            RECOMMENDED FOR FULL-TEXT PUBLICATION
                 Pursuant to Sixth Circuit Rule 206                      2    Shanklin v. Norfolk                        No. 01-6449
      ELECTRONIC CITATION: 2004 FED App. 0156P (6th Cir.)                     Southern Railway Co.
                  File Name: 04a0156p.06
                                                                                            _________________
UNITED STATES COURT OF APPEALS                                                                   COUNSEL
                  FOR THE SIXTH CIRCUIT                                  ARGUED: Everett B. Gibson, BATEMAN, GIBSON,
                    _________________                                    Memphis, Tennessee, for Appellant. Pamela R. O’Dwyer,
                                                                         PATY, RYMER & ULIN, Chattanooga, Tennessee, for
 DEDRA SHANKLIN ,                 X                                      Appellee. ON BRIEF: Everett B. Gibson, Ralph T. Gibson,
 Individually and as next          -                                     BATEMAN, GIBSON, Memphis, Tennessee, for Appellant.
 friend of her son Jessie Guy      -                                     Pamela R. O’Dwyer, PATY, RYMER & ULIN, Chattanooga,
                                   -         No. 01-6449                 Tennessee, John W. Chandler, Jr., Memphis, Tennessee, for
 Shanklin,                         -                                     Appellee.
              Plaintiff-Appellee, >
                                   ,                                       FORESTER, D. J., delivered the opinion of the court, in
                                   -
             v.                                                          which MOORE, J., joined. ROGERS, J. (pp. 28-34),
                                   -                                     delivered a separate concurring opinion except as to Part V.
                                   -
 NORFOLK SOUTHERN                  -                                                        _________________
 RAILWAY CO .,                     -
           Defendant-Appellant. -                                                               OPINION
                                  N                                                         _________________
       Appeal from the United States District Court                      FORESTER, Chief District Judge.
    for the Western District of Tennessee at Jackson.
   No. 94-01212—James D. Todd, Chief District Judge.                        Defendant-Appellant Norfolk Southern Railway Company
                                                                         (“Norfolk”) appeals the district court’s denial of its renewed
                   Argued: October 30, 2003                              motion for judgment as a matter of law filed following a jury
                                                                         trial in which judgment was entered in favor of Plaintiff-
               Decided and Filed: May 27, 2004                           Appellee Dedra Shanklin (“Shanklin”) in the amount of
                                                                         $1,434,014.60. In 1993, a train operated by Norfolk struck
      Before: MOORE and ROGERS, Circuit Judges;                          the vehicle of Eddie Shanklin, Dedra Shanklin’s husband,
            FORESTER, Chief District Judge.*                             killing him. The fatal accident occurred at the Oakwood
                                                                         Church Road railroad crossing near Milan, Tennessee.
                                                                         Shanklin filed an action against Norfolk, asserting various
                                                                         common-law claims based on Norfolk’s negligence in failing
                                                                         to install adequate warning devices at the crossing and in
        *
          The Ho norable K arl S. Forester, Chief Judge of the United    failing to remove vegetation from the area surrounding the
States District Court for the Eastern District of Kentucky, sitting by   crossing. Shanklin claimed that excessive vegetation and lack
designation.

                                  1
No. 01-6449                          Shanklin v. Norfolk        3    4    Shanklin v. Norfolk                          No. 01-6449
                                   Southern Railway Co.                   Southern Railway Co.

of adequate warning devices resulted in Eddie Shanklin’s             I.   JURISDICTION
failure to perceive the imminently oncoming train prior to his
vehicle’s entry into the crossing, and thus into the train’s path.      The district court had proper original jurisdiction over
In 1996, a jury found in Shanklin’s favor. This Court                Shanklin’s action under 28 U.S.C. § 1332(a) because there
subsequently affirmed the verdict, but the Supreme Court             existed a diversity of citizenship and the matter in controversy
reversed with respect to the inadequate warning claim,               exceeded $75,000. Shanklin is a Tennessee resident and
holding that it was preempted by federal regulations                 Norfolk is a Virginia corporation. Norfolk timely appealed a
governing the installation of warning devices. Shanklin v.           final decision of a United States district court and this court
Norfolk So. Ry. Co., 529 U.S. 344 (2000).                            accordingly has jurisdiction over this appeal under 28 U.S.C.
                                                                     § 1291.
   The Supreme Court remanded and the parties tried the
vegetation claim before a second jury in 2001. Shanklin              II. FACTUAL BACKGROUND AND PROCEDURAL
presented evidence, over Norfolk’s objection, which tended               HISTORY
to demonstrate that Norfolk knew that overgrown vegetation
in the vicinity of railroad crossings could obstruct the vision        The Oakwood Church Road railroad crossing is located
of both automobile drivers and locomotive engineers                  about seven-tenths of a mile from the home Eddie Shanklin
approaching said crossings. Specifically, Shanklin showed            shared with his wife, Dedra Shanklin. Eddie Shanklin’s
that such overgrown vegetation existed at the Oakwood                commute to the restaurant where he worked brought him
Church Road railroad crossing, and that Norfolk failed to            across the railroad tracks twice a day for the almost four years
remove it. Norfolk filed a motion for judgment as a matter of        he and his wife occupied the residence, and his route the
law before the jury retired to deliberate, which the district        morning of October 3, 1993 was no different.
court denied. After the jury once more found in favor of
Shanklin, Norfolk renewed its motion, which the district court          Eddie Shanklin left his home in the pre-dawn darkness of
again denied.                                                        a clear autumn day at 5:15 a.m., and began his journey to
                                                                     work. As Eddie traveled east on Oakwood Church Road
  Norfolk now appeals several aspects of the trial, including        toward the railroad crossing, a Norfolk train was
the district court’s determination that the vegetation claim         simultaneously approaching the intersection, traveling at
was not preempted, the district court’s admittance of three          about 37 miles per hour. Based on the evidence presented at
pieces of evidence tending to show knowledge, the district           trial, it appears that Eddie Shanklin slowed his car to 20 miles
court’s decision to read an allegedly irrelevant Tennessee           per hour as he entered the railroad crossing, yet never
statute to the jury, and the district court’s determination that     attempted to further slow or stop his vehicle; there were no
the evidence was sufficient to permit a reasonable jury to find      skid marks leading to the impact zone. The Norfolk train
in Shanklin’s favor.                                                 reportedly sounded its horn for approximately eleven seconds
                                                                     before the impact, yet could not avoid broadsiding Eddie
  For the following reasons, we AFFIRM.                              Shanklin’s vehicle, pushing it more than one-quarter of a mile
                                                                     before stopping. Eddie Shanklin died as a result of the
                                                                     accident.
No. 01-6449                        Shanklin v. Norfolk       5    6     Shanklin v. Norfolk                                No. 01-6449
                                 Southern Railway Co.                   Southern Railway Co.

