Willa Jari Lovett v. Union Pacific RR

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 98-3906
___________

Willa Jari Lovett, by and through *
Willa Jaunice Lovett, her natural *
mother, acting as the Guardian of *
the Person and the Estate of Willa *
Jari Lovett, by next friend, Willa *
Juanice Lovett; * Appeal from the United States
* District Court for the
Appellant; * Western District of Arkansas.
*
v. *
*
Union Pacific Railroad Company; *
Chrysler Corporation, a Delaware *
corporation; *
*
Appellees. *
___________

Submitted: September 13, 1999

Filed: January 19, 2000
___________

Before WOLLMAN, Chief Judge, and HEANEY and LOKEN, Circuit Judges.
___________

HEANEY, Circuit Judge.

Willa Jari Lovett sued DaimlerChrysler Corp. (Chrysler) and Union Pacific
Railroad Company (Union Pacific) for injuries she sustained when the Chrysler Jeep
Cherokee she was a passenger in collided with a Union Pacific locomotive. The jury
returned a verdict in favor of both defendants. Lovett raises five issues on appeal. She
contends that the district court erred by: (1) admitting evidence of her failure to wear
her seat belt, (2) excluding evidence of other similar incidents involving a Jeep
Cherokee, (3) excluding evidence that Chrysler changed its rear-liftgate design, (4)
refusing to give a cautionary instruction in response to Union Pacific’s closing
argument, and (5) granting summary judgment on Union Pacific’s duty to keep a
lookout. We affirm.

I. Background

On February 5, 1995, 16-year-old Lovett rode in Molena Richey’s 1985 Chrysler
Jeep Cherokee with Richey and Kari Currier. Richey drove the vehicle; Currier was
seated in the front passenger seat; and Lovett was seated in back.

The Cherokee approached a railroad crossing marked with a crossbuck and stop
sign near Alma, Arkansas. As Richey neared the stop sign, she looked in both
directions, but she did not see or hear an approaching Union Pacific train. As she
started past the stop sign, the train, moving at a speed of 47 miles per hour, struck the
left front of the Cherokee. The initial impact caused the vehicle to rotate in a clockwise
direction and hit the right side of the train. This second impact continued the
Cherokee’s rotation, ultimately causing a third impact between the left rear corner of
the Cherokee and the train’s fuel tank. The Cherokee then flung away from the train
and rolled over.

During the collision, the Cherokee’s rear liftgate broke from the vehicle, and
Lovett was ejected through the open liftgate area. She sustained permanent brain
damage. Neither Currier nor Richey were ejected in the accident, and both suffered
only minor injuries.

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 On October 3, 1996, Lovett sued Chrysler and Union Pacific in the Eastern
District of Arkansas1 for personal injuries she suffered in the accident. She alleged
negligence and strict liability against Chrysler, and negligence alone against Union
Pacific. After an eighteen-day trial, the jury returned a verdict for Chrysler and Union
Pacific.

II. Chrysler

With regard to Chrysler, Lovett appeals the district court’s evidentiary rulings
to: (1) admit evidence of her failure to use her seat belt, (2) exclude evidence of other
similar incidents involving a Jeep Cherokee, and (3) exclude evidence that Chrysler
changed its rear-liftgate design.

A. Seat Belt Non-Use

Lovett first appeals the district court’s denial of her motion in limine to exclude
evidence of her seat belt non-use. In its pre-trial order denying Lovett’s motion, the
court stated:

[T]he Court will permit Chrysler to attempt to prove its defense of failure
to wear a seat belt on the limited issues of whether (1) its product is
defectively designed and unreasonably dangerous or (2) whether Lovett’s
injuries are attributable to some cause other than the product design.
Chrysler may not, however, attempt to prove that Lovett – arguably not
even required by law to wear the seat belt – was negligent or at fault or
contributed to or failed to mitigate her damages. Furthermore, Chrysler
may not simply introduce evidence of Lovett’s non-use of the seat belt in
the absence of evidence tending to prove that Lovett’s damages were
caused by a source other than the alleged defective design. In other
words, Chrysler may not just “throw” the seat belt evidence to the jury,

1
The suit was later transferred to the Western District of Arkansas.

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 leaving jurors to speculate as to the proximate cause of her alleged
injuries.

