FILED
                                                        United States Court of Appeals
                          UNITED STATES COURT OF APPEALS        Tenth Circuit

                                 FOR THE TENTH CIRCUIT                     February 13, 2017
                             _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
BNSF RAILWAY COMPANY,

Plaintiff Counter Defendant -
Appellee/Cross-Appellant,

   v.                                                Nos. 15-6230 and 16-6070
                                                    (D.C. No. 5:14-CV-00616-L)
C.A.T. CONSTRUCTION, INC.,                               (W.D. Oklahoma)

Defendant Counterclaimant -
Appellant/Cross-Appellee,

   and

THOMPSON LOGISTICS, LLC,

Defendant - Appellant/Cross-Appellee.
                          _________________________________

                                 ORDER AND JUDGMENT*
                             _________________________________

Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
                    _________________________________


         This case arises out of an accident at a railroad crossing owned and operated

by The Burlington Northern & Santa Fe Railway Company (BNSF). Danny

Whisenhunt, a Thompson Logistics, LLC (Thompson) employee, was driving a

tractor-trailer through the crossing when it became high-centered on the tracks. A


         *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
few minutes later, a BNSF train collided with the tractor-trailer. The train, parts of

the track, and the tractor-trailer were damaged. BNSF sued Thompson and the owner

of the tractor, CAT Construction, Inc. (CAT) (collectively, Appellants) for damages,

alleging that Appellants are vicariously liable for Mr. Whisenhunt’s negligent

driving. Appellants counterclaimed, alleging that BNSF’s negligent construction and

maintenance of the crossing caused the accident. The district court granted summary

judgment in CAT’s favor on BNSF’s vicarious liability claim, and the remaining

claims were tried to a jury.1 The jury found Thompson 80% negligent and BNSF 20%

negligent. The district court then denied BNSF’s renewed motion for judgment as a

matter of law. This appeal and cross-appeal followed. Exercising jurisdiction under

28 U.S.C. § 1291, we reverse and remand for a new trial.

                                 I.      BACKGROUND

                                      A. Factual History

      BNSF owns and operates the railroad crossing at issue, which is in Noble

County, Oklahoma. It sits upon County Road 295, immediately north of where the

county road intersects with U.S. Highway 64. County Road 295 is a public road.

      The crossing at the time of the accident consisted of two rails immediately

surrounded by timber planks and gravel roadway approaches leading to the crossing.

The tops of the planks were not flush with the top of the adjacent roadway surface,

but instead sat above the surface. And although BNSF’s crossing design calls for the


      1
        BNSF does not challenge this decision on appeal, and we therefore do not
discuss this claim further.
                                              2
top of each rail to be even or flush with the crossing’s timber planks, there is

evidence that the north rail protruded above the planks.

       Moreover, the approaches angled down and away from the tracks, giving the

crossing a humped profile. The crossing’s south approach descended 25.6 inches over

the 30 feet south of the rails. While the slope of the crossing’s north approach at the

time of the collision is unclear, afterward it was 6.7 inches over the 30 feet north of

the rails. BNSF’s right-of-way for the crossing was 100 feet: 50 feet north and 50 feet

south of the center of the two rails. The approaches were within BNSF’s right-of-

way.

       There were no lights or gates at the crossing, but the tracks were visible from

the road. And although there is no evidence of any signs warning motorists of the

steep approaches or of the protruding rail, crossbucks and a crossing sign alerted

passersby of the crossing itself.2 There was also an oil traffic sign, which, according

to Mr. Whisenhunt, indicated that “oil field traffic [had] been passing through” and

that it was safe to traverse the crossing.

       At the time of the accident, Mr. Whisenhunt was a professional truck driver

employed by Thompson. Mr. Whisenhunt testified that it was part of his job to know

the height and width of his equipment, and to know how much clearance he had

underneath his vehicle.

       The trailer Mr. Whisenhunt hauled on the day of the incident had “normal”

       2
        “Crossbucks are black-and-white, X-shaped signs that read ‘RAILROAD
CROSSING.’” Henning v. Union Pac. R.R. Co., 

, 1211 n.4 (10th Cir.
2008) (internal quotation marks omitted).
                                             3
clearance underneath, although Mr. Whisenhunt testified he did not know exactly

how much clearance it had. In any event, the trailer’s landing gear was fully

retracted, and it had been neither modified nor hung-up on a railroad track before the

accident.

      On June 16, 2012, Mr. Whisenhunt pulled off Highway 64 and turned north

onto County Road 295 toward the crossing. He could see the railroad tracks ahead.

He could also see the crossing was “a little bit” elevated from the road. Nothing

obstructed his view of the crossing. And the crossing looked like others he had

negotiated successfully in the past.

      Mr. Whisenhunt traversed the crossing, at two or three miles per hour until he

felt a bump. Upon exiting the vehicle, Mr. Whisenhunt discovered that the landing

gear’s foot had become caught on the north rail. The foot was bent backward and the

product line (a pipe at the bottom of the truck) rested on the tracks. There was not

enough clearance underneath the trailer, and the trailer high-centered on the tracks.

