Thurmon Young, Plaintiff-appellant, v. Burlington Northern Railroad Company, a Corporation,defendant-appellee, 41 F.3d 1515 (9th Cir. 1994)

MEMORANDUM^** 

Thurman Young sued his employer, Burlington Northern, under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60. He appeals pro se a judgment for the defendant. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Young claimed that Burlington negligently caused or aggravated his lower back injury. The jury found Burlington not negligent. On appeal, Young says only that " [t]he issues [sic] I am raising on appeal is that it was not a personal injury it was a [sic] aggravation injury." But testimony, his attorney's argument and the jury instructions all addressed aggravation. He does not assign error to the jury's special verdict of no negligence, and we defer to its determination. See United States v. Martinez, 967 F.2d 1343, 1345 (9th Cir. 1992). Without proof of negligence, Young cannot recover damages for any injury, new or aggravated. See Brady v. Southern Railway Co., 320 U.S. 476, 484 (1943) (liability arises from negligence not from injury under this Act).

AFFIRMED.