See Lovett v. Union Pac. R.R. Co., Civ. File No. 97-2036 (W.D. Ark. Oct. 7, 1998)
(order denying plaintiff’s motion in limine to exclude seat-belt evidence, at 5)
(emphasis added).

Seat-belt evidence was admitted at trial over Lovett’s objection. In her case-in-
chief, Lovett called Officer Steven Roberts, who took a statement on the day of the
accident from Molena Richey, in which Richey stated that neither Currier nor Lovett
were wearing seat belts.

During Union Pacific’s cross-examination of Roberts, it sought to admit the
written statement into evidence. Lovett objected on hearsay grounds and because the
statement contained evidence that she had not been wearing her seat belt. The court
then discussed, outside of the jury’s presence, a proposed limiting instruction, which
read:

Ladies and gentlemen of the jury, you are told that evidence concerning;
one, whether seat belts were installed in the Jeep Cherokee at the time of
the accident; and two whether, if installed, seat belts were in use by any
of the occupants in the Jeep at the time of the accident may be considered
by you only for the limited purposes of a) determining whether the Jeep
is defectively designed and unreasonably dangerous, and/or b)
determining whether plaintiff’s injuries are attributable to some cause
other than the design of the Jeep.

(Tr. Vol. II at 282-83.)

In response to the proposed instruction, Lovett’s attorney stated: “Certainly I
don’t agree with it. I understand that [the proposed instruction is] the Court Order and
we would renew our objection which was made in our Motion in Limine.” (Id. at 283

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(emphasis added).) After admitting Roberts’ written statement, the district court
instructed the jury according to the limiting instruction.

At the close of trial, the court proposed the following jury instruction:

If you find that there was a design defect in the Jeep Cherokee, you are
instructed the design defect subjects Chrysler Corporation to liability for
only that portion of Ms. Lovett’s damages or injuries which were
proximately caused by the defective design. That is, you are instructed
that even if you find that there was a design defect in the Jeep Cherokee,
Chrysler Corporation is not liable for any damage or injury which would
have occurred as a result of the collision even in the absence of the
defective design.

When I use the word “fault” in these instructions, I mean negligence and
supplying a product in a defective condition.

....

On February 5, 1995, there was no law in the state of Arkansas requiring
a passenger in the back seat of a motor vehicle to wear a seat belt. The
failure to wear a seat belt may not be considered by you as evidence of
fault -- on the part of the plaintiff with respect to her negligence claims.

The fact that the Jeep Cherokee was supplied with a seat belt may be
considered solely in determining whether the vehicle was in a defective
condition which rendered it unreasonably dangerous.

(Tr. Vol. X at 1995-96.)

Lovett objected to the district court’s seat-belt instruction:

Your Honor, Instruction 25. We are making this objection in line with
our objection to any evidence being admitted about seat belt[s] in the first
place. And therefore to maintain consistency, we’re renewing our

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 objection that we first filed in limine and brought throughout the trial; that
there should not have been any evidence of seat belts in this trial and thus
instructing the jury on seat belts is error.

(Tr. Vol. X at 1926 (emphasis added).) The court responded, “I take it then it is in the
nature of a derivative objection and it arised [sic] from the objection made at trial to
receive that evidence at all. But that being understood, does the plaintiff have any
objection to the form of the instruction if it were to otherwise be –" (Id. at 1926-27.)
Lovett then replied, “No sir. Reserving and preserving our original objection, we do
not object to 25 in its present state.” (Id. at 1927.)