The tractor-trailer was stuck.

      Minutes later, BNSF’s train collided with the trailer. The train was damaged,

as were portions of the track. The tractor, owned by CAT, and the trailer, owned by

Thompson, were total losses.




                                           4
                                 B. Procedural History

      BNSF sued Appellants for damages arising out of the collision. BNSF alleged

that Mr. Whisenhunt’s negligence caused the accident, and that both Appellants were

vicariously liable for his negligence. Thompson admitted that it employed Mr.

Whisenhunt, and that he was acting within the course and scope of his employment at

the time of the accident.

      But Appellants denied that Mr. Whisenhunt’s negligence caused the accident.

They counterclaimed, asserting that BNSF’s negligent, or comparatively negligent,

construction and maintenance of the railroad crossing caused the accident. Appellants

argued that the trailer became stuck on the tracks because the crossing’s approaches

were too steep, and because the north rail improperly protruded above the timbers.

      The district court ruled before trial that BNSF’s duty to construct and maintain

the crossing is limited to that portion of the roadway that intersects with the tracks.

The remaining claims were tried to a jury. Several of the court’s evidentiary rulings

and jury instructions are challenged in this appeal. The facts concerning those claims

are presented below as relevant to the legal issues they present.

      The jury found Thompson 80% negligent and BNSF 20% negligent. In

accordance with the jury verdict, the court entered judgment in BNSF’s favor against

Thompson in the amount of $280,000, and in CAT’s favor against BNSF in the

amount of $2,000. The court later denied BNSF’s renewed motion for judgment as a

matter of law, in which BNSF argued that Thompson committed negligence per se,

which, according to BNSF, was a supervening cause absolving BNSF of any liability.

                                            5
This cross-appeal followed.

                                   II.     DISCUSSION

      Appellants contend that a new trial is warranted because the district court erred

when it (1) concluded that BNSF’s duty under Okla. Stat. tit. 66, § 128 to construct

and maintain the crossing is limited to that portion of the public roadway intersecting

with the tracks, (2) incorrectly instructed the jury on the extent of BNSF’s duty to

construct and maintain the crossing, and (3) excluded all evidence concerning the

approaches and their alleged causation of the accident.

      For its part, BNSF maintains that the district court erroneously denied its

renewed motion for judgment as a matter of law. Alternatively, BNSF insists that it is

entitled to a new trial because the district court declined to instruct the jury about the

county’s duty to construct and maintain the public road and the approaches at the

crossing, and because the comments and actions of Appellants’ counsel during trial

had a prejudicial effect on the verdict.

      We first address the issues Appellants raise before turning to the issues

asserted by BNSF. Ultimately, we hold that a new trial is warranted because the

district court erred in its ruling concerning the extent of BNSF’s duty to construct

and maintain the crossing, and because this error pervaded the court’s ensuing jury

instructions and evidentiary rulings. We next reject BNSF’s argument that it is

entitled to judgment as a matter of law. And because we conclude a new trial is

warranted based on the errors Appellants identify, we need not address BNSF’s

alternative arguments for a new trial.

                                             6
                                  A. Appellants’ Appeal

        As stated, Appellants contend the district court erred in defining the scope of

BNSF’s duty, instructing the jury, and excluding evidence. We address each issue in

turn.

   1. BNSF’s Duty to Construct and Maintain the Crossing

        In a motion for partial summary judgment filed in the district court, Appellants

argued that BNSF’s duty under Okla. Stat. tit. 66, § 128 to construct and maintain its

crossing extends across its entire 100-foot right-of-way and includes the approaches

within the right-of-way. The district court disagreed, and ruled that BNSF’s duty is

limited to that portion of the roadway intersecting with the tracks. Appellants contend

on appeal that the district court erred in its interpretation of § 128. We agree.

        The substantive law of Oklahoma, the forum state in this diversity action,

governs our analysis. Essex Ins. Co. v. Vincent, 

, 896 (10th Cir. 1995).

The existence of a duty under Oklahoma law is a question of law we review de novo.

Bray v. St. John Health Sys., Inc., 

, 723 (Okla. 2008). We also review de

novo the district court’s interpretation of Oklahoma law, including its interpretation

of a state statute. 

; see Blanke v. Alexander, 

,

1228 (10th Cir. 1998).

        Section 128 provides:

        It shall be the duty of every railroad company or corporation doing
        business, or operating a line of railroad, within this state, to construct a
        crossing across that portion of its track, roadbed or right-of-way over
        which any public highway may run, and maintain the same
        unobstructed, in a good condition for the use of the public . . . .

                                             7
      The Oklahoma Supreme Court has long held that the duty imposed under the

statute to construct and maintain a crossing requires a railroad to maintain the public

highway unobstructed in a safe condition across its entire right-of-way. Chicago R. I.

