United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-2199

___________

Glen Wood, *

*

Plaintiff-Appellee, *

*

The Travelers Insurance *

Company, * Appeal from United States

* District Court for the Eastern

Intervenor-Appellee, * District of Arkansas.

*

v. *

*

Minnesota Mining and *

Manufacturing Company, *

*

Defendant-Appellant. *

___________

 Submitted: January 15, 1996

 Filed: April 21, 1997

___________

Before LOKEN, BRIGHT and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Glen Wood sought damages after being struck by Minnesota Mining and

Manufacturing Company’s (3M) train while crossing 3M’s tracks in his

employer’s truck. The jury returned a $300,000 verdict in favor of Wood.

3M challenges the verdict and raises a variety of evidentiary issues. We

affirm.
-2-

BACKGROUND

Glen Wood drives a truck for Silica Transport. On April 10, 1992,

Wood picked up a load at a 3M plant in his tractor-trailer rig and drove

his truck through a 3M railroad crossing as a 3M train moved toward him.

There were no crossbucks or lights at the crossing. The train engineer

honked the horn, shouted and waved. Because the train was traveling

backwards, the horn faced away from Wood who did not hear these noises from

inside the cab of the truck. The 3M train ran into Wood’s truck. The

train engineer jumped off the train before the collision, thus, there was

no one on board when the train struck Wood and the horn was not blowing in

the final seconds before the collision. 

Wood’s employer, Silica Transport, paid 3M $28,000 for damage to 3M’s

train. Wood subsequently filed suit on April 12, 1994, alleging diversity

jurisdiction pursuant to 28 U.S.C. § 1332 and seeking damages for personal

injuries due to 3M’s negligence. He alleged permanent injuries to his

lower back and left shoulder, loss of earnings and earning capacity, and

pain and suffering. A jury returned a verdict in Wood’s favor and awarded

him $300,000 in damages. 3M then filed a motion for judgment as a matter

of law and, in the alternative, for a new trial. The district court denied

these motions and 3M appealed.

DISCUSSION

3M raises five issues on appeal. First, 3M argues that the trial

court erred by denying 3M’s motions for judgment as a matter of law.

Second, 3M asserts the trial court erred in admitting plaintiff’s expert

testimony. Third, 3M contends the trial court’s exclusion of Wood’s

employer’s payment for damages to 3M’s 
-3-

locomotive under Fed.R.Evid. 408 constituted prejudicial error. Fourth,

3M argues the trial court’s jury instruction regarding the duty of the 3M

railroad to keep a lookout on the train was prejudicially improper. Fifth,

3M believes the jury verdict was against the weight of the evidence and

required a new trial. We consider these arguments in turn.

I.

3M first argues that the district court erred by denying 3M’s motion

for a verdict as a matter of law:

If during a trial by jury a party has been fully heard on

an issue and there is no legally sufficient evidentiary basis

for a reasonable jury to find for that party on that issue, the

court may determine the issue against that party and may grant

a motion for judgment as a matter of law against that party .

. . .

Fed.R.Civ.P. 50. In making this determination, the trial judge must “view

the evidence in the light most favorable to the plaintiff, and to give the

plaintiff the benefit of all favorable inferences reasonably to be drawn

from the evidence.” Lang v. Cone, 542 F.2d 751, 754 (8th Cir. 1976); Croom

v. Younts, 323 Ark. 95, 913 S.W.2d 283, 286 (1996). “We review the

district court’s denial of a motion for judgment as a matter of law de novo

using the same standards as the district court.” Keenan v. Computer Assoc.

Int’l, Inc., 13 F.3d 1266, 1268 (8th Cir. 1994). 

3M is not entitled to a verdict as a matter of law. Wood introduced

evidence of an essentially unguarded rail crossing lacking guards, lights,

or crossbucks. The effectiveness of stop signs was, at best, nominal.

Finally, the train’s horn failed to alert Wood because it faced the

opposite direction. Viewing the 
-4-

evidence in the light most favorable to Wood supports the trial court’s

denial of 3M’s motion for judgment as a matter of law.

II.

