In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐1544
CHANCE T. KELHAM,
Plaintiff‐Appellant,
v.
CSX TRANSPORTATION, INC.,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:12‐cv‐00316 — Andrew P. Rodovich, Magistrate Judge.
____________________
ARGUED SEPTEMBER 22, 2016 — DECIDED OCTOBER 27, 2016
____________________
Before BAUER, POSNER, and MANION, Circuit Judges.
POSNER, Circuit Judge. The plaintiff, Chance Kelham, a
railroad engineer, sued the railroad that employed him, ac‐
cusing it of having negligently caused him to be injured, for
which he seeks compensation under the Federal Employers’
Liability Act, 45 U.S.C. §§ 51 et seq. The case was tried to a
jury, which exonerated the railroad, precipitating this ap‐
peal.
2 No. 16‐1544
On the day of the accident that Kelham claims caused his
injury, he was driving a mile‐long freight train comprised of
two locomotives and 69 empty cars. Ordered to halt the train
briefly on a parallel track to enable a train with a higher pri‐
ority to pass it, Kelham duly halted his train. Unfortunately
another train, which was also supposed to wait on the paral‐
lel track, failed to stop at a red stop signal and collided with
Kelham’s train from behind. Because of the length of his
train and the weight of its locomotive (212 tons), the collision
caused the locomotive to lurch forward slightly. A mechani‐
cal engineer testifying for the railroad compared what a for‐
ward‐facing video camera attached to the front of Kelham’s
locomotive showed to what was shown by a video camera
attached to another locomotive of the same make and model.
That locomotive was placed in the same location on the
tracks as the locomotive of Kelham’s train when it had be‐
gun its lurch, and was then moved slowly forward so that
the video from its camera could be compared with the video
from the camera attached to the front of Kelham’s locomo‐
tive. The comparison indicated that the lurch forward could
not have exceeded seven or eight inches, or lasted more than
a third of a second—numbers that the engineer testified in‐
dicated that the train had accelerated as a result of the colli‐
sion at an average of 13.5 feet per second squared.
Kelham complains that the engineer compared the two
videos by eye rather than by mathematical calculations,
didn’t measure the height of the camera on the comparison
locomotive, and didn’t account for the “bounce and shud‐
der” movement of the train. But the trial judge correctly
ruled that these objections could be adequately explored on
cross‐examination.
No. 16‐1544 3
Kelham’s claim that the locomotive “bounced” vertically
is implausible given the locomotive’s weight and the slight‐
ness of the lurch, and while he points to testimony from
Knipp, the other conductor in the cab at the time of the acci‐
dent, that the locomotive “bounced … back and forth,” that
isn’t the same as bouncing up and down. Kelham also claims
that the “bounce and shudder” are visible in the video of the
accident, but CSX’s expert, who watched the video, disa‐
greed, and the jurors were shown the video at trial and
could decide for themselves. The jury rejected Kelham’s
challenges to the railroad’s testimony, awarding judgment to
the railroad.
The railroad concedes that the accident was caused by
the negligence of its employees—the crew of the second
train who ran the red light; the issue is whether the lurch re‐
sulting from the impact of the second train when it collided
with Kelham’s train caused the injuries of which he com‐
plains. He testified that when the lurch occurred he’d just
risen from his seat in the locomotive cab and begun to walk
down the three stairs to the locomotive’s bathroom. The
stairwell faced forward, so someone walking down the stairs
would be facing the front of the train. Kelham claims that as
he began to walk down, the lurch from the impact caused
him to fall forward—almost indeed to somersault—down
the stairs, causing a serious injury to his back which aggra‐
vated a condition that he had called “spondylitic spondylo‐
listhesis”—the forward slippage of a vertebra—which had
been asymptomatic before the accident but afterward re‐
quired surgery.
