                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                               Nos. 11-3044/3081
                                 ___________

Juston Pohl,                          *
                                      *
       Appellee/Cross-Appellant,      *
                                      * Appeals from the United States
       v.                             * District Court for the
                                      * District of Nebraska.
County of Furnas, a Nebraska          *
Political Subdivision,                *
                                      *
       Appellant/Cross-Appellee.      *
                                 ___________

                             Submitted: May 16, 2012
                                Filed: June 26, 2012
                                 ___________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       After Juston Pohl was injured in an automobile accident in Furnas County,
Nebraska, he brought this negligence action against the county. Pohl alleged that the
accident was caused by the county's failure to have a properly placed and maintained
road sign at the scene. The county responded that the accident was caused by Pohl's
own negligent driving. The case was tried to the court1 which found both parties
negligent, apportioning 60% of the negligence to the county and 40% to Pohl, and

      1
        The Honorable Laurie Smith Camp, Chief Judge, United States District Court
for the District of Nebraska.
awarding Pohl $407,163.68 in damages. The county appeals, and Pohl cross appeals.
We affirm.

                                          I.

       Juston Pohl, a resident of Michigan, traveled to rural Furnas County, Nebraska
in December 2007 for a hunting trip and stayed at the farm of family friends Kimberly
and Delaine Soucie. A few days after his arrival, he drove to a high school basketball
game in nearby Cambridge, Nebraska. At around 9 p.m. that evening, he began his
return trip to the farm traveling south on Highway 47. Light snow was falling.

      The Soucies' farm is located two miles west of Highway 47 on Road 719, but
Pohl mistakenly turned west onto Drive 719 which is located a half mile north of
Road 719. Drive 719 is a gravel road that does not have a posted speed limit but is
subject to a general statutory limit of 50 miles per hour. See Neb. Rev. Stat. § 60-6,
186(1)(c). Unlike Road 719 which continues in a straight line west of Highway 47,
Drive 719 has a ninety degree curve one mile after its intersection with Highway 47.
At the time of Pohl's accident, a posted sign was placed at least 110 feet in front of
the curve. The sign was two feet square with a yellow background and contained a
black arrow with a ninety degree bend.

      After turning onto Drive 719, Pohl accelerated to 63 mph, traveling with his
high beam headlights on. When Pohl neared the warning sign, he braked too late to
prevent the car from missing the curve and going off the road. The car hit an
embankment, rolled, and came to rest upside down in a culvert. Pohl lost
consciousness. When he came to, he realized he could not move his legs. Since he
was unable to walk, he remained in the car all night hoping to be rescued. No help
had arrived by daybreak, and Pohl managed to drag himself to a nearby farmhouse
where the residents called an ambulance. It was later determined that he had a



                                         -2-
fracture and cord compression in his thoracic spine as well as frostbite in his feet. He
underwent a decompression and fusion to treat the spinal injury.

       Pohl sued the county for common law negligence under the district court's
diversity jurisdiction. He alleged that his injuries were the result of the county's
negligent placement of the sign warning about the curve and its negligent failure to
maintain it. He sought damages for his medical expenses, physical pain and mental
suffering, and lost wages.

       At trial Pohl offered his own testimony and that of a traffic engineer and other
lay witnesses. Pohl testified about the night of the accident and his injuries.
Although it had been snowing that evening, Pohl explained that he had not needed
to clear his windshield when leaving town, that the snow had not impeded his view,
and that the car had had normal traction on the road. Pohl said that when he turned
onto Drive 719, he believed that he was on Road 719 with a "straight shot" to the
Soucies' farm. He testified that he had no memory of that night from shortly after
turning onto Drive 719 until he regained consciousness after the accident. Thus, he
did not remember seeing the sign or braking prior to leaving the roadway.

      Three members of the Soucie family who had attended the same basketball
game testified that the snow that night had not impaired driving conditions either by
making roads slippery or reducing visibility. They also testified that they had driven
on Drive 719 with high beam headlights in the past. After being shown flash
photographs of the traffic sign made after Pohl's accident, they stated that the photos
accurately depicted how the sign would have looked to a night driver using high
beams.

