Kenney v. Union Pacific RR Co, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 45 U.S.C. § 51 et seq.
United States Court of Appeals
Fifth Circuit
F I L E D
April 3, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40807
Summary Calendar
DANIEL B. KENNEY,
Plaintiff-Appellant,
versus
UNION PACIFIC RAILROAD COMPANY;
BURLINGTON NORTHERN & SANTA FE
RAILWAY COMPANY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(G-01-CV-203)
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Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Daniel B. Kenney appeals from the district
court’s take-nothing judgment based on a jury verdict that he
recover “zero” damages on his negligence claim under the Federal
Employers’ Liability Act1 against his employer, Defendant-Appellee
Union Pacific Railroad Company (“UP”) and the railroad track owner,

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Defendant-Appellee Burlington Northern & Santa Fe Railway Company
(“BN/SF”). Kenney claims that the award of zero damages was
grossly inadequate, that the district court erred in submitting an
“Act of God” instruction to the jury, and that cumulative error
resulted from the court’s allowing hearsay testimony about an
expert report and allowing plaintiff’s geological expert to be
impeached on a collateral/ cumulative matter followed by argument
that the plaintiff had deliberately attempted to mislead the jury.
We affirm the take-nothing judgment of the district court.
None contest that the train on which Kenney was working ran
into a huge boulder that had sloughed off a canyon wall and landed
on the track. Even if the parties can quibble about whether the
sloughing off of the boulder following unusually heavy and
protracted rains was or was not an Act of God, the question is
essentially moot, or harmless, because the jury —— obviously not
confused —— went on to find that UP was negligent and that this
negligence was the legal cause of the injury, “if any,” suffered by
Kenney in the train’s allision with the boulder. Similarly, if the
jury’s finding of no legal cause on the part of BN/SF was based on
either the Act of God theory or the absence of negligence on the
part of BN/SF, any error is harmless as well. This is because the
jury concluded, on the basis of a plethora of fact and expert
testimony —— which the jury obviously credited, as was its
prerogative —— that the medical problems complained of by Kenney
simply did not occur during and result from the meeting of the

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train and the boulder. That conclusion flows inescapably from the
jury’s “zero” award to Kenney, i.e., taxing of no damages or costs
to UP or BN/SF, despite Kenney’s presence on UP’s train and BN/SF’s
track, at the time of the allision.
Our careful review of the record on appeal, the briefs of the
parties, the applicable law, and the jury verdict and judgment of
the court, convinces us beyond peradventure that no reversible
error occurred. With no evident confusion or misinformation, the
jury obviously concluded that there was negligence on the part of
UP which produced the crash, but that the preponderance of the
evidence was sufficient to prove that Kenney’s disc problem, the
treatment therefor, and the pain and suffering accompanying it,
simply was not causally connected to the crash. It is obvious as
well that the jury reached the fully supportable conclusion that,
given (1) the absence of pain and symptoms in proximity to the
crash, (2) Kenney’s continuation of vigorous activities, such as
playing softball, riding motorcycles, and the like, and (3) the
delayed onset and progress of his back problems, his injury was too
attenuated from the crash to be causally connected.
For the foregoing reasons, the judgment of the district court
is, in all respects,
AFFIRMED.

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