  On September 26, 1994, Dedra Shanklin filed a wrongful          vegetation claim, and accordingly remanded the case for
death action in federal court, asserting several common-law       rehearing on any remaining claims.
negligence claims against Norfolk. Shanklin argued that
Norfolk’s failure to provide adequate warning devices, sound        At the second trial, Shanklin asserted her vegetation claim,
the train’s horn as it approached the crossing within a           presenting evidence that Eddie Shanklin’s view of the
reasonable time to give adequate warning, and maintain a safe     approaching Norfolk locomotive and its headlamp was
sight distance by reducing the height of any embankment           obscured by trees and vegetation located on Norfolk’s right of
and/or clearing the vegetation from the existing bank             way. Key expert testimony indicated that the vegetation
proximately resulted in her husband’s death. Shanklin also        surrounding the crossing would have prevented Eddie
claimed that Norfolk violated Tenn. Code Ann. § 65-6-132,         Shanklin from being able to see the train until he was ninety-
which requires railroad owners to maintain trees on its           four feet (three seconds) from the tracks. Shanklin’s expert
grounds near the tracks.                                          further testified that in order to perceive the threat, react, and
                                                                  stop his vehicle, Eddie, traveling at twenty miles per hour,
  On February 16, 1996, Norfolk filed a motion for summary        needed to see the train when he was 135 feet from the tracks.
judgment, arguing that federal regulations covering grade         Various additional supporting evidence was admitted over
crossings, 23 C.F.R. §§ 646.214(b)(3)-(4), preempted all of       Norfolk’s objection. The jury found in favor of Shanklin, and
Shanklin’s common-law tort claims. The district court denied      judgment was entered against Norfolk in the amount of
Norfolk’s motion with respect to the grade-crossing and           $1,434,014.60.1
vegetation claims, holding that said claims were not
preempted. The first trial ended in a jury verdict in favor of      Norfolk now resurrects three evidentiary objections as
Shanklin, assigning Norfolk 70% of the responsibility for the     made at trial. First, Norfolk objects to the introduction of a
accident, and assessing damages of $615,379. Norfolk filed        “sight distance triangle chart,” and accompanying diagram,
a motion for judgment as a matter of law, or in the alternative   published in the Federal Highway Administration (“FHA”)
for a new trial, which the district court denied.                 Railroad-Highway Grade Crossing Handbook (“Handbook”).
                                                                  Norfolk maintains that the documents do not create a duty
  Norfolk appealed this denial, renewing its argument that        with respect to railroads, as the Handbook was written as a
federal law preempted Shanklin’s claims. This Court               guide for traffic engineers. At trial, Shanklin conceded that
affirmed, ruling that government funding of the installation of   the evidence did not constitute a legal standard or regulation,
warning devices at grade crossings did not trigger preemption     but argued that the Handbook had been used by railroads to
of state common law claims. Shanklin v. Norfolk So. Ry. Co.,      understand sight distances and thus helped to demonstrate that
173 F.3d 386, 394 (6th Cir. 1999). Recognizing a circuit split    Norfolk was aware of the sight distance problem. The district
on the issue, the Supreme Court granted certiorari, 528 U.S.
949 (1999), and reversed. See Shanklin v. Norfolk So. Ry.
Co., 529 U.S. 344 (2000). The Court held that common-law                   1
claims attacking the adequacy of grade-crossing warning                     The jury deliberated and reached a verdict on January 26, 2001,
signals were preempted from the time federal authorities          assessing $831,687 for actual damages and $1,160,000 for Dedra and G uy
                                                                  Shanklin’s (the couple’s son) loss of consortia. The jury found that
approved and committed funding to the installation of             No rfolk was 72% at fault and that Eddie was 28% at fault, such that
warning signals. The Court did not speak explicitly to the        judgment was entered against Norfolk in the amount of $1,434,014.60.
No. 01-6449                        Shanklin v. Norfolk       7    8      Shanklin v. Norfolk                                    No. 01-6449
                                 Southern Railway Co.                    Southern Railway Co.

court ultimately admitted the documents. Shanklin later           awareness of various problems at the crossings. The district
introduced, without objection, the deposition of James            court overruled the objection and permitted Shanklin to show
McCloskey, an attorney for Norfolk serving on the company’s       a redacted version of the deposition that covered only issues
Crossing Oversight Committee, who testified that Norfolk          relating to Norfolk’s general grade crossing policies.
used the sight distance documents in assessing the safety of      However, when Shanklin played the video for the jury, all
particular crossings.                                             parties discovered that the videotape technician hired by
                                                                  Shanklin failed to omit an inadmissable part of the deposition
  Second, Norfolk objects to the introduction of a “policy”       in which Goode stated that Norfolk had the worst accident
developed by Paul Melander, a manager of the Railroad             rate in the entire industry.2
Safety Division of the Tennessee Public Service Commission
(“PSC”), addressing potential hazards created by decreased           Fourth, Norfolk objects to the invocation of what it deems
sight lines at railroad crossings. The policy, essentially a      to be an “ancient” and obsolete Tennessee statute, Tenn.
recommendation to the state legislature, incorporated the sight   Code. Ann. § 65-6-132. Shanklin presented evidence that
distance chart from the Handbook, and the PSC distributed it      Norfolk violated the statute, which prohibits vegetation within
to all the railroads in Tennessee. While the policy lacked        a railroad’s right of way that is “six (6") of more inches in
legal authority in that it was not adopted by the PSC or the      diameter, two feet (2') off the ground, and of sufficient height
Tennessee Legislature, the PSC Commissioners had seen the         to reach the roadbed if they should fall.” Id. Shanklin used
policy and approved its dissemination. Shanklin therefore         the statute and the evidence invoking it as additional proof of
offered it for the purpose of showing notice. Norfolk’s           Norfolk’s negligence and reinforced the point by littering the
objection to its introduction was initially sustained.
Following Shanklin’s offer of proof, however, the court
reversed itself because Melander testified that the policy was
not just a recommendation, but had become practice in his                  2
department. Melander further testified that some railroads                   The district court immediately gave the following curative
followed the policy and others did not. The district court        instruction at Norfolk’s request:
instructed the jury that neither the Handbook nor the policy               THE COURT: Ladies and gentlemen, during the recess,
was a legal standard binding Norfolk.                                      we spent the better part of an hour ruling on objections,
                                                                           taking things out of the deposition that weren’t relevant
  Third, Norfolk objected to the introduction of deposition                or weren’t admissible under the rules of procedure.
testimony given by David Goode, the Chief Executive Officer                Through an oversight, one small bit of information got
of Norfolk. The testimony was taken in connection with a                   into the deposition that should have been deleted but
                                                                           was not. T he only way to cure it at this point is for me
1995 Missouri state court action filed against Norfolk, and                to tell you to disregard that last minute or so of the
Norfolk argued that it should not be allowed because Goode                 deposition you just saw and the memorandum that was
had not been deposed in this case and because his deposition               showed to you o n the screen. And any reference to it
did not address vegetation issues but rather discussed                     or any testimony ab out it, you’ll disregard it. And if
Norfolk’s treatment of grade crossings and its safety record in            you don’t rememb er what it was, that’s good because
                                                                           you don’t have to forget it then.
general. Shanklin responded that the general testimony
regarding safety at crossings was relevant to Norfolk’s           (Apx. pp. 339 -43). N orfolk did no t move for a m istrial.
No. 01-6449                         Shanklin v. Norfolk       9    10   Shanklin v. Norfolk                                   No. 01-6449
                                  Southern Railway Co.                  Southern Railway Co.

