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Pittman v. Frazer

United States Court of Appeals for the Eighth Circuit

September 11, 1997, Submitted ; November 4, 1997, Filed

No. 97-1597


 [*985]  WOLLMAN, Circuit Judge.

This is an action for wrongful death brought under diversity jurisdiction, 28 U.S.C. § 1332, and governed by Arkansas law. Plaintiffs James Curtis Pittman and Joyce Ann Pittman (Pittmans), as co-administrators of the estate of Joy Faye Pittman Ellis, and Joyce Ann Pittman, individually, appeal from the judgment entered by the district court 1 on a jury verdict in favor of defendants Thomas A. Frazer, Jr., Paul B. Smith, Alvin L. Triggs, and Union Pacific Railroad Company (hereinafter, collectively, "Union Pacific"). We affirm.

James H. Ball, Jr. and Ellis were involved in an adulterous affair during a period in which Ellis was experiencing marital difficulty. Apparently, Ellis had recently ended [**2]  the affair and reconciled with her husband. Nevertheless, on April 11, 1995, Ball and Ellis drove to a secluded area on private property owned by Thompson B. Murray, Jr. in Cross County, Arkansas. After spending some time together there, Ball and Ellis left the Murray property. Ball was driving the automobile, which was owned by the Pittmans but used and controlled by Ellis. As he approached the crossing in question, Ball failed to yield and drove directly into the path of an oncoming Union Pacific train. The resulting crash killed Ball instantly. Ellis never regained consciousness and died shortly thereafter.

As administrators of their daughter's estate, the Pittmans brought a wrongful death action against Union Pacific and certain of its employees responsible for operation of the train. The suit alleged that the defendants were negligent in failing to properly sound the bell or whistle at the crossing, failing to maintain a proper lookout, and failing to maintain vegetation at a public crossing in accordance with Arkansas law. 2

 [**3]  [*986] II.

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129 F.3d 983 *; 1997 U.S. App. LEXIS 30301 **; 39 Fed. R. Serv. 3d (Callaghan) 413

James Curtis Pittman, Co-Administrator of the Estate of Joy Faye Pittman Ellis, Deceased; Joyce Ann Pittman, Individually and as Co-Administrator of the Estate of Joy Faye Pittman Ellis, Deceased, Appellants, v. Thomas A. Frazer, Jr.; Paul B. Smith; Alvin L. Triggs; Union Pacific Railroad Company, Appellees.

Subsequent History:  [**1]  Rehearing and Suggestion for Rehearing En Banc Denied, December 22, 1997, Reported at: 1997 U.S. App. LEXIS 35972.

Prior History: Appeal from the United States District Court for the Eastern District of Arkansas. H-C-96-10. Honorable George Howard.

Disposition: Affirmed.


district court, crossing, documents, instructions, whistle, railroad, joint enterprise, photographs

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