       Ronald Hensen, a traffic engineer, offered expert testimony regarding the
sufficiency of the sign. He testified that the sign did not comply with the standards
set by the United States Department of Transportation's Manual on Uniform Traffic

                                          -3-
Control Devices (the Manual), which governs traffic control signs in Nebraska. See
Neb. Rev. Stat. §§ 60-6,118, 60-6,121; see also 23 C.F.R. § 655.601 (incorporating
the Manual by reference into the Code of Federal Regulations). The sign was
deficient, he said, because it was heavily scratched and thus not retroreflective. The
word "retroreflectivity" is defined in the Manual as a surface property "allow[ing] a
large portion of the light coming from a point source to be returned directly back to
a point near its origin." Manual § 1A.13(62).2 Hensen explained that because the
sign lacked retroreflectivity, the 110 foot distance between the sign and the curve was
not enough to provide drivers adequate notice of the curve ahead. He testified that
a distance of at least 300 feet would have been needed to comply with the Manual and
that "I don't know that I've ever seen in place a sign that defective." In discussing the
accident, he explained that had Pohl been traveling at the speed limit of 50 mph, he
would have entered the curve at a speed of 45 mph and would have still left the
roadway.

       The county's case consisted of two expert witnesses and hundreds of
photographs of the accident scene. Gregory Vandenberg, a Nebraska state trooper
who specializes in accident reconstruction, testified that following the crash he had
analyzed data from the car's airbag control module which is also referred to as the
black box. The black box records the vehicle's speed and braking pattern for the five
seconds prior to deployment of the airbag. Based on these data he determined that
the car had been traveling at 63 mph on Drive 719 and that Pohl had applied the
brakes when he was closely aligned with the sign, slowing the car to 48 mph at the
time it left the roadway. Vandenberg initially testified that he had assumed that Pohl
had braked in response to seeing the sign, but later clarified that the braking could
have been in response to viewing the actual curve ahead or in response to some other

      2
        A new version of the Manual was released in 2009. All citations here are to
the 2003 version, revision 1, released in November 2004, which was in effect at the
time of the accident. The cited version of the Manual is available at
http://mutcd.fhwa.dot.gov/pdfs/2003r1/pdf-index.htm.
                                          -4-
stimulus. If Pohl had been traveling at the speed limit and had braked when his car
was aligned with the sign, the trooper's opinion was that the car would have slowed
to a speed where Pohl could have safely negotiated the curve. He also explained that
had Pohl been traveling at the speed limit but failed to steer, he would have left the
roadway at 15 mph and had a less severe accident because the car likely would have
stopped before colliding with the embankment.

       Traffic engineer Jerry Graham also testified for the county. Based on flash
photographs of the sign taken at night, Graham concluded that the sign was "faded"
but had "some retroreflectivity to it." He further testified that after investigating the
curve on Drive 719, he determined that it could be safely navigated at 30 mph. Based
on this observation and the 50 mph speed limit, he concluded from a table in the
Manual that any warning sign should have been placed at least 100 feet from the start
of the curve. See Manual tbl.2C-4. The sign's placement 110 feet from the curve was
therefore in compliance with the Manual and would have "provided a reasonable and
prudent driver . . . with the information necessary to reasonably, safely and lawfully
use Drive 719." On cross examination he conceded, however, that calculations based
on Table 2C-4 assume that a sign is legible when a driver is 250 feet from it. See id.
n.1.

                                           II.

       In its findings of fact, the district court determined that the sign was abraded
and lacked retroreflective paint. It was therefore not legible to a nighttime driver
traveling with headlights until the driver was within 100 feet of the sign. The court
also found that Pohl had "reacted to the left-hand turn warning sign–or to some other
indicia of danger–when his car was closely aligned with the sign." Had Pohl been
traveling at the speed limit of 50 mph and all other variables remained constant, the
court determined that



                                          -5-
      his car would have gone off the road at the same location at a speed of
      15 miles per hour. If the car reached the embankment at all, the impact
      would have been much less severe, and, in any event, the car would have
      come to rest before reaching the culvert.

       The district court found that the county was negligent because of the
"combination of the sign's lack of retroreflectivity and its placement. Had the sign
been retroreflective, its placement in proximity to the curve may have been adequate."
It further found that this negligence and Pohl's negligence in driving 13 miles over
the speed limit were the proximate causes of his accident and injuries. In assessing
the responsibility for the accident and Pohl's injuries the court allocated 60% of the
negligence to the county and 40% to Pohl. The district court then calculated that Pohl
was entitled to $678,606.14 in damages for medical expenses and pain and suffering,
and awarded him $407,163.38 following a reduction for his comparative negligence.

