                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 00-1982
                                ___________

Donald Vogt; Barbara L. Vogt,           *
                                        *
               Plaintiffs - Appellants, *
                                        *
        v.                              *
                                        *
Farmers Union Co-Operative              *
Association, a Nebraska Co-operative *
Association; Dawson Transport Service, *
Inc.                                    *
                                        *
               Defendants - Appellees.  *
                                        * Appeal from the United States
-----------------------------           * District Court for the
                                        * District of Nebraska
Donald J. Vogt; Barbara L. Vogt,        *
                                        * [UNPUBLISHED]
               Plaintiffs - Appellants, *
                                        *
        v.                              *
                                        *
Farmers Union Co-Operative              *
Association, a Nebraska Co-operative *
Association; Dawson Transport Service, *
Inc.                                    *
                                        *
               Defendants - Appellees.  *
                                      ___________

                               Submitted: November 14, 2001

                                     Filed: December 27, 2001
                                      ___________

Before BYE, RICHARD S. ARNOLD, and RILEY, Circuit Judges.
                           ___________

PER CURIAM.

       Donald and Barbara Vogt bring this appeal from an adverse jury verdict, and
from the district court's1 denial of their motion for new trial. The Vogts argue the
district court erred in its instructions to the jury and in its refusal to grant a new trial
based upon the improper jury instructions. We affirm.

       Donald Vogt was a truck driver for defendant, Dawson Transport Service, Inc.,
a liquid fuel company. On December 9, 1994, he was delivering unleaded gasoline
to defendant, Farmers Union Co-Operative Association (Farmers Union), at its
Wausa, Nebraska location. The fuel was transferred from Donald's truck to
underground storage tanks by inserting a 2" fuel nozzle from the truck into a 4" fill
pipe leading to the underground fuel storage tanks. During this process, the nozzle
dislodged allowing fuel to spill into the surrounding area. Donald was drenched in
fuel which ignited resulting in serious injuries to him.

      The National Fire Protection Association's standards and Nebraska law
required the delivery of unleaded gasoline to underground storage tanks to be made
by means of a tight fitting connection between the petroleum transfer hose and the
storage tank fill pipe. The connections are designed to allow control of the flow of

       1
       The Honorable William Cambridge, United States District Judge for the
District of Nebraska, now retired.

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fuel and to prevent leakage or accidental discharge of fuel during delivery. It is
uncontested Farmers Union did not have such fittings on its fill pipe.

       At trial, the district court instructed the jury on a theory of premises liability.
The court also instructed the jury that Farmers Union's admitted violation of the
National Fire Protection Association's standard and Nebraska law was evidence
which it could consider in deciding whether Farmers Union had been negligent.
Plaintiffs' counsel objected, arguing the court's proposed instructions were
insufficient and erroneous. Plaintiffs requested an instruction on ordinary negligence
in addition to the premises liability instruction. Plaintiffs contended the uncontested
violation of the applicable fire standard and Nebraska law constituted a direct and
independent act of negligence, and therefore warranted a separate instruction. The
district court rejected Plaintiffs' arguments and instructed the jury only on the theory
of premises liability. The case was tried and the jury found no negligence. Plaintiffs'
motion for new trial was denied and this appeal followed.

       The appeal focuses on the district court's refusal to give a separate ordinary
negligence instruction in addition to the premises liability instruction. We review a
district court's decision to give particular instructions for an abuse of discretion. See
Slathar v. Sather Trucking Corp., 78 F.3d 415, 419 (8th Cir. 1996). We consider
whether the jury instructions, "taken as a whole and viewed in light of the evidence
and applicable law, 'fairly and adequately submitted the issues in the case to the
jury.'" Grain Land Coop. v. Kar Kim Farms, Inc., 199 F.3d 983, 995 (8th Cir. 1999)
(quoting White v. Honeywell, Inc., 141 F.3d 1270, 1278 (8th Cir. 1998)). Even when
an instruction is erroneous, we will not reverse the judgment unless the alleged error
was prejudicial. See Wolfe v. Gilmour Mfg. Co., 143 F.3d 1122, 1124 (8th Cir.
1998). A new trial is warranted only if the error "misled the jury or had a probable
effect on its verdict." See E.I. du Pont de Nemours & Co. v. Berkley & Co., Inc., 620
F.2d 1247, 1257 (8th Cir. 1980).



                                           -3-
      We believe the instructions, taken as a whole and viewed in light of the
evidence and applicable law, fairly and adequately submitted the issues to the jury.
Further, we conclude the Vogts' arguments to the contrary are foreclosed by our
decision in Burry v. Eustis Plumbing & Heating, Inc., 243 F.3d 432, 434 (8th Cir.
2001).

      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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