3M next argues that the district court erred by admitting the

testimony of Archie Burnham and by excluding evidence of a payment by

Wood’s employer to 3M for damage to 3M’s train. We review these

evidentiary rulings only for an abuse of discretion. Crues v. KFC Corp.,

768 F.2d 230, 233 (8th Cir. 1985). We consider these arguments in turn.

A.

Archie Burnham testified as an expert regarding whether 3M properly

constructed the railroad crossing and provided reasonable warning of that

crossing. 3M argues that the trial court abused its discretion because

Burnham’s testimony was irrelevant and unreliable. We disagree. 

Federal Rule of Evidence 702 governs the admissibility of expert

testimony and the trial judge screens such evidence for relevance and

reliability. Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579,

589 (1993). In order to determine relevance, the trial court reviews the

expert testimony to ensure it is scientifically based and will assist the

trier of fact in determining a fact at issue. Id. at 589-90. The

exclusion of an expert’s opinion is proper only if it is “`so fundamentally

unsupported that it can offer no assistance to the jury . . . .’” Hose v.

Chicago Northwestern Transp. Co., 70 F.3d 968, 974 (8th Cir. 1995) (quoting

Loudermill v. Dow Chem. Co., 863 F.2d 566, 570 (8th Cir. 1988)). 
 “I want you to understand the witness is not telling you that 1

he thinks there’s any Arkansas law or regulation that requires a

cross buck. He’s giving you his opinion as to what he thinks is

the prudent thing to do on private crossings.” Appellees’ App.

at 112.

-5-

The district court noted several facts relating to Burnham’s career

which qualify him as an expert. For example, Burnham, a highway safety

specialist, completed graduate studies at Yale University. During his

thirty-year career with the Georgia Department of Transportation, he spent

sixteen years directing the office of traffic and safety which oversees all

of the state’s public railroad crossings. In addition, Burnham was a

contributing editor of an important text regarding traffic engineering as

it applies to railroad crossings. Accordingly, the court properly

considered him an expert in the field of traffic control systems and

railroad crossings. 

The trial court also engaged in a lengthy hearing before determining

that Burnham’s testimony was relevant. Appellees’ App. at 90-100.

Burnham’s testimony assisted the jury in determining whether 3M properly

constructed a railroad crossing on its property and whether 3M provided

reasonable warning of that crossing. The district court informed the jury

that Burnham’s testimony was not evidence of a legal violation by 3M.

Appellees’ App. at 111-112. We do not believe that the trial court erred 1

in determining that the testimony would assist the jury in determining

whether the crossing was reasonably safe.

In addition, the district court implicitly determined that the

testimony was reliable. 3M, however, asserts Burnham’s methodology and

fact-gathering techniques relating to his decibel readings and site

distance triangulation were suspect. The district court reviewed this

methodology at length and did not abuse its 
-6-

discretion in determining that Burnham’s methodology was sound.

Furthermore, the fact that Burnham lacked expertise in private crossings

did not render his testimony unhelpful. 

Finally, 3M argues that the district judge failed in his duty as the

“gatekeeper” for the expert testimony. Before trial, Burnham stated that

he would not testify about the operation of the brake system or whether the

train engineer applied the brakes too late. At trial, however, Burnham

testified to both issues without objection. Even if such testimony was

inappropriate, we conclude that admitting it was harmless error. We do not

believe the jury’s verdict would have been different without this

testimony.

 

We conclude, therefore, that the district court did not abuse its

discretion by admitting Burnham’s testimony.

B.

3M also asserts that the district court erroneously excluded 3M’s

evidence that Wood’s employer, Silica Transport, paid $28,000 for damages

to 3M’s locomotive. The district court refused to admit this evidence

under Fed.R.Evid. 408, which states in relevant part:

Evidence of (1) furnishing or offering or promising to

furnish, or (2) accepting or offering or promising to accept,

a valuable consideration in compromising or attempting to

compromise a claim which was disputed as to either validity or

amount, is not admissible to prove liability for or invalidity

of the claim or its amount. . . .

