*

The Honorable Karl S. Forester, Chief Judge of the United

States District Court for the Eastern District of Kentucky, sitting by

designation. 

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0156P (6th Cir.)

File Name: 04a0156p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

DEDRA SHANKLIN,

Individually and as next

friend of her son Jessie Guy

Shanklin,

Plaintiff-Appellee,

v.

NORFOLK SOUTHERN

RAILWAY CO.,

Defendant-Appellant.

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No. 01-6449

Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

No. 94-01212—James D. Todd, Chief District Judge.

Argued: October 30, 2003

Decided and Filed: May 27, 2004 

Before: MOORE and ROGERS, Circuit Judges;

FORESTER, Chief District Judge.*

2 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

_________________

COUNSEL

ARGUED: Everett B. Gibson, BATEMAN, GIBSON,

Memphis, Tennessee, for Appellant. Pamela R. O’Dwyer,

PATY, RYMER & ULIN, Chattanooga, Tennessee, for

Appellee. ON BRIEF: Everett B. Gibson, Ralph T. Gibson,

BATEMAN, GIBSON, Memphis, Tennessee, for Appellant.

Pamela R. O’Dwyer, PATY, RYMER & ULIN, Chattanooga,

Tennessee, John W. Chandler, Jr., Memphis, Tennessee, for

Appellee.

FORESTER, D. J., delivered the opinion of the court, in

which MOORE, J., joined. ROGERS, J. (pp. 28-34),

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 PlaintiffAppellee 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
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

3

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. Shanklin v.

Norfolk So. Ry. Co., 529 U.S. 344 (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, which the district

court denied. After the jury once more found in favor of

Shanklin, Norfolkrenewed its motion, which the district court

again denied. 

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. 

4 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

I. JURISDICTION

The district court had proper original jurisdiction over

Shanklin’s action under 28 U.S.C. § 1332(a) because there

existed a diversity of citizenship and the matter in controversy

exceeded $75,000. Shanklin is a Tennessee resident and

Norfolk is a Virginia corporation. Norfolk timely appealed a

final decision of a United States district court and this court

accordingly has jurisdiction over this appeal under 28 U.S.C.

§ 1291. 

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. 
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

5

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 Tenn. Code Ann. § 65-6-132,

which requires railroad owners to maintain trees on its

grounds near the tracks. 

On February 16, 1996, Norfolk filed a motion for summary

judgment, arguing that federal regulations covering grade

crossings, 23 C.F.R. §§ 646.214(b)(3)-(4), preempted all of

Shanklin’s common-law tort claims. The district court denied

Norfolk’s motion with respect to the grade-crossing and

vegetation claims, holding that said claims were not

preempted. The first trial ended in a jury verdict in favor of

Shanklin, assigning Norfolk 70% of the responsibility for the

accident, and assessing damages of $615,379. Norfolk filed

a motion for judgment as a matter of law, or in the alternative

for a new trial, which the district court denied. 

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 (1999), and reversed. See Shanklin v. Norfolk So. Ry.

Co., 529 U.S. 344 (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

6 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

1

The jury deliberated and reached a verdict on January 26, 2001,

assessing $831,687 for actual damages and $1,160,000 for Dedra and Guy

Shanklin’s (the couple’s son) loss of consortia. The jury found that

Norfolk was 72% at fault and that Eddie was 28% at fault, such that

judgment was entered against Norfolk in the amount of $1,434,014.60.

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 ninetyfour 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 CrossingHandbook (“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
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

7

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 the Handbook, and the PSC distributed it

to all the railroads in Tennessee. While the policy lacked

legal authority in that it was not adopted by the PSC or the

Tennessee Legislature, the PSC Commissioners had seen the

policy and approved its dissemination. Shanklin therefore

offered it for the purpose of showing notice. Norfolk’s

objection to its introduction was initially sustained.

Following Shanklin’s offer of proof, however, the court

reversed itself because Melander testified that the policy was

not just a recommendation, but had become practice in his

department. Melander further testified that some railroads

followed the policy and others did not. The district court

instructed the jury that neither the Handbook nor the policy

was a legal standard binding Norfolk. 

