* The Ho nora ble K arl S. F oreste r, Chie f Jud ge of t he United States Dist

ric t Court f

or th e East ern Di str ict of Kent

ucky , s it ti ng by desig nation

. 1

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0156P (6th C ir.) File Name: 04a01 56p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
D EDRA S HA NKL IN , Individ ually and a s next friend of her son Jessie Guy Shanklin, Plaintiff-Appellee,

v.

N ORFOLK S OUTHERN RAIL WAY C O ., Defenda nt-Appel

lant. X - - - -
> , - - - - - - N 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

Befor e: MOORE a

nd ROGERS, C ircuit Judg es; FORESTER, Chief District Judge. * 2 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

_________________ COUNSEL

ARGUED: Everett B. Gibson, BATEMAN, GI BSON, Memphis, Tennessee, for Appellant. Pamela R. O’Dwy er, PATY , RYMER & ULI N, Chattanooga, Tennessee, for Appellee. ON BRIE F: Everett B. Gibson, Ralph T. Gibson, BATEMAN, GIB SON, Memph is, Tenne ssee, for Appella nt. Pamela R. O’Dwye

r, PATY, RYMER

& ULI N, Chattanooga, Tennessee, John W. Chandler, Jr., Memphis, Tennessee, for Appellee.
FORESTER, D. J., delivered the o pinion of the co urt, in whichMOORE, J., joined. ROGERS, J. (pp . 28-34 ), delivered a separate concur ring opinion except as to Part V.

_________________ OPINION

_________________ FORESTER, Chief District Judge. Defendant-Appellant

Norfolk Southern Railway Company (“Norfolk”) appeals the district court’s denialof its renewed motion for judgment as a matter of lawfiled following a jury trial in which judgment was entered in favor of PlaintiffAppellee Dedra Shanklin (“Sha nklin”) in the amount of $1,43 4,014.60. In 1993, a train operate d by Norfolk struck the vehicle of Eddie Shanklin, De dra S hanklin’s husband, killing him. The f

ata l ac cident occurred at the Oakwood ChurchRoad railroad crossing near Milan, Tenne ssee. Shanklin filed an action against Norfolk, asserting various common-lawclaims based on Norfolk’s negligence in fa iling to install ad

equate warning

devices at the c rossing

and in failing to remove veg etation from the area surrounding the

c rossi ng. Shanklin claimed that excessive vegetation and lac kNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 3

of adequa te warni ng devi ces res

ulted in Ed

die Sh ank lin’s failure to perce ive the imm inently oncoming

train prior to h is vehicle’s entry into the crossing , and thus into the train’s path. In1996, a jury fou

nd in Shanklin’s favor. This Court subs e quently

affirmed the verdict, but the Supreme Court

rever sedwi th respe ct to the inadequa te warni ng clai m, holding that it was preempted by federal regulations governing the installation of warningdevic es. Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344 (2000).

Th e Supreme C ourt rema nded and the part ies trie d th e vegetation

claim bef

ore a se co nd jury

in 2001. Sha

nklin presented evidence, over Norfolk’s objection, which tended to demonstrate that Norfolk knew that overgrown

vegetation in the vicinity of

railroa d crossin gs could obstruct the vision of both automobile drivers and loco motiv e engineers approaching

said cro ssings. Sp ecifica lly , Sha nklin showed that such overgrown v egeta tion existed at the Oakwood ChurchR o ad railr

oad cros sing, an

d that Nor

folk fail ed to

remove it. Norfolk filed

a motion for judgment as a matter of lawbefore

the jury retired to delibe rate, wh ich th e distr ict court denied. After the j ury once m ore found in favor of Shanklin, Nor folk ren ewed its motion, which the district court again denied.

Norfolk now appe als seve

ral aspe cts of the

trial, including the district c ourt’s de

terminat ion that the

vegeta tion claim

was not pree

mpted, the

distric t court’s admittance of three pieces of evidence tending to show knowledge , the district court’s de c ision to read an allegedly irrelevant Tennessee statute to th e j ur y, and the district court’s determination that the evidenc e was suf

ficient t o permit a reasonable jury

to find in Shanklin’s favor. For the following reasons, we AF FIRM. 4 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

I. JURISDIC TION

The distric t c ourt had proper original jurisdiction over Shanklin’s action under 28 U.S.C. § 1332(a) because there existeda diversity of citizenship and the matter in controversy exceeded $75,00 0 . Shanklin is a Tennessee resident and Norfolk is a Virginia corporation. Norfolk timely appealed a final decision of a United States distri ct court and this court accord ingly has jurisdict

ion over t his appeal u

nder 28 U .S.C. § 1291.

II. FACTUAL BACKGROUN D AN D PROCEDURAL HISTORY

The Oakwood

Church Roa

d railroa d cross ing is located about seven-t enths o f a mile from

the home E ddie Shan

klin share d withhis wife, Dedra Shanklin. Eddie Shanklin’s commute to the rest aurant w

here he worked brought h

im

acrossthe railroad tracks twice a day for the a lmost four yea rs he and his wife occupied the res idence, and his route the morning of October 3, 1993 was no differe nt.
Eddie Shanklin left his home in the pre- dawn da rkness of

a cl ea r a ut um n d ay a t 5:15 a.m., and beg an his jour ney to work. As Eddie t

ravele d east on O akwood Ch urch Ro a d toward the rai lroad crossing, a Norfolk train was simultane ously

approac hing the interse c tion, traveling at about 37 miles per hour. Based on the evidence pre sented at trial, it appea

rs that Ed die Shank lin slowed

his car to 20 miles per hour as he

entere d the rai lroad cr ossin g, ye t never atte mpt ed to further slow or stop his vehicle; there were no skid marks leading to the impa ct zon e. The Norfolk tra in reporte dly

sounded its horn for

approximately eleven sec onds before the impact, yet could no t av oid broad siding Ed die Shanklin’s vehicle, pushing it more than one-quarter of a mile before st op ping. Eddie Shanklin died as a result of the accident.No. 01-6449 Shanklin v . Norfolk Southern Railway Co. 5

OnSeptember 26, 1994, Dedra Shanklin fi led a wrongful death action in feder al c ourt, asserting several common-law negligence

claims against No rfolk. Shanklin argued that Norfolk’s failure to provide adequate warning devices, sound the train’s horn as it approached t he crossing within a

reasona ble time to give adequate warning, a nd maintain a safe sight distance by

re ducing the height of any embankment and/or clearin g the ve getati o n from the existing bank proximatel

y resulted in her husba

nd’s dea th. Shankli

n also claimed that Norfolk v i olated Tenn. Code Ann. § 65-6-132, whichrequire s railroa

d owners to ma in tain tree s on its grounds near the tracks.

OnFebruary

16, 1996, Norfolk filed a motion for summary judgmen t, arguing that federa

l regulations covering gr ade crossing s, 23 C.F.R. §§ 646.214(b)(3)-(4), preempted all of Shanklin’s co mmon -law tort claims. The district court denied Norfolk’s motion wit h respect to the grade-cr ossing and vegetation

claims, ho ld ing that said claims were not preempted. The firs ttrial ended in a jury ve rdict in favor of Shanklin, assigningNorfolk 70% of the responsibility for the accident, and assessing damag es 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, re newi ng its argument that federallaw preempted Shanklin’s claims. This Court affirmed, ruling that

government funding of

the installation of warningdevices at grade crossing s did nottrigger preemption of state common law claims. Shanklin v. Norfolk So. Ry. Co., 173 F.3d 386, 394 ( 6th Cir. 199 9). Reco gnizing a circu it split

onthe issue , the Supre

me Court g

ranted c ertiora

ri, 528 U.S. 949 (1999), a

nd rever se d. S ee Shanklin v. Norfolk So. Ry. Co. , 529 U.S. 344 (2000). The Court held that common-law claims attackin

g th e a dequacy

of grade-crossing warning signals were pr eempted from the t

i me federal authorities approved and committed

fundi ng to the installation of warningsignals. The Court did not speak explicitly to the 6 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

1 The jury deliber ated and reached a v erdict on Janu ary 26, 2001, assessing $831,687 f

or actual damages and $1, 160,000 for Dedra and G uy Shankl in’s (the c ouple’s son) l oss of cons orti a. The jury found that No rfolk was 72% at faul t and t hat Eddie was 28% at fau lt, such t hat judgment wa s e nt er ed a ga in st No rfol k inthe amount of $1, 434,014. 60. vegetation

claim , a nd accordingly

remanded the case for rehearing on any

remaining claims.

