Norfolk Southern Railway Co. v. Sorrell

(Slip Opinion) OCTOBER TERM, 2006 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NORFOLK SOUTHERN RAILWAY CO. v. SORRELL

CERTIORARI TO THE COURT OF APPEALS OF MISSOURI

No. 05–746. Argued October 10, 2006—Decided January 10, 2007
Respondent Sorrell was injured while working for the petitioner rail
road (Norfolk), and sought damages for his injuries in Missouri state
court under the Federal Employers’ Liability Act (FELA), which
makes a railroad liable for an employee’s injuries “resulting in whole
or in part from [the railroad’s] negligence,” Section 1. FELA reduces
any damages awarded to an employee “in proportion to the amount
[of negligence] attributable to” the employee, Section 3. Missouri’s
jury instructions apply different causation standards to railroad neg
ligence and employee contributory negligence in FELA actions. An
employee will be found contributorily negligent if his negligence “di
rectly contributed to cause” the injury, while railroad negligence is
measured by whether the railroad’s negligence “contributed in whole
or in part” to the injury. After the trial court overruled Norfolk’s ob
jection that the instruction on contributory negligence contained a
different standard than the railroad negligence instruction, the jury
awarded Sorrell $1.5 million. The Missouri Court of Appeals af
firmed, rejecting Norfolk’s contention that the same causation stan
dard should apply to both parties’ negligence.
Held:
1. Norfolk’s attempt to expand the question presented to encom
pass what the FELA causation standard should be, not simply
whether the standard should be the same for railroad negligence and
employee contributory negligence, is rejected. This Court is typically
reluctant to permit parties to smuggle additional questions into a
case after the grant of certiorari. Although the Court could consider
the question of what standard applies as anterior to the question
whether the standards may differ, the substantive content of the cau
sation standard is a significant enough issue that the Court prefers
not to address it when it has not been fully presented. Pp. 4–6.
2 NORFOLK SOUTHERN R. CO. v. SORRELL

Syllabus

2. The same causation standard applies to railroad negligence un
der FELA Section 1 as to employee contributory negligence under
Section 3. Absent express language to the contrary, the elements of a
FELA claim are determined by reference to the common law, Urie v.
Thompson, 337 U. S. 163, 182, and unless common-law principles are
expressly rejected in FELA’s text, they are entitled to great weight,
Consolidated Rail Corporation v. Gottshall, 512 U. S. 532, 544. The
prevailing common-law view at the time FELA was enacted was that
the causation standards for negligence and contributory negligence
were the same, and FELA did not expressly depart from this ap
proach. This is strong evidence against Missouri’s practice of apply
ing different standards, which is apparently unique among the
States. Departing from the common-law practice would in any event
have been a peculiar approach for Congress to take in FELA: As a
practical matter, it is difficult to reduce damages “in proportion” to
the employee’s negligence if the relevance of each party’s negligence
is measured by a different causation standard. The Court thinks it
far simpler for a jury to conduct the apportionment FELA mandates
if the jury compares like with like. Contrary to Sorrell’s argument,
the use of the language “in whole or in part” with respect to railroad
negligence in FELA Section 1, but not with respect to employee con
tributory negligence in Section 3, does not justify a departure from
the common-law practice of applying a single causation standard. It
would have made little sense to include the “in whole or in part” lan
guage in Section 3; if the employee’s contributory negligence contrib
uted “in whole” to his injury, there would be no recovery against the
railroad in the first place. The language made sense in Section 1,
however, to clarify that there could be recovery against the railroad
even if it were only partially responsible for the injury. In any event,
there is no reason to read the statute as a whole to encompass differ
ent causation standards, since Section 3 simply does not address cau
sation. Finally, FELA’s remedial purpose cannot compensate for the
lack of statutory text: FELA does not abrogate the common-law ap
proach. A review of FELA model instructions indicates that there are
a variety of ways to instruct a jury to apply the same causation stan
dard to railroad negligence and employee contributory negligence.
Missouri has the same flexibility as other jurisdictions in deciding
how to do so, so long as it now joins them in applying a single stan
dard. On remand, the Missouri Court of Appeals should address
Sorrell’s argument that any error in the jury instructions was harm
less, and should determine whether a new trial is required. Pp. 6–14.
170 S. W. 3d 35, vacated and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS,
 Cite as: 549 U. S. ____ (2007) 3

Syllabus

SCALIA, KENNEDY, SOUTER, THOMAS, BREYER, and ALITO, JJ., joined.
SOUTER, J., filed a concurring opinion, in which SCALIA and ALITO, JJ.,
joined. GINSBURG, J., filed an opinion concurring in the judgment.
 Cite as: 549 U. S. ____ (2007) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–746
_________________

NORFOLK SOUTHERN RAILWAY COMPANY, PETI-

TIONER v. TIMOTHY SORRELL

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MISSOURI, EASTERN DISTRICT

[January 10, 2007]

CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Timothy Sorrell, respondent in this Court, sustained
neck and back injuries while working as a trackman for
petitioner Norfolk Southern Railway Company. He filed
suit in Missouri state court under the Federal Employers’
Liability Act (FELA), 35 Stat. 65, as amended, 45 U. S. C.
§§51–60, which makes railroads liable to their employees
for injuries “resulting in whole or in part from the negli
gence” of the railroad, §51. Contributory negligence is not
a bar to recovery under FELA, but damages are reduced
“in proportion to the amount of negligence attributable to”
the employee, §53. Sorrell was awarded $1.5 million in
damages by a jury; Norfolk objects that the jury instruc
tions reflected a more lenient causation standard for
railroad negligence than for employee contributory negli
gence. We conclude that the causation standard under
FELA should be the same for both categories of negli
gence, and accordingly vacate the decision below and
remand for further proceedings.
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Opinion of the Court

I

On November 1, 1999, while working for Norfolk in
Indiana, Sorrell was driving a dump truck loaded with
asphalt to be used to repair railroad crossings. While he
was driving between crossings on a gravel road alongside
the tracks, another Norfolk truck approached, driven by
fellow employee Keith Woodin. The two men provided
very different accounts of what happened next, but some
how Sorrell’s truck veered off the road and tipped on its
side, injuring him. According to Sorrell’s testimony,
Woodin forced Sorrell’s truck off the road; according to
Woodin, Sorrell drove his truck into a ditch.
On June 18, 2002, Sorrell filed suit against Norfolk in
Missouri state court under FELA, alleging that Norfolk
failed to provide him with a reasonably safe place to work
and that its negligence caused his injuries. Norfolk re
sponded that Sorrell’s own negligence caused the accident.
Missouri purports to apply different standards of causa
tion to railroad and employee contributory negligence in
its approved jury instructions for FELA liability. The
instructions direct a jury to find an employee contributo
rily negligent if the employee was negligent and his negli
gence “directly contributed to cause” the injury, Mo. Ap
proved Jury Instr., Civ., No. 32.07 (6th ed. 2002), while
allowing a finding of railroad negligence if the railroad
was negligent and its negligence contributed “in whole or
in part” to the injury, id., No. 24.01.1
——————
1 Missouri in the past directed a jury to find a railroad liable if the

railroad’s negligence “directly resulted in whole or in part in injury to
plaintiff.” Mo. Approved Jury Instr., Civ., No. 24.01 (1964). This
language persisted until 1978, when the instruction was modified to its
present version. Ibid. (2d ed. 1969, Supp. 1980). The commentary
explains that the word “direct” was excised because, under FELA, “the
traditional doctrine of proximate (direct) cause is not applicable.” Id.,
No. 24.01, p. 187 (Committee’s Comment (1978 new)). Cf. Leake v.
Burlington Northern R. Co., 892 S. W. 2d 359, 364–365 (Mo. App. 1995).
 Cite as: 549 U. S. ____ (2007) 3

Opinion of the Court

When Sorrell proposed the Missouri approved instruc
tion for employee contributory negligence, Norfolk objected
on the ground that it provided a “different” and “much
more exacting” standard for causation than that applica
ble with respect to the railroad’s negligence under the
Missouri instructions. App. to Pet. for Cert. 28a–29a. The
trial court overruled the objection. App. 9–10. After the
jury returned a verdict in favor of Sorrell, Norfolk moved
for a new trial, repeating its contention that the different
standards were improper because FELA’s comparative
fault system requires that the same causation standard
apply to both categories of negligence. Id., at 20. The trial
court denied the motion. The Missouri Court of Appeals
affirmed, rejecting Norfolk’s contention that “the causa
tion standard should be the same as to the plaintiff and
the defendant.” App. to Pet. for Cert. 7a, judgt. order
reported at 170 S. W. 3d 35 (2005) (per curiam). The court
explained that Missouri procedural rules require that
where an approved instruction exists, it must be given to
the exclusion of other instructions. Ibid.; see Mo. Rule
Civ. Proc. 70.02(b) (2006).
After the Missouri Supreme Court denied discretionary
review, App. to Pet. for Cert. 31a, Norfolk sought certio
rari in this Court, asking whether the Missouri courts
erred in determining that “the causation standard for
employee contributory negligence under [FELA] differs
from the causation standard for railroad negligence.” Pet.
for Cert. i. Norfolk stated that Missouri was the only
jurisdiction to apply different standards, and that this
conflicted with several federal court of appeals decisions
insisting on a single standard of causation for both rail
road and employee negligence. See, e.g., Page v. St. Louis
——————

The contributory negligence instruction, on the other hand, has re

mained unchanged. Mo. Approved Jury Instr., Civ., No. 32.07(B) (6th

ed. 2002).

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Opinion of the Court

Southwestern R. Co., 349 F. 2d 820, 823 (CA5 1965)
(“[T]he better rule is one of a single standard”); Ganotis v.
New York Central R. Co., 342 F. 2d 767, 768–769 (CA6
1965) (per curiam) (“We do not believe that [FELA] in
tended to make a distinction between proximate cause
when considered in connection with the carrier’s negli
gence and proximate cause when considered in connection
with the employee’s contributory negligence”). In re
sponse, Sorrell did not dispute that Missouri courts apply
“different causation standards . . . to plaintiff’s and defen
dant’s negligence in FELA actions: The defendant is sub
ject to a more relaxed causation standard, but the plaintiff
is subject only to the traditional common-law standard.”
Brief in Opposition 2. We granted certiorari. 547 U. S. __
(2006).
In briefing and argument before this Court, Norfolk has
attempted to expand the question presented to encompass
what the standard of causation under FELA should be, not
simply whether the standard should be the same for rail
road negligence and employee contributory negligence. In
particular, Norfolk contends that the proximate cause
standard reflected in the Missouri instruction for em
ployee contributory negligence should apply to the rail
road’s negligence as well.
Sorrell raises both a substantive and procedural objec
tion in response. Substantively, he argues that this Court
departed from a proximate cause standard for railroad
negligence under FELA in Rogers v. Missouri Pacific R.
Co., 352 U. S. 500 (1957). There we stated:
“Under [FELA] the test of a jury case is simply
whether the proofs justify with reason the conclusion
that employer negligence played any part, even the
slightest, in producing the injury or death for which
damages are sought.
. . . . .
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Opinion of the Court

