dissenting.
Although I entertain serious reservations on the issue of whether Arkansas law perimits recovery of punitive damages in a wrongful death action, in the absence of a definitive statement by the Arkansas Supreme Court I will defer to Judge Waters and Judge Woods1 as well as to my Brother Arnold, a distinguished former United States District Judge in Arkansas. See Lewis Service Center, Inc. v. Mack Financial Corp., 696 F.2d 66, 69 n. 3 (8th Cir.1982) (interpretation of state law by district judge sitting in forum entitled to great deference). However, I cannot agree that the evidence in this case is sufficient to support an award of punitive damages, and for this reason I respectfully dissent.
Punitive damages are not favored in Arkansas. Diamond Shamrock Corp. v. Phillips, 256 Ark. 886, 511 S.W.2d 160, 164 (Ark. 1974). Mere negligence or even gross negligence, without willfulness, wantonness, or conscious indifference, will not justify an award of punitive damages. Id. The law is established in Arkansas, and the jury was so instructed, that in order to recover punitive damages, plaintiff must prove that defendant knew or should have known that his conduct was about to inflict injury and that he continued his conduct with malice or “in reckless disregard of the consequences from which malice may be inferred.” Arkansas Model Jury Instructions 2217 (emphasis added); see St. Louis Southwestern Railway Co. v. Evans, 104 Ark. 89, 148 S.W. 264, 265 (Ark.1912).
If the Laurel Street crossing was abnormally dangerous, thus imposing on the railroad a duty to provide adequate warning, it cannot be disputed that defendant failed to fulfill this duty. Indeed, by not challenging the award of compensatory damages, defendant has conceded liability for negligence. However, mere failure to exercise the degree of care due in the circumstances does not constitute wanton conduct or reckless disregard of the consequences from which malice may be inferred. See State ex rel. Kurn v. Hughes, 348 Mo. 177, 153 S.W.2d 46, 53-54 (Mo.1941) (railroad’s failure to make crossing reasonably safe insuf*1055ficient to support punitive damages); Sturdevant v. Erie Lackawanna Railroad Co., 319 F.Supp. 732, 737 (W.D.Pa.1970), aff’d, 458 F.2d 1214 (3d Cir.1972) (failure to use particular type of warning device at crossing insufficient to show willful and wanton conduct); Herglund v. New York, Chicago & St. Louis Railroad Co., 1 Ill.App.3d 968, 274 N.E.2d 671, 679 (Ill.App.1971) (failure to provide additional warning at extra-hazardous crossing insufficient to show more than negligence). Thus, the award of punitive damages in the present case must be justified by something other than defendant’s failure to install an active warning device at the Laurel Street crossing.
The majority finds support for the award of punitive damages in the railroad’s “refusal” of requests by Prescott officials to install safety devices at unprotected crossings, and in the supposed rationale for such refusal, that is, “that it is cheaper to be sued than to protect railroad crossings.” Supra at 1053. I cannot accept the characterization of the railroad’s failure to install active warning devices at all unprotected crossings as a deliberate refusal to respond to the concern of Prescott officials. On the contrary, the evidence shows that the railroad participated in the evaluation by the diagnostic team, accepted the team’s recommendation, and complied with the subsequent agreement with the city. According to the agreement, the railroad would install active warning devices at two crossings and the city would close two crossings, including Laurel Street. The railroad completed installation in January, 1979, but the city delayed closing the Laurel Street crossing due to resistance in the community. This delay continued until Mr. Brown’s fatal accident, after which the city promptly passed an ordinance closing the crossing.2
I am unable to conclude that the rail-, road’s reliance on the city to abide by the agreement, however negligently misplaced, or the railroad’s failure to step in and install expensive warning equipment at a crossing scheduled for closing, constitutes such conscious indifference to the consequences that malice may be inferred.3
Nor am I persuaded by the speculative cost-effectiveness rationale for the railroad’s failure to install the equipment. The only direct evidence of such a policy consists of testimony by Mr. Nasser quoted by the majority at page 1053 supra concerning a statement allegedly made by Mr. Gorman, a railroad employee. Mr. Nasser subsequently admitted on cross-examination that he could have misunderstood Mr. Gorman. Moreover, Mr. Gorman not only denied making the statement, but further denied having any authority or knowledge on which to base the alleged statement. Even when viewed in the light most favorable to plaintiff, such scanty evidence of doubtful admissibility is simply not sufficient, in my opinion, to support an inference of malice.
I would reverse the award of punitive damages.
. As noted by the majority, Judge Waters relied on Judge Woods’s decision in Fields v. Huff, 510 F.Supp. 238 (E.D.Ark.1981). See Childers v. Southern Farm Bureau Casualty Ins. Co., 282 F.Supp. 866, 869 (E.D.Ark. 1968).
. Due to pressure from surrounding businesses, the crossing was reopened shortly thereafter.
. Moreover, I have some question as to whether the railroad had reason to know that its failure to install an active warning device was about to inflict injury. In spite of the high hazard rating, it appears that only one accident had occurred at the Laurel Street crossing in the ten years preceding Mr. Brown’s death. Cf. St. Louis Southwestern Railway Co. v. Jackson, 242 Ark. 858, 416 S.W.2d 273 (Ark.1967) (three accidents in a two-week period).