At the second tr

ial, Shank lin asser ted her v egeta

tion claim
, presentingevidence that Eddie Shanklin’s view o f the approaching

Norfolk locomotive and its headlamp was obscured by trees and vegetation located on Norfolk’s right of

wa y. Key ex

pe rt testimony indicated that the veg etation surroundingthe crossing wo uld have pre vented E ddie Shanklin from being a ble to se e t he tr ai n u nt il he wa s n in et yfour feet (three second s) f

rom the tracks. Shanklin’s expert further testified that in order to perceivethe thre at, react, and stop his vehicle, Eddie, traveling at twenty miles per hour, needed to see the train when he was 135 feet fromthe tracks. Various additiona

l supportin

g evide nce was admi tted over Norfolk’s objection. The jury found in f avor of Shanklin, and judgment was entered against Norfolk in th e amount of $1,434,014.60. 1

No rfolk now resurrects three evidentiary objections as made at trial. Firs t, Nor folk objects to the introduction of a “sight d istance tria

ngle chart,” a

nd acco mpany

ing diag ram, published in the Federal Highway

Administration (“FHA”) Railroad-High wayGrade Cro ssing Handbook (“Handbook”)

. Norfolk maintains that the document s do not cr eate a d uty
w it h respect to railr

oads, as t he Handb ook was w

ritten as a guide for traffic engineers. At trial, Shanklin con ceded that the evidenc e did not c onstitute a legal standard

or regulation, butargued that theHand

book had b een used

by r ailroad s to understand

sight distances and thus helped to demonstra te that Norfolk was aware of the sight

distance problem. The districtNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 7

court ultimately admitted the documents. Shanklin later introduced, without objection, the deposition of James McCl osk ey, an attorney f

or Norfolk serving on the company ’s Crossing Oversig

ht Committee , who testi fied tha t Norfolk used the sight distance documents in assessing the safety of particular crossings.
Second, Norfolk objects to the introd u ct io n o f a “p ol ic y” developed

by Paul Melander, a manager of the Railroad Safety Division of the Tennessee Public ServiceCommission (“PSC”), addres sing potential hazards created by decreased sigh tlines at railroad crossings. The policy, essential ly a recommendation

to the state legislature , incorporated the sight distance chart

fromthe Hand

book, and the PSC distr

ibuted it to all the railroads in T ennessee. While the policy lacked legal authority in t

hat it was not adopted by the PSC or the Tennessee Legislature, the PSC Commissioners had seen the policy and approved its di ss emination. Shanklin therefore offered it f

or the purpose of showing notice. Norfolk’s obje c tion to its introduction was initially sustained. Following Shanklin’s offer of proof, however, the cour t reversed itself because Melander testified that the policy was notjust a re commend ation, but had bec ome practice in his department. Melande

r furthe r testifie d that some

ra ilroads followed the policy a

nd others d id not. The district court instructed the ju ry that neither the

Handbook nor the policy was a legal standard binding Nor folk.
Third, Norfolk objected to the introduc tio n of deposition testimony given by David Goode, the Chief Executive Officer of Norfolk. The testimony wa s taken in connection with a 1995 Missouri state c ourt a ction filed against Norfolk, and Norfolk argued that

it should not be allowed because Goode had not been deposed in this cas e and be cause

his deposition did not address vegetation issues but rather discussed Norfolk’s treatme

nt of gr ade cro ssings a

nd its safety re cord

in g ener al. Shanklin responded that the general testimony regarding safety a t crossings was relevant to N o rfolk’s 8 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

2 The distri ct court immediately gave the following curat ive instructio n at N orfolk ’s requ est:

THE COUR T: Ladies and gentlemen, during t he recess,
we spent the bett er part of an hour ruling on objec tions, taking things out

of the deposition t

hat weren’t relevant

or w eren’t admissible under the rules of procedur e

. Through an oversight, one smal l bi t of inf ormat ion got into the de pos ition th at should have been deleted but

was not. T he on ly way to c ure it at this point is for me to tel l you t o disregard that last minut e or so of the deposi ti on you jus t saw and the memorandum that was showed to you o n the scr een. A nd an y refe rence to i t

or any testim ony ab out it, you ’ll dis r egard it. And if you don ’t r e memb er what it was, that’s good b ecause you don’t have to forget i t then.
(Ap x. pp . 339 -43). N orfolk did no t mov e for a m istrial. awareness of

various problems at the crossings. The district court overruled

the objection and pe

rmitted Sha

nklin to show a redacted version of the deposition that covered only

issues relatingto Norfol

k’s gen eral g rade cr ossing po licies. However, when Shanklin p la ye d the vide o for the jury , all parties dis c overed that the videotape technician hired by Shanklin failed to omit an inadmissable part of the deposition inwhich Goode stated that Norfolk had thewors t accident

ra te in th e e nt ir e i nd us tr y. 2
Fourth, Norfolk

objects to the invocation of what it deems to be an “ancient” and obsolet e Tennessee statute, Tenn. Code. Ann. § 65-6 -132. Shanklin presented evidence that Norfolk violated the statute, which prohib its vege tation with

in

a railroad’s right of way

that i s “six (6")

of more in

ches in diameter, two feet (2') off

the ground, and of sufficient height to reach t he roadb ed if the

y should fall. ” Id. Shanklin used the statute and

the evidence invoking it as additionalproof of Norfolk’s negligence and re inforced the pointby littering theNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 9

co urt ro om with sev eral tre e stumps ta ken from the are a in question.

III. PREEMPTION OF THE VEGETATION CLAIM

Norfo lkarg ues that the district court, in holding that Shanklin’s vegetation claim was not preempted, improper ly limitedthe scop e of th e Supreme Court’s ruling in Shanklin

v. Norfolk So. Ry. Co. , 529 U.S. 3 44 (2000) . Norfolk contends that the same f e deral regulations that preempt inadequa te warning

device c la im s also preempt vegetation negligence

claims. We review the districtcourt’s decision de

novo because it involves a question of law. Congre ss enacted the Federal Railroad Safety Act in 1970, partiall y to “mainta

in a coor dinate d ef

fort to develop and carry out solutions to the railroad grad e cro ssing problem.” 49 U. S.C. § 20134(a

). The sta

tute broa dly states tha

t all “[l]aws, regulations, and orders related to ra ilwa y sa fety . . .

