DEDRA SHANKLIN, Individually and as next friend of her son Jessie Guy Shanklin v. Norfolk Southern Railway Co.

*The Honorable K arl S. Forester, Chief Judge of the United
States District Court for the Eastern District of Kentucky, sitting by
designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0156P (6th Cir.)
File Name: 04a0156p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DEDRA SHANKLIN,
Individually and as next
friend of her son Jessie Guy
Shanklin,
Plaintiff-Appellee,
v.
NORFOLK SOUTHERN
RAILWAY CO.,
Defendant-Appellant.
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No. 01-6449
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 94-01212—James D. Todd, Chief District Judge.
Argued: October 30, 2003
Decided and Filed: May 27, 2004
Before: MOORE and ROGERS, Circuit Judges;
FORESTER, Chief District Judge.*
2 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
_________________
COUNSEL
ARGUED: Everett B. Gibson, BATEMAN, GIBSON,
Memphis, Tennessee, for Appellant. Pamela R. O’Dwyer,
PATY, RYMER & ULIN, Chattanooga, Tennessee, for
Appellee. ON BRIEF: Everett B. Gibson, Ralph T. Gibson,
BATEMAN, GIBSON, Memphis, Tennessee, for Appellant.
Pamela R. O’Dwyer, PATY, RYMER & ULIN, Chattanooga,
Tennessee, John W. Chandler, Jr., Memphis, Tennessee, for
Appellee.
FORESTER, D. J., delivered the opinion of the court, in
which MOORE, J., joined. ROGERS, J. (pp. 28-34),
delivered a separate concurring opinion except as to Part V.
_________________
OPINION
_________________
FORESTER, Chief District Judge.
Defendant-Appellant Norfolk Southern Railway Company
(“Norfolk”) appeals the district court’s denial of its renewed
motion for judgment as a matter of law filed following a jury
trial in which judgment was entered in favor of Plaintiff-
Appellee Dedra Shanklin (“Shanklin”) in the amount of
$1,434,014.60. In 1993, a train operated by Norfolk struck
the vehicle of Eddie Shanklin, Dedra Shanklin’s husband,
killing him. The fatal accident occurred at the Oakwood
Church Road railroad crossing near Milan, Tennessee.
Shanklin filed an action against Norfolk, asserting various
common-law claims based on Norfolk’s negligence in failing
to install adequate warning devices at the crossing and in
failing to remove vegetation from the area surrounding the
crossing. Shanklin claimed that excessive vegetation and lack

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No. 01-6449 Shanklin v. Norfolk
Southern Railway Co.
3
of adequate warning devices resulted in Eddie Shanklin’s
failure to perceive the imminently oncoming train prior to his
vehicle’s entry into the crossing, and thus into the train’s path.
In 1996, a jury found in Shanklin’s favor. This Court
subsequently affirmed the verdict, but the Supreme Court
reversed with respect to the inadequate warning claim,
holding that it was preempted by federal regulations
governing the installation of warning devices. Shanklin v.
Norfolk So. Ry. Co., 529 U.S. 344 (2000).
The Supreme Court remanded and the parties tried the
vegetation claim before a second jury in 2001. Shanklin
presented evidence, over Norfolk’s objection, which tended
to demonstrate that Norfolk knew that overgrown vegetation
in the vicinity of railroad crossings could obstruct the vision
of both automobile drivers and locomotive engineers
approaching said crossings. Specifically, Shanklin showed
that such overgrown vegetation existed at the Oakwood
Church Road railroad crossing, and that Norfolk failed to
remove it. Norfolk filed a motion for judgment as a matter of
law before the jury retired to deliberate, which the district
court denied. After the jury once more found in favor of
Shanklin, Norfolk renewed its motion, which the district court
again denied.
Norfolk now appeals several aspects of the trial, including
the district court’s determination that the vegetation claim
was not preempted, the district court’s admittance of three
pieces of evidence tending to show knowledge, the district
court’s decision to read an allegedly irrelevant Tennessee
statute to the jury, and the district court’s determination that
the evidence was sufficient to permit a reasonable jury to find
in Shanklin’s favor.
For the following reasons, we AFFIRM.
4 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
I. JURISDICTION
The district court had proper original jurisdiction over
Shanklin’s action under 28 U.S.C. § 1332(a) because there
existed a diversity of citizenship and the matter in controversy
exceeded $75,000. Shanklin is a Tennessee resident and
Norfolk is a Virginia corporation. Norfolk timely appealed a
final decision of a United States district court and this court
accordingly has jurisdiction over this appeal under 28 U.S.C.
§ 1291.
II. FACTUAL BACKGROUND AND PROCEDURAL
HISTORY
The Oakwood Church Road railroad crossing is located
about seven-tenths of a mile from the home Eddie Shanklin
shared with his wife, Dedra Shanklin. Eddie Shanklin’s
commute to the restaurant where he worked brought him
across the railroad tracks twice a day for the almost four years
he and his wife occupied the residence, and his route the
morning of October 3, 1993 was no different.
Eddie Shanklin left his home in the pre-dawn darkness of
a clear autumn day at 5:15 a.m., and began his journey to
work. As Eddie traveled east on Oakwood Church Road
toward the railroad crossing, a Norfolk train was
simultaneously approaching the intersection, traveling at
about 37 miles per hour. Based on the evidence presented at
trial, it appears that Eddie Shanklin slowed his car to 20 miles
per hour as he entered the railroad crossing, yet never
attempted to further slow or stop his vehicle; there were no
skid marks leading to the impact zone. The Norfolk train
reportedly sounded its horn for approximately eleven seconds
before the impact, yet could not avoid broadsiding Eddie
Shanklin’s vehicle, pushing it more than one-quarter of a mile
before stopping. Eddie Shanklin died as a result of the
accident.