“[F]or practical purposes the inquiry in these cases to
day rarely presents more than the single question
whether negligence of the employer played any part,
however small, in the injury or death which is the
subject of the suit.” Id., at 506, 508.
Sorrell argues that these passages from Rogers have been
interpreted to mean that a plaintiff’s burden of proof on
the question whether the railroad’s negligence caused his
injury is less onerous than the proximate cause standard
prevailing at common law, citing cases such as Consoli
dated Rail Corporation v. Gottshall, 512 U. S. 532, 542–
543 (1994); Holbrook v. Norfolk Southern R. Co., 414 F. 3d
739, 741–742 (CA7 2005); Hernandez v. Trawler Miss
Vertie Mae, Inc., 187 F. 3d 432, 436 (CA4 1999); and
Summers v. Missouri Pacific R. Co., 132 F. 3d 599, 606–
607 (CA10 1997).
Norfolk counters that Rogers did not alter the estab
lished common-law rule of proximate cause, but rather
simply rejected a flawed and unduly stringent version of
the rule, the so-called “sole proximate cause” test. Accord
ing to Norfolk, while most courts of appeals may have read
Rogers as Sorrell does, several state supreme courts dis
agree, see, e.g., Chapman v. Union Pacific R. Co., 237 Neb.
617, 626–629, 467 N. W. 2d 388, 395–396 (1991); Maraz
zato v. Burlington Northern R. Co., 249 Mont. 487, 490–
491, 817 P. 2d 672, 674 (1991), and “there is a deep conflict
of authority on precisely that issue.” Reply Brief for Peti
tioner 20, n. 10.
Sorrell’s procedural objection is that we did not grant
certiorari to determine the proper standard of causation
for railroad negligence under FELA, but rather to decide
whether different standards for railroad and employee
negligence were permissible under the Act. What is more,
Norfolk is not only enlarging the question presented, but
taking a position on that enlarged question that is con
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Opinion of the Court

trary to the position it litigated below. In the Missouri
courts, Norfolk argued that Missouri applies different
standards, and that the less rigorous standard applied to
railroad negligence should also apply to employee con
tributory negligence. Thus, Norfolk did not object below
on causation grounds to the railroad liability instruction,
but only to the employee contributory negligence instruc
tion. App. 9–10. Now Norfolk wants to argue the oppo
site—that the disparity in the standards should be re
solved by applying the more rigorous contributory
negligence standard to the railroad’s negligence as well.
We agree with Sorrell that we should stick to the ques
tion on which certiorari was sought and granted. We are
typically reluctant to permit parties to smuggle additional
questions into a case before us after the grant of certiorari.
See Izumi Seimitsu Kogyo Kabushiki Kaisha v. U. S.
Philips Corp., 510 U. S. 27, 31–34 (1993) (per curiam).
Although Norfolk is doubtless correct that we could con
sider the question of what standard applies as anterior to
the question whether the standards may differ, the issue
of the substantive content of the causation standard is
significant enough that we prefer not to address it when it
has not been fully presented. We also agree with Sorrell
that it would be unfair at this point to allow Norfolk to
switch gears and seek a ruling from us that the standard
should be proximate cause across the board.
What Norfolk did argue throughout is that the instruc
tions, when given together, impermissibly created differ
ent standards of causation. It chose to present in its
petition for certiorari the more limited question whether
the courts below erred in applying standards that differ.
That is the question on which we granted certiorari and
the one we decide today.
II
In response to mounting concern about the number and
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Opinion of the Court

severity of railroad employees’ injuries, Congress in 1908
enacted FELA to provide a compensation scheme for
railroad workplace injuries, pre-empting state tort reme
dies. Second Employers’ Liability Cases, 223 U. S. 1, 53–
55 (1912). Unlike a typical workers’ compensation
scheme, which provides relief without regard to fault,
Section 1 of FELA provides a statutory cause of action
sounding in negligence:
“[E]very common carrier by railroad . . . shall be liable
in damages to any person suffering injury while he is
employed by such carrier . . . for such injury or death
resulting in whole or in part from the negligence of
any of the officers, agents, or employees of such car
rier . . . .” 45 U. S. C. §51.
FELA provides for concurrent jurisdiction of the state
and federal courts, §56, although substantively FELA
actions are governed by federal law. Chesapeake & Ohio
R. Co. v. Stapleton, 279 U. S. 587, 590 (1929). Absent
express language to the contrary, the elements of a FELA
claim are determined by reference to the common law.
Urie v. Thompson, 337 U. S. 163, 182 (1949). One notable
deviation from the common law is the abolition of the
railroad’s common-law defenses of assumption of the risk,
§54; Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54, 58
(1943), and, at issue in this case, contributory negligence,
§53.
At common law, of course, a plaintiff’s contributory
negligence operated as an absolute bar to relief. W.
Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and
Keeton on Law of Torts §65, pp. 461–462 (5th ed. 1984)
(hereinafter Prosser & Keeton); 1 D. Dobbs, Law of Torts
§199, p. 494 (2001) (hereinafter Dobbs). Under Section 3
of FELA, however, an employee’s negligence does not bar
relief but instead diminishes recovery in proportion to his
fault:
8 NORFOLK SOUTHERN R. CO. v. SORRELL

