The HONORABLE ROBERT R. BEEZER, United States Circuit Judge for the 1

Ninth Circuit, sitting by designation.

The Honorable James M. Moody, United States District Judge for the Eastern 2

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3817

___________

Mary Duston, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Daymark Foods, Inc., *

*

Appellant. *

___________

 Submitted: June 13, 1997

Filed: September 9, 1997

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Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and

BEEZER, Circuit Judge. 1

___________

WOLLMAN, Circuit Judge.

Daymark Foods, Inc. (Daymark) appeals from the judgment entered by the

district court on the jury’s verdict in favor of Mary Duston. We affirm. 2
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Mary and her husband, Arthur, worked as team truck drivers for Daymark,

delivering fresh flowers to various locations across the United States. On April 26,

1994, the Dustons drove from Atlanta, Georgia, to Miami, Florida, to pick up flowers.

They returned to Atlanta and, around midday on April 28, continued on to Indianapolis,

Indiana, where they arrived between ten and eleven that evening. From that time until

six or seven a.m. on April 29, they unloaded the 300 boxes of flowers they had

delivered.

Arthur then informed a Daymark dispatcher that he and Mary had completed

their run. The dispatcher told Arthur that he and Mary were to drive to Chattanooga,

Tennessee, where they were to pick up another load and deliver it to Indianapolis.

Arthur told the dispatcher that he and Mary were tired and asked if another team could

make the run. The dispatcher replied that no one else was available and that the

Dustons had to make the run. Arthur and Mary began the drive to Chattanooga, with

Arthur at the wheel and Mary in the sleeper compartment of the cab. 

The trip did not go well, for Arthur began experiencing stomach cramps and

diarrhea and stopped twice at rest stops. After he had driven approximately 300 miles,

Arthur told Mary that he was about to vomit and asked her to look for a bag. While

Mary was doing so, Arthur lost consciousness. Mary felt the truck hit a bump,

whereupon she looked out of the compartment and saw Arthur slumped over at the

wheel. The truck careened off the highway, through a fence, and down a hill, throwing

Mary about in the sleeper compartment with such force that she suffered a herniated

disk in her cervical spine.

Mary filed suit in Arkansas state court, alleging that Arthur was negligent in

driving and that Daymark, as Arthur’s employer, was vicariously liable. Daymark

removed the case to federal court. The jury found in favor of Mary, awarding her

$35,000 in damages.
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On appeal, Daymark argues that it is entitled to judgment as a matter of law,

contending that Mary failed to prove negligence. We review the denial of a motion for

judgment as a matter of law under the same standard as that employed by the district

court: we consider the evidence in the light most favorable to the prevailing party and

will affirm if reasonable persons could differ regarding the conclusions to be drawn

from the evidence. See Sherbert v. Alcan Aluminum Corp., 66 F.3d 965, 967 (8th Cir.

1995).

Arkansas law governs the standard of care in this diversity action. See Erie R.

Co. v. Tompkins, 304 U.S. 64 (1938). The Arkansas Supreme Court has defined

negligence as “the failure to do something which a reasonably careful person would do,

or the doing of something which a reasonably careful person would not do, under

circumstances similar to those shown by the evidence.” Scully v. Middleton, 751

S.W.2d 5, 5 (Ark. 1988). “[A] negligent act arises from a situation where an ordinarily

prudent person in the same situation would foresee such an appreciable risk of harm to

others that he would not act or at least would act in a more careful manner.” Ouachita

Wilderness Institute, Inc. v. Mergen, 947 S.W.2d 780, 784 (Ark. 1997). The plaintiff

must also show “that the negligent act proximately caused the damages sustained and

that such damages were reasonably foreseeable.” Scully, 751 S.W.2d at 6.

The doctor who examined Arthur after the accident testified that Arthur’s

blackout was caused by a “vasovagal reaction,” which is prompted by the stimulation

of the vagus nerve and results in a slowing of the heart rate and the lowering of blood

pressure, with a resultant loss of consciousness. The doctor opined that Arthur’s

vasovagal reaction was caused by stress, fatigue, and stomach cramps that were

kindled by his fatigue.

Daymark argues that Arthur could not reasonably foresee that he would

experience a vasovagal reaction from his fatigue and thus was not negligent in

persisting in driving. The question, however, is not whether Arthur would have been
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able to predict precisely this reaction, but whether a reasonable person would have

been able to foresee that driving while suffering fatigue would create a risk of harm.

See Catlett v. Stewart, 804 S.W.2d 699, 703 (Ark. 1991). “‘If the act or omission is

of itself negligent and likely to result in injury to others, then the person guilty thereof

is liable for the natural consequences which occurred, whether he might have foreseen

it or not.’” Id. (quoting Bergetz v. Repka, 424 S.W.2d 367, 369 (Ark. 1968)); see

Bolstad v. Pergeson, 806 S.W.2d 377, 379 (Ark. 1991).

We have considered Daymark’s claim of error regarding the district court’s jury

instruction on negligence and conclude that it is without merit.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.