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

8 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

2

The district court immediately gave the following curative

instruction at Norfolk’s request: 

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.

(Apx. pp. 339-43). Norfolk did not move for a mistrial.

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, Tenn.

Code. Ann. § 65-6-132. Shanklin presented evidence that

Norfolk violated the statute,which prohibits vegetation within

a railroad’s right of way that is “six (6") of more inches in

diameter, two feet (2') off the ground, and of sufficient height

to reach the roadbed if they should fall.” Id. Shanklin used

the statute and the evidence invoking it as additional proof of

Norfolk’s negligence and reinforced the point by littering the
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

9

court room with several tree stumps taken from the area in

question.

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 Shanklin

v. Norfolk So. Ry. Co., 529 U.S. 344 (2000). Norfolk

contends that the same federal regulations that preempt

inadequate warning device claims also preempt vegetation

negligence claims. We review the district court’s decision de

novo because it involves a question of law. 

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.”

49 U.S.C. § 20134(a). The statute broadly states that all

“[l]aws, regulations, and orders related to railway safety . . .

shall be nationally uniform to the extent practicable,” but it

includes a savings clause provision that reads, “[a] State may

adopt or continue in force a law, regulation, or order related

to railroad safety or security until the Secretary of

Transportation prescribes a regulation or issues an order . . .

covering the subject matter of the State requirement.” Id. at

§ 20106. Three years later, Congress created the Federal

Railway-Highway Crossings Program, see 23 U.S.C. § 130,

giving the Secretary of Transportation, acting through the

Federal Highway Administration (“FHWA”), the power to

promulgate 23 C.F.R. § 646.214(b), which concerns the

design of grade crossings.

 Most pertinent to this appeal, 23 C.F.R. § 646.214(b)(3)-

(4) addresses the circumstances under which automatic gates

and flashing signals are required and clarifies that when gates

and signals are not mandated, the FHWA has the power to

approve or disapprove the alternative type of warning device

recommended by a state agency or a railroad. Importantly, no

10 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

3

23 C.F.R. § 646.214 (b)(3)-(4) states: 

(b) Grade crossing improvements.

(1) All traffic control devices proposed shall comply

with the latest edition of the Manual on Uniform

Traffic Control Devices for Streets and Highways

supplemented to the extent applicable by State standards.

(2) Pursuant to 23 U.S.C. 109(e), where a railroadhighway grade crossing is located within the limits of

or near the terminus of a Federal-aid highway project

for construction of a new highway or improvement of

the existing roadway, the crossing shall not be opened

for unrestricted use by traffic or the project accepted by

FHWA until adequate warning devices for the crossing

are installed and functioning properly.

(3)(i) Adequate warning devices, under § 646.214(b)(2)

or on any project where Federal-aid funds participate in

the installation of the devices are to include automatic

gates with flashing light signals when one or more of

the following conditions exist:

(A) Multiple main line railroad tracks.

(B) Multiple tracks at or in the vicinity of the crossing

which may be occupied by a train or locomotive so as

to obscure the movement of another train approaching

the crossing.

(C) High Speed train operation combined with limited

sight distance at eithersingle or multiple track crossings.

(D) A combination of high speeds and moderately high

volumes of Highway and railroad traffic.

(E) Either a high volume of vehicular traffic, high

number of train movements, substantial numbers of

school buses or trucks carrying hazardous materials,

unusually restricted sight distance, continuing accident

occurrences, or any combination of these conditions.

(F) A diagnostic team recommends them.

(ii) In individual cases where a diagnostic team justifies

that gates are not appropriate, FHWA may find that the

above requirements are not applicable.

(4) For crossings where the requirements of §

646.214(b)(3) are not applicable, the type of warning

part of 23 C.F.R. § 646.214(b) addresses the clearing of

vegetation.3
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

11

device to be installed, whether the determination is

made by a State regulatory agency, State Highway

agency, and/or the railroad, is subject to the approval of

FHWA.