& P. Ry. Co. v. Taylor, 

, 354, 356 (Okla. 1920). The court compared the

statutory duty under § 128 to the common law duty “to do all those things necessary

to restore the highway, including the construction of bridges, approaches, or lateral

embankments, rendered necessary by the construction of the railroad tracks or grades

over or through the highway.” 

(emphasis added). It explained that “[t]he

duty to maintain the highway across its entire right of way takes nothing directly

from the railroad company,” because any related cost “is compensated for by the

consequential reduction and prevention of loss, which otherwise an obstructed and

unsafe highway inflicts upon the railroad itself.” 

      In Taylor, for example, the court held that the railway’s duty extended to a

three-foot excavation that was within its right-of-way but not adjacent to the tracks.

See 

And in Midland Valley Railroad Co. v. Townes, 

, 715

(Okla. 1936), the Oklahoma Supreme Court likewise concluded that the railroad’s

duty to construct and maintain its crossing extended “over its entire right of way,”

including over the inclined, muddy approaches in which plaintiff’s vehicle became

stuck before being hit by a train.

      These authorities establish that BNSF’s statutory duty to construct and

maintain its crossing extends to that portion of County Road 295 that passes through

its right-of-way. Contrary to the district court’s ruling, this includes the approaches

                                            8
that fall within that area.

       BNSF disagrees and cites two Oklahoma decisions that it believes support the

district court’s narrower conclusion: Myers v. Missouri Pacific Railroad Co., 

(Okla. 2002), and Texas, Oklahoma & Eastern Railroad Co. v. Campbell, 

(Okla. Civ. App. 1970). But neither case calls into question the continued

validity of Taylor or alters our construction of the statute.

       In Myers, plaintiffs brought a wrongful death action after the decedent’s

vehicle entered a railway crossing, despite flashing warning lights, and collided with

an oncoming 

. The court first held that some of plaintiffs’

negligence theories were preempted by federal regulations. 

The court

next considered whether, for purposes of the remaining negligence theories, the trial

court erred in refusing to instruct the jury on the railroad’s duty under certain state

statutes, including § 128. 

In doing so, the court paraphrased § 128,

stating that it “requires the railroad to maintain the surface of the roadway traversing

the tracks unobstructed and in good condition for the use of the public.” 

But the court was not attempting to interpret or apply the statute, which the court set

forth in its entirety in a footnote. 

n.56. Instead, it simply provided context

for its holding that the trial court had not erred in refusing to give the instruction

because § 128 “was not relevant to any issue in this case.” 

BNSF’s

assertion, Myers cannot fairly be read as a departure from the Oklahoma Supreme

Court’s prior decisions interpreting the duty imposed by § 128 to encompass the

entire right-of-way.

                                             9
       Campbell, a decision from the Oklahoma Court of Appeals that could not

undermine prior Oklahoma Supreme Court precedent, is also inapposite. There, the

driver failed to make a sharp turn, causing his vehicle to leave the road and crash into

an embankment on the underpass of a railroad’s 

. The site of

the accident was within the railroad’s right-of-way, but it was not on the tracks or the

public highway. 

entered a verdict in favor of plaintiffs based on a theory

that the railroad had breached its statutory duties, and the railroad appealed. 

of appeals reversed, concluding that § 128 was inapplicable because plaintiffs

claimed that the proximate cause of their injuries was the trestle’s geographic

configuration with the road—not the construction or maintenance of the trestle. 

As a result, the court had no occasion to opine on the extent of the duty imposed

under § 128.

       BNSF next maintains that its duty is limited because the county in which a

public road sits has the exclusive responsibility to construct and maintain the road.

Okla. Stat. tit. 69, § 601 states:

       It shall be the duty of the board of county commissioners in each county
       to construct and maintain [the] county highways . . . . The boards of
       county commissioners of the various counties shall have exclusive
       jurisdiction over the designation, construction and maintenance and
       repair of all of the county highways and bridges therein.

       Under §§ 601 and 128, the Oklahoma legislature allocated responsibility for

the construction and maintenance of public roads within a county. In general, a

county has exclusive responsibility under § 601 to construct and maintain its

highways and bridges. But under § 128, the legislature created an exception to this

                                           10
general rule, and imposed upon railroads the duty to construct and maintain its

crossings—including any public highways traversing its rights-of-way—unobstructed

and in a safe condition.

       To the extent §§ 601 and 128 conflict, we turn to Oklahoma’s rules of

statutory construction. See Etherton v. Owners Ins. Co., 

, 1224 (10th

Cir. 2016) (“When interpreting a state statute in a diversity case, this court must

apply state rules of statutory construction.” (internal quotation marks omitted)).

“[W]here there are two statutory provisions, one of which is special and clearly

includes the matter in controversy, and prescribes different rules and procedures from

those in a general statute, the special statute, and not the general statute applies.”

Indep. Sch. Dist. No. 1 v. Bd. of Cty. Comm’rs, 

, 549–50 (Okla. 1983).

