* Pursuant to Local Rule 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 Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-30442

Summary Calendar

_______________________

REBECCA GILL, on behalf of Christopher Gill,

on behalf of Tyler Gill, Individually; BENNIE D. GILL,

on behalf of Christopher Gill, on behalf of Tyler Gill,

Individually and as Administrator;

Plaintiffs-Appellees,

ALLSTATE INSURANCE COMPANY,

Intervenor Plaintiff-Appellee,

versus

DONALD R. FISHER,

Defendant,

RAYTHEON COMPANY; BADGER DESIGN & CONSTRUCTORS, INC.,

Defendants-Appellants.

________________________________________________________________

Appeal from the United States District Court

for the Western District of Louisiana

(93-CV-673)

_________________________________________________________________

January 13, 1997

Before JONES, DeMOSS and PARKER, Circuit Judges.

PER CURIAM: *2 This is an appeal from a judgment from a jury verdict in favor of the Plaintiffs,

Rebecca T. Gill and Bennie D. Gill, individually and for their minor chi ldren, Christopher Gill and

Tyler Gill, and against the Defendant, Raytheon Engineers & Constructors, Inc. d/b/a Badger Design

& Constructors, Inc. The jury found Raytheon’s employee, Donald R. Fisher, 100% at fault, and

found Mrs. Gill completely innocent of fault. Raytheon appeals, but we find no reversible error.

The Gil ls’ cause of action arose from a car accident that occurred on February 18,

1994. Mrs. Gill was driving just before noon along the left lane of a multi-lane highway. Her speed

was about 50 m.p.h., the posted speed limit for t hat st retch of highway. Meanwhile, Fisher, an

employee of Raytheon, was driving his employer’s pick-up truck and turned right onto the highway

from an intersection, crossed the right lane and entered the left or inside lane, ahead of Mrs. Gill’s

car. His speed was about 15 m.p.h. Mrs. Gill maintained her speed of 50 m.p.h. and crossed into the

right lane after seeing that Fisher’s pick up truck had crossed into the left lane. Fisher observed a fire

off to the right and decided to turn into a private driveway at the right of the highway to investigate

the fire. He made an abrupt turn to the right and when he had crossed most of the right hand lane,

the front of Mrs. Gill’s vehicle struck the right rear of Fisher’s pick-up truck. Mrs. Gill was aware

that the pick-up truck was driving very slowly and saw as she drew near the pick-up truck that Fisher

was looking off to his right. Mrs. Gill was injured in the crash.

Defendant-Appellant Raytheon argues on appeal (1) that the evidence was insufficient

to support the jury’s finding that Fisher, the driver of Raytheon’s pick-up truck, was 100% at fault;

(2) that reasonable minds could not conclude from the evidence viewed in the light most favorable

to the plaint iff that she did not also negligently cause the accident; and (3) that the trial judge erred3

in refusing over Raytheon’s objection to give a porti on of Raytheon’s requested charge No. 3, which

attempted to define Mrs. Gill’s actions as negligence proximately causing the accident.

In this diversity case, state law dictates what type o f evidence should be produced

while federal law governs the standard for sufficiency or insufficiency of the evidence. P agan v.

Shoney’s

, Inc.

, 931 F.2d 334, 337 (5th Cir. 1991). Therefore, in the instant case “[t]he controlling

federal standard of review is that, when all evidence is viewed in the light most favorable to the jury’s

verdict , we must affirm the verdict unless the evidence points ‘so strongly and overwhelmingly in

favor of one party that the court believes that reaso nable men could not arrive at the contrary

[conclusion]’” (citation omitted). Id

.

Raytheon has wh o lly failed to meet this burden. Raytheon cites the Louisiana

Highway Regulatory Act, L.R.S. 32:74, which states that the driver of a vehicle may overtake and

pass upon the right of another vehicle on mult iple lane highways under conditions that would allow

this to be done in safety. Raytheon argues that Mrs. Gill clearly violated this provision. The

evidence, taken in a light most favorable t o Mrs. Gill, however, simply shows that Mrs. Gill,

maint aining a constant speed, pulled into the right lane to avoid Fisher’s pick-up truck, when Fisher

suddenly made an unexpected right turn. Raytheon concedes that Fisher was negligent in making an

improper right turn from the left lane in the path of overtaking traffic without giving a signal as

required by L.R.S. 32:104. A reasonable and fair-minded juror could find that Fisher was wholly at

fault. As for the denial of Raytheon’s requested jury charge, this was simply a facile attempt to define

Mrs. Gill’s actions as negligent. This was a matter for the jury to decide. Furthermore, Raytheon

has failed to cite any apposite case to support its contention that the trial judge erred in denying this

jury charge.4 CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED

.