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 (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 regulation must more

than “touch upon” or “relate to” the subject matter raised by

the common law claim because “pre-emption will lie only if

the federal regulations substantially subsume the subject

matter of the relevant state law.” Id at 664. The Easterwood

Court concluded that 23 C.F.R. § 646.214(b)(3)-(4)

preempted the plaintiff’s claim that CSX was negligent for

failing to maintain adequate warning devices because the

regulations “cover the subject matter of state law which, like

the tort law on which respondent relies, seeks to impose an

independent duty on a railroad to identify and/or repair

dangerous crossings.” Id. at 671 (emphasis added). 

Later, in reviewing our first Shanklin decision, the Court

further analyzed 23 C.F.R. § 646.214(b)(3)-(4) to determine

whether the regulations “‘are applicable’ to all warning

devices actually installed with federal funds.” Shanklin v.

Norfolk So. Ry. Co., 529 U.S. 344, 353 (2000). The Supreme

Court did not hold that the warning device regulations

preempted all state common law claims stemming from a

grade crossing accident, but rather held only that the federal

regulations displaced Tennessee common law “addressing the

same subject.” Id. at 359. The Court noted: “What states

cannot do - once they have installed federally funded devices

12 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

4

The Court reaffirmed the notion that the regulations did not just

establish a “definitional” federal standard for adequate warning devices,

but rather mandated certain requirements when the federal government

covered the cost. Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344, 353

(2000). The regulations attached a standard of adequacy to any project

involving federal funds. Id. Accordingly, the Court held that “once the

FHWA has funded the crossing improvement and the warning devices are

actually installed and operating, the regulation ‘displace[s] state and

private decision-making authority by establishing a federal law

requirement that certain protective devices be installed or federal approval

obtained.’” Id. at 354 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S.

658, 670 (1993)). 

at a particular crossing - is hold the railroad responsible for

the adequacy of those devices.” Id. at 358.4

Because the Supreme Court ruling in Shanklin does not

explicitly extend the preemptive reach of § 646.214(b) to

Shanklin’s vegetation claim, the issue before this Court is

whether the warning device regulations can be read to “cover”

the vegetation claim, such that the common law of Tennessee

that imposes a duty upon railroads to clear vegetation on their

rights of way near railroad grade crossings that prevents

motorists from seeing and/or hearing trains approaching those

crossings is preempted.

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. Section 646.214(b)(4) mandates

that the FWHA determine what types of warning devices

should be installed when the circumstances laid out in

§ 646.214(b)(3) are not present. The regulations do not

appear to focus on vegetational blockage or sight line

limitations. At best, they “relate to” or “touch upon”

vegetational growth; we cannot conclude that they “cover,” in

the sense of “substantially subsume,” claims of negligence
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

13

due to failure to clear away vegetation near a railroad bed.

Easterwood, 507 U.S. at 664. 

Norfolk argues that plaintiff’s sight distance claim was

plainly encompassed by 23 C.F.R. § 646.214(b)(3)-(4),

because the regulation requires the DOT to consider, in

assessing the need for automatic gates and flashing signals,

the presence of “high-speed train operation combined with

limited sight distance,” 23 C.F.R. § 646.214(b)(3)(i)(C), and

the presence of “unusually restricted sight distance,”

23 C.F.R. § 646.214 (b)(3)(i)(E). However, this argument

takes the regulation’s language out of context. While a visual

encumbrance, be it overgrown vegetation, a structure, or the

contour of the land, triggers the regulatory mandate for

certain warning devices, and accordingly preempts common

law claims regarding the adequacy of warning signals, it does

not follow that the warning device regulations preempt an

action based on the alleged failure to eliminate such a visual

impediment. The regulations govern warning signals, not

vegetation growth. 23 C.F.R. § 646.214(b)(3)-(4) do not

define the terms “limited” or “unusually restricted” sight

distance, indicate that any sight distance obstructions should

be removed, set standards as to how much sight distance

should be provided to motorists approaching a grade crossing,

contain any guidelines relating to a railroad’s obligation to

maintain its grade crossings, or even mention “vegetation” or

“right of way.”