court room with several tree stumps taken from the area in         part of 23 C.F.R. § 646.214(b) addresses the clearing of
question.                                                          vegetation.3
III. PREEMPTION OF THE VEGETATION CLAIM
                                                                         3
  Norfolk argues that the district court, in holding that                    23 C.F.R. § 646 .214 (b)(3 )-(4) states:
Shanklin’s vegetation claim was not preempted, improperly                (b) Grade cro ssing improve ments.
limited the scope of the Supreme Court’s ruling in Shanklin              (1) All traffic control devices propo sed shall com ply
v. Norfolk So. Ry. Co., 529 U.S. 344 (2000). Norfolk                     with the latest edition of the Manua l on Uniform
contends that the same federal regulations that preempt                  Traffic Control Devices for Streets and Highways
inadequate warning device claims also preempt vegetation                 supplemented to the extent applicable by State standards.
                                                                         (2) Pursuant to 23 U.S.C. 109(e), where a railroad-
negligence claims. We review the district court’s decision de            highway grade crossing is located within the limits of
novo because it involves a question of law.                              or near the terminus of a Federal-aid highway project
                                                                         for construction of a new highway or improvement of
  Congress enacted the Federal Railroad Safety Act in 1970,              the existing road way, the crossing shall not be opened
partially to “maintain a coordinated effort to develop and               for unrestricted use by traffic or the project accepted by
carry out solutions to the railroad grade crossing problem.”             FH W A until adequate warning devices for the crossing
                                                                         are installed and functioning p roperly.
49 U.S.C. § 20134(a). The statute broadly states that all                (3)(i) Adequate warning devices, under § 646.214(b)(2)
“[l]aws, regulations, and orders related to railway safety . . .         or on any project where Federal-aid funds p articipa te in
shall be nationally uniform to the extent practicable,” but it           the installation of the devices are to includ e automatic
includes a savings clause provision that reads, “[a] State may           gates with flashing light signals when one or more of
adopt or continue in force a law, regulation, or order related           the following co nditions exist:
                                                                         (A) M ultiple main line railroad tracks.
to railroad safety or security until the Secretary of                    (B) Multiple tracks at or in the vicinity of the crossing
Transportation prescribes a regulation or issues an order . . .          which may be occupied by a train or locomotive so as
covering the subject matter of the State requirement.” Id. at            to obscure the movement of another train approaching
§ 20106. Three years later, Congress created the Federal                 the crossing.
Railway-Highway Crossings Program, see 23 U.S.C. § 130,                  (C) High Speed train operation combined with limited
                                                                         sight distance at either single or multiple track crossings.
giving the Secretary of Transportation, acting through the               (D) A comb ination of high speeds and mod erately high
Federal Highway Administration (“FHWA”), the power to                    volumes of Highway and railroad traffic.
promulgate 23 C.F.R. § 646.214(b), which concerns the                    (E) Either a high volume of vehicular traffic, high
design of grade crossings.                                               number of train movements, substantial numbers of
                                                                         school buses or trucks carrying hazardous materials,
                                                                         unusually restricted sight distance, continuing accident
   Most pertinent to this appeal, 23 C.F.R. § 646.214(b)(3)-             occurren ces, or any com bination of these co nditions.
(4) addresses the circumstances under which automatic gates              (F) A diagnostic team recommends them.
and flashing signals are required and clarifies that when gates          (ii) In individual cases where a diagnostic team justifies
and signals are not mandated, the FHWA has the power to                  that gates are not appropriate, FHW A may find that the
approve or disapprove the alternative type of warning device             above requirements are not applicable.
recommended by a state agency or a railroad. Importantly, no             (4) For crossings where the requirements of §
                                                                         646.214(b)(3) are no t applicable, the type of warning
No. 01-6449                              Shanklin v. Norfolk        11   12     Shanklin v. Norfolk                                  No. 01-6449
                                       Southern Railway Co.                     Southern Railway Co.

  The Supreme Court first considered the preemptive power                at a particular crossing - is hold the railroad responsible for
of the Federal Railroad Safety Act (“FRSA”) in 1993. See                 the adequacy of those devices.” Id. at 358.4
CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993). The
Court held that for a regulation issued by the secretary of                 Because the Supreme Court ruling in Shanklin does not
Transportation under FRSA to preempt the duties imposed                  explicitly extend the preemptive reach of § 646.214(b) to
upon the railroads by common law, that regulation must more              Shanklin’s vegetation claim, the issue before this Court is
than “touch upon” or “relate to” the subject matter raised by            whether the warning device regulations can be read to “cover”
the common law claim because “pre-emption will lie only if               the vegetation claim, such that the common law of Tennessee
the federal regulations substantially subsume the subject                that imposes a duty upon railroads to clear vegetation on their
matter of the relevant state law.” Id at 664. The Easterwood             rights of way near railroad grade crossings that prevents
Court concluded that 23 C.F.R. § 646.214(b)(3)-(4)                       motorists from seeing and/or hearing trains approaching those
preempted the plaintiff’s claim that CSX was negligent for               crossings is preempted.
failing to maintain adequate warning devices because the
regulations “cover the subject matter of state law which, like              Section 646.214(b)(3) describes under what conditions
the tort law on which respondent relies, seeks to impose an              certain types of warning devices are required; in other words,
independent duty on a railroad to identify and/or repair                 it “‘cover[s] the subject matter’ of the adequacy of warning
dangerous crossings.” Id. at 671 (emphasis added).                       devices installed with the participation of federal funds.”
                                                                         Shanklin, 529 U.S. at 358. Section 646.214(b)(4) mandates
  Later, in reviewing our first Shanklin decision, the Court             that the FWHA determine what types of warning devices
further analyzed 23 C.F.R. § 646.214(b)(3)-(4) to determine              should be installed when the circumstances laid out in
whether the regulations “‘are applicable’ to all warning                 § 646.214(b)(3) are not present. The regulations do not
devices actually installed with federal funds.” Shanklin v.              appear to focus on vegetational blockage or sight line
Norfolk So. Ry. Co., 529 U.S. 344, 353 (2000). The Supreme               limitations. At best, they “relate to” or “touch upon”
Court did not hold that the warning device regulations                   vegetational growth; we cannot conclude that they “cover,” in
preempted all state common law claims stemming from a                    the sense of “substantially subsume,” claims of negligence
grade crossing accident, but rather held only that the federal
regulations displaced Tennessee common law “addressing the
same subject.” Id. at 359. The Court noted: “What states                          4
cannot do - once they have installed federally funded devices                       The Court reaffirmed the notion that the regulations did no t just
                                                                         establish a “definitional” federal standard for adequate warning devices,
                                                                         but rather mandated certain requirements when the federal government
                                                                         covered the cost. Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344, 353
                                                                         (2000). The regulations attached a standard o f adeq uacy to any project
                                                                         involving federal funds. Id. Accordingly, the Court held that “once the
                                                                         FH W A has funded the crossing improveme nt and the warning devices are
       device to be installed, whether the determination is              actually installed and operating, the regulation ‘displace[s] state and
       made by a State regulatory agency, State Highway                  private decisio n-making authority by establishing a federal law
       agency, and/or the railroad, is subject to the approval of        requirement that certain protective devices be installed or federal approval
       FHWA.                                                             obtained.’” Id. at 354 (quoting CSX Transp ., Inc. v. Easterwo od, 507 U.S.
                                                                         658 , 670 (1993)).
No. 01-6449                          Shanklin v. Norfolk      13    14    Shanklin v. Norfolk                          No. 01-6449
                                   Southern Railway Co.                   Southern Railway Co.