s hall be nationally

uniform to

the extent p

ractica ble,” but i t includes a saving s clause

provision thatreads, “[a] State may adopt or contin ue in force a law, regulation, or orde r related to railroad safety

or securi ty 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 la ter, Congress created the F ederal Railway-Hig

hway Cross ings P rogram , see 23 U.S.C. § 130, givingthe Secretary

of Transportation, acting through the F ederal Highway

Administration (“FHWA”), the power t o promulg ate 23 C.F.R. § 646.214(b), which conce rns the design o f grad

e crossi ngs.
M ostpertinent to this appeal, 23 C.F.R. § 646.214(b)(3)- (4) addresses the circumstances under which automatic g ates and flashing signals are

required and clarifies that when gates and signals are not mandated , the FHWA has t he power to approve or

disapprove the alternative type of warning device recommended

by a state agency

or a railroad. Importa

ntly, no 10 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

3 23 C.F. R. § 646 .214 (b)(3 )-(4) state s:
(b) Gr ade cro ssing improve ments. (1) All traf

fic cont rol dev ices pr opo sed sh all com ply with the l atest edition of t he Manua l on Uniform Tr affic Control Devi ces for Street s and Highway s supp le mented to th e extent app licable by State sta ndards

. (2) Pursu an t t o 23 U.S.C. 109(e), wher e a ra il roadhighway grad e cr ossi ng i s l ocate d wit hin the li mit s of

or ne ar the t ermi nus of a Feder al- aid h igh way pr oj ec t forcon structi on of a

new hi ghway

or i mprovemen t of the existing road way, the cr ossin g shal l not be opened forunrestric ted use by traffic or the pr oject acce pted by F HWA until adequate warning devices for the crossing are insta lled an d func tioning p rop erly. (3)(i) Ade qua te w arni ng devi ces, under § 646.214( b)(2)

or on any proje ct where Fed eral-aid funds p articipa te in the inst alla tion of

the devi ces are to includ e auto matic gates wit h fl ashi ng l igh t s ign als when on e or more of the follo wing co ndition s exist: (A) M ultiple main line railroad tracks. (B) M ultiple tracks at or i n the vicini ty of t he crossing which may be oc cup ied by a t rain or locomotiv e so as to obscure the movement of another train approaching the crossing. (C) High Speed tr ain operat ion combined wi th l imit ed sightdistanc e at eith er single or multiple track crossings. (D) A comb ination of hi gh speeds and mod erately hi gh volumes of

Highway an d rail road traf fic. (E) Either a high volume of vehi cu lar traf fic, hi gh number of train movements, sub stan ti al n umbers of

sc hool buses or trucks carry ing hazardous materi als
, unusu ally rest

rict ed sight

dist ance, continuing accident

occurren ces, or any com bination of these co nditions. (F) A dia gnos ti c t eam r ecomme nds th em. (ii) In individ ual cas es whe re a d iagno stic team jus tif ies that gates are not appropriate, FHW A may find that t he above requir ements ar e not appli cable. (4) Fo r cros sings wh ere the requ ireme nts of § 646.214(b) (3) are no t app licable , the typ e o f warning part of 23 C.F.R. § 646.214(b) addresses thecle aring of vegetation. 3No. 01-6449 Shanklin v . Norfolk Southern Railway Co. 11

dev ice to be instal led, whether t he determination i s made by a S tate reg ulatory a genc y, Sta te Highway agen cy, and/or the rai lroa d, i s su bject to t he appr oval of FHWA. The Supreme

Court first considered the preemptive power of the Feder al Railroad Safety Ac t (“FRSA”) in 1993. See CSX Transp ., Inc. v. Easterwood, 507 U.S. 658 (1993). The Courtheld that for a regulation issued by the secret a ry of Transportation

under F RSA to pree

mp t the duties imposed uponthe railroads by c ommon law, that reg ulation mustmore than “touch upon” or “relate to” the subject matter raised by the common law claim bec ause “pr e-emption will lie on

ly if the federal regulations substantial l y subsume the subject matter of the relevant state law.” Id at 664. The Easterwood Courtconcluded that 23 C.F.R. § 646.214(b)(3)-(4) preempted

t he plai ntiff’s claim that CSX was negligent for failing to maintai

n adequa te w arning devices because the regulations “ cover the subject matter of state law which, like the tort law on which respondent rel ies, seeks to impose an independent

duty on a railroa

d to identify and/or r

ep air dangerous crossings.” Id. at 671 (emphasis added).
Later, in r e viewing

our first Shanklindecision, the Court further analyzed 23 C.F.R. § 646.214(b)(3)-(4) to determine whether the regulations “‘are applica ble’ to a ll warning devices actually installed withfederal funds.” Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344, 353 (2000). T he Supre me Courtdid not hold that the wa rning device regulations preempted

all state common la

w claims s temmi ng from a grade cr ossing accident, but rather held only that the federal regulat ions displac ed 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 reaffi rmed the notion that t he regulations did no t just establish a “definitional” federal s tandard for adequate warning devices, but rather mandated certain requirements when the federal government covered the co st. Shan kl in v. Nor fo lk So. Ry . Co., 529 U.S. 344, 353 (2000). Th e regu lations a ttached a stand ard o f a deq uacy to any projec t involving feder al funds

. Id. Acco rdingly, the Court held that “once the F HWA has funded the crossing i mproveme nt and the warnin g devices are actua lly ins tal led an d operating, the regul ation ‘dis place[s] stat e and pr ivate decisio n-mak ing auth ority by e stablishin g a fed eral la w requirement that cert ain protective devi ces be inst alle d or federal approval obta ined.’” Id. at 354 (quoting CSX Transp ., Inc. v . Ea sterwo od, 507 U.S. 658 , 670 (19 93) ). at a partic ular cr ossing -is hold th e railroa d responsible for the adequacy

of those devices.” Id. at 358. 4

Becau se the Supreme Court ruling in Shanklin does no t explicitly ex tend th e preem

ptive re ach of § 6 46.214(b ) to Shan klin’s vegetation claim, the issue before this Court i s whether the warning

device r egulat ions can b e read t

o “cover” the vegetation claim, such that the commonlaw of Tennessee that imposes a

duty upon railroads to clear vegetation on their rightsof way

near ra il road gr ade cro ssings that preve nts motoristsfrom s eeing a nd/o r heari ng trai ns approa ching those crossings is preempted.

Section646.214(b)(3) describes under what condit ions certain typ es of wa

rning de vices ar e requir ed; in othe

r words, it “‘cover [s] the subject matter’ of the adequacy of warning devices installed with the participation o f federal funds.” Shanklin, 529 U.S. at 358. Section 646.214(b)(4) mandates that th e FWHA determine what ty pes of warning devices

s hould be install ed when t

he circ umstance s laid out in § 646.214(b)(3) are not present. The reg ulations do not appear to foc us on v egetat ional block age or sight line limitations

. At best, t hey “re late to” or “touch upon” vegetationalgrowth; we cannot c onclude t hat they “cover ,” in the sense of “substant ially subsume,” claims of neg ligenceNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 13

due to failure t o clear away vegetation near a railroad be d. Easterwood, 507 U.S. at 664.

Norf olk ar gues that plaintiff’s sight distance claim was plainly encompassed by

23 C.F.R. § 6 46.214(b)(3)-(4), because the reg ulation re quires th e DOT to c onsider, in assessing t he nee d for aut omatic g ates and

flashing signals
, the presence of “high-spee d train ope rat ion combined with limitedsight 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 arg ument takes the regulation’s languag e out of context. While a visual encumbrance, be it overgrow n vegetation, a structure, or the contour of the land, triggers the reg ulatory mandate f

or certain warning devices, and accord ingly preempt s common lawclaims regarding the ade quacy of warningsignals, it does notfollow that the warning device regulations preempt an action based on

the alleged failure to eliminate such a visual impedim e nt. The regulations govern wa rning signals, not vegetation

growth. 23 C.F.R. § 646.214(b)(3)-(4) don ot define the terms

“limited”

or “unusu

all y res tricted” sight distance, indicate that

any sight distanc e obstructions should be removed , set stan

dards a s to how much sight distance should be pro vided to mo toris ts app roachi ng a grade cross ing, contain any guideli nes rela ting to a railroa d’s oblig ation to maintain its grade crossings, or even mention “vege tation” or “right of way .”