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,

49 C.F.R. § 213.37 states: “Vegetation on railroad property

which is on or immediately adjacent to roadbed shall be

controlled so that it does not . . . (b) [o]bstruct visibility of

railroad signs and signals . . .” 49 C.F.R. § 213.37(b). This

regulation preempts any state-law claim regarding vegetative

growth that blocks a sign immediately adjacent to a crossing,

14 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

but it does not “impose a broader duty to control vegetation

so that it does not obstruct a motorist’s visibility of oncoming

trains.” O’Bannon v. Union Pac. R.R. Co., 960 F. Supp.

1411, 1422-23 (W.D. Mo. 1997); see also Mo. Pac. R.R. Co.

v. R.R. Comm’n, 83 F.2d 570, 577 (5th Cir. 1987)(rejecting

ruling that § 213.37(b) controlled a railroad’s right of way in

its entirety); Bowman v. Norfolk S. Ry. Co., 832 F. Supp.

1014, 1020-21 (D.S.C. 1993), aff’d 66 F.3d 315 (4th Cir.

1995)(federal regulations do not preempt claims concerning

vegetation outside the area immediately next to the railbed).

The comparison of 49 C.F.R. § 213.37 and the adequate

warning regulation persuasively shows that 23 C.F.R.

§ 646.214(b)(3) does not “cover” actions based upon a

negligent failure to clear vegetation.

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

plaintiff did not even file a vegetation action in that case. The

district court only considered the issue of unlimited sight
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

15

distance in determining the applicability of the FRSA’s

savings clause. Id. at *3-4. 

On the other hand, the Third Circuit has specifically

addressed the issue of whether sight distance claims are

preempted by 23 C.F.R. § 646.214 (b)(3)-(4), and has found

that they are not. See Strozyk v. Norfolk So. Corp., 358 F.3d

268 (3d Cir. 2004). Christopher Stozyk was killed at a

railroad crossing when a train owned and operated by Norfolk

Southern collided with the truck he was driving.

Subsequently, Strozyk’s parents filed suit against Norfolk,

alleging, inter alia, the railroad’s negligence for failure to

provide proper sight lines for motorists crossing the track.

The district court held that 23 C.F.R. § 646.214(b) preempted

plaintiff’s limited visibility claim, and concluded that because

23 C.F.R. § 646.214(b) “lists ‘unusually restricted sight

distance’ as a factor mandating the installation of active

warning devices,” it followed that “the standard set by the

regulation encompasses not just the ultimate selection of a

warning device but [also] . . . ‘the appropriate response to

limited sight distance or unusually restricted sight distance.’”

Id. at 272. The Third Circuit Court of Appeals disagreed,

noting that, even after the Supreme Court’s decisions in CSX

Transp. Inc. v. Easterwood, 507 U.S. 658 (1993), and

Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344 (2000), “state

law duties to maintain a safe grade crossing remain viable.”

Strozyk, at 276. The court continued:

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

16 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

5

Norfolk directs our attention to, and urges us to follow, the

evidentiary rulings of Judge Johnstone in Bryant v. Tennken R.R. Co. (No.

00-2621-DA, W.D. Tenn.). In Bryant, which is a very similar case, Judge

Johnstone disallowed the same pieces of evidence that Judge Todd

entered into evidence in this case. However, Judge Johnstone did permit

the jury to view the Handbook, instructing them that the sight distance

maintain a safe grade crossing, apart from the warning

devices, and relatedly failed to ensure clear sight lines of

oncoming trains are not preempted.

Id. at 276-77. 

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 23 C.F.R. §§ 646.214(b)(3) and (4)

do not “cover” state common law vegetation/sight distance

claims, it follows that the district court correctly reasoned that

Shanklin’s vegetation claim is not preempted. 

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).

5

 The district court admitted all three pieces of
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

17

chart was in no way a binding regulation. Two judges, certainly

exercising reasonable minds, can reach opposite conclusions about the

same evidence without either abusing his or her discretion so long as

neither court clearly erred in its application of correct law or its invocation

of incorrect law. See In re M.J. Waterman & Assocs., Inc., 227 F.3d 604,

608 n.3 (6th Cir. 2000). 