       The county appeals, arguing that the district court erred by finding that it was
negligent in its maintenance and placement of the sign, finding that its negligence
was a proximate cause of the accident, and in apportioning negligence between the
parties. Pohl cross appeals, contending that the district court erred in its finding that
his negligence was a proximate cause of his injuries and in its apportionment of
negligence.

       When reviewing a district court's decision following a bench trial in a diversity
action, "we look to state law for the standard of review on each issue." See John T.
Jones Constr. Co. v. Hoot Gen. Constr. Co., 613 F.3d 778, 783 (8th Cir. 2010). To
recover in a negligence action, "a plaintiff must show a legal duty owed by the
defendant to the plaintiff, a breach of such duty, causation, and damages." A.W. v.
Lancaster Cnty. Sch. Dist. 0001, 784 N.W.2d 907, 913 (Neb. 2010). The parties
agree that the county owed a legal duty to road users to maintain and properly place
its road signs. The county contends, however, that the district court erred by finding



                                          -6-
that it had breached that duty or alternatively that its breach was a cause of Pohl's
injuries.

                                          III.

        Under Nebraska law, the question of whether a defendant is negligent by
breaching a duty of care is a question of fact which is reviewed for clear error. See
Downey v. W. Cmty. College Area, 808 N.W.2d 839, 850 (Neb. 2012). The district
court's finding of negligence was based on its determination that the traffic sign was
not in compliance with the Manual because it was not retroreflective and was placed
too close to the curve. The county does not contest the district court's reliance on the
Manual, but, it argues that the district court's findings were unsupported by the trial
record.

       The determination that the sign was not retroreflective was supported by
Hensen's testimony that the sign was scratched and did not reflect adequate light to
meet the Manual's requirement that a sign reflect "a large portion of the light coming
from a point source to be returned directly back to a point near its origin." Manual
§ 1A.13(62). It was also supported by some of the nighttime flash photographs in
evidence on which the warning sign for the curve was not visible, but a distant
retroreflective sign was. Although Graham testified that the curve sign was
retroreflective, he conceded that it was "faded" and had only a "low level" of
retroreflectivity.

       The court's finding that the sign was placed too close to the curve was also not
clearly erroneous. The county points to Graham's testimony that the sign was
adequately placed because it met the Manual's requirements for a 30 mph curve on
a road which has a 50 mph speed limit. As Graham conceded on cross examination,
however, these requirements are based on an assumption that the sign is legible from
250 feet. See Manual tbl.2C-4, n.1. Since a sign must be legible when a driver is 250

                                          -7-
feet from it and it must be placed 100 feet before the curve, see id., the sign must be
legible 350 feet from the curve. Nighttime flash photographs indicated however that
the sign was not legible 300 feet from the curve, meaning that it did not meet the
standard. While the county criticizes the district court for relying on these
photographs because it claims that a camera flash illuminates objects differently than
a car's headlights do, testimony from the Soucies was that the flash photographs
illustrated what a driver would have seen at night when using his high beam
headlights. Because the record supports the district court's findings that the sign was
neither retroreflective nor adequately placed to warn nighttime drivers, the court did
not err in finding the county negligent.

        We next turn to the county's argument that the district court erred in
determining that its negligence was a proximate cause of the accident. See Wilke v.
Woodhouse Ford, Inc., 774 N.W.2d 370, 382 (Neb. 2009). Like the determination
of negligence, proximate cause is a question of fact and the district court's findings
are only set aside if clearly erroneous. Bean v. State, 382 N.W.2d 360, 362 (Neb.
1986). To demonstrate proximate cause in Nebraska a plaintiff must show that "(1)
[w]ithout the negligent action, the injury would not have occurred, commonly known
as the 'but for' rule; (2) the injury was a natural and probable result of the negligence;
and (3) there was no efficient intervening cause." Wilke, 774 N.W.2d at 382. To
establish proximate cause, "[a] plaintiff is not bound to exclude the possibility that
the [event] might have happened in some other way." World Radio Labs., Inc. v.
Coopers & Lybrand, 557 N.W.2d 1, 12 (Neb. 1996) (alterations in original) (citation
omitted). Rather, he must only adduce evidence sufficient to "fairly and reasonably
justify the conclusion that the defendant's negligence was the proximate cause of [his]
injury." King v. Crowell Mem'l Home, 622 N.W.2d 588, 594 (Neb. 2001).