Ad di ti on al ly, the DO T has promulgated other regula tions governing the growth of vegetation, demonstrating that when the Department wants to regulate issues conce rni ng vegetation, it has no problem doing so. In pa rticu lar, 49 C .F. R. § 213.37 states: “ Veget ation on r ailroad propert y whichis on or im me di at el y a djacent to roadbed shall be controlledso t hat it does not . . . (b) [o]bstruct visibility of railroad signs and sign

als . . .” 4 9 C.F.R. § 2 13.37(b) . This regulation

preempt s any state-la

w claim regarding veg etative growth that b locks a sign i mmedi ately adj acent t o a cros sing, 14 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

butit does not “impose a broader duty to control vegetation

so that it does not obstruct a motorist’s visibility of oncoming tra ins.” O’Bannon v. Union Pac. R.R. Co., 960 F. Sup p

. 1411, 1422-23 (

W.D. Mo. 199 7); see also Mo. Pac. R.R. Co.

v. R.R. Comm’n, 83 F.2d 570, 577 (5th Cir. 1987)(rej ectin g ruling that

§ 213.37(b) controlle d a railr oad’s ri ght of w ay

in its entirety

); Bowman v. Norfolk S. Ry. Co., 832 F. Sup p

. 1014, 1020-21 (D.S.C. 1 993), aff’d 66 F.3d 315 (4th Cir. 1995)(federal

regulations do not preempt claims co n cerning vegetation outside the a

rea i mmedi atel

y next to the railbed). The compari son of 49 C. F.R. § 213 .37 and th e adequate warningregula

tion pers uasi ve ly shows that 2 3 C.F.R. § 646.214(b)(3) do es not “cover” actions based upon a negligent failure to clear

vegetation.

Norfolk calls to the panel’ s attention tw o ou t-of-ci rcuit districtco ur t d ec is io ns th at al le ge dl y p ree mpt sight distance claims based upon

the r egulations at issue in Shanklin. Norf olk misconstrues these decisions, which ar e 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 defend ant on a plaintiff’s claim

that a railroad

crossing was “extr

aordina rily hazardou s” because

t he 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 . . . ba s ed on an ultrahazardous condition,” id., b ut Bryan is disting uishable because, unli ke Shanklin, the plaintiff did not articulate a stand-alone vegetation claim, and instead lumped its visual obstr uct ion claim tog ether wi th a pree

mptable c laim concerning

the failu re to provide proper w arning devices

. Id. Norfolk’s cit at ion to Burlington Northern R.R. Co. v. Deatherage, No. 3 :95CV 116- B-A , 1997WL 3 3384269, (N.D. Miss. May 21, 1997), is equally unavaili ng, bec ause the plaintiff did not even file a vegetation action in that case. The d istrict court only considere d the issue of unlimited sightNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 15

distance in dete rmi ning the applicability of the FRSA’s savings clause. Id. at *3-4.

Onthe other

hand, the

Third Circ

uit h as spe cifically addressed the issue

of whether sigh

t distance

cla im s are preempt ed by 23 C.F.R. § 646.214 (b)(3)-(4), and has found that they are not. See Strozyk v. Norfol k S o. Corp., 358 F.3d 268 (3dCir. 2004). Christopher Stozyk was killed a t a railroad crossing when a tr ain owned an d operat ed by Norfolk Southerncollided with the truck he was d rivin g. Su bs eq ue nt ly, Strozyk’s parents fi ledsuit against Norfolk, allegi ng, inter al i a , the rai lroad’s neglig ence for failur

e to provide proper s i ght l ines for motorists crossing the track. The districtcourt held that 23 C.F.R. § 646.214(b) preempted plaintiff’s limited visibility claim, and concluded that becaus e 23 C.F.R. § 646.214(b) “lists ‘unusually restri cted sight distance’ as a fac

tor manda

ting the insta llat ion of active warningdevices,” it followed tha t “th e standard set by

the regulation

encom passes not just the ultimate selection of a

warn ing de vice but [a

lso] . . . ‘the

appropr iate res ponse to limitedsight distance or unusually restricted sight

distance.’” Id. at 272. The Third C ircuit 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 Shanklinv. Norfolk So. Ry. Co., 529 U.S. 344 (2000), “state lawduties to maintain a safe grade crossing remain viable.” Strozyk, at 276. The court continued:

Whi le, a s Easterwood and Shanklinmake clear, §§ 646.214(

b)(3) a nd (4) sub stanti al ly altered the landscape of railr

oad lia bility, by restricting

tort plaintiffs frominterposing state law o blig ations concerning ap propria te warning devices, the reg ulations do no t eclipse those duties ensuring safe grade crossings that are unrelated to warning devices, suc h as the duty to keep visibility at grade crossings fre e fro m obstructions. As those reg ulations cover the subject matter of warning device s, the Strozyks’ claims that Norfolk fai led to 16 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

5 No rfolk directs our atte n tion to, and urges us to follow, the evidentiaryrulings of Judge Johnstone in Bryant v. Ten nke n R .R. C o. (No. 00-2 621- DA, W .D. Tenn.). In Bry ant, which is a very s imilar case, Judge Johnstone disal lowe d the same pi eces of ev idenc e th at Ju dge Todd entere d into evide nce in th is case. H owe ver, Ju dge John stone did perm it th e jury t o view t

he Handbook, inst

ructing them t

hat t he sig ht dis tance maintain a safe grade cr

ossing, apart from the warning devices
, and

relatedly f

ailed to ensure clear sight lines of oncoming trains are not preempted.

Id. at 276-77.

Ac co rd in gl y, because we find that the Supreme Court h as neither explicitly nor

implicitly preempted state common law vegetation

claims, and because the adequate wa rning regulations contained in 23 C.F.R. §§ 6 46.214(b)(3) and (4) do not “cover” state common law vege tat ion/s ight distance claims, it follows that the d istrict c ourt cor

rectly reasoned that Shanklin’s vegetation claim is not preempted.

IV. THE EVID ENTIARY HO LDINGS

Norf olk asserts that the district court erred in admitting three pieces of evi d ence: the FWHA Ha ndbook, the PSC po li cy, and the deposition testimony of Norfolk’ s CEO. This Court finds that the district c ourt did no t abuse its discretion in admitting the challenged evidence.

It is important to n ote tha t, under the abuse of discretion stan dardemployed with respe ct to evidentiary r ulings, the districtcourt ’s decision regard ing this e vidence should re main undisturbed

unless this

panel is le ft with the

definite and firm convictionthat the district court clearly erred in its judgment after weighing the relevant fa ctors, improperly a

pplied the correct law, or inappropr

iately used the wrong legal standard. United States v. Haywood, 280 F.3d 715, 7 20 (6th Cir. 2002)

. 5 The district court admitted all three pieces o fNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 17

chart was in no way a binding regul ation. Two ju dges , certainly exercising reasonabl e minds, can reach opposite co ncl usions about the

same evide nce wi thou t ei ther abusi ng hi s or h er di scre ti on so l on g a s neit her court cl early

erred in i ts appli cati on of c orrec t l aw or it s i nvocat ion of incorr ect law. See In re M .J. Wa term an & A ssocs ., Inc., 227 F.3d 604, 608 n.3 (6 th Cir. 2 000 ). evidence for the specific and limited purpose of show ing notice or knowledge, and restricted the e vidence to its proper scope. 1. The FHWA Handbook and the PSC Policy

Norfolk argues that the sight

distance charts a nd gra phs in the FHWA H andbook a

nd the PSC policy that incorpora ted the si ght distance information from the Handbook were i rrelev ant to Shanklin ’s claims

and wer e thus er roneousl y admitted.