due to failure to clear away vegetation near a railroad bed.        but it does not “impose a broader duty to control vegetation
Easterwood, 507 U.S. at 664.                                        so that it does not obstruct a motorist’s visibility of oncoming
                                                                    trains.” O’Bannon v. Union Pac. R.R. Co., 960 F. Supp.
  Norfolk argues that plaintiff’s sight distance claim was          1411, 1422-23 (W.D. Mo. 1997); see also Mo. Pac. R.R. Co.
plainly encompassed by 23 C.F.R. § 646.214(b)(3)-(4),               v. R.R. Comm’n, 83 F.2d 570, 577 (5th Cir. 1987)(rejecting
because the regulation requires the DOT to consider, in             ruling that § 213.37(b) controlled a railroad’s right of way in
assessing the need for automatic gates and flashing signals,        its entirety); Bowman v. Norfolk S. Ry. Co., 832 F. Supp.
the presence of “high-speed train operation combined with           1014, 1020-21 (D.S.C. 1993), aff’d 66 F.3d 315 (4th Cir.
limited sight distance,” 23 C.F.R. § 646.214(b)(3)(i)(C), and       1995)(federal regulations do not preempt claims concerning
the presence of “unusually restricted sight distance,”              vegetation outside the area immediately next to the railbed).
23 C.F.R. § 646.214 (b)(3)(i)(E). However, this argument            The comparison of 49 C.F.R. § 213.37 and the adequate
takes the regulation’s language out of context. While a visual      warning regulation persuasively shows that 23 C.F.R.
encumbrance, be it overgrown vegetation, a structure, or the        § 646.214(b)(3) does not “cover” actions based upon a
contour of the land, triggers the regulatory mandate for            negligent failure to clear vegetation.
certain warning devices, and accordingly preempts common
law claims regarding the adequacy of warning signals, it does          Norfolk calls to the panel’s attention two out-of-circuit
not follow that the warning device regulations preempt an           district court decisions that allegedly preempt sight distance
action based on the alleged failure to eliminate such a visual      claims based upon the regulations at issue in Shanklin.
impediment. The regulations govern warning signals, not             Norfolk misconstrues these decisions, which are
vegetation growth. 23 C.F.R. § 646.214(b)(3)-(4) do not             unpersuasive. In a pre-Shanklin case, Bryan v. Norfolk & W.
define the terms “limited” or “unusually restricted” sight          Ry. Co., 21 F. Supp. 2d 1030 (E.D. Mo. 1997), the district
distance, indicate that any sight distance obstructions should      court granted summary judgment to the defendant on a
be removed, set standards as to how much sight distance             plaintiff’s claim that a railroad crossing was “extraordinarily
should be provided to motorists approaching a grade crossing,       hazardous” because the terrain obscured the approach of
contain any guidelines relating to a railroad’s obligation to       trains and because there were no automatic gates or flashing
maintain its grade crossings, or even mention “vegetation” or       signals guarding the crossing. Id. at 1038. The court refused
“right of way.”                                                     to create “an exception to preemption . . . based on an
                                                                    ultrahazardous condition,” id., but Bryan is distinguishable
  Additionally, the DOT has promulgated other regulations           because, unlike Shanklin, the plaintiff did not articulate a
governing the growth of vegetation, demonstrating that when         stand-alone vegetation claim, and instead lumped its visual
the Department wants to regulate issues concerning                  obstruction claim together with a preemptable claim
vegetation, it has no problem doing so. In particular,              concerning the failure to provide proper warning devices. Id.
49 C.F.R. § 213.37 states: “Vegetation on railroad property         Norfolk’s citation to Burlington Northern R.R. Co. v.
which is on or immediately adjacent to roadbed shall be             Deatherage, No. 3:95CV116-B-A, 1997 WL 33384269,
controlled so that it does not . . . (b) [o]bstruct visibility of   (N.D. Miss. May 21, 1997), is equally unavailing, because the
railroad signs and signals . . .” 49 C.F.R. § 213.37(b). This       plaintiff did not even file a vegetation action in that case. The
regulation preempts any state-law claim regarding vegetative        district court only considered the issue of unlimited sight
growth that blocks a sign immediately adjacent to a crossing,
No. 01-6449                           Shanklin v. Norfolk       15   16    Shanklin v. Norfolk                                 No. 01-6449
                                    Southern Railway Co.                   Southern Railway Co.

distance in determining the applicability of the FRSA’s                maintain a safe grade crossing, apart from the warning
savings clause. Id. at *3-4.                                           devices, and relatedly failed to ensure clear sight lines of
                                                                       oncoming trains are not preempted.
   On the other hand, the Third Circuit has specifically
addressed the issue of whether sight distance claims are             Id. at 276-77.
preempted by 23 C.F.R. § 646.214 (b)(3)-(4), and has found
that they are not. See Strozyk v. Norfolk So. Corp., 358 F.3d          Accordingly, because we find that the Supreme Court has
268 (3d Cir. 2004). Christopher Stozyk was killed at a               neither explicitly nor implicitly preempted state common law
railroad crossing when a train owned and operated by Norfolk         vegetation claims, and because the adequate warning
Southern collided with the truck he was driving.                     regulations contained in 23 C.F.R. §§ 646.214(b)(3) and (4)
Subsequently, Strozyk’s parents filed suit against Norfolk,          do not “cover” state common law vegetation/sight distance
alleging, inter alia, the railroad’s negligence for failure to       claims, it follows that the district court correctly reasoned that
provide proper sight lines for motorists crossing the track.         Shanklin’s vegetation claim is not preempted.
The district court held that 23 C.F.R. § 646.214(b) preempted
plaintiff’s limited visibility claim, and concluded that because     IV. THE EVIDENTIARY HOLDINGS
23 C.F.R. § 646.214(b) “lists ‘unusually restricted sight
distance’ as a factor mandating the installation of active             Norfolk asserts that the district court erred in admitting
warning devices,” it followed that “the standard set by the          three pieces of evidence: the FWHA Handbook, the PSC
regulation encompasses not just the ultimate selection of a          policy, and the deposition testimony of Norfolk’s CEO. This
warning device but [also] . . . ‘the appropriate response to         Court finds that the district court did not abuse its discretion
limited sight distance or unusually restricted sight distance.’”     in admitting the challenged evidence.
Id. at 272. The Third Circuit Court of Appeals disagreed,
noting that, even after the Supreme Court’s decisions in CSX            It is important to note that, under the abuse of discretion
Transp. Inc. v. Easterwood, 507 U.S. 658 (1993), and                 standard employed with respect to evidentiary rulings, the
Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344 (2000), “state         district court’s decision regarding this evidence should remain
law duties to maintain a safe grade crossing remain viable.”         undisturbed unless this panel is left with the definite and firm
Strozyk, at 276. The court continued:                                conviction that the district court clearly erred in its judgment
                                                                     after weighing the relevant factors, improperly applied the
  While, as Easterwood and Shanklin make clear,                      correct law, or inappropriately used the wrong legal standard.
  §§ 646.214(b)(3) and (4) substantially altered the                 United States v. Haywood, 280 F.3d 715, 720 (6th Cir.
  landscape of railroad liability, by restricting tort plaintiffs    2002).5 The district court admitted all three pieces of
  from interposing state law obligations concerning
  appropriate warning devices, the regulations do not
                                                                              5
  eclipse those duties ensuring safe grade crossings that are                   No rfolk directs our attention to, and urges us to follow, the
  unrelated to warning devices, such as the duty to keep             evidentiary rulings of Judge Johnstone in Bryant v. Tennken R.R. Co. (No.
  visibility at grade crossings free from obstructions. As           00-2621-DA, W .D. Tenn.). In Bryant, which is a very similar case, Judge
                                                                     Johnstone disallowed the same pieces of evidence that Judge Todd
  those regulations cover the subject matter of warning              entered into evidence in this case. H owever, Judge John stone did perm it
  devices, the Strozyks’ claims that Norfolk failed to               the jury to view the Handbook, instructing them that the sight distance
No. 01-6449                                 Shanklin v. Norfolk            17     18     Shanklin v. Norfolk                                 No. 01-6449
                                          Southern Railway Co.                           Southern Railway Co.