       The county contends that there were several equally likely causes of the
accident, including that Pohl was not maintaining a proper lookout and thus failed to
see the sign, that he saw it and failed to heed it, or that the falling snow prevented him

                                           -8-
from seeing it. It urges that because Pohl cannot remember whether or not he saw the
sign before leaving the road, the district court's proximate cause determination was
based on speculation rather than evidence. The county further highlights the district
court's finding that "a preponderance of the evidence indicates that Pohl reacted to the
left-hand turn warning sign–or to some other indicia of danger–when his car was
closely aligned with the sign." Because the district court found that Pohl could have
been reacting to something other than the sign when braking before leaving the road,
the county contends that a sign placed farther from the curve would have made no
difference.

       In support of its argument the county relies on Swoboda v. Mercer
Management Company, 557 N.W.2d 629 (Neb. 1997). In Swoboda, a woman fell
while ascending a staircase and alleged that her fall was caused by a ramp which
negligently extended onto a stairway landing. Id. at 631. The defendant countered
that the woman had fallen by tripping over the top step. Id. Because the woman
could not remember how she had fallen and no one had seen the fall, the Nebraska
Supreme Court upheld the trial court's grant of summary judgment to the defendant,
concluding that the plaintiff could not establish the proximate cause of her fall
because a jury would be left to conduct "guesswork" in deciding between the two
theories of causation. Id. at 632–33.

       Unlike in Swoboda where there was no evidence supporting one causal theory
over another, evidence was produced at trial in this case which supports the theory
that the legibility and placement of the sign caused Pohl's accident. While Pohl could
not remember whether or not he saw the sign prior to the accident, direct evidence is
not required for a plaintiff to demonstrate proximate cause. See King, 622 N.W.2d
at 594. The county's own expert Vandenberg testified that Pohl had braked when he
was closely aligned with the sign. That evidence gives rise to a reasonable inference
that Pohl slowed the car in response to the sign and thus would have slowed earlier
and avoided the crash or its severity had the sign been placed further from the curve

                                          -9-
or been legible from a greater distance. Hensen testified that inadequate signage
leads to a higher probability of accidents and opined that the inadequacy of the
warning sign here was a cause of the accident. By contrast, the county's alternate
theories of causation were not supported by the record. There was no evidence that
Pohl had not been paying attention to the road prior to the accident, and the evidence
indicated that the falling snow had not impeded visibility. As for the county's
argument that Pohl had seen the sign and failed to heed it, the evidence that he braked
when aligned with the sign supports the contrary finding.

        The district court's finding that Pohl may have braked in response to "some
other indicia of danger" does not contradict its proximate cause determination. The
fact that Pohl may have braked because he saw the curve does not eliminate the
possibility that he would have braked earlier had the sign been properly placed or
made retroreflective. Because the sign was placed too close to the curve, the curve
itself may have captured Pohl's attention before he could see the sign. If it had been
placed further from the curve or had been visible from a greater distance, the sign
itself could have caught his attention and caused him to brake earlier. Viewing the
record as a whole, the evidence at trial was sufficient to "fairly and reasonably justify
the conclusion that the defendant's negligence was the proximate cause of [Pohl's]
injury." King, 622 N.W.2d at 594.

       The county also argues that Pohl cannot show proximate cause because his
speeding was an efficient intervening cause. "[A]n efficient intervening cause is new
and independent conduct of a third person, which itself is a proximate cause of the
injury in question and breaks the causal connection between original conduct and the
injury." Zeller v. Cnty. of Howard, 419 N.W.2d 654, 658 (Neb. 1988). Nebraska law
makes clear however that an intervening cause cuts off a tortfeasor's liability only
when it is not foreseeable. Id. Testimony at trial indicated that traffic engineers
assume that drivers will exceed the speed limit by 10 to 15 mph on a 50 mph road,
and thus Pohl's travel 13 mph in excess of the speed limit was readily foreseeable.

                                          -10-
       We finally address the county's argument that even if its placement of the sign
was negligent and a proximate cause of the accident, the district court erred by
undervaluing Pohl's contributory negligence. Contributory negligence occurs where
the plaintiff breaches a duty of care and his breach "concur[s] and cooperat[es]" with
the defendant's negligence to form a proximate cause of the injury. Skinner v.
Ogallala Pub. Sch. Dist. No. 1, 631 N.W.2d 510, 526 (Neb. 2001) (citation omitted).
Under Nebraska law, a plaintiff is barred from recovery if his negligence is equal to
or greater than that of the defendant. See Neb. Rev. Stat. § 25-21,185.09.
Contributory negligence is an affirmative defense that must be proved by the party
asserting it. Carpender v. Bendorf, 516 N.W.2d 619, 622 (Neb. 1994). Since the
existence of such negligence is a question of fact, our review is again for clear error.
See Skinner, 631 N.W.2d at 519.