After the district court instructed the jury as proposed, the case was submitted
using a general verdict form to which Lovett did not object. The verdict form read,
“Do you find from a preponderance of the evidence that there was fault on the part of
Chrysler which was a proximate cause of the damages sustained by Willa Lovett?”
The jury responded, “No.”

Chrysler argues that we are precluded from reviewing the admissibility of the
seat-belt evidence because Lovett failed to preserve her argument for appeal. We
disagree. A motion in limine to exclude evidence is sufficiently preserved for appeal
if the evidence is objected to at trial. See Aerotronics, Inc. v. Pneumo Abex Corp., 62
F.3d 1053, 1066 (8th Cir. 1995); see also United States v. Kandiel, 865 F.2d 967, 972
(8th Cir. 1989) (holding that a motion in limine to exclude evidence is insufficient to
preserve a claim of error where the evidence is admitted at trial without objection).
In addition to making her motion in limine, Lovett specifically objected to the
admissibility of the seat-belt evidence at trial as demonstrated above. Thus, her
objection was preserved, and we review her claim on the merits.

At the time of the accident Arkansas law provided that:

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 The failure to provide or use a seat belt shall not be considered under any
circumstances as evidence of comparative or contributory negligence or
failure to mitigate damages, nor shall such failure be admissible as
evidence in the trial of any civil action with regard to negligence. Neither
shall the failure to provide or use seat belts be considered under any
circumstances as evidence in any prosecution for negligent homicide.

Ark. Code Ann. § 27-37-703 (Michie 1994).2 Although the statute clearly prohibits
evidence of seat belt non-use for Lovett’s negligence claim, both the statute and
Arkansas case law are silent on whether such evidence also is barred in strict-liability
cases. Thus, the district court was in the difficult position of predicting how the
Arkansas Supreme Court likely would rule on the issue.

Lovett based her strict-liability claim against Chrysler on the “crashworthiness”
theory. Under the theory, vehicle manufacturers have a duty to design their vehicles
to be “crashworthy,” meaning to prevent “enhanced injuries” resulting from an
accident. See Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968); R. Ben
Hogan, III., The Crashworthiness Doctrine, 18 Am. J. Trial Advoc. 37 (1994). In a
strict-liability crashworthiness case, the plaintiff claims that the manufacturer is liable
only for that portion of the injury caused by the defective design. See Larsen, 391 F.2d
at 502. In this case, Lovett alleged that the defectively designed liftgate enhanced her
injuries beyond that which would have occurred from the vehicle’s impact with the
train, absent the defective liftgate.

2
Approximately two months after the accident, the Arkansas Legislature
amended § 27-37-703. Because the accident giving rise to Lovett’s claims occurred
prior to the amendment, the pre-amended statute applies.

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 The district court noted that the law regarding the admissibility of seat-belt
evidence in strict-liability crashworthiness cases is in a “state of flux.”3 Lovett, Civ.
File No. 97-2036 (order denying plaintiff’s motion in limine to exclude seat-belt
evidence, at 4). The district court, however, determined that the Arkansas Supreme
Court likely would adopt the reasoning set forth in LaHue v. General Motors Corp.,
716 F. Supp. 407 (W.D. Mo. 1989), holding that evidence of seat belt non-use is
admissible in strict-liability crashworthiness cases. “We review de novo a district
court’s determination of how a forum state’s highest court would decide a novel legal
issue or cause of action.” Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765,
772 (8th Cir. 1998).

We need not decide whether the district court correctly determined that the
Arkansas Supreme Court would follow LaHue or the cases cited in footnote three of
this opinion because Lovett has failed to prove that she was prejudiced by the
admission of the seat-belt evidence. Where the district court errs in admitting evidence,
we will only grant a new trial or set aside a verdict if there is clear and prejudicial
abuse of discretion. See First Sec. Bank v. Union Pac. R.R. Co., 152 F.3d 877, 879
(8th Cir. 1998) (citing Pittman v. Frazer, 129 F.3d 983, 989 (8th Cir. 1997)); see also
Fed. R. Civ. P. 61 (stating reversal based on an improper evidentiary ruling is allowed
only if “substantial rights” were affected). An abuse of discretion occurs when the
error prejudicially influences the outcome. See United States v. Beasley, 102 F.3d
1440, 1452 (8th Cir.1996).