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.” Fed. R. Evid. 401. Under

Tennessee law, juries are required to compare the degree of

fault of the parties, including the reasonableness of their

conduct in light of all of the circumstances. See Eaton v.

McLaine, 891 S.W.2d 587 (Tenn. 1994). A Tennessee jury

must consider: “the reasonableness of [a] party’s conduct in

confronting a risk, such as whether the party knew of the risk,

or should have known of it.” Id. at 592. Undoubtedly,

whether or not Norfolk knew of the sight distance

requirements recommended by the FHWA or PSC policy is

a fact of consequence in relation to the issue of notice,

because if Norfolk knew that a motorist needed to see a

certain number of feet in order to perceive an oncoming train,

it is more likely that it recognized that overgrown vegetation

for which it was responsible could impede a motorist’s view

18 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

6

Contrary to Norfolk’s argument, Judge Todd did not admit the

policy as a valid regulatory exercise of the PSC, but only as an unofficial

policy lacking in any legal force, but nonetheless a recommendation from

the PSC of which the railroad was aware. Judge Todd warned the jury in

his instructions that the policy carried no legal weight. 

7While the material contained in the Handbook could not have

been admitted for the purpose of establishing Norfolk’s duty toward

motorists, it was useful for the limited purpose of establishing notice.

Courts and commentators have recognized that it is preferable to admit a

relevant document for a limited purpose with appropriate instructions,

rather than exclude admissible evidence altogether. See Weinstein’s

Federal Evidence § 105.03 [1] and [3] (Matthew Bender 2d Ed.

1997)(“Total exclusion of evidence of mixed admissibility in jury cases

would hardly be appropriate, since its exclusion might well deny the jury

access to facts that are essential to reaching a reasonably accurate

decision”). 

and cause a hazard. Indeed, it was undisputed at trial that the

sight distance information from the Handbook was included

in the minutes of the Norfolk Southern Tennessee Division

Grade Crossing Safety Committee, and also that the sight

distance information from the Handbook was incorporated

into the PSC policy that was discussed with Norfolk Southern

employees in Tennessee prior to the collision at issue.6

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

2. Goode’s Deposition Testimony

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
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

19

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. Federal Rule of

Procedure 32(a) permits the use of “any part or all of a

deposition, so far as admissible under the rules of evidence

. . . against any party who was present or represented at the

taking of the deposition.” Id. The Rule further states that the

“deposition of a party . . . who at the time of taking the

deposition was an officer . . . designated . . . to testify on

behalf of a . . . private corporation . . . may be used by an

adverse party for any purpose,” so long as it complies with

the rules of evidence. Fed. R. Civ. Proc. 32(a)(2)(emphasis

added). Goode’s video deposition testimony does comply

with the rules of evidence, either as an admission of a partyopponent under Federal Rule of Evidence 801, or as an

exception to the hearsay rule under Rule 804. 

Under Rule 801(d)(2), a statement can be characterized as

an admission of a party-opponent, and as such, non-hearsay,

when: “The statement is offered against a party and is . . . (C)

a statement by a person authorized by the party to make a

statement concerning the subject, or (D) a statement by the

party’s agent or servant concerning a matter within the scope

of the agency or employment made during the existence of

the relationship.” Fed. R. Evid. 801(d)(2)(C)-(D). Norfolk

does not dispute that Goode was its president and CEO at the

time of his deposition, or that he was authorized to make the

statements he made during that deposition. Therefore,

Goode’s video deposition testimony with respect to the

20 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

Lohman case qualifies as a non-hearsay party-opponent

admission. 

Alternatively, Rule of Evidence 804(b)(1) carves out an

exception to the hearsay prohibition when a witness is

unavailable for testimony; it permits the inclusion of a

statement given by a witness in another proceeding so long as

the party “had an opportunity and similar motive to develop

the testimony by direct, cross, or redirect examination.” Fed.

