United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1597

___________ James Curtis Pittman, Co-Administrator * of the Estate of Joy Faye Pittman Ellis, * Deceased; Joyce Ann Pittman, * Individually and as Co-Administrator of * Appeal from the United States the Estate of Joy Faye Pittman Ellis, * District Court for the Deceased, * Eastern District of Arkansas. * Appellants, * * v. * * Thomas A. Frazer, Jr.; Paul B. Smith; * Alvin L. Triggs; Union Pacific Railroad * Company, * * Appellees. *

___________ Submitted: September 11, 1997 Filed: November 4, 1997

___________ Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

___________ WOLLMAN, Circuit Judge. This is an action for wrongful death brought under diversity jurisdiction, 2 8 U.S.C. § 133 2, and governed by Arkansas law. Plaintiffs James Curtis Pittman an d J o yce Ann Pittman (Pittmans), as co-administrators of the estate of Joy Faye PittmanThe Honorable George Howard, Jr., United States District Judge f or the Eastern 1 District of Arkansas. Union P acific, in turn, argues that the district court should have entere d 2 judgment as a matter of law for Union Pacific on the Pittmans’ claims. Although it is a close question, we conclude that the case was properly submitted for determination -2- Ellis, and Joyce Ann Pittman, individually, appeal from the judgment entered by th e district court on a jury verdict in favor of defendants Thomas A. Frazer, Jr., Paul B.

1 Smith, Alvin L. Triggs, and Union Pacific Railroad C ompany (hereinafter, collectively, “Union Pacific”). We affirm.
I. James H. Ball, Jr. and Ellis were involved in an adulterous affair during a period in which Ellis was experiencing marital difficulty. Apparently , Ellis had recently ended the affair and reconcile d with her husband. Nevertheless, on April 11, 1995, Ball and Ellis drove to a secluded a rea on private property owned by Thompson B. Murray, Jr. in Cross County, Arkansas. After spending some time together there, Ball and Ellis left the Murray property. Ball was driving the automobile, which was owned by th e Pittmans bu t used and controlled by Ellis. As he approached the crossing in question, Ball failed to yield and drove directly into th e path of an oncoming Union Pacific train. The resu lting crash killed Ball instantly. Ellis never regained consciousness and died shortly thereafter.
As admin istrators of their daughter’s estate, the Pittmans brought a wrongfu l de ath action against Union Pacific and certain of its employees responsible fo r operation of the train. The suit alleged that the defendants were negligent in failing to properly sound the bell or whis tle at the crossing, failing to maintain a proper lookout, and f ailing to maintain vegetation at a public crossing in accordance with Arkansa s law. 2by the jury. See, e.g. , St. Louis Southwestern Ry. Co. v. White , 788 S.W.2d 483, 485-

86 ( Ark. 1990); Missouri Pac. R.R. Co. v. Rogers , 178 S.W.2d 667, 668-69 (Ark

. 1944); St. Louis-San Francisco Ry. Co. v. Haynes , 5 S. W.2d 737, 738-39 (Ark. 1928). -3- II. The Pittmans first argue that in denyin g their motion for judgment as a matter of law (JAML), the district improperly allowed the jury to consider the issue of whether Ball and Ellis were engaged in a joint enterprise. We review de novo a district court’s denial of JAML, employing the same standard as that used by the district court. See Feltmann v. Sieben , 108 F.3d 970, 974 (8th Cir. 1997). Under Arkansas law, a joint venture or joint enterprise exists between the driver and passenger of an automobile when each has (1) a community of intere st in the object an d purpose of the undertaking for which the vehicle is being used; and (2) an equa l right to share in the control of the vehicle. See Krementz v. Raby , 959 F.2d 695, 696 (8th Cir. 1992). If a joint enterprise existed between Ball and Ellis, any contributory negligence of Ball would be imputed to Ellis and might operate to bar a recovery by the Pit tmans against Union Pacific. See Hurley v. Peebles , 384 S.W.2d 261, 264 (Ark

. 1964) (citing Restatement of Torts § 491 (1934)).
We disagree with the Pittmans that Arkansas law requires that the communit y of interest necessary to establish a joint enterprise be o f a business or pecuniary nature. See Neal v. J.B. Hunt Transport, Inc. , 805 S.W.2d 643, 645 (Ark. 1991) (unmarried couple returning from hospital after collecting family member); Bearden v. Arkansas Transport Co. , 471 S.W.2d 748, 751 (Ark. 1971) (driver and pass enger “having a good time, had been to a party together, were drunk, were not capable of driving a n automobile

safely, and were fixing to go to El Dorado, Arkansas (though the purpose of the trip was never mentioned)”); Langston v. Moseley , 265 S.W.2d 697, 698 (Ark.-4-