3
Many courts interpret seat-belt statutes to permit evidence of seat belt non-use
in a strict-liability crashworthiness case. See LaHue v. General Motors Corp., 716 F.
Supp. 407 (W.D. Mo. 1989); General Motors Corp. v. Wolhar, 686 A.2d 170 (Del.
1996); Lowe v. Estate Motors Ltd., 410 N.W.2d 706 (Mich. 1987). Others do not. See
DePaepe v. General Motors Corp., 33 F.3d 737 (7th Cir. 1994); Olson v. Ford Motor
Co., 558 N.W.2d 491 (Minn. 1997); Whitehead v. American Motors Sales Corp., 801
P.2d 920 (Utah 1990).

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 To determine whether evidence of Lovett’s seat belt non-use prejudicially
influenced the outcome, we look to the jury’s verdict. The unobjected-to verdict form
submitted to the jury read: “Do you find from a preponderance of the evidence that
there was fault on the part of Chrysler which was a proximate cause of the damages
sustained by Willa Lovett?” The jury responded “No.”

We have no way of determining from this general verdict why the jury found
Chrysler not liable. In particular, we cannot tell whether the jury determined that the
Cherokee was defectively designed, but that the design defect did not cause Lovett’s
injuries. If we could, there would be force to Lovett’s argument that the jury
improperly considered her seat belt non-use to conclude that her injuries were her fault,
and not Chrysler’s, and thus we would be required to determine whether the district
court erred in admitting the challenged evidence. Nonetheless, the case was submitted
on a general verdict form, so we can only speculate whether Lovett was prejudiced.
Speculation, however, is not a sufficient basis for finding a plaintiff’s substantial rights
were affected, and we will not set aside the jury’s verdict in this case.

B. "Similar Incidents" Evidence

Lovett next contends that the district court erred by excluding evidence of four
similar incidents involving Jeep Cherokees. The district court excluded the evidence
because the incidents were not “substantially similar” to Lovett’s accident, noting that
none: (1) involved a 1985 Cherokee, (2) involved a collision with a locomotive, (3)
occurred at a railroad crossing, (4) resulted in the Cherokee rolling over, (5) occurred
in a similar topographical area, and (6) involved similar speeds. (Tr. Vol. VI at 1177-
85.) We will not grant a new trial or set aside a verdict based on an incorrect
evidentiary ruling absent a clear and prejudicial abuse of discretion. See First Sec.
Bank, 152 F.3d at 879.

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 Evidence of similar incidents may be relevant to prove the defendant’s notice of
defects, the defendant's ability to correct known defects, the magnitude of the danger,
the product's lack of safety for intended uses, or causation. See Drabik v. Stanley-
Bostitch, Inc., 997 F.2d 496, 508 (8th Cir. 1993). However, admitting similar-incident
evidence also threatens to raise extraneous controversial issues, confuse the issues, and
be more prejudicial than probative. See id. For these reasons, the facts and
circumstances of the other incidents must be “substantially similar” to the case at bar
to be admissible. See id. Based on our review of the record and the district court’s
reasoning, we are satisfied that the incidents were not “substantially similar” to
Lovett’s accident and that the district court correctly excluded them.

C. Design-Change Evidence

Lovett also appeals the district court’s exclusion of evidence regarding
Chrysler’s 1994 decision to replace the fiberglass liftgate with one made from steel.
The district court excluded the evidence after concluding that it was irrelevant under
Ark. Code Ann. § 16-116-104 (Michie 1994), and that even if relevant, was barred by
Federal Rule of Evidence 407. See Lovett, Civ. File No. 97-2036 (W.D. Ark. Oct. 14,
1998) (order denying Lovett’s motion in limine to admit design-change evidence, at 1-
2). Again, we review the district court’s evidentiary ruling for a prejudicial abuse of
discretion. See First Sec. Bank, 152 F.3d at 879.

