                         United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 96-3817
                                  ___________

Mary Duston,                           *
                                       *
            Appellee,                  *
                                       *     Appeal from the United States
      v.                               *     District Court for the
                                       *     Eastern District of Arkansas.
Daymark Foods, Inc.,                   *
                                       *
            Appellant.                 *
                                  ___________

                               Submitted: June 13, 1997

                                    Filed: September 9, 1997
                                  ___________

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN, Circuit Judge, and
      BEEZER,1 Circuit Judge.
                              ___________

WOLLMAN, Circuit Judge.

       Daymark Foods, Inc. (Daymark) appeals from the judgment entered by the
district court2 on the jury’s verdict in favor of Mary Duston. We affirm.




      1
       The HONORABLE ROBERT R. BEEZER, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
      2
        The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
       Mary and her husband, Arthur, worked as team truck drivers for Daymark,
delivering fresh flowers to various locations across the United States. On April 26,
1994, the Dustons drove from Atlanta, Georgia, to Miami, Florida, to pick up flowers.
They returned to Atlanta and, around midday on April 28, continued on to Indianapolis,
Indiana, where they arrived between ten and eleven that evening. From that time until
six or seven a.m. on April 29, they unloaded the 300 boxes of flowers they had
delivered.

        Arthur then informed a Daymark dispatcher that he and Mary had completed
their run. The dispatcher told Arthur that he and Mary were to drive to Chattanooga,
Tennessee, where they were to pick up another load and deliver it to Indianapolis.
Arthur told the dispatcher that he and Mary were tired and asked if another team could
make the run. The dispatcher replied that no one else was available and that the
Dustons had to make the run. Arthur and Mary began the drive to Chattanooga, with
Arthur at the wheel and Mary in the sleeper compartment of the cab.

       The trip did not go well, for Arthur began experiencing stomach cramps and
diarrhea and stopped twice at rest stops. After he had driven approximately 300 miles,
Arthur told Mary that he was about to vomit and asked her to look for a bag. While
Mary was doing so, Arthur lost consciousness. Mary felt the truck hit a bump,
whereupon she looked out of the compartment and saw Arthur slumped over at the
wheel. The truck careened off the highway, through a fence, and down a hill, throwing
Mary about in the sleeper compartment with such force that she suffered a herniated
disk in her cervical spine.

       Mary filed suit in Arkansas state court, alleging that Arthur was negligent in
driving and that Daymark, as Arthur’s employer, was vicariously liable. Daymark
removed the case to federal court. The jury found in favor of Mary, awarding her
$35,000 in damages.


                                         -2-
       On appeal, Daymark argues that it is entitled to judgment as a matter of law,
contending that Mary failed to prove negligence. We review the denial of a motion for
judgment as a matter of law under the same standard as that employed by the district
court: we consider the evidence in the light most favorable to the prevailing party and
will affirm if reasonable persons could differ regarding the conclusions to be drawn
from the evidence. See Sherbert v. Alcan Aluminum Corp., 66 F.3d 965, 967 (8th Cir.
1995).

       Arkansas law governs the standard of care in this diversity action. See Erie R.
Co. v. Tompkins, 304 U.S. 64 (1938). The Arkansas Supreme Court has defined
negligence as “the failure to do something which a reasonably careful person would do,
or the doing of something which a reasonably careful person would not do, under
circumstances similar to those shown by the evidence.” Scully v. Middleton, 751
S.W.2d 5, 5 (Ark. 1988). “[A] negligent act arises from a situation where an ordinarily
prudent person in the same situation would foresee such an appreciable risk of harm to
others that he would not act or at least would act in a more careful manner.” Ouachita
Wilderness Institute, Inc. v. Mergen, 947 S.W.2d 780, 784 (Ark. 1997). The plaintiff
must also show “that the negligent act proximately caused the damages sustained and
that such damages were reasonably foreseeable.” Scully, 751 S.W.2d at 6.

       The doctor who examined Arthur after the accident testified that Arthur’s
blackout was caused by a “vasovagal reaction,” which is prompted by the stimulation
of the vagus nerve and results in a slowing of the heart rate and the lowering of blood
pressure, with a resultant loss of consciousness. The doctor opined that Arthur’s
vasovagal reaction was caused by stress, fatigue, and stomach cramps that were
kindled by his fatigue.

       Daymark argues that Arthur could not reasonably foresee that he would
experience a vasovagal reaction from his fatigue and thus was not negligent in
persisting in driving. The question, however, is not whether Arthur would have been



                                          -3-
able to predict precisely this reaction, but whether a reasonable person would have
been able to foresee that driving while suffering fatigue would create a risk of harm.
See Catlett v. Stewart, 804 S.W.2d 699, 703 (Ark. 1991). “‘If the act or omission is
of itself negligent and likely to result in injury to others, then the person guilty thereof
is liable for the natural consequences which occurred, whether he might have foreseen
it or not.’” Id. (quoting Bergetz v. Repka, 424 S.W.2d 367, 369 (Ark. 1968)); see
Bolstad v. Pergeson, 806 S.W.2d 377, 379 (Ark. 1991).

       We have considered Daymark’s claim of error regarding the district court’s jury
instruction on negligence and conclude that it is without merit.

       The judgment is affirmed.

       A true copy.

              Attest:

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




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