Section 601 is a general statute concerning a county’s duty to construct and maintain

its highways and bridges; it does not address the precise situation presented here.

Section 128, however, is tailored to the present situation. It therefore controls.

       BNSF further argues that it is liable under § 128 only for obstructions that it

affirmatively creates. We find no support for this proposition. The Oklahoma

Supreme Court has explained that a railroad must keep a public highway traversing a

crossing in such a condition as to not materially impair its usefulness as a highway.

Atchison, T. & S.F. Ry. Co. v. Wooley, 

, 182 (Okla. 1919). In describing a

railroad’s duty to keep a crossing unobstructed, the court has not distinguished

between whom or what creates the obstruction giving rise to an injury. See Missouri-

Kansas-Texas R.R. Co. v. Hayes, 

, 252 (Okla. 1968) (“As far as we have

                                            11
been able to ascertain from the cases on the subject, it makes little, if any, difference,

whether the conditions, which render the crossing dangerous, are due to objects on

the railroad’s right-of-way, or to the terrain, or to vegetation, or other obstructions,

on other land.”).

       Finally, BNSF spends significant effort in its briefs, providing a summary of

the various governmental agencies that have been vested with regulatory authority

over the state’s railroads. BNSF does so in an attempt to show that the responsibility

over railroad crossings has changed since the 1920s and 1930s, during which the

Oklahoma Supreme Court decided Taylor and Midland Valley. Although there have

been legal developments affecting railways during the past century, BNSF points us

to nothing that abrogates or overrules the Oklahoma Supreme Court’s interpretation

of § 128. In the absence of such direction, we follow existing precedent from

Oklahoma’s highest court. See Sellers v. Allstate Ins. Co., 

, 352 (10th Cir.

1996) (stating that a federal court sitting in diversity is “to ascertain and apply the

most recent statement of law by the state’s highest court” (internal quotation marks

omitted)). And we are reluctant to alter such pronouncements in the absence of clear

guidance from that state’s highest court. See Taylor v. Phelan, 

, 887 (10th

Cir. 1993) (recognizing that federal courts “are generally reticent to expand state law

without clear guidance from [the state’s] highest court”).

       Accordingly, we hold that BNSF’s duty to construct and maintain the crossing

extends to that portion of County Road 295 that passes through BNSF’s right-of-way,

including the approaches within the right-of-way. The district court’s contrary ruling

                                            12
was error. As explained below, this ruling led to erroneous jury instructions and

evidentiary decisions, which require a new trial.

   2. The District Court’s Jury Instructions Concerning BNSF’s Duty

       We turn now to Appellants’ claim that the district court erroneously instructed

the jury on BNSF’s duty to construct and maintain the crossing. “We review a district

court’s decision to give a particular jury instruction for abuse of discretion, but we

review de novo legal objections to the jury instructions.” Lederman v. Frontier Fire

Prot., Inc., 

, 1154 (10th Cir. 2012) (internal quotation marks omitted).

“[W]e will find an abuse of discretion if the challenged instruction incorrectly states

the governing law.” Webb v. ABF Freight Sys., Inc., 

, 1248 (10th Cir.

1998). The “substance of a jury instruction in a diversity case is a matter of state

law.” City of Wichita v. U.S. Gypsum Co., 

, 1494 (10th Cir. 1996). “If

we determine that the trial court erred, we must then determine whether the error was

prejudicial” enough to warrant reversal. 

.

       Before trial, Appellants asked the district court to instruct the jury on BNSF’s

statutory duty under Okla. Stat. tit. 66, § 128 and Midland Valley. The district court

declined, and Appellants objected on the record. Then during trial, Appellants called

Bob Vincent as a witness. Mr. Vincent testified that he lives near the crossing, and

that the crossing at the time of trial was “a lot better . . . than it used to be. . . . The

county has raised the roadbed and instead of . . . the high pinnacle, it’s flattened out.”

BNSF objected to Mr. Vincent’s testimony. The court then gave the following

limiting instruction to the jury:

                                              13
      Ladies and gentlemen of the jury, after the accident, the county, which
      is responsible for the approaches and the roadway and so forth, changed
      the approaches to the track crossing and flattened it out. That is not the
      responsibility of the railroad and the railroad had no responsibility for
      the approaches to the crossing. But after the accident, the county
      changed that and flattened it out. So I’m assuming that’s what [Mr.
      Vincent is] talking about. I don’t know what the witness is talking
      about. But you’re not to consider that—that answer will be stricken and
      you’re not to consider it in your deliberations.

      Appellants contend the district court erroneously instructed the jury about

BNSF’s duty to construct and maintain the crossing because BNSF’s duty actually

extends over its entire right-of-way. As previously discussed, we agree that BNSF’s

duty under § 128 to construct and maintain the crossing extends to that portion of

County Road 295 that passes through BNSF’s right-of-way, including the approaches

within the right-of-way. As a result, we hold that the district court (a) abused its

discretion when it declined to instruct the jury that BNSF’s duty to construct and

maintain the crossing extends to that portion of County Road 295 that passes through

BNSF’s right-of-way, including the approaches within that area; and (b) erred when

it incorrectly instructed the jury during Mr. Vincent’s testimony that the county, and

not BNSF, is responsible for the road and approaches to the crossing. See 

.