We need not consider the grounds for the district court’s decision because the
design-change evidence is irrelevant and therefore was properly excluded. Evidence
is relevant if it tends “to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Fed. R. Evid. 401. Lovett claims that the design-change evidence is
relevant to prove that because the 1985 Jeep Cherokee’s liftgate was manufactured
from fiberglass, rather than steel, the vehicle was “supplied in a defective condition
rendering it unreasonably dangerous” and “the defect caused Lovett’s injuries.”

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(Appellant’s Br. at 35-36.) Chrysler contends, however, that the change is irrelevant
because the decision was not made to improve the Cherokee’s safety, but rather as a
“quality upgrade” to make the liftgate less noisy and easier to operate. (Appellee’s Br.
at 23.)

A careful review of the record reveals that the change apparently was made to
improve quality, not safety. Because the design change was not made to improve the
vehicle’s safety, it does not tend to prove that the fiberglass liftgate rendered the
Cherokee defective. Thus, the evidence is irrelevant and was properly excluded.

The only evidence in the record that the design change may have been related
to safety is a memorandum written by William Grabowski, Executive Engineer for
Body Engineering in Chrysler’s Large Car Division. In the memorandum, Grabowski
notes two instances where the liftgate would “pop[] open during off-road driving.”
(Plaintiff’s Ex. 5 at 5.) Assuming for the sake of argument that these instances
motivated Chrysler’s design change, evidence of the change is still irrelevant because
Lovett alleges that she was injured when the Cherokee’s liftgate completely detached
from the vehicle, not when the liftgate opened inadvertently. Any change to prevent
the liftgate from opening inadvertently does not tend to prove that the liftgate was
defective because it was ripped off in a crash of the kind that occurred here. Because
the design change does not tend to prove the Cherokee was defective or that the defect
caused Lovett’s injuries, evidence of the change is irrelevant and was properly
excluded by the district court.

III. Union Pacific

With regard to Union Pacific, Lovett appeals the district court’s: (1) refusal to
give a cautionary instruction in response to Union Pacific’s closing argument, and (2)
summary judgment grant on Union Pacific’s duty to keep a lookout.

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 A. Refusal to Give a Cautionary Instruction

Lovett first argues that the district court erred in overruling her objection to
Union Pacific’s closing argument and in denying her request for a cautionary
instruction. Lovett claims that Union Pacific made an improper “Golden Rule”
argument, which “turned a close case into a verdict for Union Pacific.” (Appellant’s
Br. at 57.)

During its closing argument, Union Pacific stated:

Now for a minute let’s take a totally hypothetical situation. Let’s say that
I’m a passenger in a car being driven by a friend; you’re driving a car.
It’s hypothetical. And there’s the intersection. My intersection’s not that
great but if you’ll follow along with me as best you can. I’m a passenger
in a car, my car is going this way, your car is coming this way. I’m going
to put you and me – Let’s say my car had a stop sign there at the
intersection, all right? Now as you’re driving through the intersection
going this way, my car – the one that I’m riding in – pulls out and hits you
and I’m hurt. And remember, anybody can sue anything for anything else.
I don’t sue my driver, I sue you. And we get lawyers and go to court and
I say, you know, you didn’t put your brakes on until after the accident
happened. You’d say Scott, it doesn’t matter; I had the right of way, you
had the stop sign. I’d say well, okay, but you know, you weren’t honking
your horn at me early enough. You said Scott, yes, I was honking and
other people heard it, and so did your driver. I said well, all right but, you
know, you were going 47 miles an hour. And you would respond well,
Scott, my speed limit was 50. I wasn’t violating the law and I had the
right of way. And then I said well, you know, my driver couldn’t see
because of the sun light. What would you say? Well, then he shouldn’t
have pulled out into the intersection. And finally I throw up my hands and
I say well, I’m hurt, and you’ve got the ability to pay for my damages. I
think you would say Scott, the accident’s not my fault and I don’t owe
you anything. And we take our case to the jury, me against you, okay,
under these facts. What should that jury do? Ask yourself that. Think
about it.