A biomechanical engineer testified for the railroad that
the forward lurch of the locomotive should have pushed
4 No. 16‐1544
Kelham backward rather than forward, since he was facing
the front of the train at the time of the accident. If you’re sit‐
ting in the back seat of a taxi stopped for a traffic light, then
when the light changes and the cab surges ahead you’ll feel
yourself pushed against the back of your seat, while if the
taxi was moving and then slowed or stopped you would feel
yourself pushed forward, toward the divider between the
front and rear seats. The engineer further testified that if the
lurch had pushed Kelham backward without causing him to
hit the back wall of the locomotive cab, it would have been
too weak to injure him. In addition the train conductor sit‐
ting next to Kelham in the locomotive cab did not see him
fall when the locomotive lurched. And for days after the ac‐
cident he told no one that he’d fallen, even though he spent a
good deal of that time with coworkers, supervisors, and
medical personnel. Nor had he any bruises or any other visi‐
ble injuries from the fall, even though he testified that at the
end of the somersault his back and neck were against a
bulkhead door and his feet were over his head. He argued
that the biomechanical engineer had ignored the “bounce
and shudder” and assumed he’d been positioned upright at
the time of the accident, while he claims that he was learning
forward, that the studies cited by the engineer of how people
who are standing on a platform react when the platform
moves don’t apply to someone who is walking down stairs,
as Kelham claims he was, and that the engineer did not cite
studies on the aggravation of spondylitic spondylolisthesis
specifically—but again the trial judge correctly ruled that
Kelham’s objections could be explored on cross‐examination,
and the jury didn’t have to believe him.
There is no question that Kelham has serious back pain,
but the railroad presented evidence that the pain preexisted
No. 16‐1544 5
the forward lurch of his train. Indeed he’d begun complain‐
ing of back pain in 2007, four and a half years before the col‐
lision, and the pain had worsened over time. An MRI on Oc‐
tober 5, 2009 revealed a herniated disc and a bulging disc,
along with the spondylitic spondylolisthesis. On the recom‐
mendation of an orthopedic surgeon he was given a “nerve
root block” (a strong anesthetic) a week later and in the fol‐
lowing months received epidural steroid injections from a
pain management specialist. A few weeks after the nerve
root block he complained of pain and obtained prescriptions
for morphine and Vicodin—opioid pain medications—and
had continued to receive and fill prescriptions for the drugs
up until the time of the accident, including five times in the
five months immediately preceding it.
His back pain persisted after the accident, eventually
leading him to have surgery; we say “persisted” because by
his own admission it was similar to the pain that he had ex‐
perienced and taken opioids to alleviate before the accident.
Indeed he told medical staff—repeatedly—that he was seek‐
ing treatment for symptoms that he’d been experiencing for
years. And indeed the surgery he had was for the same back
pain for which he’d taken opioids before the accident. His
post‐accident surgeon conceded in a deposition that “sur‐
gery was an option for [Kelham]” before the accident, and
that he would defer to CSX’s expert on whether the lurch
could have caused Kelham’s post‐accident symptoms. And
Kelham’s pre‐accident doctor conceded in a deposition that
the spondylitic spondylolisthesis, which Kelham claims be‐
came symptomatic only after the accident, could have been
responsible for some of his pre‐accident symptoms. Indeed it
would be a miracle had those symptoms vanished right be‐
fore the lurch (they couldn’t have vanished a significant time
6 No. 16‐1544
before it as otherwise he would have stopped taking the
opioids, which are dangerous medicines), only to recur—the
identical symptoms—as a consequence of the lurch. And the
trial judge correctly rejected Kelham’s objections to admit‐
ting the evidence about his history of back problems and the
unfavorable statements from the depositions of his pre‐ and
post‐accident doctors.
After the surgery he was advised to undergo physical
therapy, which his medical records indicate that he did but
only intermittently, and though he has only modest func‐
tional limitations, which would not prevent him from work‐
ing in some capacity for a railroad, he has declined to seek
reemployment in the railroad industry. It was not unreason‐
able for a jury to find that Kelham had fabricated the claim
that he was injured by the lurch, as unless the railroad
bought his story it would not be required by the Federal
Employers’ Liability Act to compensate Kelham for the cost
of the surgery that he needed to repair the consequences of
pre‐accident ailments for which the railroad was not respon‐
sible. The jury was entitled to conclude that the negligence
of the railroad that resulted in the collision and ensuing
lurch had no causal relation to his injuries—that, to repeat,
the injuries were the product of ailments that preceded the
lurch.
AFFIRMED