The Federal Rules of Evidence de fine r elevant evidence broadly as evidence having “any tendency to make

the existence of any f

act that is of consequence to the determination

of the actio n m ore or le ss probab le than it would be without the evi dence.” Fed. R. Evid. 401. Under Tennessee law, jurie s are required to compare the deg ree of fa ult of the parties, including the reasonableness of thei r conduct in light of all of the circum sta nces. See Eaton v. McLaine, 891 S.W.2d 587 ( Tenn. 1994). A Tennessee jury must cons ider: “the reasonablene ss of [a] par ty’ s conduc t in confrontinga risk, such as whether the party knew of the risk,

orshoul d have known of it.” Id. at 592. Undoubted ly
, whethe r or not Norfolk knew of the sight distance require ments rec ommended

by t he FHWA or PSC policy

is

a fact of consequence in relation to the issue of notice, because if Norfo lk knew that a motorist needed to see a certain number of

feet in order to perceive an oncoming tra in, it is more likely

that it recognized that overgrown veg etation for which it w as responsible co uld impede a motorist’s view 18 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

6 Contrary to Norfolk’s argument, Judge Tod d did not admit the policy as a v ali d regu lat ory e xerci se of the PSC, but only as an unoff icia l policy lac kin g inany lega l f

orce, but n oneth eles s a r ecommendation f rom the PSC of which the rai lroad was aware. Judge Tod d warned the jury in his instructio ns that the polic y carried no leg al weigh t.

7 W hile the ma terial co ntained in th e Hand book could no t have been adm it

te d f or th e pu

rp os e of es ta bl is hi ng No rfolk ’s duty t oward mot orists, it was usef

ul f or the l imit ed purpose of es tabli shing notic e. Co urts and comm entators have reco gnized that it is prefe rable to ad mit a relevant document

for a li mit ed p ur pose with ap prop riate instructions,

r ather than ex clude adm issible ev idenc e altog ether. See Weinstein’s Fe d eral Evidence § 105.03 [ 1] and [ 3] (Matt hew Bender

2d Ed. 1997)(“Total exclus ion of ev iden ce of mixed admi ssi bili ty i n jury cases
wou ld hardly

be appropriat e, since its exclusion might well deny the j ury
ac cess to fac ts t

hat ar e essential to reachi ng a reas onably acc urat e dec ision”)

. and cause a hazard. Indeed, it was undisputed at trial that the sight distance information from the Handbook was included inthe minutes of the Norfolk Southern Tennessee D i vision Grade Cross ing S afety Committee, and a lso that the sight distance information from the Handbook was incorporated into the PSC policy that was discussed with Norfolk Southern employees in Tenne ssee prior to the collision at issue. 6

Becau se the sight distance information in t he Han dbook, and as incorpo ra ted into the

PSC policy, helps to i lluminate the notice iss

ue, and b ecause

the distri ct court

specific ally instructed the jury that neither

establ ished a legal standard, this evidence was properly admitted. 7

2. Goode ’s Deposit

ion Testim ony
Norfo lkobj ects to the introduction of video deposition testimony given by David Goode, the

Chief Executive Officer of Norfolk. The testimony wa s taken in co nnec tion with Lohman v. Norfolk & W

estern Ry. C

o. on Au gust 25, 1995, and concer ned a g rade cr ossing a ccident in Missouri . NorfolkNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 19

argues that the p ortions of Goode’s video deposition testimony admitted at trial were irre levant a nd unduly prejudic ial. Furthermore, Norfolk asserts that the testimony cannot properly be ad mitted as a n admission

of a par

ty opponent because the case inwhich the deposition was taken and the current matter do not share the same iden ti ty o f issues.

This Court must first examine whether Goode’s deposition te st im on y, tak e n in connection with an earlier trial, can be entered as evidence in a subsequen t trial. Federal Rule of Procedure 32(a) permits the use of “any pa rt or all of a deposition, so far as admissible under the rules of evidence

. . . aga inst a n y party who was present or represented at the taking of the deposition.” Id. The Rule further states that the “de position of a par ty . . . who at the time of tak ing t h e deposition was an officer . . . designated . . . to testify on behalf of a . . . private corporation . . . may be us ed by

an adverse pa rt y fo r any pu rpose, ” so long as it compl ies with the rule s of evide

nce. Fe d. R. Civ. Pro c. 32(a) (2)(emp hasis added). Go od e’ s v id eo de po si ti on te st im on y d oes comply with the rules of

evidence, either as an ad mi ss io n o f a pa rt yopponent under Federal Rule of Evidence 801, or a s an exception to the hearsay

rule under Rule 804.

Under Rule 801(d)(2), a statement can be chara cterized as an admission of a party-opponent, and as su ch , n on -h ea rs ay, when: “The sta

tement is o ffere d again st a party and is . . . ( C)

a statement by a per

son authorized by the party to make a state ment concerning the subject, or (D) a statement by

th e party’s agent or servant concer ning a ma tter withi nthe scope of the age ncy or emplo yment

made during the existence of the relationship.” Fed. R. Evid. 801(d)(2)(C)- (D). Norfolk does not dispute

that Good

e was itspresident

and CEO at the time of his deposition, or that he was authorized to make the statemen ts 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 qua

lifies as a n on-hearsay

party-oppone

nt admission.

Al te rn at iv el y, Rule of Evidence 8 0 4(b)(1) carves out an excepti on to the hearsay prohibition when a w

itness is unavaila ble for testimony; it permits the inclusion of a statement given by a witnessin another proceeding so long as the party “ha

d an oppo rt unity and similar motive to develop the testimony

by d irect, c ross, or redirect

examination.” Fed. R. Evid. 804(b)(1). The Advisory Committee Notes remark that commonlaw requ

ired the previous deposition to have a “substan tial” id entity of issues. Fed. R. Evid. 804(b) (1), Advisor y Comm ittee Notes. Norfolk argues here that the Lohman case, and Goode’s deposition therein, did not invol v e substantia lly the same issues as those confronted here in

. While it is true that Goode’s deposition covers a cro ssing grade accident

in another state and

under dif ferent condition s, it also addr

ess es gr ad e c ro ss in g s af et y is su es ge ne ra ll y. Furth ermor e, Shanklin so ught to in troduce the testimony

to prove that Norfo lk was a ware of the danger a

t grade crossing s, a topic which Goode did co ver in the deposition. As Norfo lk’s ge neral knowledge and treatment of g rade crossingdangers was likewise ge rmane in Lo h man , Goode and his attorneys had an oppor tunity and a ne arly ide ntical motive to develop Goode’s testimony in the ea rlier case.
Second, the relevance of Goode’s testimon y must be

ass essed. Similar to the Handbo ok and the PSC polic y , Goode’s deposition presen ts facts of consequence with reg ard to Norfolk’s knowled ge o f the dan gers of grade crossing s. All of Go ode’s deposition testimony introduced during the trial of this case re lated tothe fact that Norfolk recognized the importance of identifying and eliminating ha zard ous conditions at it s grade c rossi ngs prior to the collisionat issue in this case. Thus the district court cannot be said to h av e abused its discre tion in admitting Goode’s testimony for the limited purpose of showing knowledge.No. 01-6449 Shanklin v . Norfolk Southern Railway Co. 21

8 D urin g the pla y-back of G ood e’s vide o de pos ition testim ony,
a p ortion that should have been redacted was shown to jurors. In tha t porti on of tes timony , Goode’s cl osed-capt ioned statementshowing acro ss the bottom of the screen i ndica ted t hat Norfol k had t

he hi ghes t ra te of grad e cro ssing ac ciden ts in the ind ustry. Third, this Court must determine whether Good e’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 issue s a ttendant to grade crossing safety

, the evid ence tha t Norfolk had the hi ghest grad e crossing

accide nt rate in the count

ry was extre

mely prejudic ial. 8 This testimony was errone ously shown to the ju ry, as the district court had alre ady rule d it inadmissable. The d is trict court immediately re sponded by striking the evidence and issuing the f ollo wing 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. Throug h an oversight, one small bit of information got into the deposition that

should have been deleted but was not. The only way

to cure i t at this poi

nt is for me

to tell you to disregar d th at last minute or so of the deposition you just saw and the memorandum that wa s showed t

o you on the screen. And any reference

to it or any testimony about it, y ou’ll disr egard it. And if

you don’t remember

what it w as, that’s good because y ou don’t have to forget it then.

