The HONORABLE GARY A. FENNER, United States District Judge for the 1 Western District of Missouri, sitting by designation. The Honorable William R. Wilson, United States District Judge for the Eastern 2 District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-4114

___________ First Security Bank, Administrator * of the Estate of Sharon E. Johnston, * * Appellant, * Appeal from the United States * District Court for the v. * Eastern District of Arkansas. * Union Pacific Railroad Company, * * Appellee. *

___________ Submitted: June 8, 1998 Filed: August 14, 1998

___________ Before WOLLMAN and MURPHY, Circuit Judges, and FENNER, District Judge. 1

___________ WOLLMAN, Circuit Judge. First Security Bank, acting as administrator of the estate of Sharon E. Johnston, appeals from the judgment entered by the district court following a jury v erdict in favor 2 of the defendant, Union Pacific Railroad Co. We affirm.-2- I. Ms. Johnston, a 36-year-old registered nurse, lived in Kens ett, Arkansas, a small town ap proximately fifty miles northeast of Little Rock. Union Pacific controls tw o prima ry sets of tracks that run north and south through Kensett. Four railroad grad e crossings, approximately one block apart from each other, are located in the nucleu s of the town. It was at th e Dandridge crossing, the southernmost of the four crossings, that the collision giving rise to this action occurred.
Ms. Johnsto n lived just two blocks from the Dandridge crossing. It may b e presumedthat she was aware of the crossing and of the heavy rail traffic that passed through Kensett each

day (fifty-seven trains on the day of the accident). The warning devices at the Dandridge crossing consisted of a crossbuck and flashing lights; ther e was no crossing gate present.
In the late morning of May 26, 1995, Ms. Johnston was driving her car east on Dandridg e street toward the crossing. A Union Pacific train, consisting of tw o locomotives and thirty-seven cars, was contemporaneously traveling north toward that same intersection. Well before the train approached the crossing, its horn began t o sound and the crossing lights began to flash. According to the trial testimony of four eyewitne sses, Ms. Johnston appeared to be preoccupied as her car approached th e crossing, in th at her head was bent downward and she appeared to be looking toward the center of the seat or floorboard. The car windows were rolled up.
The train collided w ith the car, and Ms. Johnston was ejected from the vehicle, dying instanteously as a result of the injuries suffered in the collision.
InSeptember of 1996, First Security filed a wrongful death suit against Union Pacific unde r the district court’s diversity jurisdiction. See 28 U.S.C. § 1332. Th e claim was prosecuted primarily on the theory that the railroad had been negligent in-3-

fa iling to install gates at the Dandridge crossing, rendering it abnormally dangerou s underAr kansas law. As indicated above, the jury returned a verdict in favor of th e railroad.
II.
On appea l, First Security challenges various evidentiary rulings made by th e dis trict court. Our review of such matters is clear: “Rulings on admissibility o f evidence will not be reversed absent a clear and prejudicial abuse of discretion. ” Pittman v. Frazer , 129 F.3d 983, 989 (8th Cir. 1997). Discret ion is so abused “[w]here the district court excludes evidence of a critical nature, so that there is no reasonable assurance that the jury would have reached the sa me conclusion had the evidence been admitted.” Adams v. Fuqua Indus., Inc. , 820 F.2d 271, 273 (8th Cir. 1987).
The firstchallenge involves the exclusion of a report prepared in conjunctio n with an unrelated lawsuit. In 1993, the services of Dr. Kenneth W. Heathington, a traffic engineer, were procured regarding litigation against Missouri Pacific Railroad (a subsidiary of Union Pacific) arising out of a fatal collisi on at the Dandridge crossing. Dr. Heath ington inspected the crossing at that time and rendered his opinion that , primarily due to the absence of gates, it was ab normally dangerous. Dr. Heathington’s report was made available to Missouri Pacific, which also deposed him. The case was settled prior to trial.
Dr. Heat hington was retained by First Security in connection with the presen t litigat ion. He inspected the crossing site again, arriving at essentially the sam e conclusions. The district court g ranted a motion in limine by Union Pacific to exclude Dr. Heathington’s 1993 report. In so doing, the court stated: Withrespect to Dr. Heathington’s 1993 report, the Court finds that this report is inadmissible since it was prepa red for a different case where Dr.-4-

Heath ingtonwas never cross-examined regarding his conclusions. Th e Court finds that to present

this testimony would be unfairly prejudicial to De fendant, and, therefore, the report will not be admitted. Dr

. Heath ington, however, will be allowed to testify as an expert regardin g his conclusions about the accident surrounding the present litigation.
We conclude that the district court’s ruling did not constitute a clear and prejudicia l abuse of its discretion. Dr. Heathington’s views regarding the condition of the crossing at the time the collision involving Ms. Johnston occurred were fully aired before th e jury. The cour

t acted well within its discretion in excluding Dr. Heathington’s earlier observations regarding an event that had no immediate nexus to the present claim. Next, Fir st Security asserts that the district court abused its discretion i n ex cluding evidence of certain prior accidents at the Dandridge crossing. Of the fou r prior accide nts identified as potentially relevant, the court admitted one into evidence andexcluded the other three as not being substantially similar. First Security asserts that evidence of the three excluded prior acc idents should have been admitted to prove that the railroad was on notice of the alleged dangerous character of the crossing. Although evidence of prior accidents may be admissible to prove notice on the part of a defendant, any such acc idents admitted “must be ‘sufficiently similar in time, place or c ircumstances to be probative.’” Thomas v. Chrysler Corp. , 717 F.2d 1223, 1225 (8th Cir. 1983) (quoting Hampton v. Kroger Co. , 618 F.2d 498, 499 (8th Cir