1954) (drivers of

automobiles attempting to unlock bumpers); Stockton v. Baker , 213 S.W.2d 896, 899 (Ark. 1948) (husband and wife traveling to visit wife’s sisters). Regarding the second element, we have noted that the Supreme Court o f Arkansas has held th at ownership of a vehicle by a passenger is sufficient to establish a jury q uestion as to the right of the passenger to control an automobile driven by her spouse. See Ingersoll v. Mason , 254 F.2d 899, 902 (8th Cir. 1958). The essentia l question is “whether the parties can be found by impli cation to have agreed to an equal voice in the management of the vehicle, an d in the normal and usual case is an issue of fa ctfor the jury.” RLI Ins. Co. v. Coe , 813 S.W.2d 783, 788 (Ark. 1991); see als o Neal , 805 S.W.2d at 645.
What ever the purpose the couple had in traveling to the Murray property, w e be lieve the facts established a jury question regarding a community of interest in th e object of their trip. Moreover, the automobile Ball was driving was used a nd controlled by Ellis, esta

blishing an issue of fact on the element of mutual control. We conclude, th erefore, that the district court did not err in denying JAML on the issue of join t enterprise. See id. ; Krementz , 959 F.2d at 697; Ingersoll , 254 F.2d at 902-03.
III.
The Pitt mans next dispute the district court’s refusal to rule that the railroa d crossing at w hich the crash occurred was public in nature. This issue is pertinen t because of Ark. Code Ann. § 23-12-201 (Supp. 1995), which provides in part:

(a)(1) All railroad corporations operating in this state shal l maintain their rig ht-of-way at or around any railroad crossing of a public road or hi ghway free from grass, trees, bushes, shrubs, or other growing veg etation which may obstruct the view of pedestrians and vehicl e operators using the public highways.-5-

One of t he theories of negligence alleged by the Pittmans was that Union Pacifi c negligently breached its duty to properly maintain the crossing in question, obstructing the view of Ball and Ellis and resulting in the crash. Placing re liance on St. Louis, I.M. & S. Ry. Co. v. Tomlinson , 94 S.W. 61 3 (Ark. 1906 ), the Pittmans assert that because certain members of the public ha d previously been granted permission to utilize the road, the crossing w as public in nature as a matter of law. The evi dence indicates, however, that the crossing is private. It is located on a dirt road on private property and dead-ends at a private pond. The road is not maintained by any governmental authority and does not seem to have been the object o f regular use by the public. Thus, the district court did not err in refusing t o hold as a matter of law that the crossing was public in nature.
IV. Next, the P ittmans assert that Arkansas Model Jury Instruction (AMI Civil 3d) 1801 was improperly submitted to the jury, as it constituted an inaccurate statement of Arka nsas law. A district court has broad discretion in drafting jury instructions. See Gamma10 Plastics, Inc. v. American President Lines, Ltd. , 105 F.3d 387, 389 (8t h Cir.), cert. denied , 1997 WL 457755 (U.S. Oct. 6, 1997). Jury instructions are to be read as a whole, and the instruction at issue is examined in light of the entire charge. See id

. Our review is confined to whether the instructions “fairly and adequatel y present the issues in the case to the jury.” Id. As long as the instructions, considered as a whole, adequately and sufficiently state the generally applicable law, the fact that they are tech nically imperfect or are not a model of clarity does not render the charge erroneous. See id. Regar ding Union Pacific’s duty to sound its bell or whistle, the jury wa s instructed as follows:-6- A railro ad is required to place on each locomotive a bell or whistle, and these shall be rung or whistled at a distance of at least a quarter mile from where the tracks cross an y public ro ad and shall be kept ringing or whistling until th e locomotive has crossed the road. AMI Civil 3d 1801 (1989) (emphasis added). The statute upon

which this instruction is based provides, in pertinent part: “A bell . . . sh all be placed on each locomotive or engine and shall be rung or whistled at the distance of at least eighty (80) rods from the place where the road shall cross any othe r road or street .” Ark. Code. Ann. § 23-12-410 (1987) (emphasis added). Th e Arkansas Supreme Court has construed this statute as applying both to public an d private roads. See Haynes , 5 S.W.2d at 739. It woul d appear, then, that AMI Civil 3d 1801 is unduly restrictive. Whatever our view of the instruction, the Arkansas Supreme Court has approved its use. S ee St. Louis Southwestern Ry. Co. v. Taylor , 525 S.W.2d 450, 453 (Ark

. 1975). We also note that the comments to this instruction indicate that th e determinative factor in its applicability is whet her a particular road is regularly used by the public. SeeAMI Civil 3d 1801 (citing Tomlinson , 94 S.W. at 613). The jury was spec ifically instructed on this latter issue, and we find that instruction to hav e accurately reflected the law set forth in Haynes , 5 S.W.2d at 739. Further, our review o f the jury instructions as a whole leads us to conclude that the jury was adequately appraised of the issues in the case. The instructions o n negl igence, for example, incorporated the concept that if Union Pacific did not us e ordinary care in its operation of the whistle and that breach of duty resulted in th e wrongful death of Ellis, the railroad should liable for her death, whether that duty was-7-

