                        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, 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
Ellis, and Joyce Ann Pittman, individually, appeal from the judgment entered by the
district court1 on a jury verdict in favor of defendants Thomas A. Frazer, Jr., Paul B.
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


      1
        The Honorable George Howard, Jr., United States District Judge for the Eastern
District of Arkansas.
      2
        Union Pacific, in turn, argues that the district court should have entered
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-
                                            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.




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).

                                           -3-
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.


                                          -4-
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:


                                          -5-
             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



                                           -6-
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.




                                          -7-
                                          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).3 In response
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


      3
         Although the Pittmans’ brief also referenced the attorney-client privilege, the
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.

                                          -8-
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 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. 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.4 In any event, any waiver of work product
protection was limited to the photographs themselves. See Chrysler, 860 F.2d at 846;

      4
        In fact, the photographs were first introduced at trial by the Pittmans as part of
their case in chief.

                                           -9-
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.


                                          -10-