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 During deliberations you may hear someone say, you know, Ms. Lovett
was hurt bad, real bad; and the railroad is a company and they have the
ability to pay. The first thing I ask you to remember is that what if this
was the lawsuit, me against you and I’m hurt and you had the ability to
pay?

(Tr. Vol. X at 2023-24.) Lovett objected to the hypothetical on the ground that it
referred to the jurors as defendants, and she requested a cautionary instruction. The
court overruled Lovett’s objection and denied her request for a cautionary instruction,
stating, “I think it’s a fair comment. Objection overruled.” (Id.)

The district court has broad discretion to rule on the propriety of closing
arguments, see Vanskike v. Union Pac. R.R. Co., 725 F.2d 1146, 1149 (8th Cir. 1984),
and on how to instruct the jury, see Kostelec v. State Farm Fire & Cas. Co., 64 F.3d
1220, 1225 (8th Cir. 1995); Joan W. v. City of Chicago, 771 F.2d 1020, 1022-23 (7th
Cir. 1985) (giving great deference to the trial judge’s refusal to give a curative
instruction after a Golden Rule argument because of the judge’s superior vantage
point). We will not disturb the district court’s rulings absent an abuse of discretion.
See Vanskike, 725 F.2d at 1149.

A Golden Rule argument asks the jury to place itself in the defendant’s position.
See Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d 1226, 1246 (7th Cir. 1982),
aff’d, 465 U.S. 752 (1984). Such an argument is universally condemned because it
encourages the jury to “depart from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.” Id.; Dole v. USA Waste Servs.
Inc., 100 F.3d 1384, 1388 (8th Cir. 1996). As set forth above, Union Pacific made a
Golden Rule argument in its closing statement. Despite the argument’s hypothetical
form, the parties were clearly identifiable as those in this case, and Union Pacific asked
the jury to place itself in the position of the hypothetical defendant.

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 Although the Golden Rule argument may have been improper, Lovett has failed
to demonstrate she was prejudiced. Following Lovett’s objection to the argument,
Union Pacific did not discuss the hypothetical. Furthermore, the court correctly
instructed the jury on the claims against Union Pacific, on the burden of proof, and on
what the jury could properly consider when rendering its verdict. The court instructed
the jury that:

You should not permit sympathy, prejudice or like or dislike of any party
to this action or of any attorney to influence your findings in this case.
In deciding the issues, you should consider the testimony of the witnesses
and the exhibits received into evidence. . . .

Opening statements, remarks during the trial, and closing arguments of the
attorneys are not evidence but are made only to help you in understanding
the evidence and applicable law. Any arguments, statements, or remarks
of attorneys having no basis in the evidence should be disregarded by you.

(Tr. Vol. X at 1955.) Because Union Pacific did not refer to the hypothetical after
Lovett’s objection and because the court properly instructed the jury, we conclude
Lovett was not prejudiced. Thus, the district court did not abuse its discretion by
overruling her objection and by denying her request for a cautionary instruction.

B. Summary Judgment on Union Pacific’s Failure to Keep a Lookout

Lovett last appeals the district court’s summary judgment grant on Union
Pacific’s duty to keep a proper lookout. We review a district court’s summary
judgment grant de novo to determine whether, viewing the evidence in a light most
favorable to the non-moving party, a genuine issue of material fact exists. See Bryan
v. Norfolk & Western Ry. Co., 154 F.3d 899, 901 (8th Cir. 1998). In this diversity
case, we apply Arkansas substantive law to make this determination. See Erie R. Co.
v. Tompkins, 304 U.S. 64 (1938).