R. Evid. 804(b)(1). The Advisory Committee Notes remark

that common law required the previous deposition to have a

“substantial” identity of issues. Fed. R. Evid. 804(b)(1),

Advisory Committee Notes. Norfolk argues here that the

Lohman case, and Goode’s deposition therein, did not involve

substantially the same issues as those confronted herein.

While it is true that Goode’s deposition covers a crossing

grade accident in another state and under different conditions,

it also addresses grade crossing safety issues generally.

Furthermore, Shanklin sought to introduce the testimony to

prove that Norfolk was aware of the danger at grade

crossings, a topic which Goode did cover in the deposition.

As Norfolk’s general knowledge and treatment of grade

crossing dangers was likewise germane in Lohman, Goode

and his attorneys had an opportunity and a nearly identical

motive to develop Goode’s testimony in the earlier case.

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. 
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

21

8

During the play-back of Goode’s video deposition testimony,

a portion that should have been redacted was shown to jurors. In that

portion of testimony, Goode’s closed-captioned statement showing across

the bottom of the screen indicated that Norfolk had the highest rate of

grade crossing accidents in the industry. 

Third, this Court must determine whether Goode’s

testimony should have been excluded under Federal Rule of

Evidence 403 as more prejudicial than probative. While there

is nothing unfairly prejudicial about Goode’s testimony

regarding Norfolk’s notice of issues attendant to grade

crossing safety, the evidence that Norfolk had the highest

grade crossing accident rate in the country was extremely

prejudicial.8 This testimony was erroneously shown to the

jury, as the district court had already ruled it inadmissable.

The district court immediately responded by striking the

evidence and issuing the following curative instruction as

requested by Norfolk:

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.

22 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

9

Tenn. Code Ann. § 65-6-132: Trees, Removal

(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 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

damages to person or property resulting therefrom . . .

10In her complaint, Shanklin alleged that Norfolk violated Tenn.

Code Ann. § 65-6-132 with respect to the Oakwood Church Road railroad

crossing, and at trial introduced evidence that there were numerous trees

on Norfolk’s right of way that fit within the proscriptions of the statute.

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

(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. 

V. THE TENNESSEE TREE CUTTING STATUTE

Norfolk further contends that the district court erred in

permitting the jury to consider Tenn. Code Ann. § 65-6-132,9

which prohibits, on railroad’s rights of way, the presence of

vegetation six or more inches in diameter and “of sufficient

height to reach the roadbed if they should fall.”10 Id. Norfolk

argues that the statute should not have been considered by the

jury because it was not designed to protect motorists and is

obsolete. This Court finds that the district court’s decision to
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

23

read the Tennessee statute to the jury did not constitute

reversible error.

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., 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 Tenn. Code Ann. § 65-6-132

was meant to protect against the harm suffered by Eddie

Shanklin, whose vision of the railroad crossing was found to

have been obscured by overgrown vegetation present on

Norfolk’s right of way, we begin with the plain language of

the statute. Here said language does not provide a definitive

answer. The phrase “reach the roadbed if they fall,” id.,

implies that the main purpose of the statute is to protect

against train derailments by ensuring that railroads keep their

tracks clear of branches. However, the statute also states that

a failure to comply will result in liability “for all damages to

person or property” resulting therefrom. Id. There is indeed

nothing in the language of the statute itself to indicate that its

application is limited to the protection of train passengers.

See Tenn. Code Ann. § 65-6-132. The statute’s broad

imposition of liabilityindicates that the vegetation prohibition

was intended to protect against any number of harms that

could result from its presence in an overgrown state. 

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

24 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

11Additionally, there is some case law and legislative evidence

indicating that, even in the 1870's, both the courts and the Tennessee

legislature were concerned that there be proper sight distance at railroad

crossings for persons traveling on horseback or in horse drawn wagons.