evidence for the specific and limited purpose of showing                          and cause a hazard. Indeed, it was undisputed at trial that the
notice or knowledge, and restricted the evidence to its proper                    sight distance information from the Handbook was included
scope.                                                                            in the minutes of the Norfolk Southern Tennessee Division
                                                                                  Grade Crossing Safety Committee, and also that the sight
  1. The FHWA Handbook and the PSC Policy                                         distance information from the Handbook was incorporated
                                                                                  into the PSC policy that was discussed with Norfolk Southern
   Norfolk argues that the sight distance charts and graphs in                    employees in Tennessee prior to the collision at issue.6
the FHWA Handbook and the PSC policy that incorporated
the sight distance information from the Handbook were                               Because the sight distance information in the Handbook,
irrelevant to Shanklin’s claims and were thus erroneously                         and as incorporated into the PSC policy, helps to illuminate
admitted.                                                                         the notice issue, and because the district court specifically
                                                                                  instructed the jury that neither established a legal standard,
   The Federal Rules of Evidence define relevant evidence                         this evidence was properly admitted.7
broadly as evidence having “any tendency to make the
existence of any fact that is of consequence to the                                 2. Goode’s Deposition Testimony
determination of the action more or less probable than it
would be without the evidence.” Fed. R. Evid. 401. Under                            Norfolk objects to the introduction of video deposition
Tennessee law, juries are required to compare the degree of                       testimony given by David Goode, the Chief Executive Officer
fault of the parties, including the reasonableness of their                       of Norfolk. The testimony was taken in connection with
conduct in light of all of the circumstances. See Eaton v.                        Lohman v. Norfolk & Western Ry. Co. on August 25, 1995,
McLaine, 891 S.W.2d 587 (Tenn. 1994). A Tennessee jury                            and concerned a grade crossing accident in Missouri. Norfolk
must consider: “the reasonableness of [a] party’s conduct in
confronting a risk, such as whether the party knew of the risk,
or should have known of it.” Id. at 592. Undoubtedly,                                      6
whether or not Norfolk knew of the sight distance                                            Contrary to Norfolk’s argument, Judge Tod d did not admit the
                                                                                  policy as a valid regulatory exercise of the PSC, but only as an unofficial
requirements recommended by the FHWA or PSC policy is                             policy lacking in any legal force, but nonetheless a recommendation from
a fact of consequence in relation to the issue of notice,                         the PSC of which the railroad was aware. Judge Tod d warned the jury in
because if Norfolk knew that a motorist needed to see a                           his instructio ns that the policy carried no legal weight.
certain number of feet in order to perceive an oncoming train,
                                                                                           7
it is more likely that it recognized that overgrown vegetation                              W hile the material contained in the Hand book could no t have
for which it was responsible could impede a motorist’s view                       been admitted for the purpose of establishing Norfolk’s duty toward
                                                                                  motorists, it was useful for the limited purpose of establishing notice.
                                                                                  Courts and comm entators have recognized that it is preferable to admit a
                                                                                  relevant document for a limited purpose with ap prop riate instructions,
chart was in no way a binding regulation. Two judges, certainly                   rather than exclude adm issible evidenc e altogether. See Weinstein’s
exercising reasonable minds, can reach opposite conclusions about the             Federal Evidence § 105.03 [1] and [3] (Matthew Bender 2d Ed.
same evidence without either abusing his or her discretion so long as             1997)(“Total exclusion of evidence of mixed admissibility in jury cases
neither court clearly erred in its application of correct law or its invocation   would hardly be appropriate, since its exclusion might well deny the jury
of incorrect law. See In re M .J. Wa terman & A ssocs., Inc., 227 F.3d 604,       access to facts that are essential to reaching a reasonably accurate
608 n.3 (6th Cir. 2000 ).                                                         decision”).
No. 01-6449                         Shanklin v. Norfolk      19    20    Shanklin v. Norfolk                           No. 01-6449
                                  Southern Railway Co.                   Southern Railway Co.

argues that the portions of Goode’s video deposition               Lohman case qualifies as a non-hearsay party-opponent
testimony admitted at trial were irrelevant and unduly             admission.
prejudicial. Furthermore, Norfolk asserts that the testimony
cannot properly be admitted as an admission of a party                Alternatively, Rule of Evidence 804(b)(1) carves out an
opponent because the case in which the deposition was taken        exception to the hearsay prohibition when a witness is
and the current matter do not share the same identity of           unavailable for testimony; it permits the inclusion of a
issues.                                                            statement given by a witness in another proceeding so long as
                                                                   the party “had an opportunity and similar motive to develop
   This Court must first examine whether Goode’s deposition        the testimony by direct, cross, or redirect examination.” Fed.
testimony, taken in connection with an earlier trial, can be       R. Evid. 804(b)(1). The Advisory Committee Notes remark
entered as evidence in a subsequent trial. Federal Rule of         that common law required the previous deposition to have a
Procedure 32(a) permits the use of “any part or all of a           “substantial” identity of issues. Fed. R. Evid. 804(b)(1),
deposition, so far as admissible under the rules of evidence       Advisory Committee Notes. Norfolk argues here that the
. . . against any party who was present or represented at the      Lohman case, and Goode’s deposition therein, did not involve
taking of the deposition.” Id. The Rule further states that the    substantially the same issues as those confronted herein.
“deposition of a party . . . who at the time of taking the         While it is true that Goode’s deposition covers a crossing
deposition was an officer . . . designated . . . to testify on     grade accident in another state and under different conditions,
behalf of a . . . private corporation . . . may be used by an      it also addresses grade crossing safety issues generally.
adverse party for any purpose,” so long as it complies with        Furthermore, Shanklin sought to introduce the testimony to
the rules of evidence. Fed. R. Civ. Proc. 32(a)(2)(emphasis        prove that Norfolk was aware of the danger at grade
added). Goode’s video deposition testimony does comply             crossings, a topic which Goode did cover in the deposition.
with the rules of evidence, either as an admission of a party-     As Norfolk’s general knowledge and treatment of grade
opponent under Federal Rule of Evidence 801, or as an              crossing dangers was likewise germane in Lohman, Goode
exception to the hearsay rule under Rule 804.                      and his attorneys had an opportunity and a nearly identical
                                                                   motive to develop Goode’s testimony in the earlier case.
  Under Rule 801(d)(2), a statement can be characterized as
an admission of a party-opponent, and as such, non-hearsay,           Second, the relevance of Goode’s testimony must be
when: “The statement is offered against a party and is . . . (C)   assessed. Similar to the Handbook and the PSC policy,
a statement by a person authorized by the party to make a          Goode’s deposition presents facts of consequence with regard
statement concerning the subject, or (D) a statement by the        to Norfolk’s knowledge of the dangers of grade crossings.
party’s agent or servant concerning a matter within the scope      All of Goode’s deposition testimony introduced during the
of the agency or employment made during the existence of           trial of this case related to the fact that Norfolk recognized the
the relationship.” Fed. R. Evid. 801(d)(2)(C)-(D). Norfolk         importance of identifying and eliminating hazardous
does not dispute that Goode was its president and CEO at the       conditions at its grade crossings prior to the collision at issue
time of his deposition, or that he was authorized to make the      in this case. Thus the district court cannot be said to have
statements he made during that deposition. Therefore,              abused its discretion in admitting Goode’s testimony for the
Goode’s video deposition testimony with respect to the             limited purpose of showing knowledge.
No. 01-6449                             Shanklin v. Norfolk         21     22     Shanklin v. Norfolk                                 No. 01-6449
                                      Southern Railway Co.                        Southern Railway Co.