      Having concluded that the district court incorrectly instructed the jury on the

scope of BNSF’s duty, we must next determine whether this error was prejudicial to

Appellants. See 

. “[T]he judgment must be reversed if the

jury might have based its verdict on the erroneously given instruction.” Wankier v.

Crown Equip. Corp., 

, 867 (10th Cir. 2003) (internal quotation marks

                                           14
omitted). “The ‘might have’ threshold . . . requires reversal even if that possibility is

very unlikely.” 

(internal quotation marks omitted). Here,

the district court’s ruling on BNSF’s duty and its later jury instructions in accordance

with that ruling resulted in the jury being incorrectly instructed on a critical issue in

the case: BNSF’s duty to maintain its right-of-way in good condition. If the court had

properly instructed the jury that BNSF is responsible for the roadway and approaches

within the right-of-way, the jury might have found the railroad more responsible for

the accident. Thus, the erroneous jury instruction prejudiced Appellants. We now

consider Appellants’ argument that this prejudice was compounded by the district

court’s evidentiary rulings.

    3. The District Court’s Evidentiary Rulings

         Appellants finally contend that the district court erred when it excluded all

evidence concerning the approaches and their alleged causation of the accident. The

district court premised its decision to exclude this evidence on its prior ruling that

BNSF’s duty to construct and maintain its crossing is limited to that area of County

Road 295 that traverses, or intersects with, the crossing. The court concluded that, in

view of that ruling, all evidence relating to the approaches is irrelevant and unfairly

prejudicial to BNSF. See Fed. R. Evid. 401 (providing that evidence is relevant if “it

has any tendency to make a [material] fact more or less probable than it would be

without the evidence”); 

court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . unfair prejudice

. . . .”).

                                             15
      We review a district court’s evidentiary rulings for an abuse of discretion.

. A district court abuses its discretion when its rulings are

“based on an erroneous conclusion of law, a clearly erroneous finding of fact[,] or a

manifest error in judgment.” 

conclude that the district court abused its

discretion, the complaining party is entitled to a new trial “only when the error

affected the party’s substantial rights.” 

on the jury of evidence can

only be prejudicial if it can be reasonably concluded that with or without such

evidence, there would have been a contrary result.” Hinds v. Gen. Motors Corp., 

, 1049 (10th Cir. 1993).

      Based on our conclusion that BNSF’s duty extends to its entire right-of-way,

we hold that the district court abused its discretion when it excluded all evidence of

the approaches and their potential causation of the accident. And we can easily

conclude that this error prejudicially affected Appellants’ substantial rights. If the

district court had instructed the jury that BNSF is responsible for the roadway and

approaches within the right-of-way, and allowed it to hear evidence about the

condition of the roadway and approaches, the jury reasonably may have found BNSF

more than 20% negligent.

      The district court committed prejudicial error when it gave legally incorrect

jury instructions, and compounded that error by limiting the admissible evidence

accordingly. We therefore reverse the judgment and remand for a new trial.3


      3
       Because we conclude that a new trial is warranted based on these rulings, we
need not reach BNSF’s additional arguments in support of a new trial.
                                           16
                                 B. BNSF’s Cross-Appeal

       BNSF argues by cross-appeal that a new trial is unnecessary because it is

entitled to judgment as a matter of law. For the reasons now discussed, we are not

persuaded.

       At the close of evidence, the district court instructed the jury on intervening

cause, on negligence per se, and on Okla. Stat. tit. 47, § 11-1115, which prohibits a

commercial driver from negotiating a crossing if there is insufficient clearance under

the vehicle. As indicated, the jury found Thompson 80% negligent and BNSF 20%

negligent. In its motion for a directed verdict and renewed motion for judgment as a

matter of law, BNSF argued that Appellants failed to present sufficient evidence at

trial to support the verdict that BNSF contributed 20% of the negligence. BNSF

argued that Mr. Whisenhunt, and thus vicariously Thompson, violated § 11-1115;

that the violation is negligence per se; and that the negligence per se was the

supervening cause of the accident, absolving BNSF from any liability. The district

court rejected BNSF’s argument, and concluded that the cause of the accident “was a

fact-based question for the jury, to be made in accordance with the jury instructions,

in . . . light of all the evidence that was admitted” at trial.