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No. 01-6449 Shanklin v. Norfolk
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5
On September 26, 1994, Dedra Shanklin filed a wrongful
death action in federal court, asserting several common-law
negligence claims against Norfolk. Shanklin argued that
Norfolk’s failure to provide adequate warning devices, sound
the train’s horn as it approached the crossing within a
reasonable time to give adequate warning, and maintain a safe
sight distance by reducing the height of any embankment
and/or clearing the vegetation from the existing bank
proximately resulted in her husband’s death. Shanklin also
claimed that Norfolk violated Tenn. Code Ann. § 65-6-132,
which requires railroad owners to maintain trees on its
grounds near the tracks.
On February 16, 1996, Norfolk filed a motion for summary
judgment, arguing that federal regulations covering grade
crossings, 23 C.F.R. §§ 646.214(b)(3)-(4), preempted all of
Shanklin’s common-law tort claims. The district court denied
Norfolk’s motion with respect to the grade-crossing and
vegetation claims, holding that said claims were not
preempted. The first trial ended in a jury verdict in favor of
Shanklin, assigning Norfolk 70% of the responsibility for the
accident, and assessing damages of $615,379. Norfolk filed
a motion for judgment as a matter of law, or in the alternative
for a new trial, which the district court denied.
Norfolk appealed this denial, renewing its argument that
federal law preempted Shanklin’s claims. This Court
affirmed, ruling that government funding of the installation of
warning devices at grade crossings did not trigger preemption
of state common law claims. Shanklin v. Norfolk So. Ry. Co.,
173 F.3d 386, 394 (6th Cir. 1999). Recognizing a circuit split
on the issue, the Supreme Court granted certiorari, 528 U.S.
949 (1999), and reversed. See Shanklin v. Norfolk So. Ry.
Co., 529 U.S. 344 (2000). The Court held that common-law
claims attacking the adequacy of grade-crossing warning
signals were preempted from the time federal authorities
approved and committed funding to the installation of
warning signals. The Court did not speak explicitly to the
6 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
1The jury deliberated and reached a verdict on January 26, 2001,
assessing $831,687 for actual damages and $1,160,000 for Dedra and G uy
Shanklin’s (the couple’s son) loss of consortia. The jury found that
No rfolk was 72% at fault and that Eddie was 28% at fault, such that
judgment was entered against Norfolk in the amount of $1,434,014.60.
vegetation claim, and accordingly remanded the case for
rehearing on any remaining claims.
At the second trial, Shanklin asserted her vegetation claim,
presenting evidence that Eddie Shanklin’s view of the
approaching Norfolk locomotive and its headlamp was
obscured by trees and vegetation located on Norfolk’s right of
way. Key expert testimony indicated that the vegetation
surrounding the crossing would have prevented Eddie
Shanklin from being able to see the train until he was ninety-
four feet (three seconds) from the tracks. Shanklin’s expert
further testified that in order to perceive the threat, react, and
stop his vehicle, Eddie, traveling at twenty miles per hour,
needed to see the train when he was 135 feet from the tracks.
Various additional supporting evidence was admitted over
Norfolk’s objection. The jury found in favor of Shanklin, and
judgment was entered against Norfolk in the amount of
$1,434,014.60.1
Norfolk now resurrects three evidentiary objections as
made at trial. First, Norfolk objects to the introduction of a
“sight distance triangle chart,” and accompanying diagram,
published in the Federal Highway Administration (“FHA”)
Railroad-Highway Grade Crossing Handbook (“Handbook”).
Norfolk maintains that the documents do not create a duty
with respect to railroads, as the Handbook was written as a
guide for traffic engineers. At trial, Shanklin conceded that
the evidence did not constitute a legal standard or regulation,
but argued that the Handbook had been used by railroads to
understand sight distances and thus helped to demonstrate that
Norfolk was aware of the sight distance problem. The district

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No. 01-6449 Shanklin v. Norfolk
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7
court ultimately admitted the documents. Shanklin later
introduced, without objection, the deposition of James
McCloskey, an attorney for Norfolk serving on the company’s
Crossing Oversight Committee, who testified that Norfolk
used the sight distance documents in assessing the safety of
particular crossings.
Second, Norfolk objects to the introduction of a “policy”
developed by Paul Melander, a manager of the Railroad
Safety Division of the Tennessee Public Service Commission
(“PSC”), addressing potential hazards created by decreased
sight lines at railroad crossings. The policy, essentially a
recommendation to the state legislature, incorporated the sight
distance chart from the Handbook, and the PSC distributed it
to all the railroads in Tennessee. While the policy lacked
legal authority in that it was not adopted by the PSC or the
Tennessee Legislature, the PSC Commissioners had seen the
policy and approved its dissemination. Shanklin therefore
offered it for the purpose of showing notice. Norfolk’s
objection to its introduction was initially sustained.
Following Shanklin’s offer of proof, however, the court
reversed itself because Melander testified that the policy was
not just a recommendation, but had become practice in his
department. Melander further testified that some railroads
followed the policy and others did not. The district court
instructed the jury that neither the Handbook nor the policy
was a legal standard binding Norfolk.
Third, Norfolk objected to the introduction of deposition
testimony given by David Goode, the Chief Executive Officer
of Norfolk. The testimony was taken in connection with a
1995 Missouri state court action filed against Norfolk, and
Norfolk argued that it should not be allowed because Goode
had not been deposed in this case and because his deposition
did not address vegetation issues but rather discussed
Norfolk’s treatment of grade crossings and its safety record in
general. Shanklin responded that the general testimony
regarding safety at crossings was relevant to Norfolk’s
8 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
2The district court immediately gave the following curative
instruction at Norfolk’s request:
THE COURT: Ladies and gentlemen, during the recess,
we spent the better part of an hour ruling on objections,
taking things out of the deposition that weren’t relevant
or weren’t admissible under the rules of procedure.
Through an oversight, one small bit of information got
into the deposition that should have been deleted but
was not. T he only way to cure it at this point is for me
to tell you to disregard that last minute or so of the
deposition you just saw and the memorandum that was
showed to you o n the screen. And any reference to it
or any testimony ab out it, you’ll disregard it. And if
you don’t rememb er what it was, that’s good because
you don’t have to forget it then.
(Apx. pp. 339 -43). N orfolk did no t move for a m istrial.
awareness of various problems at the crossings. The district
court overruled the objection and permitted Shanklin to show
a redacted version of the deposition that covered only issues
relating to Norfolk’s general grade crossing policies.
However, when Shanklin played the video for the jury, all
parties discovered that the videotape technician hired by
Shanklin failed to omit an inadmissable part of the deposition
in which Goode stated that Norfolk had the worst accident
rate in the entire industry.2
Fourth, Norfolk objects to the invocation of what it deems
to be an “ancient” and obsolete Tennessee statute, Tenn.
Code. Ann. § 65-6-132. Shanklin presented evidence that
Norfolk violated the statute, which prohibits vegetation within
a railroad’s right of way that is “six (6") of more inches in
diameter, two feet (2') off the ground, and of sufficient height
to reach the roadbed if they should fall.” Id. Shanklin used
the statute and the evidence invoking it as additional proof of
Norfolk’s negligence and reinforced the point by littering the