  Third, this Court must determine whether Goode’s                         United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997).
testimony should have been excluded under Federal Rule of                  Notwithstanding the undoubtedly prejudicial nature of the
Evidence 403 as more prejudicial than probative. While there               erroneously admitted information, this Court must assume
is nothing unfairly prejudicial about Goode’s testimony                    that the jury in this case followed the instruction given it by
regarding Norfolk’s notice of issues attendant to grade                    the court. See Richardson v. Marsh, 481 U.S. 200, 211
crossing safety, the evidence that Norfolk had the highest                 (1987). Therefore this Court finds the district court did not
grade crossing accident rate in the country was extremely                  abuse its discretion in admitting Goode’s video deposition
prejudicial.8 This testimony was erroneously shown to the                  testimony. No unfair prejudice resulted to Norfolk as a result
jury, as the district court had already ruled it inadmissable.             of Goode’s testimony regarding safety measures in general,
The district court immediately responded by striking the                   and with respect to the erroneously admitted evidence, the
evidence and issuing the following curative instruction as                 district court properly responded to the mistake such that the
requested by Norfolk:                                                      prejudice to Norfolk was minimized.
  THE COURT: Ladies and Gentlemen, during the recess,                      V. THE TENNESSEE TREE CUTTING STATUTE
  we spent the better part of an hour ruling on objections,
  taking things out of the deposition that weren’t relevant                  Norfolk further contends that the district court erred in
  or weren’t admissible under the rules of procedure.                      permitting the jury to consider Tenn. Code Ann. § 65-6-132,9
  Through an oversight, one small bit of information got                   which prohibits, on railroad’s rights of way, the presence of
  into the deposition that should have been deleted but was                vegetation six or more inches in diameter and “of sufficient
  not. The only way to cure it at this point is for me to tell             height to reach the roadbed if they should fall.”10 Id. Norfolk
  you to disregard that last minute or so of the deposition                argues that the statute should not have been considered by the
  you just saw and the memorandum that was showed to                       jury because it was not designed to protect motorists and is
  you on the screen. And any reference to it or any                        obsolete. This Court finds that the district court’s decision to
  testimony about it, you’ll disregard it. And if you don’t
  remember what it was, that’s good because you don’t
  have to forget it then.
                                                                                    9
J.A. at 342-43. Even where evidence is erroneously admitted,                         Tenn. Code Ann. § 65-6-132: Trees, Removal
the striking of evidence combined with instructions to the jury                     (a) Every company or person operating a railro ad in
                                                                                    this state shall cut down all trees standing on its lands
to disregard the evidence will usually cure the error, unless                       which are six (6) or more inches in diameter, two feet
the evidence is so prejudicial that a new trial must be granted.                    (2') above the ground, and of sufficient height to reach
                                                                                    the roadbed if they should fall. (b) A failure to comp ly
                                                                                    with subsection (a) will render the company liable for
                                                                                    damages to person or property resulting therefro m . . .
        8
           During the play-back of Good e’s video deposition testimony,             10
a portion that should have been redacted was shown to jurors. In that                 In her co mplaint, Shanklin alleged that Norfolk violated Tenn.
portion of testimony, Goode’s closed-captioned statement showing acro ss   Code Ann. § 65-6 -132 with respect to the Oakwood Church Road railroad
the bottom of the screen indicated that Norfolk had the highest rate of    crossing, and at trial introduced evidence that there were numerous trees
grade crossing acciden ts in the industry.                                 on Norfolk’s right of way that fit within the proscriptions of the statute.
No. 01-6449                          Shanklin v. Norfolk       23    24     Shanklin v. Norfolk                                  No. 01-6449
                                   Southern Railway Co.                     Southern Railway Co.

read the Tennessee statute to the jury did not constitute            comment, after the advent of the automobile.11 Therefore,
reversible error.                                                    while it cannot be said that Tenn. Code Ann. § 65-6-132
                                                                     clearly applies to protect against the type of harm here at
   Under Tennessee law, actions for failure to comply with           issue, neither can it clearly be held otherwise.12
statutory duties are limited in scope. The Plaintiff must prove
that she is the intended beneficiary of a statute before that          Even if Norfolk could craft a colorable argument that Eddie
statute can be used to establish a duty on the part of               Shanklin was not an intended beneficiary of this statute, and
Defendant. See Bivin v. S. Oil Serv., Inc., 394 S.W.2d 141,          thus that the district court clearly erred in instructing the jury
148 (Tenn. Ct. App. 1965). Thus Norfolk initially argues that        to consider Norfolk’s negligence under Tenn. Code Ann.
the statute, which the Tennessee legislature adopted in 1870,        § 65-6-132, the error is harmless. When an error made by the
does not apply because it is supposed to protect train               court does not prejudice the outcome, the error does not
passengers from derailments caused by stray tree branches on         justify reversal. See Toth v. Grand Trunk R.R. Co., 306 F.3d
the tracks, not motorists.                                           335, 348 (6th Cir. 2002). Even without consideration of
                                                                     Norfolk’s liability under the tree cutting statute, there was
   In determining whether or not Tenn. Code Ann. § 65-6-132
was meant to protect against the harm suffered by Eddie
Shanklin, whose vision of the railroad crossing was found to
have been obscured by overgrown vegetation present on                         11
Norfolk’s right of way, we begin with the plain language of                       Additiona lly, there is some case law and legislative evidence
                                                                     indicating that, even in the 1870's, both the courts and the Tennessee
the statute. Here said language does not provide a definitive        legislature were concerned that there be proper sight distance at railroad
answer. The phrase “reach the roadbed if they fall,” id.,            crossings for persons trave ling on horseb ack or in horse drawn wagons.
implies that the main purpose of the statute is to protect           See generally, Continental Improvement Co. v. Stead, 95 U.S. 161, 162
against train derailments by ensuring that railroads keep their      (1877); Grand Tru nk Ry . Co. v. Ives, 144 U.S. 408 , 410 (1892); Lou isville
tracks clear of branches. However, the statute also states that      & Nashville R .R. Co. v. G ardner, 1 Tenn. 688 (Tenn. 1878 ). Further, the
                                                                     fact that the Tennessee legislature adopted the Railroad Precautions Act
a failure to comply will result in liability “for all damages to     in 1856, which required train crews to maintain a lookout ahead and
person or property” resulting therefrom. Id. There is indeed         sound the locomotive horn during their approach to public grade
nothing in the language of the statute itself to indicate that its   crossings, indicates concern about potential hazards to those traversing
application is limited to the protection of train passengers.        grade crossings at least fourteen (14) years prior to its passage of Tenn.
See Tenn. Code Ann. § 65-6-132. The statute’s broad                  Code Ann. § 65-6-132 in 1870. See g enerally, Railroa d Precaution s Act-
                                                                     Effect of 1959 Amendment, 28 T E N N . L A W R EV . 437 (1961).
imposition of liability indicates that the vegetation prohibition
was intended to protect against any number of harms that                      12
                                                                                 No rfolk further argues that the panel should hold that the
could result from its presence in an overgrown state.                statute is implicitly repealed because changed circumstances and non-
                                                                     enforcement have rendered it obsolete. Tenn. Code Ann. § 65-6-132 was
  The legislative history fails to provide any additional            passed by the Tennessee General A ssemb ly in 187 0, and as Norfolk
insight. The statute was originally passed in 1870 before the        points out, mass production of the automo bile did not b egin until almost
invention of the automobile; however the Tennessee                   forty (40) years later. Appellant’s Br. at 42. The district court rejected
legislature retained the statute in 1932 without significant         Norfolk’s argument on this issue, pointing out that the statute has been
                                                                     modified since the proliferation of automo biles. T he district court’s
                                                                     holding on this matter canno t be said to have bee n in erro r.
No. 01-6449                         Shanklin v. Norfolk       25    26    Shanklin v. Norfolk                                    No. 01-6449
                                  Southern Railway Co.                    Southern Railway Co.