See generally, Continental Improvement Co. v. Stead, 95 U.S. 161, 162

(1877); Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 410 (1892); Louisville

& Nashville R.R. Co. v. Gardner, 1 Tenn. 688 (Tenn. 1878). Further, the

fact that the Tennessee legislature adopted the Railroad Precautions Act

in 1856, which required train crews to maintain a lookout ahead and

sound the locomotive horn during their approach to public grade

crossings, indicates concern about potential hazards to those traversing

grade crossings at least fourteen (14) years prior to its passage of Tenn.

Code Ann. § 65-6-132 in 1870. See generally, Railroad Precautions ActEffect of 1959 Amendment, 28 TENN. LAW REV. 437 (1961). 

12Norfolk further argues that the panel should hold that the

statute is implicitly repealed because changed circumstances and nonenforcement have rendered it obsolete. Tenn. Code Ann. § 65-6-132 was

passed by the Tennessee General Assembly in 1870, and as Norfolk

points out, mass production of the automobile did not begin until almost

forty (40) years later. Appellant’s Br. at 42. The district court rejected

Norfolk’s argument on this issue, pointing out that the statute has been

modified since the proliferation of automobiles. The district court’s

holding on this matter cannot be said to have been in error. 

comment, after the advent of the automobile.11 Therefore,

while it cannot be said that Tenn. Code Ann. § 65-6-132

clearly applies to protect against the type of harm here at

issue, neither can it clearly be held otherwise.12

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 Tenn. Code Ann.

§ 65-6-132, the error is harmless. When an error made by the

court does not prejudice the outcome, the error does not

justify reversal. See Toth v. Grand Trunk R.R. Co., 306 F.3d

335, 348 (6th Cir. 2002). Even without consideration of

Norfolk’s liability under the tree cutting statute, there was
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

25

considerable evidence upon which the jury could conclude

that Norfolk was liable in part for Eddie’s death. 

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. McClain,

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 causes 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 due care if the foreseeable probability and gravity of

26 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

13With regard to Norfolk’s negligence, the district court

summarized the evidence introduced at trial as follows:

An eyewitness to the accident testified that he was

traveling alongside the train in his vehicle, and heard

the horn blow for approximately 11 seconds from the

crossing, which is less than the 1,320 feet required by

Tennessee law. See Tenn. Code Ann. § 65-12-108(2)

. . . There is also evidence in the record that the

railroad’s officials were aware of general studies

regarding recommended sight distance for motorists at

railroad crossings, even though the railroad was not

required to comply with those recommendations.

There is evidence that the railroad had the ability, and

the authority, to make further efforts to clear vegetation

and trees on its right-of-way at the crossing, but did not

harm posed by defendant’s conduct outweigh the burden upon

defendant to engage in alternative conduct that would have

prevented the harm.” Id. (quotation omitted). In Tennessee,

a plaintiff may recover even if he or she contributes to the

negligence, so long as the plaintiff’s negligence remains less

than the defendant’s. McIntyre v. Ballentine, 833 S.W.2d 52,

57 (Tenn. 1992). Juries, in their allocation of fault, are to

consider, among other factors, the reasonableness of the

party’s conduct in confronting the risk, such as whether the

party knew, or should have known, of the risk. Eaton, 891

S.W.2d at 592. 

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
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

27

do so. 

Apx. pp. 84-85. 

14Norfolk further argues that Eddie Shanklin was the sole cause

of the accident. As its chief support for this proposition, Norfolk claims

that Eddie violated Tenn. Code Ann. § 55-8-145(a)(3)-(4), which requires

motorists to stop within fifty feet, but not less than fifteen feet from the

near rail of the track when a train emits a signal audible from 1,500 feet

away and is plainly visible to a motorist approach the crossing. The

evidence presented at trial conflicted regarding whether the train sounded

its whistle at the proper distance and whether Eddie heard the signal, and

a reasonable jury could conclude that he did not. Furthermore, the jury

did reduce Eddie’s damage award by 28% for his contribution to the

accident.

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.

28 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

_________________

CONCURRENCE

_________________

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, Tennessee

Annotated Code § 65-6-132, clearly indicates that the sole

purpose of the statute was to prevent trees from falling onto

the tracks. I concur not because Mr. Shanklin was within the

protected class of the statute, but because the tree cutting

statute was nonetheless admissible as evidence because it was

relevant, though not controlling, on the negligence

determination under Tennessee law. 