J.A. at 342-43. E

ven wher e eviden ce is er roneousl y admitted, the striking of evidencecombined with instructions to the jury to disregard the evidence will usua lly 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

per s on o pera ting a railro ad in this state shall cut down all trees standing o n its lan ds whic h are si x (6) or more i nches i n diamete r, t wo feet (2 ') above the ground, and of suffi cient height to reach the roadbed i f t

hey s houl d fal l. (b) A failure to c omp ly with subsect ion (a) will render t he compan y l iabl e for damages to person or property resulti ng therefro m . . .

10 In her co mpla int, Shan klin alleged that N orfolk violated Tenn. Code Ann. § 65-6 -132 with respect to th e Oakwood Church Road railr oad crossi ng, and at

tri al i ntroduced evi dence that t here were numerous trees on Norfolk’ s ri ght of

way that f

it wi thi n the pros cript ions of the s tatute. United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997). Notwithstanding the undoubtedly prejudicial na ture of the

errone ously

admitted i n formation, this Cour t must assume that the jury in this case followe d the instruction given it by the court. See Ri c hardson v. Marsh, 481 U.S. 200, 211 (1987). Therefore this Court finds the district court di d n ot abuseits discretion i n admitting Goode’s video deposition te st im on y. No unfai

r prejudic e resulte d to Norfo lk as a re sult of Goode’s testimony regarding safety measures in gen eral, and with resp ect to the

errone ously

admi tted evidence, the districtcourt properly

responded

to the mistake such that the prejudice to Norfolk was minimized.

V. THE TENNESSEE TR EE CUTTING

STATUTE

Norfolk further contends that t he district c ourt err

ed in permitting the jury

to consider

Tenn. Code Ann. § 65-6-132, 9 whichprohibits, on railroad’s rights of way, the presenc e of vegetation

si x or m ore inches in diameter and “of sufficient height to reach the roadbed if they should fall.” 10 Id. Norfolk argues that the statute should nothave been considered by the jury because it was n ot desig

ned to protect motor

ists and is obsolete. This Court finds that the districtcourt’s decision toNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 23

read the Tennessee statut e to the jury did not con stitute reversible error.

Under Tennessee law, actions for f ailure to comply with statutory duties are limited in scope. The Plaint iff must prove that sh e is the intended beneficiary of a statute before that statute ca n b e u se d t o e st ab li sh a d ut y o n the part of Defend ant. See Bivin v. S. Oil Serv., Inc., 394 S.W

. 2d 141, 148 (Tenn. Ct. App. 1965). Thus Norfolk initially arg ues that the statute, whichthe Tennessee legislature adopted in 1870, does not apply

because it is suppose d to prote ct train passengers fromderailments caused by stray tree branches on the tracks, not motorists.

Indetermining whether

or not Tenn. Code Ann. § 65-6-132

was meant to protect againstthe harm suffer ed by Eddie Shanklin, whose vision of the railroad crossing was found to have been o bscu red by over grown vegetation present on Norfol k’s r ight of way , we begin with the plain languag e of the statute. H ere sai d

language does not

provide a definitive

answer. The phra se “rea ch th e road

bed if they fa

ll,” id., implies that t

he main p urpose of the statute is to protect againsttrain

derailme nts by e nsuring that rail roads ke ep their tracks clear o f branches. How ever, the statute also states that

a failure to comply

will result in liability “for all damag es to person or property”

resulting therefrom. Id. There is indeed nothing in the langua ge of the sta tute itsel f to indica

te that its applicationis l imited to the pro tection o f train pa ssenge rs. See Tenn. Code Ann. § 65-6-132. The statute’s broad imposition of liabi lity indicates that the vegetation prohibition

was intended

to protect again st a

ny numbe r of harms that could result from its presence in an overgr own state.
The legislative h ist ory fails to provide a ny additional insight. The statute was originally passed in 1870 before the invention of the au

tomobile; however

th e T ennessee legislature retained

th e statute in 1932 without significant 24 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

11 Ad ditiona lly, there is s ome case law and legi slat ive evi dence indicating that, even in the 1870's, both t he cour ts and t he Tennessee legisl ature were concerned that there be proper sight dist ance at r ailr oad crossings for persons trave ling on horseb ack or in ho rse drawn w agons. See generall

y, Continent

al Improvement Co. v. Stea d , 95 U.S. 161, 162 (1877); Gra nd Tru nk Ry . Co. v. Ives, 144 U.S . 408 , 410 (18 92) ; Lou isville & Na shville R .R. C o. v. G ard ner, 1 Tenn. 688 (Tenn. 1878 ). Further, the fact that t he T ennesse e legi slat

ure adopted t

he Railr oad Precauti ons Act in 1856, which r equired t rain c rews t o maintai n a lookout ahead and sound the l ocomotive horn during thei r approach to publi c gra de crossings, indic ates c oncern about potenti al hazar ds t o those traversi ng grade cro ssin gs at least fourteen (14) years pri or to its passage of Tenn. Code Ann. § 65-6- 132 in 1870. See g ene rally, R ailroa d P reca ution s ActEffe ct of 1959 Amendment , 28 T ENN

. L AW R EV . 437 (19 61)

.
12 No rfolk furt

her argu es tha t the panel shoul d hold that the statute is impli citly

repealed because changed circumstances and nonenforcement have r end ered it obsolete . Tenn. Code Ann. § 65- 6-132 was passed by the Te nness ee Ge neral A ssemb ly in 187 0, and as N orfolk poin ts out, mass product ion of the automo bile did not b egin until almost forty (40) years later . Appellant’s Br. at 42. The district court re jecte d Nor fol k’s argument

on thi s is sue, poi nti ng out t hat t he sta tut e has been modifie d si nce t

he prol if

erat ion of

aut omo biles. T he distric t court’s hold ing on this matter canno t be said to hav e bee n in erro r. comment, after the advent of the automobile. 11 Theref or e, while i t canno t be said that Tenn. Code Ann. § 65-6-132 clearly applies to protect against the ty pe of harm here at issue, neither can it clearly be held otherwise. 12

Even if Norfo lk could

craft a colorab le arg

ument tha t Eddie Shanklin was notan intend ed bene ficiary

of this statute, and thus that the district court clearly

erred in instructing the jury to consider Norfolk’s negligenc e 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

C ir. 2002). Even without consideration of Norfolk’s liability under the tree c utting statute, there wasNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 25

consider able evidence upon which the jury could concl ude that Norfolk was liable in part for Eddie’s death.