statutorily imposed or not. The in structions as a whole, thus, were sufficient to “fairly and adequately present the issues in the case to the jury.” Gamma , 105 F.3d at 389-90.Alt hough the Pittmans’ brief also referenced the attorney-client privilege, th e 3 district court properly identified this issue as more appropriately implicating the work pr oduct doctrine. Moreover, because we agree that the undisclosed portion of th e investig ator’s file remained protected by the work product doctrine, we need no t address any potential waiver of the attorney-client privilege. -8- V. The Pittmans further contend that by voluntarily disclosing some of the protected material gathered by its investigator, Union Pacific waived its work product privilege. See Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor , 329 U.S. 495, 508-14 (1947); 8 C. Wright & A. Miller, Federal Practice and Procedure §§ 2021-28 (1994). In response 3 to discovery requests, Union Pacific produced photographs and measurements of the ac cident scene that the district court determined to be privileged. By utilizing thes e photographs at trial, the Pittmans argue, Union Pacific effectively waived the wor k product privilege for the entire contents of its investigator’s file. The work product privilege is designed to promote the operation of the adversary system by ensuring that a party canno t obtain materials that his opponent has prepared in anticipation o f litigation. Westinghouse Elec. Corp. v. Republic of the Philippines , 951 F.2 d 1414, 1428 (3d Cir. 1991). The doctrine allows for discovery of suc h documents and tangible things only upon a showing of “substantial need and a n inabi lity to secure the substantial equivalent of the items through alternate mean s wi thout undue hardship” for ordinary work product (such as photographs and ra w informa tion), and “only in rare and extraordinary circumstances” for opinion wor k produc t (containing mental impressions, conclusions, opinions, or legal theorie s regarding the litigation)

. In re Murphy , 560 F.2d 326, 333-36 & n.20 (8th Cir. 1977); see also In re Grand Jury Subpoena Duces Tecum , 112 F.3d 910, 924-25 (8th Cir.) , cert. denied , 117 S. Ct. 2482 (1997); Si mon v. G.D. Searle & Co. , 816 F.2d 397, 400- 02 & n.3 (8th Cir. 1987). Although the Pittmans do not discuss the distinction onIn fact, the photogra phs were first introduced at trial by the Pittmans as part of 4 their case in chief. -9- appe al, we will assume, without deciding, that the material sought to be obtaine d constitutes ordinary work product.
We have stated that disclosure to an adversary waives work product protection
as to i tems actually disclosed. In re Chrysler Motors Corp. Overnight Evaluatio n Program Litig. , 860 F.2d 844, 846 (8th Cir. 1988).
If docum ents otherwise protected by the work-product rule have bee n disclosed to others with an actual intention that an opposing pa rty may see the documents, the party who made the disclosure should no t subse quently be able to claim protection for the documents as work product. But disclosure of some documents does not destroy work

product protection for other documents of the same character

. Wright & Miller, § 2024 at 209 (emphasis added); see also Duplan Corp. v. Deering Milliken, Inc. , 540 F.2d 1215, 1222 (4th Cir. 197 6) (“broad concepts of subject matter waiv er analogous to those applicable to claims of attorney-client privilege ar e inappropriate when applied to Rule 26(b)(3)”); In re United Mine Workers of America Employee Benefit Plan s Litig. , 159 F.R.D. 307, 310-12 (D.D.C. 1994) (production of documents protected by attorney work product doctrine resulted in waiver of privilege only as to those documents produced). The work product doctrine is to be applied in a commonsense manner in light of reason and experience as determined on a case-by-case ba sis. See In re Six Grand Jury Witness es , 979 F.2d 939, 944 (2d Cir. 1992) (citing Fed. R. Evid. 501). Here, Union Pacific merely utilized as trial exhib its photographs of the accident scene that had been previously disclosed to the Pittmans. In any event, any waiver of work produc t 4 protection was l imited to the photographs themselves. See Chrysler , 860 F.2d at 846;-10-

Duplan , 540 F.2d at 1222-23; United Mine Workers , 159 F.R.D. at 310-12; In r e Sealed Case , 676 F.2d 793, 818 (D.C. Cir. 1982) (“The purposes of the work product privilege

. . . are not inconsistent with selective disclosure -- even in som e circumstances to an adversary”). Moreover, the Pittmans have made no attempt to demonstrate the sort o f substantial need or undue hardship required b y Rule 26(b)(3) before protected ordinary work pr oduct may be discovered. See Murphy , 560 F.2d at 334. We conclude , therefor e, that the district court did not err in refusing to compel discovery of th e remainder of the investigator’s file or in denying the Pittm ans’ motion to reconsider that ruling.
VI. The Pittmans dispute tw o evidentiary rulings. The district court denied motions by the Pittmans to exclude a statement by Ball tothe effect that “If I can’t have you, no one can,” as inadmis sible hearsay and to admit previous statements by Ellis’s children regard ing the mental anguish caused by the loss of their mother. Rulings o n admissib ility of evidence will not be reversed absent a clear and prejudicial abuse o f discretion. See Scheerer v. Hardee’s Food Sys., Inc. , 92 F.3d 702, 706 (8th Cir. 1996). We find no such abuse of discretion by the district court here. The judgment is affirmed. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.