The HONORABLE ROBERT R. BEEZER, United States Circuit Judge for the 1 Ninth Circuit, sitting by designation. The Honorab le James M. Moody, United States District Judge for the Eastern 2 District of Arkansas. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ 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

___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, an d BEEZER, Circuit Judge.

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___________ WOLLMAN, Circuit Judge. Daymark Foods, Inc. (Daymark) appeals from the judgment entered by th e district court on the jury’s verdict in favor of Mary Duston. We affirm.

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Mary and her husband, Arthur, worked as team truck drivers for Daymark , delive ring 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 el even that evening. From that time until six or seven a.m. on April 29, they unloaded the 300 boxes of flowers they ha d delivered.
Arthur then informed a Daymark dispatcher that he and Mary had complete d 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 th e 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 an d diarrhea and stopped twice at rest stops. After he h ad 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 , wher euponshe looked out of the compartment and saw Arthur slumped over at th e 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.
Ma ry filed suit in Arkansas state court, alleging that Arthur was negligent i n driving and that Daymark, as Arthur’s employer, was vicariously liable. Daymar k removed t he case to federal court. The jury found in favor of Mary, awarding he r $35,000 in damages.-3-

On appeal, D aymark 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 affi rm if reasonable persons could differ regarding the conclusions to be draw n from the evidence. See Sherbert v. Alcan Aluminu m 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 define d negligence as “the failure to do something which a reasonably car eful person would do, or the doing of something which a reasonably careful person would not do, unde r circumstances similar to those shown by the evidence.” Scully v. Middleton , 75 1 S.W.2d 5, 5 (Ark. 1988). “[A] negligent act arises from a si tuation where an ordinarily prudent person in the same situation would fo resee 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, In c. 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 ner

ve and results in a slowing of the heart rate and the lowering of blood pr essure, with a resultant loss of consciousness. The doctor opined that Arthur’ s vasovagal reaction was caused by stress, fatigue, and stomach cramps that wer e kindled by his fatigue. Daymark argues that Arthur could not reasonably foresee that he woul d experience a vasovagal reaction from his fatigue and thus was not negligent i n persi sting in driving. The question, however, is not whether Arthur would have been-4-

able to predict precisely this reaction, but whether a reasonable person would hav e bee n 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 conseque nces which occurred, whether he might have foreseen itor n ot.’” Id. (quoting Bergetz v. Repka , 424 S.W.2d 367, 369 (Ark. 1968)); se e 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.