       “We review the district court’s denial of a judgment as a matter of law de

novo,” Magnum Foods, Inc. v. Cont’l Cas. Co., 

, 1503 (10th Cir. 1994),

applying the same standard used by the district court, Smith v. Aztec Well Servicing

Co., 

, 1287 (10th Cir. 2006). “Under Rule 50, a court should render

judgment as a matter of law when ‘a party has been fully heard on an issue and there

                                             17
is no legally sufficient evidentiary basis for a reasonable jury to find for that party on

that issue.’” Reeves v. Sanderson Plumbing Prods., Inc., 

, 149 (2000)

(quoting Fed. R. Civ. P. 50(a)). We draw all reasonable inferences in favor of the

nonmoving party, reversing “if the evidence points but one way and is susceptible to

no reasonable inferences supporting the party opposing the motion.” Wagner v. Live

Nation Motor Sports, Inc., 

, 1244 (10th Cir. 2009) (internal quotation

marks omitted). But we do not “weigh evidence, judge witness credibility, or

challenge the factual conclusions of the jury.” 

marks omitted).

In a diversity case like this, “the substantive law of the forum state governs the

analysis of the underlying claims, including specification of the applicable standards

of proof, but federal law controls the ultimate, procedural question whether JMOL is

appropriate.” 

marks omitted).

       BNSF’s argument here is again premised on its belief that Mr. Whisenhunt

violated Okla. Stat. tit. 47, § 11-1115, that his violation is negligence per se, and that

this negligence per se was a supervening cause absolving BNSF from liability and

entitling it to judgment as a matter of law. Section 11-1115 states: “At a railroad-

highway grade crossing, a person operating a Class A, B or C commercial motor

vehicle shall not negotiate the crossing if there is . . . [i]nsufficient clearance for the

undercarriage of the vehicle.”

       We here assume without deciding that Mr. Whisenhunt violated the statute and

that his violation constitutes negligence per se. We do so to focus on the dispositive

issue: whether Mr. Whisenhunt’s violation of the statute was the supervening—and

                                             18
therefore the proximate—cause of the collision as a matter of law. We hold that it

was not.

      Even where a driver is negligent per se, a railway is not absolved from liability

unless the driver’s negligence was the proximate cause of the injuries. See Garner v.

Myers, 

, 413 (Okla. 1957). The proximate cause of an injury is usually a

question of fact for the jury to determine. Akin v. Mo. Pac. R.R. Co., 

,

1054 (Okla. 1998). “It becomes a question of law for the court only when there is no

evidence from which a jury could reasonably find a causal nexus between the

defendant’s alleged negligent act and the injury.” 

is any competent

evidence supporting a jury finding of proximate cause is a legal question for the

court. Jackson v. Jones, 

, 1073 (Okla. 1995).

      The proximate cause of an injury is the “cause which sets in motion the chain

of circumstances leading to the injury. This causal connection may be broken by the

occurrence of . . . a supervening cause.” 

. An individual’s

negligence breaks the chain of causation and becomes the supervening cause only if

“his actions were the proximate cause” of the injury, as opposed to merely a

proximate cause of the injury. Hamilton v. Allen, 

, 700 (Okla. 1993)

(emphasis added).

      “A supervening cause is a new, independent and efficient cause of the injury

which was neither anticipated nor reasonably foreseeable.” 

–

55. A supervening cause usually has “(1) independence from the original negligent

act, (2) adequacy of itself to bring about the complained-injury[,] and (3) reasonable

                                          19
unforseeability.” 

. An intervening event’s foreseeability is

generally a question of fact. 

the circumstances the intervening event

“might be reasonably expected to occur, the final element is not met and the causal

chain will remain unbroken.” 

was sufficient evidence presented at trial from which a reasonable

jury could find it was foreseeable under the circumstances that Mr. Whisenhunt’s

tractor-trailer would become stuck on the tracks. Appellants submitted evidence that

the tractor-trailer had normal clearance and that the trailer’s landing gear was fully

retracted and unmodified. There was also evidence that the crossing had a humped

profile due to its unusually steep approaches, and that the north rail improperly

protruded above the crossing’s timber planks. Importantly, there was evidence that

the tractor-trailer would have cleared the crossing if the north rail was not protruding.

And there was evidence that other trucks had gotten hung up at the crossing. Based

on the evidence submitted and the jury instructions given at trial, the jury could

reasonably conclude that Thompson’s negligence per se was not the proximate and

therefore supervening cause of the accident. See Questar Pipeline Co. v. Grynberg,

, 1287 (10th Cir. 2000) (stating that a jury is presumed to follow a

court’s instructions).

       To be sure, § 11-1115 forbids a commercial driver from traversing a crossing

if he has insufficient clearance underneath his rig. And “the operator of [a] train can

assume the [driver] will obey the law.” 

. But as discussed,

the jury could reasonably conclude that Mr. Whisenhunt’s actions were merely a

                                           20
proximate cause—not the proximate cause—of the accident: sufficient evidence was

presented at trial to support the jury’s finding that Mr. Whisenhunt’s negligence

combined with BNSF’s negligence to cause the collision. And “when a cause . . .

combines with another act to produce injury, . . . each negligent actor may be held

accountable.” 

(footnotes omitted). That is the situation

here.

        In further support of its position, BNSF relies on the Oklahoma Supreme

Court’s decision in Akin and the Oklahoma Court of Appeals’ decision in Short v.