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No. 01-6449 Shanklin v. Norfolk
Southern Railway Co.
9
court room with several tree stumps taken from the area in
question.
III. PREEMPTION OF THE VEGETATION CLAIM
Norfolk argues that the district court, in holding that
Shanklin’s vegetation claim was not preempted, improperly
limited the scope of the Supreme Court’s ruling in Shanklin
v. Norfolk So. Ry. Co., 529 U.S. 344 (2000). Norfolk
contends that the same federal regulations that preempt
inadequate warning device claims also preempt vegetation
negligence claims. We review the district court’s decision de
novo because it involves a question of law.
Congress enacted the Federal Railroad Safety Act in 1970,
partially to “maintain a coordinated effort to develop and
carry out solutions to the railroad grade crossing problem.”
49 U.S.C. § 20134(a). The statute broadly states that all
“[l]aws, regulations, and orders related to railway safety . . .
shall be nationally uniform to the extent practicable,” but it
includes a savings clause provision that reads, “[a] State may
adopt or continue in force a law, regulation, or order related
to railroad safety or security until the Secretary of
Transportation prescribes a regulation or issues an order . . .
covering the subject matter of the State requirement.” Id. at
§ 20106. Three years later, Congress created the Federal
Railway-Highway Crossings Program, see 23 U.S.C. § 130,
giving the Secretary of Transportation, acting through the
Federal Highway Administration (“FHWA”), the power to
promulgate 23 C.F.R. § 646.214(b), which concerns the
design of grade crossings.
Most pertinent to this appeal, 23 C.F.R. § 646.214(b)(3)-
(4) addresses the circumstances under which automatic gates
and flashing signals are required and clarifies that when gates
and signals are not mandated, the FHWA has the power to
approve or disapprove the alternative type of warning device
recommended by a state agency or a railroad. Importantly, no
10 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
323 C.F.R. § 646 .214 (b)(3 )-(4) states:
(b) Grade cro ssing improvements.
(1) All traffic control devices propo sed shall com ply
with the latest edition of the Manua l on Uniform
Traffic Control Devices for Streets and Highways
supplemented to the extent applicable by State standards.
(2) Pursuant to 23 U.S.C. 109(e), where a railroad-
highway grade crossing is located within the limits of
or near the terminus of a Federal-aid highway project
for construction of a new highway or improvement of
the existing road way, the crossing shall not be opened
for unrestricted use by traffic or the project accepted by
FH W A until adequate warning devices for the crossing
are installed and functioning p roperly.
(3)(i) Adequate warning devices, under § 646.214(b)(2)
or on any project where Federal-aid funds p articipate in
the installation of the devices are to includ e automatic
gates with flashing light signals when one or more of
the following co nditions exist:
(A) M ultiple main line railroad tracks.
(B) Multiple tracks at or in the vicinity of the crossing
which may be occupied by a train or locomotive so as
to obscure the movement of another train approaching
the crossing.
(C) High Speed train operation combined with limited
sight distance at either single or multiple track crossings.
(D) A comb ination of high speeds and mod erately high
volumes of Highway and railroad traffic.
(E) Either a high volume of vehicular traffic, high
number of train movements, substantial numbers of
school buses or trucks carrying hazardous materials,
unusually restricted sight distance, continuing accident
occurrences, or any com bination of these co nditions.
(F) A diagnostic team recommends them.
(ii) In individual cases where a diagnostic team justifies
that gates are not appropriate, FHW A may find that the
above requirements are not applicable.
(4) For crossings where the requirements of §
646.214(b)(3) are no t applicable, the type of warning
part of 23 C.F.R. § 646.214(b) addresses the clearing of
vegetation.3

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No. 01-6449 Shanklin v. Norfolk
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11
device to be installed, whether the determination is
made by a State regulatory agency, State Highway
agency, and/or the railroad, is subject to the approval of
FHWA.
The Supreme Court first considered the preemptive power
of the Federal Railroad Safety Act (“FRSA”) in 1993. See
CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993). The
Court held that for a regulation issued by the secretary of
Transportation under FRSA to preempt the duties imposed
upon the railroads by common law, that regulation must more
than “touch upon” or “relate to” the subject matter raised by
the common law claim because “pre-emption will lie only if
the federal regulations substantially subsume the subject
matter of the relevant state law.” Id at 664. The Easterwood
Court concluded that 23 C.F.R. § 646.214(b)(3)-(4)
preempted the plaintiff’s claim that CSX was negligent for
failing to maintain adequate warning devices because the
regulations “cover the subject matter of state law which, like
the tort law on which respondent relies, seeks to impose an
independent duty on a railroad to identify and/or repair
dangerous crossings.” Id. at 671 (emphasis added).
Later, in reviewing our first Shanklin decision, the Court
further analyzed 23 C.F.R. § 646.214(b)(3)-(4) to determine
whether the regulations “‘are applicable’ to all warning
devices actually installed with federal funds.” Shanklin v.
Norfolk So. Ry. Co., 529 U.S. 344, 353 (2000). The Supreme
Court did not hold that the warning device regulations
preempted all state common law claims stemming from a
grade crossing accident, but rather held only that the federal
regulations displaced Tennessee common law “addressing the
same subject.” Id. at 359. The Court noted: “What states
cannot do - once they have installed federally funded devices
12 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
4The Court reaffirmed the notion that the regulations did no t just
establish a “definitional” federal standard for adequate warning devices,
but rather mandated certain requirements when the federal government
covered the cost. Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344, 353
(2000). The regulations attached a standard o f adeq uacy to any project
involving federal funds. Id. Accordingly, the Court held that “once the
FH W A has funded the crossing improveme nt and the warning devices are
actually installed and operating, the regulation ‘displace[s] state and
private decisio n-making authority by establishing a federal law
requirement that certain protective devices be installed or federal approval
obtained.’” Id. at 354 (quoting CSX Transp ., Inc. v. Easterwo od, 507 U.S.
658 , 670 (1993)).
at a particular crossing - is hold the railroad responsible for
the adequacy of those devices.” Id. at 358.4
Because the Supreme Court ruling in Shanklin does not
explicitly extend the preemptive reach of § 646.214(b) to
Shanklin’s vegetation claim, the issue before this Court is
whether the warning device regulations can be read to “cover”
the vegetation claim, such that the common law of Tennessee
that imposes a duty upon railroads to clear vegetation on their
rights of way near railroad grade crossings that prevents
motorists from seeing and/or hearing trains approaching those
crossings is preempted.
Section 646.214(b)(3) describes under what conditions
certain types of warning devices are required; in other words,
it “‘cover[s] the subject matter’ of the adequacy of warning
devices installed with the participation of federal funds.”
Shanklin, 529 U.S. at 358. Section 646.214(b)(4) mandates
that the FWHA determine what types of warning devices
should be installed when the circumstances laid out in
§ 646.214(b)(3) are not present. The regulations do not
appear to focus on vegetational blockage or sight line
limitations. At best, they “relate to” or “touch upon”
vegetational growth; we cannot conclude that they “cover,” in
the sense of “substantially subsume,” claims of negligence

