United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1597

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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. *

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 Submitted: September 11, 1997

 Filed: November 4, 1997

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Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.

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WOLLMAN, Circuit Judge.

This is an action for wrongful death brought under diversity jurisdiction, 28

U.S.C. § 1332, and governed by Arkansas law. Plaintiffs James Curtis Pittman and

Joyce Ann Pittman (Pittmans), as co-administrators of the estate of Joy Faye Pittman
The Honorable George Howard, Jr., United States District Judge for the Eastern 1

District of Arkansas.

Union Pacific, in turn, argues that the district court should have entered

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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

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Ellis, and Joyce Ann Pittman, individually, appeal from the judgment entered by the

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 Company (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 reconciled with her husband. Nevertheless, on April 11, 1995, Ball and

Ellis drove to a secluded area 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 the

Pittmans but used and controlled by Ellis. As he approached the crossing in question,

Ball failed to yield and drove directly into the path of an oncoming Union Pacific train.

The resulting crash killed Ball instantly. Ellis never regained consciousness and died

shortly thereafter.

As administrators of their daughter’s estate, the Pittmans brought a wrongful

death action against Union Pacific and certain of its employees responsible for

operation of the train. The suit alleged that the defendants were negligent in failing to

properly sound the bell or whistle at the crossing, failing to maintain a proper lookout,

and failing to maintain vegetation at a public crossing in accordance with Arkansas

law.2
by 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).

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II.

The Pittmans first argue that in denying 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 interest in the object

and purpose of the undertaking for which the vehicle is being used; and (2) an equal

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

Pittmans 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 community

of interest necessary to establish a joint enterprise be of 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 passenger “having a good

time, had been to a party together, were drunk, were not capable of driving an

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.
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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 of

Arkansas has held that ownership of a vehicle by a passenger is sufficient to establish

a jury question 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 essential

question is “whether the parties can be found by implication to have agreed to an equal

voice in the management of the vehicle, and in the normal and usual case is an issue of

fact for the jury.” RLI Ins. Co. v. Coe, 813 S.W.2d 783, 788 (Ark. 1991); see also

Neal, 805 S.W.2d at 645.

Whatever the purpose the couple had in traveling to the Murray property, we

believe the facts established a jury question regarding a community of interest in the

object of their trip. Moreover, the automobile Ball was driving was used and controlled

by Ellis, establishing an issue of fact on the element of mutual control. We conclude,

therefore, that the district court did not err in denying JAML on the issue of joint

enterprise. See id.; Krementz, 959 F.2d at 697; Ingersoll, 254 F.2d at 902-03.

III.

The Pittmans next dispute the district court’s refusal to rule that the railroad

crossing at which the crash occurred was public in nature. This issue is pertinent

because of Ark. Code Ann. § 23-12-201 (Supp. 1995), which provides in part:

(a)(1) All railroad corporations operating in this state shall

maintain their right-of-way at or around any railroad crossing of a public

road or highway free from grass, trees, bushes, shrubs, or other growing

vegetation which may obstruct the view of pedestrians and vehicle

operators using the public highways.
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One of the theories of negligence alleged by the Pittmans was that Union Pacific

negligently breached its duty to properly maintain the crossing in question, obstructing

the view of Ball and Ellis and resulting in the crash.

Placing reliance on St. Louis, I.M. & S. Ry. Co. v. Tomlinson, 94 S.W. 613

(Ark. 1906), the Pittmans assert that because certain members of the public had

previously been granted permission to utilize the road, the crossing was public in nature

as a matter of law. The evidence 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 of regular use by the public. Thus, the district court did not err in refusing to

hold as a matter of law that the crossing was public in nature.

IV.

Next, the Pittmans assert that Arkansas Model Jury Instruction (AMI Civil 3d)

1801 was improperly submitted to the jury, as it constituted an inaccurate statement of

Arkansas law. A district court has broad discretion in drafting jury instructions. See

Gamma 10 Plastics, Inc. v. American President Lines, Ltd., 105 F.3d 387, 389 (8th

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 adequately

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 technically imperfect or are not a model of clarity does not render the charge

erroneous. See id.

Regarding Union Pacific’s duty to sound its bell or whistle, the jury was

instructed as follows: 
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A railroad 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 any

public road and shall be kept ringing or whistling until the

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 . . . shall 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

other road or street.” Ark. Code. Ann. § 23-12-410 (1987) (emphasis added). The

Arkansas Supreme Court has construed this statute as applying both to public and

private roads. See Haynes, 5 S.W.2d at 739. It would appear, then, that AMI Civil 3d

1801 is unduly restrictive.