considerable evidence upon which the jury could conclude            harm posed by defendant’s conduct outweigh the burden upon
that Norfolk was liable in part for Eddie’s death.                  defendant to engage in alternative conduct that would have
                                                                    prevented the harm.” Id. (quotation omitted). In Tennessee,
VI. THE SUFFICIENCY OF THE EVIDENCE                                 a plaintiff may recover even if he or she contributes to the
                                                                    negligence, so long as the plaintiff’s negligence remains less
   Lastly, Norfolk argues that because Eddie Shanklin was the       than the defendant’s. McIntyre v. Ballentine, 833 S.W.2d 52,
sole cause of the accident, the district court erred in denying     57 (Tenn. 1992). Juries, in their allocation of fault, are to
Norfolk’s Rule 50(b) Motion for a Judgment as a Matter of           consider, among other factors, the reasonableness of the
Law. We review Rule 50(b) motions de novo. K&T                      party’s conduct in confronting the risk, such as whether the
Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.    party knew, or should have known, of the risk. Eaton, 891
1996). When a Rule 50(b) motion is premised on a challenge          S.W.2d at 592.
to the sufficiency of the evidence, we apply the standard of
review employed by the courts of the state whose substantive           There is evidence of Norfolk’s negligence such that
law controls the action, Tennessee in this instance. Morales        reasonable minds could reach differing conclusions about
v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998).          Norfolk’s liability. The Handbook and PSC policy, while not
In undertaking this review, “it is not the office of an appellate   legally requiring Norfolk to take any action, made Norfolk
court to weigh the evidence. Rather, it must take the               aware of the danger of reduced sight lines and of the sight
strongest legitimate view of the evidence in favor of the           distances needed to ensure that motorists could see oncoming
plaintiff, indulging in all reasonable inferences in his favor,     trains at grade crossings. There is also evidence showing that
and disregarding any evidence to the contrary.” Williams v.         Norfolk failed to clear vegetation near the track, and that
Brown, 860 S.W.2d 854, 857 (Tenn. 1993). A motion for               Eddie Shanklin’s sight view of the oncoming train could have
judgment as a matter of law is proper only if, after assessing      been impeded thereby. 13 Given the extreme and inevitable
all the evidence in the manner described, the court can
determine that reasonable minds could not differ as to the
conclusion to be drawn from the evidence. Eaton v. McClain,                 13
891 S.W.2d 587, 590 (Tenn. 1994). Additionally, an                           W ith regard to Norfolk’s negligence, the district court
                                                                    summarized the evidence introduc ed at trial as follows:
appellate court is not permitted to reallocate fault in
contravention of a jury verdict, even if the reviewing court                An eyewitness to the accident testified that he was
disagrees with that apportionment. Turner v. Jordan, 957                    traveling alongside the train in his vehicle, and heard
S.W.2d 815, 824 (Tenn. 1997).                                               the horn blow for approximately 11 seconds from the
                                                                            crossing, which is less than the 1,320 feet required by
   In order to bring a successful negligence claim under                    Tennessee law. See Tenn. Code Ann. § 65-12-108(2)
                                                                            . . . There is also evidence in the record that the
Tennessee law, a plaintiff must show (1) a duty of care owed                railroad’s officials were aware of general studies
to the plaintiff by the defendant and (2) a breach of that duty,            regarding recommended sight distance for moto rists at
which in fact and proximately causes an injury or loss.                     railroad crossings, even though the railroad was not
Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn.                  required to comply with those recom mendations.
2000). A risk is “unreasonable and gives rise to a duty to act              There is evidence that the railroad had the ability, and
                                                                            the authority, to make further efforts to clear vegetation
with due care if the foreseeable probability and gravity of                 and trees on its right-of-wa y at the cro ssing, but did not
No. 01-6449                                 Shanklin v. Norfolk            27     28   Shanklin v. Norfolk                         No. 01-6449
                                          Southern Railway Co.                         Southern Railway Co.

injury that could result from a train-on-car collision, a jury                                       _________________
could easily conclude that the foreseeable probability and
gravity of harm outweighed the burden of clearing the                                                 CONCURRENCE
vegetation on Norfolk’s right of way. Reasonable minds                                               _________________
could also reach different conclusions about whether Norfolk
breached that duty and whether the breach caused Eddie’s                            ROGERS, Circuit Judge, concurring. I concur in the
death.14                                                                          majority opinion except for Part V. In my view, a plain
                                                                                  reading of Tennessee’s tree cutting statute, Tennessee
VII. CONCLUSION                                                                   Annotated Code § 65-6-132, clearly indicates that the sole
                                                                                  purpose of the statute was to prevent trees from falling onto
  Accordingly, we AFFIRM the judgment of the district                             the tracks. I concur not because Mr. Shanklin was within the
court.                                                                            protected class of the statute, but because the tree cutting
                                                                                  statute was nonetheless admissible as evidence because it was
                                                                                  relevant, though not controlling, on the negligence
                                                                                  determination under Tennessee law.
                                                                                    Tennessee Annotated Code § 65-6-132 states:
                                                                                    (a) Every company or person operating a railroad in this
                                                                                    state shall cut down all trees standing on its lands which
                                                                                    are six (6) or more inches in a diameter two feet (2')
                                                                                    above the ground and of sufficient height to reach the
                                                                                    roadbed if they should fall.
                                                                                    (b) A failure to comply with subsection (a) will render
                                                                                    the company liable for all damages to person or property
         do so .
                                                                                    resulting therefrom; also to a penalty of one hundred
Apx. pp. 84-8 5.                                                                    dollars ($100), to be recovered on suit brought in the
                                                                                    name of any citizen before any tribunal having
         14                                                                         jurisdiction, one half ( 1/2 ) of which shall go to the
             No rfolk further argues tha t Edd ie Shanklin was the sole cause
of the ac ciden t. As its chief suppo rt for this propo sition, N orfolk claims     treasury of the county in which said provisions may have
that Eddie violated Tenn. Code Ann. § 55-8-145(a)(3)-(4), which requires            been disregarded, and the other one half ( 1/2 ) to the
moto rists to stop within fifty feet, but not less than fifteen feet from the       plaintiff.
near rail of the track when a train emits a signal audible from 1,500 feet
away and is plainly visible to a motorist approach the crossing. The
evidence presented at trial conflicted regarding whethe r the train sounded       (emphasis added). Subsection (a) of § 65-6-132 is obviously
its whistle at the proper distance and whether Eddie heard the signal, and        concerned with trees greater than six inches in diameter
a reasonable jury cou ld conclude that he did not. Furthermore, the jury          falling onto a railroad track. Although the district court
did reduce Edd ie’s damage award by 28% for his contribution to the               believed the diameter requirement set forth in the statute
accid ent.
No. 01-6449                             Shanklin v. Norfolk          29    30     Shanklin v. Norfolk                                    No. 01-6449
                                      Southern Railway Co.                        Southern Railway Co.