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No. 01-6449 Shanklin v. Norfolk
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13
due to failure to clear away vegetation near a railroad bed.
Easterwood, 507 U.S. at 664.
Norfolk argues that plaintiff’s sight distance claim was
plainly encompassed by 23 C.F.R. § 646.214(b)(3)-(4),
because the regulation requires the DOT to consider, in
assessing the need for automatic gates and flashing signals,
the presence of “high-speed train operation combined with
limited sight distance,” 23 C.F.R. § 646.214(b)(3)(i)(C), and
the presence of “unusually restricted sight distance,”
23 C.F.R. § 646.214 (b)(3)(i)(E). However, this argument
takes the regulation’s language out of context. While a visual
encumbrance, be it overgrown vegetation, a structure, or the
contour of the land, triggers the regulatory mandate for
certain warning devices, and accordingly preempts common
law claims regarding the adequacy of warning signals, it does
not follow that the warning device regulations preempt an
action based on the alleged failure to eliminate such a visual
impediment. The regulations govern warning signals, not
vegetation growth. 23 C.F.R. § 646.214(b)(3)-(4) do not
define the terms “limited” or “unusually restricted” sight
distance, indicate that any sight distance obstructions should
be removed, set standards as to how much sight distance
should be provided to motorists approaching a grade crossing,
contain any guidelines relating to a railroad’s obligation to
maintain its grade crossings, or even mention “vegetation” or
“right of way.”
Additionally, the DOT has promulgated other regulations
governing the growth of vegetation, demonstrating that when
the Department wants to regulate issues concerning
vegetation, it has no problem doing so. In particular,
49 C.F.R. § 213.37 states: “Vegetation on railroad property
which is on or immediately adjacent to roadbed shall be
controlled so that it does not . . . (b) [o]bstruct visibility of
railroad signs and signals . . .” 49 C.F.R. § 213.37(b). This
regulation preempts any state-law claim regarding vegetative
growth that blocks a sign immediately adjacent to a crossing,
14 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
but it does not “impose a broader duty to control vegetation
so that it does not obstruct a motorist’s visibility of oncoming
trains.” O’Bannon v. Union Pac. R.R. Co., 960 F. Supp.
1411, 1422-23 (W.D. Mo. 1997); see also Mo. Pac. R.R. Co.
v. R.R. Comm’n, 83 F.2d 570, 577 (5th Cir. 1987)(rejecting
ruling that § 213.37(b) controlled a railroad’s right of way in
its entirety); Bowman v. Norfolk S. Ry. Co., 832 F. Supp.
1014, 1020-21 (D.S.C. 1993), aff’d 66 F.3d 315 (4th Cir.
1995)(federal regulations do not preempt claims concerning
vegetation outside the area immediately next to the railbed).
The comparison of 49 C.F.R. § 213.37 and the adequate
warning regulation persuasively shows that 23 C.F.R.
§ 646.214(b)(3) does not “cover” actions based upon a
negligent failure to clear vegetation.
Norfolk calls to the panel’s attention two out-of-circuit
district court decisions that allegedly preempt sight distance
claims based upon the regulations at issue in Shanklin.
Norfolk misconstrues these decisions, which are
unpersuasive. In a pre-Shanklin case, Bryan v. Norfolk & W.
Ry. Co., 21 F. Supp. 2d 1030 (E.D. Mo. 1997), the district
court granted summary judgment to the defendant on a
plaintiff’s claim that a railroad crossing was “extraordinarily
hazardous” because the terrain obscured the approach of
trains and because there were no automatic gates or flashing
signals guarding the crossing. Id. at 1038. The court refused
to create “an exception to preemption . . . based on an
ultrahazardous condition,” id., but Bryan is distinguishable
because, unlike Shanklin, the plaintiff did not articulate a
stand-alone vegetation claim, and instead lumped its visual
obstruction claim together with a preemptable claim
concerning the failure to provide proper warning devices. Id.
Norfolk’s citation to Burlington Northern R.R. Co. v.
Deatherage, No. 3:95CV116-B-A, 1997 WL 33384269,
(N.D. Miss. May 21, 1997), is equally unavailing, because the
plaintiff did not even file a vegetation action in that case. The
district court only considered the issue of unlimited sight

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No. 01-6449 Shanklin v. Norfolk
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distance in determining the applicability of the FRSA’s
savings clause. Id. at *3-4.
On the other hand, the Third Circuit has specifically
addressed the issue of whether sight distance claims are
preempted by 23 C.F.R. § 646.214 (b)(3)-(4), and has found
that they are not. See Strozyk v. Norfolk So. Corp., 358 F.3d
268 (3d Cir. 2004). Christopher Stozyk was killed at a
railroad crossing when a train owned and operated by Norfolk
Southern collided with the truck he was driving.
Subsequently, Strozyk’s parents filed suit against Norfolk,
alleging, inter alia, the railroad’s negligence for failure to
provide proper sight lines for motorists crossing the track.
The district court held that 23 C.F.R. § 646.214(b) preempted
plaintiff’s limited visibility claim, and concluded that because
23 C.F.R. § 646.214(b) “lists ‘unusually restricted sight
distance’ as a factor mandating the installation of active
warning devices,” it followed that “the standard set by the
regulation encompasses not just the ultimate selection of a
warning device but [also] . . . ‘the appropriate response to
limited sight distance or unusually restricted sight distance.’”
Id. at 272. The Third Circuit Court of Appeals disagreed,
noting that, even after the Supreme Court’s decisions in CSX
Transp. Inc. v. Easterwood, 507 U.S. 658 (1993), and
Shanklin v. Norfolk So. Ry. Co., 529 U.S. 344 (2000), “state
law duties to maintain a safe grade crossing remain viable.”
Strozyk, at 276. The court continued:
While, as Easterwood and Shanklin make clear,
§§ 646.214(b)(3) and (4) substantially altered the
landscape of railroad liability, by restricting tort plaintiffs
from interposing state law obligations concerning
appropriate warning devices, the regulations do not
eclipse those duties ensuring safe grade crossings that are
unrelated to warning devices, such as the duty to keep
visibility at grade crossings free from obstructions. As
those regulations cover the subject matter of warning
devices, the Strozyks’ claims that Norfolk failed to
16 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
5No rfolk directs our attention to, and urges us to follow, the
evidentiary rulings of Judge Johnstone in Bryant v. Tennken R.R. Co. (No.
00-2621-DA, W .D. Tenn.). In Bryant, which is a very similar case, Judge
Johnstone disallowed the same pieces of evidence that Judge Todd
entered into evidence in this case. H owever, Judge Johnstone did perm it
the jury to view the Handbook, instructing them that the sight distance
maintain a safe grade crossing, apart from the warning
devices, and relatedly failed to ensure clear sight lines of
oncoming trains are not preempted.
Id. at 276-77.
Accordingly, because we find that the Supreme Court has
neither explicitly nor implicitly preempted state common law
vegetation claims, and because the adequate warning
regulations contained in 23 C.F.R. §§ 646.214(b)(3) and (4)
do not “cover” state common law vegetation/sight distance
claims, it follows that the district court correctly reasoned that
Shanklin’s vegetation claim is not preempted.
IV. THE EVIDENTIARY HOLDINGS
Norfolk asserts that the district court erred in admitting
three pieces of evidence: the FWHA Handbook, the PSC
policy, and the deposition testimony of Norfolk’s CEO. This
Court finds that the district court did not abuse its discretion
in admitting the challenged evidence.
It is important to note that, under the abuse of discretion
standard employed with respect to evidentiary rulings, the
district court’s decision regarding this evidence should remain
undisturbed unless this panel is left with the definite and firm
conviction that the district court clearly erred in its judgment
after weighing the relevant factors, improperly applied the
correct law, or inappropriately used the wrong legal standard.
United States v. Haywood, 280 F.3d 715, 720 (6th Cir.
2002).5 The district court admitted all three pieces of

