach the materiality of the trial court‘s failure to give the tendered instruction.
In contrast, in Teal v. E.I. DuPont de Nemours & Co., 728 F.2d 799 (6th Cir. 1984) (applying Tennessee law), we reviewed a district court judgment in a case in which the district court had refused to give a negligence per se charge, but nonetheless informed the jury that the regulation in question “may be considered ... as some evidence ... of the (appropriate) standard of care.” In Teal an employee of an independent contractor was injured by a ladder that allegedly did not conform to federal OSHA regulations. While permitting the jury to consider the OSHA regulation as some evidence of the appropriate standard of care, the district court refused to instruct the jury on negligence per se. On plaintiff‘s appeal, we reversed, holding that because the OSHA regulation was indeed intended to protect the employees of independent contractors, the district court was required to give a negligence per se instruction. Our opinion, however, did not criticize at all the district court‘s apparent conclusion that a regulation not intended to protect a plaintiff could nonetheless be considered as some evidence of the appropriate standard of care.
In the absence of clear Tennessee authority, we must make our best estimation of how the Tennessee Supreme Court would rule on the question of whether the Tennessee tree cutting statute could be admitted as some evidence of negligence, even though the jury could not consider it as a basis for negligence per se. Two considerations lead me to the conclusion that the answer to this question is yes.
First, the Restatement of Torts would clearly answer the question yes. Comment g to the Restatement (Second) of Torts § 286 states:
The fact that a legislative enactment requires a particular act to be done for the protection of the interests of a particular class of individuals does not preclude the possibility that the failure to do such an act may be negligence at common law toward other classes of persons. It also does not preclude the
possibility that, in a proper case, the requirements of the statute may be considered as evidence bearing on the reasonableness of the actor‘s conduct.
Restatement (Second) of Torts § 286 cmt. g (emphasis added); see also Restatement (Second) of Torts § 286 cmt. f (“The fact that a legislative enactment requires a particular act to be done for the protection of the interests of a particular class of individuals does not preclude the possibility that the doing of such an act may be negligence at common law toward other classes of persons.“).
Second, it is consistent with general principles of American tort law to permit the jury to consider the Tennessee statute as some evidence of negligence. When a jury makes a negligence determination, its determination can be likened, using the famous “Hand formula,” to a balancing of the burden on the defendant in acting more carefully against the probability of harm multiplied by the magnitude of harm if the defendant does not so act. See United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1947) (Hand, J.). In evaluating how burdensome it was to the defendant railroad to cut down the trees in question to avoid the possibility of harm to persons like Shanklin, it is relevant for the jury to know that the railroad was required to cut down the trees anyway for an entirely different purpose. Thus it makes sense, at least in the context of the instant case, for the jury to be aware of legal requirements that directly affect the balance that the jury is conceptually required to make in determining whether defendant has been negligent.
I would therefore hold that the district court in this case did not err in reading the tree cutting statute to the jury. It would of course have been preferable for the court to have stated clearly to the jury that a violation of the statute did not necessarily mean that defendant was negligent. It would also have been better for the district court to have explained that the jury could take into account the defendant‘s legal obligation to minimize the risk of limbs obstructing the tracks, only as part of its evaluation of whether the defendant acted reasonably in not increasing the sight-distance for oncoming trains.
Moreover, even if it was not appropriate for the district court to read
Although the jury was shown several dissections of trees during trial, the lack of a negligence per se instruction with regard to