Union Pacific Railroad Co., 

(Okla. Civ. App. 2013). Both cases are

distinguishable.

        In Akin and Short, plaintiffs complained that the railroads negligently caused

their injuries by failing to provide additional warnings at the crossings. See 

, 1054–56 (alleging the accident was caused by the absence of an

automatic gate at the crossing even though the driver traversed the crossing in the

presence of flashing warning lights); 

, 406 (claiming the

collision was caused by the railroad’s failure to place automatic gates or lights at the

crossing even though the driver negotiated the crossing in the presence of reflective

crossbucks). Each court concluded that even if the railroad negligently failed to

provide additional warnings, the supervening cause of the accident was the driver’s

independent, negligent, and unforeseeable act in traversing the crossing in the

presence of other visible warnings of an oncoming train. See 

–

56 (holding that even if the railroad negligently failed to erect an automatic gate at

                                           21
the crossing, the driver’s negligence per se in “fail[ing] to stop at the crossing in the

presence of discernible warnings was the supervening, and therefore, proximate cause

of his death”); 

(holding that the accident was caused by the

driver’s negligence per se where he traversed the crossing in the presence of

reflective crossbucks and where he “had an unobstructed view of the imminently

approaching train”); see also 

(stating that a supervening

cause is independent from the original negligent act and is adequate in itself to bring

about the injury).

       Here, however, it was reasonably foreseeable under the circumstances that Mr.

Whisenhunt would attempt unsuccessfully to navigate the crossing. Evidence was

presented at trial that he would have safely traversed the crossing if the approaches

were not so steep and if the north rail was not protruding above the planks. Put

another way, there is evidence that if BNSF was not negligent in its construction or

maintenance of the crossing, Mr. Whisenhunt would not have become stuck on the

crossing and there would not have been a collision. This is sufficient to support a

finding that both Mr. Whisenhunt’s and BNSF’s negligence contributed to the

collision.

       Even if Mr. Whisenhunt violated § 11-1115, and his violation is negligence per

se, that violation was not the proximate and supervening cause of the accident as a

matter of law. As a result, BNSF is not absolved from all liability. In view of the

reasonable inferences that can be drawn from the evidence, the district court correctly

ruled that causation was a fact question for the jury. Accordingly, we affirm the

                                            22
district court’s denial of BNSF’s renewed motion for judgment as a matter of law.

                                    C. Motions to Seal

       Finally, Appellants and BNSF each move to file certain appendices and

exhibits under seal. The Clerk of Court provisionally granted both motions, subject to

the panel’s plenary consideration.

       The public has “a common-law right of access to judicial records, but this right

is not absolute.” Colony Ins. Co. v. Burke, 

, 1241 (10th Cir. 2012)

(internal quotation marks omitted). “[T]he presumption in favor of access to judicial

records may be overcome where countervailing interests heavily outweigh the public

interests in access.” 

marks omitted). “The burden is on the

party seeking to restrict access to show some significant interest that outweighs the

presumption.” 

marks omitted).

       Appellants move to file under seal Volume VIII of their Appendix. Volume

VIII contains pleading exhibits, trial exhibits, and business records BNSF produced

during discovery pursuant to the district court’s protective order. Appellants’ sole

reason for filing their motion to seal these records on appeal is to comply with the

district court’s protective order. They otherwise admit they are unaware of any

substantial interest that justifies sealing this material.

       Appellants have failed to meet their burden to overcome the presumption in

favor of public disclosure. For one, we are “not bound by the district court’s decision

to seal certain documents below.” 

importantly, BNSF does not object to

unsealing the material. Appellants’ motion is denied.

                                             23
       BNSF also filed an unopposed motion to seal Exhibits 5 and 6 of its

Supplemental Appendix. The exhibits are videos from BNSF’s train taken during the

collision with Mr. Whisenhunt’s rig. BNSF states it does not publicly disseminate

such videos because they could attract attention on social media, inspiring members

of the public to engage in activities designed to cause other train accidents.

       We agree that such behavior could be dangerous to the public and BNSF

employees. And because our disposition in this case does not require us to review the

videos, the public interest in accessing them is negligible. See Hershey v.

ExxonMobil Oil Corp., 550 F. App’x 566, 574 (10th Cir. 2013) (unpublished)

(holding that the public’s interest in accessing judicial records was outweighed where

the sealed documents were not “necessary to determine the litigants’ substantive

legal rights” (internal quotation marks omitted)). Consequently, we grant BNSF’s

motion to seal Exhibits 5 and 6.

                                   III. CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s denial of BNSF’s

renewed motion for judgment as a matter of law. But we REVERSE the district

court’s ruling concerning the extent of BNSF’s duty to construct and maintain the

crossing, and its related jury instructions and evidentiary rulings. We remand to the

district court for a new trial.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge

                                           24
BNSF Railway Company v. C.A.T. Construction, Inc., No. 15-6230,
Bacharach, J., concurring in the majority’s order and judgment.