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No. 01-6449 Shanklin v. Norfolk
Southern Railway Co.
17
chart was in no way a binding regulation. Two judges, certainly
exercising reasonable minds, can reach opposite conclusions about the
same evidence without either abusing his or her discretion so long as
neither court clearly erred in its application of correct law or its invocation
of incorrect law. See In re M .J. Wa terman & A ssocs., Inc., 227 F.3d 604,
608 n.3 (6th Cir. 2000 ).
evidence for the specific and limited purpose of showing
notice or knowledge, and restricted the evidence to its proper
scope.
1. The FHWA Handbook and the PSC Policy
Norfolk argues that the sight distance charts and graphs in
the FHWA Handbook and the PSC policy that incorporated
the sight distance information from the Handbook were
irrelevant to Shanklin’s claims and were thus erroneously
admitted.
The Federal Rules of Evidence define relevant evidence
broadly as evidence having “any tendency to make the
existence of any fact that is of consequence to the
determination of the action more or less probable than it
would be without the evidence.” Fed. R. Evid. 401. Under
Tennessee law, juries are required to compare the degree of
fault of the parties, including the reasonableness of their
conduct in light of all of the circumstances. See Eaton v.
McLaine, 891 S.W.2d 587 (Tenn. 1994). A Tennessee jury
must consider: “the reasonableness of [a] party’s conduct in
confronting a risk, such as whether the party knew of the risk,
or should have known of it.” Id. at 592. Undoubtedly,
whether or not Norfolk knew of the sight distance
requirements recommended by the FHWA or PSC policy is
a fact of consequence in relation to the issue of notice,
because if Norfolk knew that a motorist needed to see a
certain number of feet in order to perceive an oncoming train,
it is more likely that it recognized that overgrown vegetation
for which it was responsible could impede a motorist’s view
18 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
6Contrary to Norfolk’s argument, Judge Tod d did not admit the
policy as a valid regulatory exercise of the PSC, but only as an unofficial
policy lacking in any legal force, but nonetheless a recommendation from
the PSC of which the railroad was aware. Judge Tod d warned the jury in
his instructio ns that the policy carried no legal weight.
7W hile the material contained in the Hand book could no t have
been admitted for the purpose of establishing Norfolk’s duty toward
motorists, it was useful for the limited purpose of establishing notice.
Courts and comm entators have recognized that it is preferable to admit a
relevant document for a limited purpose with ap propriate instructions,
rather than exclude admissible evidence altogether. See Weinstein’s
Federal Evidence § 105.03 [1] and [3] (Matthew Bender 2d Ed.
1997)(“Total exclusion of evidence of mixed admissibility in jury cases
would hardly be appropriate, since its exclusion might well deny the jury
access to facts that are essential to reaching a reasonably accurate
decision”).
and cause a hazard. Indeed, it was undisputed at trial that the
sight distance information from the Handbook was included
in the minutes of the Norfolk Southern Tennessee Division
Grade Crossing Safety Committee, and also that the sight
distance information from the Handbook was incorporated
into the PSC policy that was discussed with Norfolk Southern
employees in Tennessee prior to the collision at issue.6
Because the sight distance information in the Handbook,
and as incorporated into the PSC policy, helps to illuminate
the notice issue, and because the district court specifically
instructed the jury that neither established a legal standard,
this evidence was properly admitted.7
2. Goode’s Deposition Testimony
Norfolk objects to the introduction of video deposition
testimony given by David Goode, the Chief Executive Officer
of Norfolk. The testimony was taken in connection with
Lohman v. Norfolk & Western Ry. Co. on August 25, 1995,
and concerned a grade crossing accident in Missouri. Norfolk

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19
argues that the portions of Goode’s video deposition
testimony admitted at trial were irrelevant and unduly
prejudicial. Furthermore, Norfolk asserts that the testimony
cannot properly be admitted as an admission of a party
opponent because the case in which the deposition was taken
and the current matter do not share the same identity of
issues.
This Court must first examine whether Goode’s deposition
testimony, taken in connection with an earlier trial, can be
entered as evidence in a subsequent trial. Federal Rule of
Procedure 32(a) permits the use of “any part or all of a
deposition, so far as admissible under the rules of evidence
. . . against any party who was present or represented at the
taking of the deposition.” Id. The Rule further states that the
“deposition of a party . . . who at the time of taking the
deposition was an officer . . . designated . . . to testify on
behalf of a . . . private corporation . . . may be used by an
adverse party for any purpose,” so long as it complies with
the rules of evidence. Fed. R. Civ. Proc. 32(a)(2)(emphasis
added). Goode’s video deposition testimony does comply
with the rules of evidence, either as an admission of a party-
opponent under Federal Rule of Evidence 801, or as an
exception to the hearsay rule under Rule 804.
Under Rule 801(d)(2), a statement can be characterized as
an admission of a party-opponent, and as such, non-hearsay,
when: “The statement is offered against a party and is . . . (C)
a statement by a person authorized by the party to make a
statement concerning the subject, or (D) a statement by the
party’s agent or servant concerning a matter within the scope
of the agency or employment made during the existence of
the relationship.” Fed. R. Evid. 801(d)(2)(C)-(D). Norfolk
does not dispute that Goode was its president and CEO at the
time of his deposition, or that he was authorized to make the
statements he made during that deposition. Therefore,
Goode’s video deposition testimony with respect to the
20 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
Lohman case qualifies as a non-hearsay party-opponent
admission.
Alternatively, Rule of Evidence 804(b)(1) carves out an
exception to the hearsay prohibition when a witness is
unavailable for testimony; it permits the inclusion of a
statement given by a witness in another proceeding so long as
the party “had an opportunity and similar motive to develop
the testimony by direct, cross, or redirect examination.” Fed.
R. Evid. 804(b)(1). The Advisory Committee Notes remark
that common law required the previous deposition to have a
“substantial” identity of issues. Fed. R. Evid. 804(b)(1),
Advisory Committee Notes. Norfolk argues here that the
Lohman case, and Goode’s deposition therein, did not involve
substantially the same issues as those confronted herein.
While it is true that Goode’s deposition covers a crossing
grade accident in another state and under different conditions,
it also addresses grade crossing safety issues generally.
Furthermore, Shanklin sought to introduce the testimony to
prove that Norfolk was aware of the danger at grade
crossings, a topic which Goode did cover in the deposition.
As Norfolk’s general knowledge and treatment of grade
crossing dangers was likewise germane in Lohman, Goode
and his attorneys had an opportunity and a nearly identical
motive to develop Goode’s testimony in the earlier case.
Second, the relevance of Goode’s testimony must be
assessed. Similar to the Handbook and the PSC policy,
Goode’s deposition presents facts of consequence with regard
to Norfolk’s knowledge of the dangers of grade crossings.
All of Goode’s deposition testimony introduced during the
trial of this case related to the fact that Norfolk recognized the
importance of identifying and eliminating hazardous
conditions at its grade crossings prior to the collision at issue
in this case. Thus the district court cannot be said to have
abused its discretion in admitting Goode’s testimony for the
limited purpose of showing knowledge.