3M asserts that, in order for Rule 408 to be operative, litigation

must be taking place or threatened and cites to S.A. 
-7-

Healy Co. v. Milwaukee Metro Sewerage Dist., 50 F.3d 476, 480 (7th Cir.

1995), for support. In this case, Silica Transport paid 3M $28,000

approximately two years before Wood filed his lawsuit.

We need not reach that issue, however, because we conclude that the

payment by Wood’s employer was irrelevant to Wood’s case against 3M.

Fed.R.Evid. 402. The employer’s financial concession is not binding in any

way on Wood’s legal action. Even if relevant, we conclude that this

evidence’s unfair prejudicial effect substantially outweighs its probative

value because a jury could be unfairly swayed by evidence of Silica’s

financial concession to 3M. Fed.R.Evid. 403. Accordingly, the district

court properly excluded evidence of Silica’s payment to 3M.

III.

3M next argues that the district court gave an incorrect jury

instruction. The district court submitted the following instruction,

entitled Duty of Railroad To Keep Lookout, over 3M’s objection:

All persons operating trains upon any railroad in this

state shall have the duty to keep a constant lookout for

persons and property upon, near, or approaching the railroad

track. A violation of this duty is negligence.

This does not mean that each member of the train crew

must keep a constant lookout, but it does mean that an

efficient lookout must be kept by some member of the crew at

all times.

Appellant’s App. at 399. Arkansas law states: “It shall be the duty of all

persons running trains in this state upon any railroad to keep a constant

lookout for all persons, including licensees and trespassers, and property

upon the track of any and all railroads.” 
-8-

Ark. Code Ann. § 23-12-907(a)(1) (1995). We review the district court’s

determinations of state law de novo. Salve Regina College v. Russell, 499

U.S. 225, 231 (1991).

3M objected to this instruction, arguing that the statute applied

to public railroads involved in interstate commerce and not to private

railroads such as 3M’s. 3M further argues that the Arkansas statute

regards “railroads” as being “on an equal basis with other persons, firms,

and corporations . . . .” Ark. Code. Ann. §§ 23-12-901, 23-12-907(c).

According to 3M, the legislature expressed its intention to treat

“railroads” as a separate jural entity which could sue and be sued, like

any other person, firm, or corporation. In short, 3M asserts the

instruction effectively imposed an obligation on 3M that state law did not

recognize. 

The district court determined that the statute “applies only to `all

persons operating trains,’ it does not require it to be a railroad

corporation or common carrier, and there’s no requirement that it be a

public road, and, therefore, I think all of the definitions in the

instruction are met by the facts in the case.” Appellee’s App. at 205.

We agree that a plain reading of the statute supports the district court’s

jury instructions regarding 3M’s duty to keep a lookout on its railroad.

Alternatively, 3M argues that the instruction was unwarranted in this

case because 3M introduced undisputed evidence that the train engineer kept

a lookout, saw the truck, blew the horn, applied the brakes, yelled and

waved to warn Wood of the approaching train. We disagree. Whether the

engineer kept an adequate lookout was a fact question for the jury and we

decline to disturb that conclusion here.
-9-

IV.

Finally, 3M contends that the district court erroneously denied 3M’s

motion for a new trial because the verdict is against the weight of the

evidence. The authority to grant or deny a new trial is a matter within

the district court’s discretion and is not to be reversed absent a clear

abuse of that discretion. Keenan, 13 F.3d at 1269. “The key question is

whether a new trial should have been granted to avoid a miscarriage of

justice.” Id. Where, as here, the “basis of the motion for a new trial

is that the jury’s verdict is against the weight of the evidence, the

district court’s denial of the motion `is virtually unassailable on

appeal.’” Keenan, 13 F.3d at 1269 (quoting Peterson ex rel. Peterson v.

General Motors Corp., 904 F.2d 436, 439-40 (8th Cir. 1990)). Based on the

facts presented at trial and discussed in Section I, there is evidence to

support the jury’s verdict. Accordingly, we decline to do disturb the jury

verdict.

CONCLUSION

For the foregoing reasons, we affirm the decision of the district

court.

A true copy.

Attest:

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