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 Lovett alleges that Union Pacific was negligent in failing to keep a proper
lookout. Arkansas law provides:

(a)(1) It shall be the duty of all persons running trains in this state upon
any railroad to keep a constant lookout for all persons, including licensees
and trespassers, and property upon the track of any and all railroads.
(2) If any person or property is killed or injured by the neglect of any
employee of any railroad to keep a lookout, the company owning or
operating any railroad or its agents, servants, and employees shall be
liable and responsible to the person injured for all damages resulting from
neglect to keep a lookout.

Ark. Stat. Ann. § 23-12-907 (1994). To establish a prima facie case of negligence, the
plaintiff must prove that: (1) the defendant owed a duty to the plaintiff, (2) the
defendant breached that duty, and (3) the breach was the proximate cause of the
plaintiff’s injuries. See Union Pac. R.R. Co. v. Sharp, 952 S.W.2d 658 (Ark. 1997).

A train crew does not owe a duty to keep a lookout and take precautions to avoid
injury until it becomes apparent that the traveler or pedestrian approaching a railroad
track will not stop before placing himself in peril. See Northland Ins. Co. v. Union Pac.
R.R. Co., 830 S.W.2d 850, 853 (Ark. 1992). In this case, both of the train’s crew
members testified that they never saw the Cherokee prior to impact. (Tr. Vol. II at 321,
339.) Thus, there was evidence the crew breached its duty to keep a lookout and take
precautions.

The only issue before us is whether Union Pacific’s breach proximately caused
Lovett’s injuries. Proximate cause is “that which in a natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury, and without which the
result would not have occurred.” Sharp, 952 S.W.2d at 662 (quoting Ouachita
Wilderness Inst., Inc. v. Mergen, 947 S.W.2d 780 (1997)). Arkansas cases hold that
unless at the moment the crew’s duty arose the train could have been sufficiently

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slowed or stopped in time to avoid the collision, the failure to keep a lookout is not the
proximate cause of the injury.4 See Northland Ins., 830 S.W.2d at 853; St. Louis S.W.
Ry. Co. v. Evans, 497 S.W.2d 692, 695 (Ark. 1973); Baldwin v. Brim, 91 S.W.2d 255,
256-57 (Ark. 1936). The evidence demonstrated, and Lovett does not dispute, that
regardless of whether the train’s crew kept a lookout, the train could not have stopped
in time or slowed enough to avoid the collision. Thus, Union Pacific’s failure to keep
a lookout was not the proximate cause of Lovett’s injuries.

Lovett argues that although the train could not have been stopped or sufficiently
slowed, the train’s crew could have sounded the whistle earlier to alert Richey of the
approaching train. We are foreclosed from considering this argument. In addition to
alleging failure to keep a lookout, Lovett also claimed that Union Pacific was negligent
in failing to sound the whistle as the train approached the crossing. The issue of failure
to sound the whistle was tried before the jury, and the jury returned a verdict in favor
of Union Pacific. Because Lovett tried this issue before the jury and lost, she cannot
now attempt to attach the argument to her lookout claim to save it from summary
judgment.

Lovett does not dispute that, once the train crew’s duty to keep a lookout arose,
the train could not have stopped or sufficiently slowed to avoid its collision with the
Cherokee. Thus, Union Pacific’s failure to keep a proper lookout did not proximately
cause Lovett’s injuries, and the district court correctly granted summary judgment.

4
We note the Arkansas Supreme Court’s recent decision in Union Pacific
Railroad Co. v. Sharp, 952 S.W.2d 658 (Ark. 1997), and distinguish it from this case.
The Sharp court was asked only to determine whether sufficient evidence existed from
which the jury could have concluded that Union Pacific was negligent, and not whether
Sharp established proximate cause on a particular theory of negligence. Further, the
court recognized its prior holdings that a lookout instruction is improper where the
evidence established that the train could not have been stopped or slowed in time to
avoid the collision. See id. at 662-63.

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For the reasons set forth above, we affirm.

A true copy.

Attest.

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

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