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21
8During the play-back of Good e’s video deposition testimony,
a portion that should have been redacted was shown to jurors. In that
portion of testimony, Goode’s closed-captioned statement showing acro ss
the bottom of the screen indicated that Norfolk had the highest rate of
grade crossing accidents in the industry.
Third, this Court must determine whether Goode’s
testimony should have been excluded under Federal Rule of
Evidence 403 as more prejudicial than probative. While there
is nothing unfairly prejudicial about Goode’s testimony
regarding Norfolk’s notice of issues attendant to grade
crossing safety, the evidence that Norfolk had the highest
grade crossing accident rate in the country was extremely
prejudicial.8 This testimony was erroneously shown to the
jury, as the district court had already ruled it inadmissable.
The district court immediately responded by striking the
evidence and issuing the following curative instruction as
requested by Norfolk:
THE COURT: Ladies and Gentlemen, during the recess,
we spent the better part of an hour ruling on objections,
taking things out of the deposition that weren’t relevant
or weren’t admissible under the rules of procedure.
Through an oversight, one small bit of information got
into the deposition that should have been deleted but was
not. The only way to cure it at this point is for me to tell
you to disregard that last minute or so of the deposition
you just saw and the memorandum that was showed to
you on the screen. And any reference to it or any
testimony about it, you’ll disregard it. And if you don’t
remember what it was, that’s good because you don’t
have to forget it then.
J.A. at 342-43. Even where evidence is erroneously admitted,
the striking of evidence combined with instructions to the jury
to disregard the evidence will usually cure the error, unless
the evidence is so prejudicial that a new trial must be granted.
22 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
9Tenn. Code Ann. § 65-6-132: Trees, Removal
(a) Every company or person operating a railro ad in
this state shall cut down all trees standing on its lands
which are six (6) or more inches in diameter, two feet
(2') above the ground, and of sufficient height to reach
the roadbed if they should fall. (b) A failure to comp ly
with subsection (a) will render the company liable for
damages to person or property resulting therefro m . . .
10In her co mplaint, Shanklin alleged that Norfolk violated Tenn.
Code Ann. § 65-6 -132 with respect to the Oakwood Church Road railroad
crossing, and at trial introduced evidence that there were numerous trees
on Norfolk’s right of way that fit within the proscriptions of the statute.
United States v. Ursery, 109 F.3d 1129, 1133 (6th Cir. 1997).
Notwithstanding the undoubtedly prejudicial nature of the
erroneously admitted information, this Court must assume
that the jury in this case followed the instruction given it by
the court. See Richardson v. Marsh, 481 U.S. 200, 211
(1987). Therefore this Court finds the district court did not
abuse its discretion in admitting Goode’s video deposition
testimony. No unfair prejudice resulted to Norfolk as a result
of Goode’s testimony regarding safety measures in general,
and with respect to the erroneously admitted evidence, the
district court properly responded to the mistake such that the
prejudice to Norfolk was minimized.
V. THE TENNESSEE TREE CUTTING STATUTE
Norfolk further contends that the district court erred in
permitting the jury to consider Tenn. Code Ann. § 65-6-132,9
which prohibits, on railroad’s rights of way, the presence of
vegetation six or more inches in diameter and “of sufficient
height to reach the roadbed if they should fall.”10 Id. Norfolk
argues that the statute should not have been considered by the
jury because it was not designed to protect motorists and is
obsolete. This Court finds that the district court’s decision to

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No. 01-6449 Shanklin v. Norfolk
Southern Railway Co.
23
read the Tennessee statute to the jury did not constitute
reversible error.
Under Tennessee law, actions for failure to comply with
statutory duties are limited in scope. The Plaintiff must prove
that she is the intended beneficiary of a statute before that
statute can be used to establish a duty on the part of
Defendant. See Bivin v. S. Oil Serv., Inc., 394 S.W.2d 141,
148 (Tenn. Ct. App. 1965). Thus Norfolk initially argues that
the statute, which the Tennessee legislature adopted in 1870,
does not apply because it is supposed to protect train
passengers from derailments caused by stray tree branches on
the tracks, not motorists.
In determining whether or not Tenn. Code Ann. § 65-6-132
was meant to protect against the harm suffered by Eddie
Shanklin, whose vision of the railroad crossing was found to
have been obscured by overgrown vegetation present on
Norfolk’s right of way, we begin with the plain language of
the statute. Here said language does not provide a definitive
answer. The phrase “reach the roadbed if they fall,” id.,
implies that the main purpose of the statute is to protect
against train derailments by ensuring that railroads keep their
tracks clear of branches. However, the statute also states that
a failure to comply will result in liability “for all damages to
person or property” resulting therefrom. Id. There is indeed
nothing in the language of the statute itself to indicate that its
application is limited to the protection of train passengers.
See Tenn. Code Ann. § 65-6-132. The statute’s broad
imposition of liability indicates that the vegetation prohibition
was intended to protect against any number of harms that
could result from its presence in an overgrown state.
The legislative history fails to provide any additional
insight. The statute was originally passed in 1870 before the
invention of the automobile; however the Tennessee
legislature retained the statute in 1932 without significant
24 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
11Additiona lly, there is some case law and legislative evidence
indicating that, even in the 1870's, both the courts and the Tennessee
legislature were concerned that there be proper sight distance at railroad
crossings for persons trave ling on horseb ack or in horse drawn wagons.
See generally, Continental Improvement Co. v. Stead, 95 U.S. 161, 162
(1877); Grand Tru nk Ry . Co. v. Ives, 144 U.S. 408 , 410 (1892); Lou isville
& Nashville R .R. Co. v. G ardner, 1 Tenn. 688 (Tenn. 1878 ). Further, the
fact that the Tennessee legislature adopted the Railroad Precautions Act
in 1856, which required train crews to maintain a lookout ahead and
sound the locomotive horn during their approach to public grade
crossings, indicates concern about potential hazards to those traversing
grade crossings at least fourteen (14) years prior to its passage of Tenn.
Code Ann. § 65-6-132 in 1870. See g enerally, Railroa d Precaution s Act-
Effect of 1959 Amendment, 28 TE N N. LA W REV. 437 (1961).
12No rfolk further argues that the panel should hold that the
statute is implicitly repealed because changed circumstances and non-
enforcement have rendered it obsolete. Tenn. Code Ann. § 65-6-132 was
passed by the Tennessee General A ssemb ly in 187 0, and as Norfolk
points out, mass production of the automo bile did not begin until almost
forty (40) years later. Appellant’s Br. at 42. The district court rejected
Norfolk’s argument on this issue, pointing out that the statute has been
modified since the proliferation of automo biles. T he district court’s
holding on this matter canno t be said to have bee n in erro r.
comment, after the advent of the automobile.11 Therefore,
while it cannot be said that Tenn. Code Ann. § 65-6-132
clearly applies to protect against the type of harm here at
issue, neither can it clearly be held otherwise.12
Even if Norfolk could craft a colorable argument that Eddie
Shanklin was not an intended beneficiary of this statute, and
thus that the district court clearly erred in instructing the jury
to consider Norfolk’s negligence under Tenn. Code Ann.
§ 65-6-132, the error is harmless. When an error made by the
court does not prejudice the outcome, the error does not
justify reversal. See Toth v. Grand Trunk R.R. Co., 306 F.3d
335, 348 (6th Cir. 2002). Even without consideration of
Norfolk’s liability under the tree cutting statute, there was