       The county first contends that the trial court erred in its assessment of
contributory negligence because it should have found that Pohl's contributory
negligence in speeding exceeded the county's negligence, thus barring recovery. In
support of this argument, it points to Vandenberg's testimony indicating that had Pohl
been traveling at the speed limit, he would have been able to negotiate the curve
successfully if he had braked when aligned with the sign. This testimony was
contradicted, however, by Hensen's testimony that had Pohl been traveling at the
speed limit, his speed at the curve would have still been too great to negotiate it
successfully. Given this conflicting testimony, we cannot say that the district court
clearly erred by not finding that Pohl's negligence exceeded that of the county.
Cf. Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985) ("Where there are two
permissible views of the evidence, the factfinder's choice between them cannot be
clearly erroneous.").

      The county further contends that the district court should have found that Pohl
was contributorily negligent in two additional ways. First it argues that he was
negligent by driving faster than conditions allowed because it was snowing on the

                                         -11-
night of the accident and he was unfamiliar with Drive 719. See Neb. Rev. Stat. § 60-
6,185. It also urges that he was negligent by failing to maintain a proper lookout.
See Willey v. Parriott, 140 N.W.2d 652, 655 (Neb. 1966). We conclude that the
district court did not commit clear error by not making these findings. Multiple
witnesses testified that the snow on the night of the accident did not impede visibility
or cause slippery road surfaces. As for the county's argument that Pohl failed to
maintain a proper lookout, the only evidence would be the fact that his vehicle left
the roadway. Given the county's negligence in placing and maintaining the warning
sign, the fact that Pohl left the roadway does not necessarily indicate that he was not
keeping a proper lookout.

       On cross appeal, Pohl argues that the district court erred in finding that his
contributory negligence by speeding was a proximate cause of the accident because
the county failed to establish that the accident would not have happened had he been
driving the speed limit. The district court found in Pohl's favor on this point,
however. Specifically, it determined that "[i]f Pohl had been traveling at the legal
speed limit of 50 miles per hour . . . and all other variables remained constant . . . his
car would have gone off the road at the same location at a speed of 15 miles per
hour." The district court's assignment of 40% of the negligence to Pohl indicates that
it considered his negligence as a proximate cause of only the severity of his injuries.

       Pohl next contends that the district court erred in finding that his injuries would
have been less severe had he not been speeding. He essentially argues that because
no evidence was introduced from a biomedical expert indicating how he would have
suffered fewer injuries had he been traveling at a slower speed, the district court's
finding of proximate cause was clearly erroneous. Pohl cites no authority indicating
that such evidence is required where the record contains evidence that the accident
would have been less severe had the plaintiff not been speeding. Vandenberg's
testimony suggested that had Pohl been traveling at the speed limit when he braked
and still gone off the road, he would have been traveling at only 15 mph on leaving

                                          -12-
the road as opposed to 48 mph. There would then have been a "less severe collision,"
and the car "likely . . . would have stopped short of the . . . embankment." Given this
evidence, it was reasonable to find that the accident would have been less severe and
Pohl would have sustained less serious injuries had he not been speeding.
Accordingly, the district court did not clearly err by finding that his negligence at the
time of the crash was a proximate cause of his injuries.

      We finally address Pohl's contention that even if the district court's
determinations regarding negligence and proximate cause were correct, it should have
apportioned less negligence to Pohl. The apportionment of negligence "is solely a
matter for the fact finder, and its action will not be disturbed on appeal if it is
supported by credible evidence and bears a reasonable relationship to the respective
elements of negligence proved at trial." Tadros v. City of Omaha, 694 N.W.2d 180,
187 (Neb. 2005). As discussed above, the evidence supported the district court's
finding that the negligence of both parties contributed to Pohl's injuries. Attributing
40% of the negligence to Pohl was reasonable considering the evidence that the
accident would still have happened at a lower speed but with less severe injuries.

      Accordingly, we affirm the judgment of the district court.
                    ______________________________




                                          -13-
