___________ *

*

No. 94-2861 *

___________ *

*

Jimmy E. Shaw; Diana Reeves *

Shaw, *

*

Appellees, *

*

v. *

*

Ouachita RR, Inc., *

*

Appellant. *

*

___________ * Appeals from the United States

* District Court for the 

No. 94-2946 * Western District of Arkansas.

___________ *

* [UNPUBLISHED]

Jimmy E. Shaw; Diana Reeves *

Shaw, *

*

Appellants, *

*

v. *

*

Ouachita RR, Inc., *

*

Appellee. *

*

___________ *

*

No. 94-3299 *

___________ *

*

Jimmy E. Shaw; Diana Reeves *

Shaw, *

*

Appellees, *

*

v. *

*

Ouachita RR, Inc., *

*

Appellant. *
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___________

 Submitted: October 25, 1995

 Filed: January 30, 1996

___________

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

___________

PER CURIAM. 

Jimmy E. Shaw and his wife instituted this diversity action

against Ouachita Railroad, Inc. (Ouachita) and Kirkpatrick Scales,

Inc. (Kirkpatrick), to recover for injuries Jimmy sustained when he

fell into an uncovered scale pit inside a scale house owned by

Ouachita. Kirkpatrick, with whom Ouachita had contracted to

service its scales, was dismissed from the suit after entering into

a settlement agreement with the Shaws for $41,500. Following a

bench trial, the district court entered judgment against Ouachita

and awarded the Shaws over $80,000 in damages, which included

$10,000 for pain and suffering. Ouachita moved for relief from the

judgment, contending that Kirkpatrick was a joint tortfeasor and

that its settlement should therefore be credited to the judgment.

The court summarily denied the motion, and Ouachita appeals. The

Shaws cross-appeal, arguing the damage award for pain and suffering

was inadequate. We affirm in part and reverse in part. 

Interpreting the settlement agreement under Arkansas law, if

Kirkpatrick was negligent and thus jointly liable for Jimmy's

injuries, the judgment against Ouachita should have been reduced by

the settlement amount. See Ark. Code Ann. § 16-61-204 (Michie

1987); Scalf v. Payne, 583 S.W.2d 51, 52-53 (Ark. 1979). The

district court found Ouachita acted negligently in failing to take

precautionary measures--such as posting a warning sign on the scale

house door--while Kirkpatrick had the scale pit uncovered to

service the scales. While the court found that it was

Kirkpatrick's agent who invited Jimmy into the scale house, it made
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no express finding as to whether it considered Kirkpatrick's

conduct negligent. As there was no evidence Jimmy was warned about

the uncovered scale pit inside the scale house, we believe that

Kirkpatrick's invitation constituted negligence as a matter of law.

Therefore, Kirkpatrick's settlement should have been credited to

the judgment. 

We reject the Shaws' challenge to the adequacy of the damage

award for pain and suffering. See Butler v. Dowd, 979 F.2d 661,

671 (8th Cir. 1992) (appellate courts "should be extremely

hesitant" to disturb damage awards for pain and suffering, as trial

court has observed witnesses' demeanor and knows community and its

standards), cert. denied, 113 S. Ct. 2395 (1993).

Accordingly, we affirm the pain and suffering portion of the

damage award, but reverse and remand with instructions for the

district court to reduce the overall damage award against Ouachita

by Kirkpatrick's $41,500 settlement payment.

A true copy.

Attest:

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