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No. 01-6449 Shanklin v. Norfolk
Southern Railway Co.
25
considerable evidence upon which the jury could conclude
that Norfolk was liable in part for Eddie’s death.
VI. THE SUFFICIENCY OF THE EVIDENCE
Lastly, Norfolk argues that because Eddie Shanklin was the
sole cause of the accident, the district court erred in denying
Norfolk’s Rule 50(b) Motion for a Judgment as a Matter of
Law. We review Rule 50(b) motions de novo. K&T
Enterprises, Inc. v. Zurich Ins. Co., 97 F.3d 171, 175 (6th Cir.
1996). When a Rule 50(b) motion is premised on a challenge
to the sufficiency of the evidence, we apply the standard of
review employed by the courts of the state whose substantive
law controls the action, Tennessee in this instance. Morales
v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998).
In undertaking this review, “it is not the office of an appellate
court to weigh the evidence. Rather, it must take the
strongest legitimate view of the evidence in favor of the
plaintiff, indulging in all reasonable inferences in his favor,
and disregarding any evidence to the contrary.” Williams v.
Brown, 860 S.W.2d 854, 857 (Tenn. 1993). A motion for
judgment as a matter of law is proper only if, after assessing
all the evidence in the manner described, the court can
determine that reasonable minds could not differ as to the
conclusion to be drawn from the evidence. Eaton v. McClain,
891 S.W.2d 587, 590 (Tenn. 1994). Additionally, an
appellate court is not permitted to reallocate fault in
contravention of a jury verdict, even if the reviewing court
disagrees with that apportionment. Turner v. Jordan, 957
S.W.2d 815, 824 (Tenn. 1997).
In order to bring a successful negligence claim under
Tennessee law, a plaintiff must show (1) a duty of care owed
to the plaintiff by the defendant and (2) a breach of that duty,
which in fact and proximately causes an injury or loss.
Staples v. CBL & Associates, Inc., 15 S.W.3d 83, 89 (Tenn.
2000). A risk is “unreasonable and gives rise to a duty to act
with due care if the foreseeable probability and gravity of
26 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
13W ith regard to Norfolk’s negligence, the district court
summarized the evidence introduc ed at trial as follows:
An eyewitness to the accident testified that he was
traveling alongside the train in his vehicle, and heard
the horn blow for approximately 11 seconds from the
crossing, which is less than the 1,320 feet required by
Tennessee law. See Tenn. Code Ann. § 65-12-108(2)
. . . There is also evidence in the record that the
railroad’s officials were aware of general studies
regarding recommended sight distance for moto rists at
railroad crossings, even though the railroad was not
required to comply with those recom mendations.
There is evidence that the railroad had the ability, and
the authority, to make further efforts to clear vegetation
and trees on its right-of-way at the cro ssing, but did not
harm posed by defendant’s conduct outweigh the burden upon
defendant to engage in alternative conduct that would have
prevented the harm.” Id. (quotation omitted). In Tennessee,
a plaintiff may recover even if he or she contributes to the
negligence, so long as the plaintiff’s negligence remains less
than the defendant’s. McIntyre v. Ballentine, 833 S.W.2d 52,
57 (Tenn. 1992). Juries, in their allocation of fault, are to
consider, among other factors, the reasonableness of the
party’s conduct in confronting the risk, such as whether the
party knew, or should have known, of the risk. Eaton, 891
S.W.2d at 592.
There is evidence of Norfolk’s negligence such that
reasonable minds could reach differing conclusions about
Norfolk’s liability. The Handbook and PSC policy, while not
legally requiring Norfolk to take any action, made Norfolk
aware of the danger of reduced sight lines and of the sight
distances needed to ensure that motorists could see oncoming
trains at grade crossings. There is also evidence showing that
Norfolk failed to clear vegetation near the track, and that
Eddie Shanklin’s sight view of the oncoming train could have
been impeded thereby.13 Given the extreme and inevitable

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No. 01-6449 Shanklin v. Norfolk
Southern Railway Co.
27
do so .
Apx. pp. 84-85.
14No rfolk further argues that Edd ie Shanklin was the sole cause
of the ac cident. As its chief suppo rt for this propo sition, Norfolk claims
that Eddie violated Tenn. Code Ann. § 55-8-145(a)(3)-(4), which requires
moto rists to stop within fifty feet, but not less than fifteen feet from the
near rail of the track when a train emits a signal audible from 1,500 feet
away and is plainly visible to a motorist approach the crossing. The
evidence presented at trial conflicted regarding whethe r the train sounded
its whistle at the proper distance and whether Eddie heard the signal, and
a reasonable jury cou ld conclude that he did not. Furthermore, the jury
did reduce Edd ie’s damage award by 28% for his contribution to the
accid ent.
injury that could result from a train-on-car collision, a jury
could easily conclude that the foreseeable probability and
gravity of harm outweighed the burden of clearing the
vegetation on Norfolk’s right of way. Reasonable minds
could also reach different conclusions about whether Norfolk
breached that duty and whether the breach caused Eddie’s
death.14
VII. CONCLUSION
Accordingly, we AFFIRM the judgment of the district
court.
28 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
_________________
CONCURRENCE
_________________
ROGERS, Circuit Judge, concurring. I concur in the
majority opinion except for Part V. In my view, a plain
reading of Tennessee’s tree cutting statute, Tennessee
Annotated Code § 65-6-132, clearly indicates that the sole
purpose of the statute was to prevent trees from falling onto
the tracks. I concur not because Mr. Shanklin was within the
protected class of the statute, but because the tree cutting
statute was nonetheless admissible as evidence because it was
relevant, though not controlling, on the negligence
determination under Tennessee law.
Tennessee Annotated Code § 65-6-132 states:
(a) Every company or person operating a railroad in this
state shall cut down all trees standing on its lands which
are six (6) or more inches in a diameter two feet (2')
above the ground and of sufficient height to reach the
roadbed if they should fall.
(b) A failure to comply with subsection (a) will render
the company liable for all damages to person or property
resulting therefrom; also to a penalty of one hundred
dollars ($100), to be recovered on suit brought in the
name of any citizen before any tribunal having
jurisdiction, one half ( 1/2 ) of which shall go to the
treasury of the county in which said provisions may have
been disregarded, and the other one half ( 1/2 ) to the
plaintiff.
(emphasis added). Subsection (a) of § 65-6-132 is obviously
concerned with trees greater than six inches in diameter
falling onto a railroad track. Although the district court
believed the diameter requirement set forth in the statute