Opinion of the Court

“[In all actions under FELA], the fact that the em
ployee may have been guilty of contributory negli
gence shall not bar a recovery, but the damages shall
be diminished by the jury in proportion to the amount
of negligence attributable to such employee. . . .” 45
U. S. C. §53.
Both parties agree that at common law the causation
standards for negligence and contributory negligence were
the same. Brief for Respondent 40–41; Tr. of Oral Arg.
46–48. As explained in the Second Restatement of Torts:
“The rules which determine the causal relation be
tween the plaintiff’s negligent conduct and the harm
resulting to him are the same as those determining
the causal relation between the defendant’s negligent
conduct and resulting harm to others.” §465(2), p. 510
(1964).
See also Prosser & Keeton §65, at 456; Dobbs §199, at 497
(“The same rules of proximate cause that apply on the
issue of negligence also apply on the issue of contributory
negligence” (footnote omitted)). This was the prevailing
view when FELA was enacted in 1908. See 1 T. Shearman
& A. Redfield, A Treatise on the Law of Negligence §94,
pp. 143–144 (5th ed. 1898) (“The plaintiff’s fault . . . must
be a proximate cause, in the same sense in which the
defendant’s negligence must have been a proximate cause
in order to give any right of action”).
Missouri’s practice of applying different causation stan
dards in FELA actions is apparently unique. Norfolk
claims that Missouri is the only jurisdiction to allow such
a disparity, and Sorrell has not identified another.2 It is of
——————
2Areview of model and pattern jury instructions in FELA actions
reveals a variety of approaches. Some jurisdictions recommend using
the “in whole or in part” or “in any part” formulation for both railroad
negligence and plaintiff contributory negligence, by using the same
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Opinion of the Court

course possible that everyone is out of step except Mis
——————
language in the respective pattern instructions, including a third
instruction that the same causation standard is applied to both parties,
or including in commentary an admonition to that effect. See, e.g., 5 L.
Sand, J. Siffert, W. Loughlin, S. Reiss, & N. Batterman, Modern Fed
eral Jury Instructions—Civil ¶¶89.02–89.03, pp. 89–7, 89–44, 89–53
(3d ed. 2006); 4 Fla. Forms of Jury Instruction §§161.02, 161.47, 161.60
(2006); Cal. Jury Instr., Civ., Nos. 11.07, 11.14, and Comment (2005); 3
Ill. Forms of Jury Instruction §§91.02[1], 91.50[1] (2005); 3 N. M. Rules
Ann., Uniform Jury Instr., Civ., Nos. 13–905, 13–909, 13–915 (2004);
Model Utah Jury Instr., Civ., Nos. 14.4, 14.7, 14.8 (1993 ed.); Manual of
Model Civil Jury Instructions for the District Courts of the Eighth
Circuit §7.03, and n. 7 (2005); Eleventh Circuit Pattern Jury Instruc
tions (Civil Cases) §7.1 (2005). Other jurisdictions use the statutory
formulation (“in whole or in part”) for railroad negligence, and do not
contain a pattern instruction for contributory negligence. See, e.g.,
Mich. Non-Standard Jury Instr., Civ., §12:53 (Supp. 2006 ). Both
Alabama and Virginia use formulations containing language of both
proximate cause and in whole or in part. 1 Ala. Pattern Jury Instr.,
Civ., Nos. 17.01, 17.05 (2d ed. 1993) (railroad negligence “proximately
caused, in whole or in part”; plaintiff contributory negligence “proxi
mately contributed to cause”); 1 Va. Jury Instructions §§40.01, 40.02
(3d ed. 1998) (railroad negligence “in whole or in part was the proxi
mate cause of or proximately contributed to cause,” plaintiff negligence
“contributed to cause”). In New York, the pattern instructions provide
that railroad causation is measured by whether the injury results “in
whole or in part” from the railroad’s negligence, and a plaintiff’s con
tributory negligence diminishes recovery if it “contributed to caus[e]”
the injury. 1B N. Y. Pattern Jury Instr., Civ., No. 2:180 (3d ed. 2006).
Montana provides only a general FELA causation instruction. Mont.
Pattern Instr., Civ., No. 6.05 (1997) (“[A]n act or a failure to act is the
cause of an injury if it plays a part, no matter how small, in bringing
about the injury”). Kansas has codified instructions similar to Mis
souri’s, Kan. Pattern Instr. 3d, Civ., No. 132.01 (2005) (railroad liable
when injury “results in whole or in part” from railroad’s negligence);
id., No. 132.20 (contributory negligence is negligence on the part of the
plaintiff that “contributes as a direct cause” of the injury), but the
commentary to these instructions cites cases and instructions applying
a single standard, id., No. 132.01, and Comment, and in practice the
Kansas courts have used the language of in whole or in part for both
parties’ negligence. See Merando v. Atchison, T. & S. F. R. Co., 232
Kan. 404, 406–409, 656 P. 2d 154, 157–158 (1982).
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Opinion of the Court

