031622P.pdf   06/28/2004  John Morris  v.  Union Pacific RR
   U.S. Court of Appeals Case No:  03-1622
   Western District of Arkansas   
   Civil case - Torts. In case where plaintiff was injured while trying to 
   tow a truck which had collided with defendant's train, it was up to the 
   jury to determine whether plaintiff's negligence was equal to or greater 
   than that of the railroad's, and the railroad was not entitled to judgment as 
   a matter of law; district court erred in giving an instruction that the jury 
   could draw an adverse inference from the fact that the railroad had 
   destroyed the audio tape recording of the accident because under this 
   court's decision in Stevenson v. Union Pacific, 354 F.3d 739 (8th Cir. 
   2004), such an instruction is only proper when there is a finding that the 
   evidence was intentionally destroyed to suppress the truth, and here the 
   court specifically found defendant did not intentionally destroy the tape; 
   the giving of the instruction created a substantial danger of unfair 
   prejudice, and the case must be remanded for a new trial; there was not 
   substantial evidence to support the submission of punitive damages, and 
   defendant was entitled to judgment as a matter of law on that claim; on 
   remand that claim should be dismissed. 
   [PUBLISHED] [Colloton, Author, with Wollman and M. Arnold, Circuit Judges]