might have indicated that the Tennessee legislature was also                  Tennessee law is not clear on the question of whether a
concerned with visibility, the diameter requirement is easily              statutory obligation that protects against different harms may
explained by the fact that the thicker the trunk, the more                 nonetheless be considered by a jury as part of its analysis of
likely a derailment would occur if the tree fell.                          whether the defendant violated the common law standard of
                                                                           care. While a number of Tennessee tort cases deal with
   Because the language of the statute clearly indicates that              statutes that arguably protect against different harms, the
Mr. Shanklin was not within the class that § 65-6-132 was                  cases generally involve the question of whether violation of
designed to protect, the statute could not be used as a basis for          the statute amounts to negligence as a matter of law, not with
liability under the statutory tort defined by subsection (b) of            the question of whether the factfinder could consider the
§ 65-6-132. Similarly, the statute could not be used as a basis            statute for any purpose whatsoever.
for negligence per se under Tennessee law. Under
longstanding and consistently applied Tennessee law, a                        Almost eighty-five years ago, the Tennessee Supreme
plaintiff must demonstrate that the injured party was “within              Court held that a statute requiring automobile drivers to stop
the class of persons intended to benefit from or be protected              at railroad crossings was intended to protect against collisions
by the statute” to recover under a theory of negligence per se.            between automobiles and trains, and not to protect against
Alex v. Armstrong, 385 S.W.2d 110 (Tenn. 1964); Carter v.                  other traffic accidents that happen to occur at a railroad
Redmond, 218 S.W. 217, 218 (Tenn. 1920); Harden v. Danek                   crossing. Carter v. Redmond, 218 S.W. 217, 218 (Tenn.
Med., Inc., 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998);                     1920). The court concluded not only that the trial judge erred
Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn. Ct. App.                     in giving a negligence per se instruction, but that the trial
1980); Berry v. Whitworth, 576 S.W.2d 351, 353 (Tenn. Ct.                  judge also erred in refusing to give a tendered instruction that
App. 1978); see also RESTATEMENT (SECOND) OF TORTS                         the “statute had no bearing on the case before them.” Carter
§ 286. Thus, if the district court had instructed the jury that            appears to support the conclusion that the district court in this
violation of the tree cutting statute required the jury to find            case should not have read the tree cutting statute to the jury,
negligence on the part of defendant, we would be compelled                 but the case is hardly on all fours. Defendant in this case did
to reverse.                                                                not tender a limiting instruction, although defendant did
                                                                           object to having the statute read to the jury. More
   The district court, however, did not instruct the jury that the         importantly, the ultimate basis for reversal in Carter was the
Norfolk Southern’s failure to comply with the tree cutting                 erroneous instruction regarding negligence per se, not the
statute constituted negligence per se. Instead, the district               failure to instruct that the statute had no bearing. The Carter
court read § 65-6-132(a) to the jury along with three other                court found that the trial court’s error was material because
statutes relating to duties of railroad companies to keep                  the erroneous negligence per se instruction “practically
crossing safe and the duties of a motorist when approaching                necessitated a verdict against” defendant. The statement
a railroad crossing.1                                                      approving the tendered instruction was arguably dictum,


         1
          The district court did specify that the violation of Tennessee   under Tennesse e Co de A nnotated § 65-12-109. However, the district
Code Annotated § 65-12-108, which relates to precautions for railroad      court did not instruct that a violation of the tree cutting statute constituted
crossings such as signs and whistles, is considered negligence pe r se     negligence per se.
No. 01-6449                         Shanklin v. Norfolk      31    32    Shanklin v. Norfolk                           No. 01-6449
                                  Southern Railway Co.                   Southern Railway Co.

inasmuch as the court did not need to reach the materiality of       particular class of individuals does not preclude the
the trial court’s failure to give the tendered instruction.          possibility that the failure to do such an act may be
                                                                     negligence at common law toward other classes of
  In contrast, in Teal v. E.I. DuPont de Nemours & Co., 728          persons. It also does not preclude the possibility that, in
F.2d 799 (6th Cir. 1984) (applying Tennessee law), we                a proper case, the requirements of the statute may be
reviewed a district court judgment in a case in which the            considered as evidence bearing on the reasonableness of
district court had refused to give a negligence per se charge,       the actor’s conduct.
but nonetheless informed the jury that the regulation in
question “may be considered . . . as some evidence . . . of the    RESTATEMENT (SECOND) OF TORTS § 286 cmt. g (emphasis
(appropriate) standard of care.” In Teal an employee of an         added); see also RESTATEMENT (SECOND) OF TORTS § 286
independent contractor was injured by a ladder that allegedly      cmt. f (“The fact that a legislative enactment requires a
did not conform to federal OSHA regulations. While                 particular act to be done for the protection of the interests of
permitting the jury to consider the OSHA regulation as some        a particular class of individuals does not preclude the
evidence of the appropriate standard of care, the district court   possibility that the doing of such an act may be negligence at
refused to instruct the jury on negligence per se. On              common law toward other classes of persons.”).
plaintiff’s appeal, we reversed, holding that because the
OSHA regulation was indeed intended to protect the                   Second, it is consistent with general principles of American
employees of independent contractors, the district court was       tort law to permit the jury to consider the Tennessee statute as
required to give a negligence per se instruction. Our opinion,     some evidence of negligence. When a jury makes a
however, did not criticize at all the district court’s apparent    negligence determination, its determination can be likened,
conclusion that a regulation not intended to protect a plaintiff   using the famous “Hand formula,” to a balancing of the
could nonetheless be considered as some evidence of the            burden on the defendant in acting more carefully against the
appropriate standard of care.                                      probability of harm multiplied by the magnitude of harm if
                                                                   the defendant does not so act. See United States v. Carroll
  In the absence of clear Tennessee authority, we must make        Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (Hand, J.). In
our best estimation of how the Tennessee Supreme Court             evaluating how burdensome it was to the defendant railroad
would rule on the question of whether the Tennessee tree           to cut down the trees in question to avoid the possibility of
cutting statute could be admitted as some evidence of              harm to persons like Shanklin, it is relevant for the jury to
negligence, even though the jury could not consider it as a        know that the railroad was required to cut down the trees
basis for negligence per se. Two considerations lead me to         anyway for an entirely different purpose. Thus it makes
the conclusion that the answer to this question is yes.            sense, at least in the context of the instant case, for the jury to
                                                                   be aware of legal requirements that directly affect the balance
  First, the Restatement of Torts would clearly answer the         that the jury is conceptually required to make in determining
question yes. Comment g to the Restatement (Second) of             whether defendant has been negligent.
Torts § 286 states:
                                                                     I would therefore hold that the district court in this case did
  The fact that a legislative enactment requires a particular      not err in reading the tree cutting statute to the jury. It would
  act to be done for the protection of the interests of a          of course have been preferable for the court to have stated
No. 01-6449                         Shanklin v. Norfolk      33    34   Shanklin v. Norfolk                          No. 01-6449
                                  Southern Railway Co.                  Southern Railway Co.

clearly to the jury that a violation of the statute did not        Southern’s duty and its breach of that duty. Thus, the simple
necessarily mean that defendant was negligent. It would also       reading of the tree cutting statute during the jury instruction,
have been better for the district court to have explained that     even if erroneous, was harmless.
the jury could take into account the defendant’s legal
obligation to minimize the risk of limbs obstructing the
tracks, only as part of its evaluation of whether the defendant
acted reasonably in not increasing the sight-distance for
oncoming trains.
  Moreover, even if it was not appropriate for the district
court to read § 65-6-132 to the jury, the error was in any event
harmless, again because the jury was not instructed that
violation of the tree cutting statute would constitute
negligence per se. Compare Carter, 218 S.W. at 217-19. As
jurisdiction for this case is based on diversity of citizenship,
“federal law governs our standard of review for determining
whether a jury instruction is prejudicial.” Gafford v. Gen.
Elec. Co., 997 F.2d 150, 166 (6th Cir.1993) (internal
quotation marks and citations omitted); Teal, 728 F.2d at 801.
The Sixth Circuit has stated that it
  will reverse a jury’s verdict on the basis of improper
  instructions only when the instructions, when viewed as
  a whole, are confusing, misleading, and prejudicial.
  Federal courts generally presume the jury will follow the
  instructions correctly as given. We will not reverse a
  decision on the basis of an erroneous jury instruction
  where the error is harmless.
Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822
(6th Cir. 2000).
  Although the jury was shown several dissections of trees
during trial, the lack of a negligence per se instruction with
regard to § 65-6-132 indicates that the jury only considered
the violation of the statute as evidence of Norfolk Southern’s
negligence. Throughout the trial the plaintiff presented a
considerable amount of other evidence as to Norfolk