souri, but we find no basis for concluding that Congress in
FELA meant to allow disparate causation standards.
We have explained that “although common-law princi
ples are not necessarily dispositive of questions arising
under FELA, unless they are expressly rejected in the text
of the statute, they are entitled to great weight in our
analysis.” Gottshall, 512 U. S., at 544. In Gottshall we
“cataloged” the ways in which FELA expressly departed
from the common law: it abolished the fellow servant rule,
rejected contributory negligence in favor of comparative
negligence, prohibited employers from contracting around
the Act, and abolished the assumption of risk defense.
Norfolk & Western R. Co. v. Ayers, 538 U. S. 135, 145
(2003); Gottshall, supra, at 542–543. The fact that the
common law applied the same causation standard to
defendant and plaintiff negligence, and FELA did not
expressly depart from that approach, is strong evidence
against Missouri’s disparate standards. See also Mones
sen Southwestern R. Co. v. Morgan, 486 U. S. 330, 337–
338 (1988) (holding that, because FELA abrogated some
common-law rules explicitly but did not address “the
equally well-established doctrine barring the recovery of
prejudgment interest, . . . we are unpersuaded that Con
gress intended to abrogate that doctrine sub silentio”).
Departing from the common-law practice of applying a
single standard of causation for negligence and contribu
tory negligence would have been a peculiar approach for
Congress to take in FELA. As one court explained, under
FELA,
“[a]s to both attack or defense, there are two common
elements, (1) negligence, i.e., the standard of care, and
(2) causation, i.e., the relation of the negligence to the
injury. So far as negligence is concerned, that stan
dard is the same—ordinary prudence—for both Em
ployee and Railroad alike. Unless a contrary result is
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Opinion of the Court

imperative, it is, at best, unfortunate if two standards
of causation are used.” Page, 349 F. 2d, at 823.
As a practical matter, it is difficult to reduce damages
“in proportion” to the employee’s negligence if the rele
vance of each party’s negligence to the injury is measured
by a different standard of causation. Norfolk argues,
persuasively we think, that it is far simpler for a jury to
conduct the apportionment FELA mandates if the jury
compares like with like—apples to apples.
Other courts to address this question concur. See
Fashauer v. New Jersey Transit Rail Operations, Inc., 57
F. 3d 1269, 1282–1283 (CA3 1995); Caplinger v. Northern
Pacific Terminal, 244 Ore. 289, 290–292, 418 P. 2d 34, 35–
36 (1966) (in banc); Page, supra, at 822–823; Ganotis, 342
F. 2d, at 768–769.3 The most thoughtful treatment comes
in Page, in which the Fifth Circuit stated: “[W]e think that
from the very nature of comparative negligence, the stan
dard of causation should be single. . . . Use of the terms ‘in
proportion to’ and ‘negligence attributable to’ the injured
worker inescapably calls for a comparison. . . . [I]t is obvi
ous that for a system of comparative fault to work, the
basis of comparison has to be the same.” 349 F. 2d, at 824.
See also Restatement (Third) of Torts: Apportionment of
Liability §3, Reporters’ Note, p. 37, Comment a (1999)
(“[C]omparative responsibility is difficult to administer
——————
3 See also Bunting v. Sun Co., Inc., 434 Pa. Super. 404, 409–411, 643
A. 2d 1085, 1088 (1994); Hickox v. Seaboard System R. Co., 183 Ga.
App. 330, 331–332, 358 S. E. 2d 889, 891–892 (1987). An exception is a
Texas case that no court has since cited for the proposition, Missouri-
Kansas-Texas R. Co. v. H. T. Shelton, 383 S. W. 2d 842, 844–846 (Civ.
App. 1964), and that the Texas model jury instructions, which instruct
the jury to determine plaintiff or railroad negligence using a single “in
whole or in part” causation standard, at least implicitly disavow. See
10 West’s Texas Forms: Civil Trial and Appellate Practice §23.34, p. 27
(3d ed. 2000) (“Did the negligence, if any, of the [plaintiff or railroad]
cause, in whole or in part, the occurrence in question?”).
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Opinion of the Court