. 1980) (per curiam)). Evidence of other

accidents may be relevant to the defendant’s ability to correct known defects, the magnitude of the danger, the lack of safety for intendeduses, or causation. It can also prove notice of the existence of defects. However, evidence of other injuries may also raise extraneous contro versial points, lead to a confusion of issues, and present undu e prejudice disproporti onate to its usefulness. For other accident evidence to be admi ssible, the proponent of the evidence must show that the facts-5-

and circumstances of the other incident are substantially similar to th e case at bar. The admissibility of other accident evidence is within th e discretion of the trial court and its decisions will not be disturbed unless there is a clear and prejudicial abuse of discretion. Drabik v. Stanley-Bostitch, Inc. , 997 F.2d 496, 5 08 (8th Cir. 1993) (citations omitted); see also Lewy v. Remington Arms C o., Inc. , 836 F.2d 1104, 1109 (8th Cir. 1988) (for prio r accidents to be relevant to establish notice to defendant, accidents “must hav e occurred under circumstances substantially sim ilar”). The Supreme Court of Arkansas has expre ssed a similar view regarding prior railroad crossing accidents. See, e.g. , Oates v. St. Louis Southwestern R.R. Co. , 587 S.W.2d 10, 11 (Ark. 1979) (en banc) (“before other accidents may be offered to show a dangerous or defective condition, an d thereby notice to the defendant, it must first be shown there is a substantia l similarity of conditions in the proof as to make it reasonable or probable that the same causes or conditions produced the same or similar results”).
In one of the thre e excluded accidents, the automobile’s collision with the train was alleged to have b een due to an apparent malfunction of the warning lights. In the two other accidents, the vehicles involved were traveling westward rather tha n eastward, giving the drivers an entire ly different perspective of the crossing. In one of those accidents, th e driver was traveling directly into the late afternoon sunlight when the collision occur

red. Accordingly, we conclude that the district court committed no clear and prejudicial abuse of discretion in ruling that the three excluded accidents were not substantially similar to the collision involving Ms. Johnston.
First Securit

y also challenges the district court’s exclusion of certain testimony offered by Jim Burnett, former chairman of the National Transportation Safety Board, regardin g Union Pacific’s alleged “corporate indifference” to safety issues. In fact , Burnett was permitted to testify at length regardinghis expert opinions of the condition of the Dandridge crossing and other issues. The court excluded only that testimonyThe LIA is also known as the Boiler Inspection Act (BIA). 3 -6- spe cifically related to his assessment of Union Pacific’s corporate managemen t struc ture. We see no abuse of discretion, and certainly nothing clearly prejudicial, in regulating Burnett’s otherwise extensive testimony in that limited regard.
FirstS ecurity similarly protests the exclusion of testimony by Dr. David M

. Lipscomb, an audiologist, regarding sound level tests he performed to assess the ability of a driver of 1993 Toyota Celica, the year and model of the car owned by Ms

. Johnston, to hear an approaching train’s warning horn when the car’s windows ar e rolled up. Subseque nt to Dr. Lipscomb’s testing of the horn he believed to have been involved in the ac cident, it was discovered that the actual horn had been replaced and discarded as part of routine maintenance at some ti me prior to when the tests occurred. Nevertheless, Dr. Lipscomb was prepared to testify that the warning horn employed by Union Pacific was inadequate under the circumstances.
The distric t court ruled that such a claim was preempted by the Locomotiv e Inspection Act (LIA), 49 U.S.C. §§ 20701 et seq. (1997). See 49 C.F.R. § 229.129 3 (establishing federal minimum sound level for audible warning devices on lo comotives). We se e no error in the court’s ruling. See, e.g. , Law v. General Motors Corp. , 11 4 F.3d 908, 910-11 (9th Cir. 1997) (BIA preempts state common-law remedies against railroad manufacturers for inj uries arising out of alleged design defects in their trains).
If ea ch state were to adopt different liability-triggering standards , manufacturers would have to se ll locomotives and cars whose equipment could be changed as they crossed state lines, o r adhere to the standard set by the most stringent state. Either way, Congress’s goal of uniform , federal railroad regulations would be undermined.T he district court permitted First Security to introduce evidence that the hor n 4 had been removed and replaced by Union P acific after the accident and to argue to the jury that the question whether the horn’s decibe l level met applicable federal standards was unknowable because the railroad had discarded the horn when it knew litigation involving the inciden

t was a possibility. The court also gave an instruction permitting the jury to draw an adverse inference from the railroad’s failure to produce the horn. -7- Id. In any event , the exclusion of Dr. Lipscomb’s proposed testimony regarding tests he performed on a warning horn that was not involved in the ac cident did not constitute a clear and prejudicial abuse of discretion by the district court. 4 Last, First Security argues that the district court abused its discretion i n excluding a memorandum and affidavit by Jeff Rafferty, Union Pac ific’s superintendent of tra nsportation services. First Security alleged that the presence of railroad car s within 250 feet of the Dandridge crossing had contributed to the accident by obscuring Ms. Johnston’s view of the tracks. Union Pacific disputed that any railroad cars were in the vicinity at the time of the accident. Rafferty’s memorandum, issued severa l mont hs subsequent to the accident, instructed Union Pacific employees to enforce a policy that discouraged, “if possible,” the placement of cars within 250 feet of th e crossing. He later acknowledged that he had issued similar verbal instructions.
The district court excluded the memorandum and affida vit under Rule 407 of the Federal Rules of Evidence as constituting inadmissible evidence of subseq uent remedial measures . See O’Dell v. Hercules, Inc. , 904 F.2d 1194, 1204 (8th Cir. 1990). W e conclude that the district court did not abuse its discretion in so ruling. The judgment is affirmed.-8-

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.