Whatever our view of the instruction, the Arkansas Supreme Court has approved

its use. See 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 the

determinative factor in its applicability is whether a particular road is regularly used by

the public. See AMI Civil 3d 1801 (citing Tomlinson, 94 S.W. at 613). The jury was

specifically instructed on this latter issue, and we find that instruction to have

accurately reflected the law set forth in Haynes, 5 S.W.2d at 739.

Further, our review of the jury instructions as a whole leads us to conclude that

the jury was adequately appraised of the issues in the case. The instructions on

negligence, for example, incorporated the concept that if Union Pacific did not use

ordinary care in its operation of the whistle and that breach of duty resulted in the

wrongful death of Ellis, the railroad should liable for her death, whether that duty was
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statutorily imposed or not. The instructions 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.
Although the Pittmans’ brief also referenced the attorney-client privilege, the

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district court properly identified this issue as more appropriately implicating the work

product doctrine. Moreover, because we agree that the undisclosed portion of the

investigator’s file remained protected by the work product doctrine, we need not

address any potential waiver of the attorney-client privilege.

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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

accident scene that the district court determined to be privileged. By utilizing these

photographs at trial, the Pittmans argue, Union Pacific effectively waived the work

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 cannot obtain materials that his opponent has prepared

in anticipation of litigation. Westinghouse Elec. Corp. v. Republic of the Philippines,

951 F.2d 1414, 1428 (3d Cir. 1991). The doctrine allows for discovery of such

documents and tangible things only upon a showing of “substantial need and an

inability to secure the substantial equivalent of the items through alternate means

without undue hardship” for ordinary work product (such as photographs and raw

information), and “only in rare and extraordinary circumstances” for opinion work

product (containing mental impressions, conclusions, opinions, or legal theories

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); Simon v. G.D. Searle & Co., 816 F.2d 397, 400-

02 & n.3 (8th Cir. 1987). Although the Pittmans do not discuss the distinction on
In fact, the photographs were first introduced at trial by the Pittmans as part of 4

their case in chief.

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appeal, we will assume, without deciding, that the material sought to be obtained

constitutes ordinary work product.

We have stated that disclosure to an adversary waives work product protection

as to items actually disclosed. In re Chrysler Motors Corp. Overnight Evaluation

Program Litig., 860 F.2d 844, 846 (8th Cir. 1988).

If documents otherwise protected by the work-product rule have been

disclosed to others with an actual intention that an opposing party may see

the documents, the party who made the disclosure should not

subsequently be able to claim protection for the documents as work

product. But disclosure of some documents does not destroy workproduct 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. 1976) (“broad concepts of subject matter

waiver analogous to those applicable to claims of attorney-client privilege are

inappropriate when applied to Rule 26(b)(3)”); In re United Mine Workers of America

Employee Benefit Plans 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 basis. See In re Six Grand Jury

Witnesses, 979 F.2d 939, 944 (2d Cir. 1992) (citing Fed. R. Evid. 501). Here, Union

Pacific merely utilized as trial exhibits photographs of the accident scene that had been

previously disclosed to the Pittmans. In any event, any waiver of work product

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protection was limited to the photographs themselves. See Chrysler, 860 F.2d at 846;
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Duplan, 540 F.2d at 1222-23; United Mine Workers, 159 F.R.D. at 310-12; In re

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 some

circumstances to an adversary”).

Moreover, the Pittmans have made no attempt to demonstrate the sort of

substantial need or undue hardship required by Rule 26(b)(3) before protected ordinary

work product may be discovered. See Murphy, 560 F.2d at 334. We conclude,

therefore, that the district court did not err in refusing to compel discovery of the

remainder of the investigator’s file or in denying the Pittmans’ motion to reconsider that

ruling.

VI.

The Pittmans dispute two evidentiary rulings. The district court denied motions

by the Pittmans to exclude a statement by Ball to the effect that “If I can’t have you, no

one can,” as inadmissible hearsay and to admit previous statements by Ellis’s children

regarding the mental anguish caused by the loss of their mother. Rulings on

admissibility of evidence will not be reversed absent a clear and prejudicial abuse of

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.