when different rules govern different parts of the same
lawsuit”). We appreciate that there may well be reason to
“doubt that such casuistries have any practical signifi
cance [for] the jury,” Page, supra, at 823, but it seems to
us that Missouri’s idiosyncratic approach of applying
different standards of causation unduly muddies what
may, to a jury, be already murky waters.
Sorrell argues that FELA does contain an explicit statu
tory alteration from the common-law rule: Section 1 of
FELA—addressing railroad negligence—uses the language
“in whole or in part,” 45 U. S. C. §51, while Section 3—
covering employee contributory negligence—does not, §53.
This, Sorrell contends, evinces an intent to depart from
the common-law causation standard with respect to rail
road negligence under Section 1, but not with respect to
any employee contributory negligence under Section 3.
The inclusion of this language in one section and not the
other does not alone justify a departure from the common-
law practice of applying a single standard of causation. It
would have made little sense to include the “in whole or in
part” language in Section 3, because if the employee’s
contributory negligence contributed “in whole” to his
injury, there would be no recovery against the railroad in
the first place. The language made sense in Section 1,
however, to make clear that there could be recovery against
the railroad even if it were only partially negligent.
Even if the language in Section 1 is understood to ad
dress the standard of causation, and not simply to reflect
the fact that contributory negligence is no longer a com
plete bar to recovery, there is no reason to read the statute
as a whole to encompass different causation standards.
Section 3 simply does not address causation. On the
question whether a different standard of causation applies
as between the two parties, the statutory text is silent.
Finally, in urging that a higher standard of causation
for plaintiff contributory negligence is acceptable, Sorrell
 Cite as: 549 U. S. ____ (2007) 13

Opinion of the Court

invokes FELA’s remedial purpose and our history of lib
eral construction. We are not persuaded. FELA was
indeed enacted to benefit railroad employees, as the ex
press abrogation of such common-law defenses as assump
tion of risk, the contributory negligence bar, and the fellow
servant rule make clear. See Ayers, 538 U. S., at 145. It
does not follow, however, that this remedial purpose re
quires us to interpret every uncertainty in the Act in favor
of employees. See Rodriguez v. United States, 480 U. S.
522, 526 (1987) (per curiam) (“[I]t frustrates rather than
effectuates legislative intent simplistically to assume that
whatever furthers the statute’s primary objective must be
the law”). FELA’s text does not support the proposition
that Congress meant to take the unusual step of applying
different causation standards in a comparative negligence
regime, and the statute’s remedial purpose cannot com
pensate for the lack of a statutory basis.
We conclude that FELA does not abrogate the common-
law approach, and that the same standard of causation
applies to railroad negligence under Section 1 as to plain
tiff contributory negligence under Section 3. Sorrell does
not dispute that Missouri applies different standards, see
Brief for Respondent 40–41; see also Mo. Approved Jury
Instr., Civ., No. 24.01, Committee’s Comment (1978 New),
and accordingly we vacate the judgment below and re
mand the case for further proceedings.
The question presented in this case is a narrow one, and
we see no need to do more than answer that question in
today’s decision. As a review of FELA model instructions
indicates, n. 2, supra, there are a variety of ways to in
struct a jury to apply the same causation standard to
railroad negligence and employee contributory negligence.
Missouri has the same flexibility as the other States in
deciding how to do so, so long as it now joins them in
applying a single standard.
Sorrell maintains that even if the instructions improp
14 NORFOLK SOUTHERN R. CO. v. SORRELL

Opinion of the Court

erly contained different causation standards we should
nonetheless affirm because any error was harmless. He
argues that the evidence of his negligence presented at
trial, if credited by the jury, could only have been a “di
rect” cause, so that even with revised instructions the
result would not change. This argument is better ad
dressed by the Missouri Court of Appeals, and we leave it
to that court on remand to determine whether a new trial
is required in this case.
The judgment of the Missouri Court of Appeals is va
cated, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.
 Cite as: 549 U. S. ____ (2007) 1

SOUTER, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–746
_________________

NORFOLK SOUTHERN RAILWAY COMPANY, PETI-

TIONER v. TIMOTHY SORRELL

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MISSOURI, EASTERN DISTRICT

[January 10, 2007]

JUSTICE SOUTER, with whom JUSTICE SCALIA and
JUSTICE ALITO join, concurring.
I agree that the same standard of causal connection
controls the recognition of both a defendant-employer’s
negligence and a plaintiff-employee’s contributory negli
gence in Federal Employers’ Liability Act (FELA) suits,
and I share the Court’s caution in remanding for the Mis
souri Court of Appeals to determine in the first instance
just what that common causal relationship must be, if it
should turn out that the difference in possible standards
would affect judgment on the verdict in this case.
The litigation in the Missouri courts did not focus on the
issue of what the shared standard should be, and the
submissions in this Court did not explore the matter
comprehensively.
The briefs and arguments here did, however, adequately
address the case of ours with which exploration will begin,
and I think it is fair to say a word about the holding in
Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957).
Despite some courts’ views to the contrary,* Rogers did not
——————
* Recently, some courts have taken the view that Rogers smuggled
proximate cause out of the concept of defendant liability under FELA.
See, e.g., Holbrook v. Norfolk Southern R. Co., 414 F. 3d 739, 741–742
(CA7 2005) (concluding that “a plaintiff’s burden when suing under the
FELA is significantly lighter than in an ordinary negligence case”
2 NORFOLK SOUTHERN R. CO. v. SORRELL

SOUTER, J., concurring

address, much less alter, existing law governing the de
gree of causation necessary for redressing negligence as
the cause of negligently inflicted harm; the case merely
instructed courts how to proceed when there are multiple
cognizable causes of an injury.
Prior to FELA, it was clear common law that a plaintiff
had to prove that a defendant’s negligence caused his
injury proximately, not indirectly or remotely. See, e.g., 3
J. Lawson, Rights, Remedies, and Practice 1740 (1890)
(“Natural, proximate, and legal results are all that dam
ages can be recovered for, even under a statute entitling
one ‘to recover any damage’ ”); T. Cooley, Law of Torts 73
(2d ed. 1888) (same). Defendants were held to the same