VI. THE SUFFICIENCY OF THE EVIDENCE

Las tl y, Norfolk a

rgues t hat beca use Eddie Sha

nklin was the sole cau se of

the accident, the district court erred in deny ing Norfolk’s Rule 50(b) Motionfor a Judgment as a Matter of Law. We rev iew Rule 5 0(b) motions de no vo . K &T Enterpris es, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir. 1996). When a Rule

50(b) moti on is premi sed on a chall enge to the sufficiency

of the evidence , we apply the standa rd of review employed by

the courts of

the state whose substantive lawcontrols

the action, Tenne ssee in

this instance. Morales

v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998). Inundertaking this review, “it is not the office of an app ellate court to weigh the evidence. Rather, it must take the stronge st l egitimat e view of the evidence in favor of the plaintiff, indulging in all reasonable inferen ces 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, a

fter assessing all the evidence in the manner described, the court can determine that rea sonable m inds could

not di ffer as to the conclusionto be drawn from the evidence. Eaton v. McClain, 891 S.W.2d 587, 590 (Tenn. 1994). Additionally, an appella te court is not permitted to rea llocate f ault in contravention

of a jur y verdict, even if the reviewing cour t disagrees with that apportionment. Tur n er v. Jordan, 957 S.W.2d 815, 824 (Tenn. 1997).

Inorder to

bring a success ful neg li gence claim under Tennessee law, a plaintif

f must show (1) a duty of

care owed to th e p la in ti ff

by t he de fe nd an t a nd (2 ) a br ea ch of th at du ty, whichin fact a

nd proximate ly c auses an injury or loss. Staples v. CBL & Associat e s, Inc., 15 S.W.3d 83, 89 (Tenn. 2000). A risk is “

unreasonableand gives rise to a duty to act with due care if the fores ee able probability and g ravity of 26 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

13 W ith regard t o Norfolk’ s negl igence, the d ist rict court

summa rized the evide nce introduc ed at trial as follows:

An eyewi tness to th e a ccide nt t esti fied t hat he wa s traveling alon gsi de th e tr ain in h is vehi cle, and he ard the horn blow for ap pro ximate ly 11 seco nds from the crossing, whi ch i s l ess than the 1,320 f

eet requi red b y Tenn essee law. See Tenn. Code Ann. § 65-12- 108(2)

. . . There is al so evidenc e in the r ecord that the railroa d’s offi cial s we re a ware of g eneral studi es regarding recommended sight distan ce for moto rists at rail road crossi ngs, ev e n th ough t he ra il road was not require d to com ply with those recom mend ations. There is ev idence t

hat t he rai lroad had the abili ty, and the authority , to make furt her ef fort s to cl ear veget ati on and trees o n its right-of-wa y at the cro ssing, bu t did not har m posed by defe

ndant’s conduct outweigh the burden upo n defendant to engage in alternative c ond uct th at would have prevented the harm.” Id. (quotation omitted). In Tennessee,

a plaintiff may rec o ver even if he or she contributes to the negligence, so long a s the plain tiff’s ne glige

nce remains less thanthe defe

ndant’s. McIntyre v. Ballentine, 833 S.W.2d 52, 57 (Tenn. 1 992). Jurie s, in their allocati on of fau lt, are to consider, among other f acto rs, the reasonableness of the party’s conduct in confronting the risk, such as whether the party knew, or should have known, o f the ris k. Eaton, 891 S.W.2d at 592.

There is evidence of No rfo lk’s negligence such that

re ason able minds could reach differing conclusions about Norfolk’s liability. The Handbook and PSC policy, while not legall y requiring Norfolk to take any action, made Norfolk

aware of the danger of reduce d sight lines and of the sight distances needed

to ensure that motor

ists could see oncoming trains at gra

de cross ings. There is also evidence showing that Norfolk failed to clear vegetation nea r the track, and that EddieShanklin’s sight

viewof the oncoming train could have been im pe de d t he re by. 13 Gi ven t he extreme and inevi

tableNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 27

do so

. Ap x. pp . 84-8 5.

14 No rfolk further ar gues tha t Edd ie Sha nklin was the sole cause of the ac ciden t. As its chief su ppo rt for this pr opo sition, N orfolk cl aim s that Eddie violated Tenn. Code Ann. § 55-8-145(a)( 3)-(4), which requir es moto rist s to stop withi n fif ty feet , but not les s than fi fteen feet from the

near railof th e track

when a train e mits a sig nal audi ble fr om 1 ,500 feet away and is pl ainl y vis ible t o a m otorist approach the crossing. The evidence presented at tri al confli cted regarding whethe r the train sounded its whistle at the proper distance and whether Eddie heard the signal, and

a reasonable ju ry cou ld conclude that he did not. Furt hermore, the jury did reduce Edd ie’s damage award by 28% for hi s cont ribution to t he accid ent. injury that coul d result f

rom a tr ai n-on-car collision, a jury could easily conclude

that the foreseeable pr

oba bility and g ravi ty of harm outweighed the burden of cle aring the vegetation

on Norfo lk’s rig

ht of way . Reaso nable minds could also reach

different conclusions about whe ther Nor folk breached that duty and whether

the breach caused Eddie’s death. 14

VII. CONCLUSION

Ac co rd in gl y, we AFFI

RM the jud g ment of the district court. 28 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

_________________ CONCURRENCE

_________________ ROGERS, Circuit Judg e, c oncurring. I c oncur in the majority opin ion except for Part V. I n my view, a p lain reading of Tennessee’s tree cu tti ng statute, Tennessee Annotated

Code § 65-6-132, cl earl y in dicates that the so le purpose of the statute was to prev ent tr ees fro m falling onto the tracks. I concur

not because Mr. Shanklin was within the protected class of the sta tu te, but because the tree cutting statute was none theless a dmissible as evidence because it was releva nt, though not controlling, on the negligenc e determination under Tennessee law.

Tenness ee Annot

ated Code § 65-6-13 2 states: (a) Every company or pe

rsonoperati

ng a ra ilroad in t his state shall cut downall trees standing on its lands which

are six ( 6) or m ore in ches i n a dia meter two fe et (2') above the ground and of sufficient height to reach the roadbed if

they shou ld fall

. (b) A failure to

comply with subsection (a) will render the company liable for

all damages to person or

property resulting therefrom ; a ls o t o a pe na lt y of one hundred dol lars ($100), to be recovered on suit brought in the

name of any citizen before any tribunal having jurisdiction, o ne half ( 1/2 ) of which shall go to the treasury of the county in which sa

id provisions may have b een disregarded, and the other one ha lf ( 1/2 ) t o th e plaintiff. (emphas is added). Subsection (a) of § 65-6-132is obviousl y concerned

with trees greater than six inches i n diameter falling onto a railroad track. Although the district court believed the dia meter r equirement set forth in the statuteNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 29

1 The dist

rict court di d specif

y tha t th e viol ation of Tennes se e Code Annot ated § 65-12- 108, wh ich re late s to preca uti ons for r ailr oad crossings such as sign s and whi stl es, i s co nsi dered negligence pe r se might have indicated that the Tennessee legisla ture was also concerned

with visibil ity, the dia

me ter req uiremen t is easily explained by the fact that the thicker the trunk, the more likely a dera

ilment would occur if the tree fell.

Becau se the language of the stat ute clearly indica

tes that Mr. Shanklin was not within the class that § 65-6- 1 32 was designed to protect, the stat

ute could not be used as a basis for liability under the

statutory tort defi ned by subsecti on (b ) of § 65-6-132. Si mi la rl y, the statut e could not be used a s a basis for negligence per se under Tenn es see law. Under longstan ding and consistently applied Tenne ssee law, a plaintiff must demonstr ate that the in

jured pa rty was “wit hin the class of persons intended to benefit from or be protected by the statut e” to recover under a theory of negligence

per se

. Alex v. Armstrong , 385 S.W.2d 110 (Tenn. 1964); Carte r 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. Cobur n , 597 S.W.2d 319, 322 (Tenn. Ct. App. 1980); Berry v. Whitwo rth , 576 S.W.2d 351, 353 (Tenn . Ct

. App. 1978); see alsoR ESTA TEMENT (S ECOND ) OF T ORTS § 286. Thus, if the district court had instructed the jur y that violation of the tr

e e cutting statute required the jury to find negligence

on the part of defendant, we would be compelled to reverse.
The districtcourt, however, did not instruct the jury that the Norfolk Southern’ s failure

to comply

wit h the tree cutting statute constitute d negligence pe r se. I nstead, t he dis tric t
cour tread § 65-6-132(a) to the jury along with three o the r statutes rela

t ing to duties of railroad companies to keep crossing safe and the duties of a motorist when approaching a rail road cr ossi ng. 1 30 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

under Te nnesse e Co de A nnota ted § 6 5-12-109. However, the di stri ct court did not i nstr

uct that a vio lation o f the tree c utting statute consti tut ed negli gence per s e. Tennessee law is not clear on the question of whether a statutory obligation

that protects against different harms may

no nethe less be considered by a jury as pa

rt of its analysis of whether the defendant violated the common law standard of

care. While a number of Tennessee tort cases de al with statutes tha t arguably

protect against different harms, the

cases gener

ally involv e t he 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 pur

pose whatsoever.

