                     United States Court of Appeals

                         FOR THE EIGHTH CIRCUIT
                             ___________

                             No. 96-1348
                             ___________

Donald Crittenden,                 *
                                   *
     Plaintiff/Appellee,           *
                                   *
General Accident Insurance         *
Company,                           *
                                   *
     Intervenor/Plaintiff/         *
     Appellee,                     *
                                   *   Appeals from the United States
     v.                            *   District Court for the
                                   *   Eastern District of Arkansas.
Tri-State Thermo King, Inc.,       *
                                   *
     Defendant/Appellant,          *
                                   *
Great Dane Trailer, Tennessee,     *
Inc.,                              *
                                   *
     Defendant.                    *

                             ___________

                  Submitted:     January 13, 1997

                         Filed: March 3, 1997
                              ___________

Before BOWMAN and MURPHY, Circuit Judges, and JONES,1 District
Judge.

                             ___________


JONES, District Judge.


     This action was brought by Donald Crittenden ("Crittenden")
against Tri-State Thermo King, Inc. ("Tri-State") and Great Dane
Trailers, Inc. ("Great Dane") on theories of strict liability and


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            The HONORABLE JOHN B. JONES, United States District
     Judge for the District of South Dakota sitting by designation.
negligence.   The jury found for the defendants on the strict




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liability theory and for the plaintiff on the negligence theory.
Tri-State appeals.   We affirm.


                         I.   Background


    Crittenden was a truck driver for Forrest City Grocery Company
of Forrest City, Arkansas ("Forrest City Grocery").      Forrest City
Grocery ordered a refrigerated trailer from Great Dane and selected
a Thermo King refrigeration unit to be installed on the trailer by
Tri-State.


    Tri-State installed the refrigeration unit in a space cut out
by Great Dane.   When installed, the refrigeration unit was
approximately eleven feet off the ground.   The reset button was
located on the refrigeration unit.


    On the early morning of October 22, 1992, Crittenden realized
that the refrigeration unit had stopped running, and tried to get
the unit to operate again by pushing the reset button.    In order to
access and press the reset button, Crittenden had to climb up the
cab of the tractor, and brace himself between the tractor and the
trailer.   There were no handholds, footholds, or ladders on the
trailer that Crittenden could use to reach the button.     His foot
slipped, and he fell backwards to the ground, sustaining serious
injury.


     In this appeal, Tri-State asserts that there was no evidence
to support the finding of the jury that it was negligent, that the
trial judge erred in instructing the jury, and that the jury's
verdict in its favor on the strict liability claim precludes a
verdict for Crittenden on his negligence claim.




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                          II.   Decision.


     We review jury findings under a highly deferential standard.
We resolve all conflicts in favor of Crittenden, giving him the
benefit of all reasonable inferences and assuming as true all facts
supporting Crittenden which the evidence tended to prove.    See C.L
Maddox, Inc. v. Benham Group, Inc., 88 F.3d 592, 602 (8th Cir.
1996).   We will affirm the jury's findings if a reasonable jury
could differ as to the conclusions to be drawn.    Id.   A jury's
determination of a fact question will not be reversed by the
appellate court where such determination is supported by
substantial evidence.   Leathers v. United States, 471 F.2d 856 (8th
Cir. 1972), cert. denied, 412 U.S. 932 (1973).


     Tri-State's first argument on appeal is that there was no
evidence to support the finding of the jury that it was negligent.
Contrary to Tri-State's assertions, there was substantial evidence
to support the jury's verdict that Tri-State's negligence was the
proximate cause of Crittenden's injuries.    Crittenden presented
substantial evidence that Tri-State knew or should have known that
an operator would need to access the reset button and that there
were no safe means to do so, but nevertheless installed the unit on
the trailer eleven feet off the ground.


     Crittenden presented substantial evidence that an operator of
a refrigerated tractor trailer would have to press the reset button
in the ordinary course of operation.    In addition to his own
testimony to that effect, the jury also heard testimony from Allen
Cohn, Transportation Director of Forrest City Grocery, and Tri-
State President Mike Rivalto.    Cohn testified that he instructed
his drivers to press the reset button, after Tri-State's own
service personnel told him to do so.    Rivalto also testified that
the driver of a refrigerated tractor trailer would need to restart
the refrigeration unit by pressing the reset button in order to


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protect the load.




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    Crittenden also presented substantial evidence that Tri-State
knew or had reason to know that the placement of the reset button
eleven feet off the ground, with no means of access, was dangerous.
As there were no handholds, footholds, or ladders on the trailer
that could be used to access the reset button, a driver of a
refrigerated tractor trailer would need to brace himself between
the cab of the tractor and the trailer.   In fact, Rivalto testified
that he had fallen on two separate occasions while attempting to
press the reset button.    The evidence clearly established that Tri-
State knew of the dangerous condition created when the reset button
was located so far off the ground with no safe means of access.


    Finally, it was not disputed that in spite of what it knew or
should have known, Tri-State installed the unit on the trailer so
that the reset button was located eleven feet off the ground.    The
jury, therefore, could have properly found that Tri-State was
negligent in installing the refrigeration unit with no means of
safely accessing the reset button.     The judgment of the district
court on Crittenden's negligence claim is affirmed.


    Tri-State's second argument on appeal is that the trial judge
erroneously instructed the jury in Instruction 22.   A review of the
instructions and Tri-State's objection during settlement of the
instructions establishes that this instruction related only to the
strict liability theory.    Since the jury found for Tri-State on
this theory, any error in the instruction would clearly be
harmless.


    Tri-State's third argument on appeal is that the jury verdict
in its favor on the strict liability claim precludes a verdict for
Crittenden on his negligence claim.     Under Arkansas law, however,
the finding by the jury for Tri-State on the strict liability
theory does not preclude a finding that Tri-State was negligent.
See W.M. Bashlin Co. v. Smith, 277 Ark. 406, 414, 643 S.W.2d 526,


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529 (1982).   As the Arkansas Supreme Court stated in W. M. Bashlin




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Co., the plaintiff "need not bear the burden of proving both
theories of liability, it is enough that he prove either."    277
Ark. at 414, 643 S.W.2d at 529 (citing Sterner v. U.S. Plywood-
Champion Paper, Inc., 519 F.2d 1352 (8th Cir. 1975)).   Furthermore,
the Arkansas Supreme Court has stated that in claims of liability
based on negligence, "whether one knew or should have known of a
potential danger is a necessary constituent of fault.    The common
law has recognized a duty under such circumstances well before
product liability was enacted in Arkansas in 1973."     Schichtl v.
Slack, 293 Ark. 281, 284, 737 S.W.2d 628, 630 (1987) (citing Green
v. Equitable Powder Mfg. Co., 95 F. Supp. 127 (W.D. Ark. 1951);
Dulin v. Circle F Industries, Inc., 558 F.2d 456 (8th Cir. 1977)).
As discussed above, Crittenden presented substantial evidence that
Tri-State was negligent in installing the refrigeration unit with
no means of safely accessing the reset button.


     The Court has carefully considered Tri-State’ s other claims
of error and finds them to be without merit.


                           Conclusion


    For the foregoing reasons, we hold that there was substantial
evidence to support the jury's verdict that Tri-State was negligent
and that any error in instructing the jury was harmless.
Accordingly, the judgment of the district court is affirmed.


     A true copy.


          Attest:


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




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