                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS           April 3, 2003

                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk


                            No. 02-40807
                          Summary Calendar



DANIEL B. KENNEY,

                                                Plaintiff-Appellant,

versus


UNION PACIFIC RAILROAD COMPANY;
BURLINGTON NORTHERN & SANTA FE
RAILWAY COMPANY,

                                                Defendants-Appellees.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                            (G-01-CV-203)
                        --------------------

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,

     *
        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this opinion should not be published and is not precedent except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.
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

                                            2
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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