Almost eighty- five yea

rs a go, the

Tenness ee Supre

me Courtheld that

a statute requiringautomobile drivers to stop at railr oad cro ssin gs was intended to protect against collisions between automo biles and

trains, a nd not to pr

otect ag ainst other traffic accidents that happen to occur a t a rail road

cross ing. Carter v. Redmond, 2 18 S.W . 217, 218 (Tenn. 1920). The court concluded not only that the trial judge erred ingiving a neglige

nce per se instruction, but that the trial judge also erred in refusing to give a tendered

instruction that the “statute

had no bearing on thecase before them.” Carter appears to support the conclusion that the district c ourt in this

caseshould nothave read the tr ee cu tt in g s ta tu te to th e j ur y, butthe case

is hardly on allfours. D efenda

nt in this ca se did nottender a

limiting in struction , alt hou gh def

endant di d object to having

the statu

te r ead to the jury. More im po rt an tl y, the ultimate basis for reversalin Carter was the

erroneous instruction regarding negligence p er s e, not the failure to instruct that the statute had no bea ring. The Carter court found that the trial court’s error was materi a l becaus e the erroneous negligence per se instruc t ion “pra ctically necessitated

a verdict against” defenda nt. The statement approvingthe tende

red instr uction wa s argua

bly dictum,No. 01-6449 Shanklin v . Norfolk Southern Railway Co. 31

inasmuchas the court did not need to reach the materiality of the trial court’s failure to give the tendere d instruction.

Incontras t, in Teal v. E.I. DuPont de Nemours & Co. , 728 F.2d 799 (6th Cir . 1984) (a pply in g T ennessee law), we review eda district court judgment in a case in which the district court

had ref used to g ive a neg

ligenc e per se

charge, butnonethel ess inform ed the jur y that the re gulation in question “may be c onsidered . . . as some evidence . . . of the (appropriate) standard of care.” I n Teal an employee

of an independent

contrac tor was in jured by a ladder that alle gedly did not conform to federal OSHA regulat ion s. While permitting the jury to consider the OSHA r egulation as some evidence of the appropriate standard of care , the district court refused to in struc t the j ury on negl ige nc e per se. On plaintiff’s appeal, we reve rsed, hol ding tha

t b e cause the OSHA regulation was indeed intended to pr otect the employees of inde

pendent contractors, the district court was required to give a negligence per se

instruction. Our opinion, however, did not cr

iticize at a

l l the district court’s apparent conclusionthat

a regu lation not i

ntended t o protect a plaintiff could nonethel ess be considere d as s ome e vidence of the appropriate standard of care.

Inthe absence of clear

Tennessee authority , we must make

our be st estimation of how the Tennessee Supreme Court would rule on the que st ion of whether the Tennessee tree cutting statut e could be admitted as some evidence of negligence, e ven thoug h the jury could not c onsider i

t as a basis for negligence pe

r se. Two considerations lead m e t o the conc lusion tha

t the answ er to this q

uestion is y

es. First, the Restatement of Torts would clearly answer the question ye s. Co m ment g to the Restatement (Second) of Torts § 286

states:
The fact that

a legis lative en

actment r equires a particular act to be done for the protection of the interests of a 32 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

particu larcl ass of individuals does not preclude the poss ibility

t hat the failure to do such an act may be negligence

at common law toward othe r classes of persons. It al so does not pr eclude t he possibi lity

that, in

a proper c ase, the

require ments of the sta

tute m ay be considered as evidence bearing on the re asonable

ness of the actor’s cond

uct.

R ESTATEMENT (S ECOND ) OF T ORTS § 286 cmt. g (emphas is added); see alsoR ESTA TE MENT (S ECOND ) OF T ORTS § 286 cmt. f (“The

fact tha t a legi slative e

nactmen t require s a particular act to be done for the protection of

the interests of

a parti cula

r 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 tortlaw to permit the jury to consider the Tennessee statute as

some evidence of neg li gence . When a jur y ma kes a negligence

determination, its determination can be likened, using the famous “Hand formula,” to a balancing of the burden on the def

endant in acting more carefully

against the probabil ity

of harm multiplied by the mag nitude of harm if the defendant does not so act. See Un ited S tates v. Ca rroll Towing Co. , 159 F.2d

169, 173 (2d Cir. 194 7) ( Han d, J .). In evaluatin g how burdensome it was to the defendant railroad to cut down the trees in question to avoid t he possibility of harm to person s like Shan

klin, it is r

elevant for the ju

ry to know that the r

ailroad was req uir ed to c ut down the trees anyway for an e ntirely differe nt purpose

. Thus it makes sense, at least in the context of the instant ca se, for t he jury to be aware of lega l require ments that

directly affect the balance that the jury is conce

ptually required

to make in

determining whether defenda nt has bee n negligent.

Iwould therefore hold that the distri ct court

in this cas e did noterr in reading the tree c utting statute to the jury. It would of course have been preferab le for the court to have statedNo. 01-6449 Shanklin v . Norfolk Southern Railway Co. 33

clearly to the jury that a violation o f the s tatute did not

necessa rily mean tha t defend ant was neglig ent. It wo

uld also have been better for the district court to have ex p lained that the jury could take

into account the defendant’s lega l obli gatio nto minimize the risk of limbs obstructing the tracks, only

as part of its evaluation of whether the defenda nt acte d re asonably in not increa sing the sight-distance for oncoming trains.
Moreover, e v en 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 wa s not instructed that

v iolation of the tree cutting statute would constitut e negligence

per se. Compare Carter , 218 S.W. at 217-19. As jurisdict ion for th is case is based on diversi

ty of citizenship, “federallaw governs our standard of review for determining

w het her a jury instruction is prejudicial.” Gafford v. Gen. Elec. Co. , 997 F.2d 1 50, 166 (6th Cir.1993) (internal quotation marks and

citations omitted); Teal , 728 F.2d

at 801. The Sixth Circ

uit has sta

ted that it

will reverse a jury ’s verdict on t he b asis of improper instructions only when the instructions, when viewed as

a whole, are confusing, misleading, andprejudic ial. Federalcourts g eneral ly presume the jury will follow the instructions correctly

as giv en. We will not reverse a decisionon the basis of an erroneo us jury instruction where the error

is harmle ss.
Barnes v. Ow ens-Corn ing Fiberg las Corp ., 201 F.3d 815, 82 2 (6th Cir. 2000).

Alth ough the jury was shown se veral dissection s of trees during trial, the lack of a negligenc e per se instruc

tion 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 consider able amount of

other ev

id e nce as to

Norfolk 34 Shanklin v . Norfolk Southern Railway Co. No. 01-6449

Southern’s duty and its breac h of that duty . Thus, the

simple reading of the tree cutting statute during the jury instruction, even if e rroneou s, was ha

rmless.