Tennessee Annotated Code § 65-6-132 states:

(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 § 65-6-132 is obviously

concerned with trees greater than six inches in diameter

falling onto a railroad track. Although the district court

believed the diameter requirement set forth in the statute
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

29

1

The district court did specify that the violation of Tennessee

Code Annotated § 65-12-108, which relates to precautions for railroad

crossings such as signs and whistles, is considered negligence per se

might have indicated that the Tennessee legislature was also

concerned with visibility, the diameter requirement is easily

explained by the fact that the thicker the trunk, the more

likely a derailment would occur if the tree fell. 

Because the language of the statute clearly indicates that

Mr. Shanklin was not within the class that § 65-6-132 was

designed to protect, the statute could not be used as a basis for

liability under the statutory tort defined by subsection (b) of

§ 65-6-132. Similarly, the statute could not be used as a basis

for negligence per se under Tennessee law. Under

longstanding and consistently applied Tennessee law, a

plaintiff must demonstrate that the injured party was “within

the class of persons intended to benefit from or be protected

by the statute” to recover under a theory of negligence per se.

Alex v. Armstrong, 385 S.W.2d 110 (Tenn. 1964); Carter v.

Redmond, 218 S.W. 217, 218 (Tenn. 1920); Harden v. Danek

Med., Inc., 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998);

Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn. Ct. App.

1980); Berry v. Whitworth, 576 S.W.2d 351, 353 (Tenn. Ct.

App. 1978); see also RESTATEMENT (SECOND) OF TORTS

§ 286. Thus, if the district court had instructed the jury that

violation of the tree cutting statute required the jury to find

negligence on the part of defendant, we would be compelled

to reverse.

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 § 65-6-132(a) to the jury along with three other

statutes relating to duties of railroad companies to keep

crossing safe and the duties of a motorist when approaching

a railroad crossing.

1

 

30 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

under Tennessee Code Annotated § 65-12-109. However, the district

court did not instruct that a violation of the tree cutting statute constituted

negligence per se.

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 protect against different harms, the

cases generally involve the question of whether violation of

the statute amounts to negligence as a matter of law, not with

the question of whether the factfinder could consider the

statute for any purpose whatsoever.

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, 218 S.W. 217, 218 (Tenn.

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,
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

31

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

32 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

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
No. 01-6449 Shanklin v. Norfolk

Southern Railway Co.

33

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 § 65-6-132 to the jury, the error was in any event

harmless, again because the jury was not instructed that

violation of the tree cutting statute would constitute

negligence per se. Compare Carter, 218 S.W. at 217-19. As

jurisdiction for this case is based on diversity of citizenship,

“federal law governs our standard of review for determining

whether a jury instruction is prejudicial.” Gafford v. Gen.

Elec. Co., 997 F.2d 150, 166 (6th Cir.1993) (internal

quotation marks and citations omitted);Teal, 728 F.2d at 801.

The Sixth Circuit has stated that it

will reverse a jury’s verdict on the basis of improper

instructions only when the instructions, when viewed as

a whole, are confusing, misleading, and prejudicial.

Federal courts generally presume the jury will follow the

instructions correctly as given. We will not reverse a

decision on the basis of an erroneous jury instruction

where the error is harmless.

Barnes v.Owens-Corning Fiberglas Corp., 201 F.3d 815, 822

(6th Cir. 2000). 

Although the jury was shown several dissections of trees

during trial, the lack of a negligence per se instruction with

regard to § 65-6-132 indicates that the jury only considered

the violation of the statute as evidence of Norfolk Southern’s

negligence. Throughout the trial the plaintiff presented a

considerable amount of other evidence as to Norfolk

34 Shanklin v. Norfolk

Southern Railway Co.

No. 01-6449

Southern’s duty and its breach of that duty. Thus, the simple

reading of the tree cutting statute during the jury instruction,

even if erroneous, was harmless.