——————
because “a railroad will be held liable where ‘employer negligence
played any part, even the slightest, in producing the injury’ ” (quoting
Rogers, 352 U. S., at 506)); Summers v. Missouri Pacific R. Co., 132
F. 3d 599, 606–607 (CA10 1997) (holding that, in Rogers, the Supreme
Court “definitively abandoned” the requirement of proximate cause in
FELA suits); Oglesby v. Southern Pacific Transp. Co., 6 F. 3d 603, 606–
609 (CA9 1993) (same). But several State Supreme Courts have
explicitly or implicitly espoused the opposite view. See Marazzato v.
Burlington No. R., Co., 249 Mont. 487, 490–491, 817 P. 2d 672, 674–675
(1991) (Rogers addressed multiple causation only, leaving FELA
plaintiffs with “the burden of proving that defendant’s negligence was
the proximate cause in whole or in part of plaintiff’s [death]” (alteration
in original)); see also Gardner v. CSX Transp., Inc., 201 W. Va. 490,
500, 498 S. E. 2d 473, 483 (1997) (“[T]o prevail on a claim under
[FELA], a plaintiff employee must establish that the defendant em
ployer acted negligently and that such negligence contributed proxi
mately, in whole or in part, to plaintiff’s injury”); Snipes v. Chicago
Central & Pacific R. Co., 484 N. W. 2d 162, 164 (Iowa 1992) (“Recovery
under the FELA requires an injured employee to prove that the defen
dant employer was negligent and that the negligence proximately
caused, in whole or in part, the accident”); Chapman v. Union Pacific
R. Co., 237 Neb. 617, 627, 467 N. W. 2d 388, 395 (1991) (“To recover
under [FELA], an employee must prove the employer’s negligence and
that the alleged negligence is a proximate cause of the employee’s
injury”).
 Cite as: 549 U. S. ____ (2007) 3

SOUTER, J., concurring

standard: under the law of that day, a plaintiff’s contribu
tory negligence was an absolute bar to his recovery if, but
only if, it was a proximate cause of his harm. See Grand
Trunk R. Co. v. Ives, 144 U. S. 408, 429 (1892).
FELA changed some rules but, as we have said more
than once, when Congress abrogated common law rules in
FELA, it did so expressly. Norfolk & Western R. Co. v.
Ayers, 538 U. S. 135, 145 (2003); Consolidated Rail Corpo
ration v. Gottshall, 512 U. S. 532, 544 (1994); see also
Second Employers’ Liability Cases, 223 U. S. 1, 49–50
(1912) (cataloguing FELA’s departures from the common
law). Among FELA’s explicit common law targets, the
rule of contributory negligence as a categorical bar to a
plaintiff’s recovery was dropped and replaced with a com
parative negligence regime. 45 U. S. C. §53; see Grand
Trunk Western R. Co. v. Lindsay, 233 U. S. 42, 49 (1914).
FELA said nothing, however, about the familiar proximate
cause standard for claims either of a defendant-employer’s
negligence or a plaintiff-employee’s contributory negli
gence, and throughout the half-century between FELA’s
enactment and the decision in Rogers, we consistently
recognized and applied proximate cause as the proper
standard in FELA suits. See, e.g., Tennant v. Peoria &
Pekin Union R. Co., 321 U. S. 29, 32 (1944) (FELA plain
tiff must prove that “negligence was the proximate cause
in whole or in part” of his injury); see also Urie v. Thomp
son, 337 U. S. 163, 195 (1949) (recognizing proximate
cause as the appropriate standard in FELA suits); St.
Louis-San Francisco R. Co. v. Mills, 271 U. S. 344 (1926)
(judgment as a matter of law owing to FELA plaintiff’s
failure to prove proximate cause).
Rogers left this law where it was. We granted certiorari
in Rogers to establish the test for submitting a case to a
jury when the evidence would permit a finding that an
injury had multiple causes. 352 U. S., at 501, 506. We
rejected Missouri’s “language of proximate causation
4 NORFOLK SOUTHERN R. CO. v. SORRELL

SOUTER, J., concurring

which ma[de] a jury question [about a defendant’s liabil
ity] dependent upon whether the jury may find that the
defendant’s negligence was the sole, efficient, producing
cause of injury.” Id., at 506. The notion that proximate
cause must be exclusive proximate cause undermined
Congress’s chosen scheme of comparative negligence by
effectively reviving the old rule of contributory negligence
as barring any relief, and we held that a FELA plaintiff
may recover even when the defendant’s action was a par
tial cause of injury but not the sole one. Recovery under
the statute is possible, we said, even when an employer’s
contribution to injury was slight in relation to all other
legally cognizable causes.
True, I would have to stipulate that clarity was not well
served by the statement in Rogers that a case must go to a
jury where “the proofs justify with reason the conclusion
that employer negligence played any part, even the slight
est, in producing the injury or death for which damages
are sought.” Ibid. But that statement did not address and
should not be read as affecting the necessary directness of
cognizable causation, as distinct from the occasional mul
tiplicity of causations. It spoke to apportioning liability
among parties, each of whom was understood to have had
some hand in causing damage directly enough to be what
the law traditionally called a proximate cause.
The absence of any intent to water down the common
law requirement of proximate cause is evident from the
prior cases on which Rogers relied. To begin with, the
“any part, even the slightest” excerpt of the opinion (cited
by respondent in arguing that Rogers created a more
“relaxed” standard of causation than proximate cause)
itself cited Coray v. Southern Pacific Co., 335 U. S. 520
(1949). See Rogers, supra, at 506, n. 11. There, just eight
years before Rogers, Justice Black unambiguously recog
nized proximate cause as the standard applicable in FELA
suits. 335 U. S., at 523 (“[P]etitioner was entitled to re
 Cite as: 549 U. S. ____ (2007) 5