      I join the majority’s thorough, well-reasoned order and judgment. As

the majority explains, Okla. Stat. tit. 66, § 128 imposes a duty on a railway

company to maintain the roadway within the railway company’s right-of-

way. Here BNSF’s right-of-way included the sloped portion of the roadway

that allegedly contributed to the accident; thus, BNSF had a duty to

maintain that portion of the roadway.

      BNSF argues that by enacting Okla. Stat. tit. 69, § 601(A), the

Oklahoma legislature abrogated the duty created by § 128. The majority

rejects BNSF’s argument based on an Oklahoma canon of statutory

construction. I agree with the majority’s reasoning. But in rejecting

BSNF’s argument, I would also rely on a second canon: A statute is

repealed by implication only if the legislature clearly intends to repeal or

supersede the statute. That intent was far from clear when the Oklahoma

legislature adopted Okla. Stat. tit. 69, § 601(A).

      This section states that county commissioner boards in the various

counties “shall have exclusive jurisdiction over the designation,

construction and maintenance and repair of all of the county highways and

bridges therein.” Okla. Stat. tit. 69, § 601(A). The question is whether this

statute abrogated a railway company’s duty under § 128 to maintain the

part of the roadway lying within the railway company’s right-of-way. In
my view, § 128 and § 601 can reasonably be read as consistent with one

another.

      Section 601(A) states that county commissioner boards have

“jurisdiction” over roads. Okla. Stat. tit. 69, § 601(A). The term

“jurisdiction” might refer simply to the boards’ authority to decide whether

someone can or must make changes affecting a roadway. See Markillie v.

Bd. of Cty. Rd. Comm’rs, 

, 881-82 (Mich. Ct. App. 1995)

(interpreting “jurisdiction” over a highway to mean “control” with

authority to construct, maintain, and repair the highway); Bryan A. Garner,

Garner’s Dictionary of Legal Usage 693 (3d ed. 2011) (“Jurisdiction

suggests both the legal power and the legal authority to determine,

command, rule, or govern to a specified, limited extent . . . .”); I Bouvier

Law Dictionary 1449 (Stephen Michael Sheppard ed. 2012) (defining

“jurisdiction” as the power to legislate, regulate, or assert authority).

      This understanding of the term “jurisdiction” is implicit in two

publications by the U.S. Department of Transportation that address

jurisdiction over railway crossings. First, the Traffic Control Devices

Handbook frames “jurisdiction” over railway crossings as the authority to

decide whether to (1) approve improvements for railway crossings, (2)

open new railway crossings, or (3) close existing railway crossings:

           Jurisdiction over railroad-highway grade crossings resides
      almost exclusively in the States. . . . [S]everal agencies, both
                                       2
      public and private can be involved when improvements are
      considered at a railroad highway grade crossing. . . .

            When a new railroad-highway grade crossing is
      contemplated or when an existing grade crossing is proposed for
      closing, these agencies should be involved as early as possible in
      the planning and decisionmaking process.

U.S. Dep’t of Transp., Fed. Highway Admin., Traffic Control Devices

Handbook 8-7 to 8-8 (1983). Second, the Manual on Uniform Traffic

Control Devices uses the term “jurisdiction” to mean the ability to regulate

a railway crossing: “The highway agency or authority with jurisdiction and

the regulatory agency with statutory authority, if applicable, jointly

determine the need and selection of devices at a grade crossing.” U.S.

Dep’t of Transp., Manual on Uniform Traffic Control Devices 747 (2009).

“Jurisdiction” as used in § 601(A) could bear a similar meaning, referring

to the boards’ authority to approve or disapprove proposed changes to

railway crossings.

      If this is the meaning of the statutory term “jurisdiction,” § 128

would not conflict with § 601(A); rather, each statute would address a

separate issue. Section 128 would establish a railway company’s duties to

(1) propose changes necessary to maintain the safety of a right-of-way and

(2) implement the changes that are approved. By contrast, § 601(A) would

empower the boards to approve or disapprove proposed changes. Because

§ 601(A) can reasonably be read in this manner, the Oklahoma legislature

                                      3
did not clearly intend to abrogate the duty created by § 128. Consequently,

this Oklahoma canon would lead us to conclude that the duty under § 128

remains intact.

                                    * * *

      Like the majority, I believe that § 601(A) did not abrogate BNSF’s

duty to maintain the roadway within BNSF’s right-of-way. As the majority

explains, this conclusion is supported by the canon providing that a more

specific statute takes precedence over a more general statute.

      This conclusion is also supported by a second canon: A statute is

repealed by implication only if the legislature clearly intends to repeal or

supersede the statute. This canon applies because it is not clear whether

the Oklahoma legislature intended for § 601(A) to abrogate the duty

created by § 128.

      Based on both canons of construction, § 128 remained intact after the

adoption of § 601(A). Under § 128, BNSF bore a duty to maintain the

sloped portion of the roadway that allegedly contributed to the accident.




                                      4