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No. 01-6449 Shanklin v. Norfolk
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29
1The district court did specify that the violation of Tennessee
Code Annotated § 65-12-108, which relates to precautions for railroad
crossings such as signs and whistles, is considered negligence pe r se
might have indicated that the Tennessee legislature was also
concerned with visibility, the diameter requirement is easily
explained by the fact that the thicker the trunk, the more
likely a derailment would occur if the tree fell.
Because the language of the statute clearly indicates that
Mr. Shanklin was not within the class that § 65-6-132 was
designed to protect, the statute could not be used as a basis for
liability under the statutory tort defined by subsection (b) of
§ 65-6-132. Similarly, the statute could not be used as a basis
for negligence per se under Tennessee law. Under
longstanding and consistently applied Tennessee law, a
plaintiff must demonstrate that the injured party was “within
the class of persons intended to benefit from or be protected
by the statute” to recover under a theory of negligence per se.
Alex v. Armstrong, 385 S.W.2d 110 (Tenn. 1964); Carter v.
Redmond, 218 S.W. 217, 218 (Tenn. 1920); Harden v. Danek
Med., Inc., 985 S.W.2d 449, 452 (Tenn. Ct. App. 1998);
Traylor v. Coburn, 597 S.W.2d 319, 322 (Tenn. Ct. App.
1980); Berry v. Whitworth, 576 S.W.2d 351, 353 (Tenn. Ct.
App. 1978); see also RESTATEMENT (SECOND) OF TORTS
§ 286. Thus, if the district court had instructed the jury that
violation of the tree cutting statute required the jury to find
negligence on the part of defendant, we would be compelled
to reverse.
The district court, however, did not instruct the jury that the
Norfolk Southern’s failure to comply with the tree cutting
statute constituted negligence per se. Instead, the district
court read § 65-6-132(a) to the jury along with three other
statutes relating to duties of railroad companies to keep
crossing safe and the duties of a motorist when approaching
a railroad crossing.1
30 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
under Tennessee Co de A nnotated § 65-12-109. However, the district
court did not instruct that a violation of the tree cutting statute constituted
negligence per se.
Tennessee law is not clear on the question of whether a
statutory obligation that protects against different harms may
nonetheless be considered by a jury as part of its analysis of
whether the defendant violated the common law standard of
care. While a number of Tennessee tort cases deal with
statutes that arguably protect against different harms, the
cases generally involve the question of whether violation of
the statute amounts to negligence as a matter of law, not with
the question of whether the factfinder could consider the
statute for any purpose whatsoever.
Almost eighty-five years ago, the Tennessee Supreme
Court held that a statute requiring automobile drivers to stop
at railroad crossings was intended to protect against collisions
between automobiles and trains, and not to protect against
other traffic accidents that happen to occur at a railroad
crossing. Carter v. Redmond, 218 S.W. 217, 218 (Tenn.
1920). The court concluded not only that the trial judge erred
in giving a negligence per se instruction, but that the trial
judge also erred in refusing to give a tendered instruction that
the “statute had no bearing on the case before them.” Carter
appears to support the conclusion that the district court in this
case should not have read the tree cutting statute to the jury,
but the case is hardly on all fours. Defendant in this case did
not tender a limiting instruction, although defendant did
object to having the statute read to the jury. More
importantly, the ultimate basis for reversal in Carter was the
erroneous instruction regarding negligence per se, not the
failure to instruct that the statute had no bearing. The Carter
court found that the trial court’s error was material because
the erroneous negligence per se instruction “practically
necessitated a verdict against” defendant. The statement
approving the tendered instruction was arguably dictum,

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31
inasmuch as the court did not need to reach the materiality of
the trial court’s failure to give the tendered instruction.
In contrast, in Teal v. E.I. DuPont de Nemours & Co., 728
F.2d 799 (6th Cir. 1984) (applying Tennessee law), we
reviewed a district court judgment in a case in which the
district court had refused to give a negligence per se charge,
but nonetheless informed the jury that the regulation in
question “may be considered . . . as some evidence . . . of the
(appropriate) standard of care.” In Teal an employee of an
independent contractor was injured by a ladder that allegedly
did not conform to federal OSHA regulations. While
permitting the jury to consider the OSHA regulation as some
evidence of the appropriate standard of care, the district court
refused to instruct the jury on negligence per se. On
plaintiff’s appeal, we reversed, holding that because the
OSHA regulation was indeed intended to protect the
employees of independent contractors, the district court was
required to give a negligence per se instruction. Our opinion,
however, did not criticize at all the district court’s apparent
conclusion that a regulation not intended to protect a plaintiff
could nonetheless be considered as some evidence of the
appropriate standard of care.
In the absence of clear Tennessee authority, we must make
our best estimation of how the Tennessee Supreme Court
would rule on the question of whether the Tennessee tree
cutting statute could be admitted as some evidence of
negligence, even though the jury could not consider it as a
basis for negligence per se. Two considerations lead me to
the conclusion that the answer to this question is yes.
First, the Restatement of Torts would clearly answer the
question yes. Comment g to the Restatement (Second) of
Torts § 286 states:
The fact that a legislative enactment requires a particular
act to be done for the protection of the interests of a
32 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
particular class of individuals does not preclude the
possibility that the failure to do such an act may be
negligence at common law toward other classes of
persons. It also does not preclude the possibility that, in
a proper case, the requirements of the statute may be
considered as evidence bearing on the reasonableness of
the actor’s conduct.
RESTATEMENT (SECOND) OF TORTS § 286 cmt. g (emphasis
added); see also RESTATEMENT (SECOND) OF TORTS § 286
cmt. f (“The fact that a legislative enactment requires a
particular act to be done for the protection of the interests of
a particular class of individuals does not preclude the
possibility that the doing of such an act may be negligence at
common law toward other classes of persons.”).
Second, it is consistent with general principles of American
tort law to permit the jury to consider the Tennessee statute as
some evidence of negligence. When a jury makes a
negligence determination, its determination can be likened,
using the famous “Hand formula,” to a balancing of the
burden on the defendant in acting more carefully against the
probability of harm multiplied by the magnitude of harm if
the defendant does not so act. See United States v. Carroll
Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (Hand, J.). In
evaluating how burdensome it was to the defendant railroad
to cut down the trees in question to avoid the possibility of
harm to persons like Shanklin, it is relevant for the jury to
know that the railroad was required to cut down the trees
anyway for an entirely different purpose. Thus it makes
sense, at least in the context of the instant case, for the jury to
be aware of legal requirements that directly affect the balance
that the jury is conceptually required to make in determining
whether defendant has been negligent.
I would therefore hold that the district court in this case did
not err in reading the tree cutting statute to the jury. It would
of course have been preferable for the court to have stated

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No. 01-6449 Shanklin v. Norfolk
Southern Railway Co.
33
clearly to the jury that a violation of the statute did not
necessarily mean that defendant was negligent. It would also
have been better for the district court to have explained that
the jury could take into account the defendant’s legal
obligation to minimize the risk of limbs obstructing the
tracks, only as part of its evaluation of whether the defendant
acted reasonably in not increasing the sight-distance for
oncoming trains.
Moreover, even if it was not appropriate for the district
court to read § 65-6-132 to the jury, the error was in any event
harmless, again because the jury was not instructed that
violation of the tree cutting statute would constitute
negligence per se. Compare Carter, 218 S.W. at 217-19. As
jurisdiction for this case is based on diversity of citizenship,
“federal law governs our standard of review for determining
whether a jury instruction is prejudicial.” Gafford v. Gen.
Elec. Co., 997 F.2d 150, 166 (6th Cir.1993) (internal
quotation marks and citations omitted); Teal, 728 F.2d at 801.
The Sixth Circuit has stated that it
will reverse a jury’s verdict on the basis of improper
instructions only when the instructions, when viewed as
a whole, are confusing, misleading, and prejudicial.
Federal courts generally presume the jury will follow the
instructions correctly as given. We will not reverse a
decision on the basis of an erroneous jury instruction
where the error is harmless.
Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 822
(6th Cir. 2000).
Although the jury was shown several dissections of trees
during trial, the lack of a negligence per se instruction with
regard to § 65-6-132 indicates that the jury only considered
the violation of the statute as evidence of Norfolk Southern’s
negligence. Throughout the trial the plaintiff presented a
considerable amount of other evidence as to Norfolk
34 Shanklin v. Norfolk
Southern Railway Co.
No. 01-6449
Southern’s duty and its breach of that duty. Thus, the simple
reading of the tree cutting statute during the jury instruction,
even if erroneous, was harmless.

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