SOUTER, J., concurring

cover if this defective equipment was the sole or a con
tributory proximate cause of the decedent employee’s
death”). Second, the Rogers Court’s discussion of causa
tion under “safety-appliance statutes” contained a cross-
reference to Coray and a citation to Carter v. Atlanta & St.
Andrews Bay R. Co., 338 U. S. 430 (1949), a case which
likewise held there was liability only if “the jury deter
mines that the defendant’s breach is a ‘contributory
proximate cause’ of injury,” id., at 435. Rogers, supra, at
507, n. 13.
If more were needed to confirm the limited scope of what
Rogers held, the Court’s quotation of the Missouri trial
court’s jury charge in that case would supply it, for the
instructions covered the requirement to show proximate
cause connecting negligence and harm, a point free of
controversy:
“ ‘[I]f you further find that the plaintiff . . . did not ex
ercise ordinary care for his own safety and was guilty
of negligence and that such negligence, if any[,] was
the sole proximate cause of his injuries, if any, and
that such alleged injuries, if any, were not directly
contributed to or caused by any negligence of the de
fendant . . . then, in that event, the plaintiff is not en
titled to recover against the defendant, and you will
find your verdict in favor of the defendant.’ ” 352
U. S., at 505, n. 9.
Thus, the trial judge spoke of “proximate cause” by plain
tiff’s own negligence, and for defendant’s negligence used
the familiar term of art for proximate cause, in referring to
a showing that the defendant “directly contributed to or
caused” the plaintiff’s injuries. We took no issue with the
trial court’s instruction in this respect, but addressed the
significance of multiple causations, as explained above.
Whether FELA is properly read today as requiring proof
of proximate causation before recognizing negligence is up
6 NORFOLK SOUTHERN R. CO. v. SORRELL

SOUTER, J., concurring

to the Missouri Court of Appeals to determine in the first
instance, if necessary for the resolution of this case on
remand. If the state court decides to take on that issue, it
will necessarily deal with Rogers, which in my judgment is
no authority for anything less than proximate causation in
an action under FELA. The state court may likewise need
to address post-Rogers cases (including some of our own); I
do not mean to suggest any view of them except for the
misreading of Rogers expressed here and there.
 Cite as: 549 U. S. ____ (2007) 1

GINSBURG, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 05–746
_________________

NORFOLK SOUTHERN RAILWAY COMPANY, PETI-

TIONER v. TIMOTHY SORRELL

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MISSOURI, EASTERN DISTRICT

[January 10, 2007]

JUSTICE GINSBURG, concurring in the judgment.
The Court today holds simply and only that in cases
under the Federal Employers’ Liability Act (FELA), rail
road negligence and employee contributory negligence are
governed by the same causation standard. I concur in that
judgment. It should be recalled, however, that the Court
has several times stated what a plaintiff must prove to
warrant submission of a FELA case to a jury. That ques
tion is long settled, we have no cause to reexamine it, and
I do not read the Court’s decision to cast a shadow of doubt
on the matter.
In Consolidated Rail Corporation v. Gottshall, 512 U. S.
532, 543 (1994), we acknowledged that “a relaxed causa
tion standard applies under FELA.” Decades earlier, in
Crane v. Cedar Rapids & Iowa City R. Co., 395 U. S. 164
(1969), we said that a FELA plaintiff need prove “only that
his injury resulted in whole or in part from the railroad’s
violation.” Id., at 166 (internal quotation marks omitted).
Both decisions referred to the Court’s oft-cited opinion in
Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957),
which declared: “Under [FELA] the test of a jury case is
simply whether the proofs justify with reason the conclu
sion that employer negligence played any part, even the
slightest, in producing the injury or death for which dam
ages are sought.” Id., at 506 (emphasis added). Rogers, in
2 NORFOLK SOUTHERN R. CO. v. SORRELL

GINSBURG, J., concurring in judgment

turn, drew upon Coray v. Southern Pacific Co., 335 U. S.
520, 524 (1949), in which the Court observed: “Congress
. . . imposed extraordinary safety obligations upon rail
roads and has commanded that if a breach of these obliga
tions contributes in part to an employee’s death, the rail
road must pay damages.”
These decisions answer the question Norfolk sought to
“smuggle . . . into” this case, see ante, at 5–6, i.e., what is
the proper standard of causation for railroad negligence
under FELA. Today’s opinion leaves in place precedent
solidly establishing that the causation standard in FELA
actions is more “relaxed” than in tort litigation generally.
A few further points bear emphasis. First, it is some
times said that Rogers eliminated proximate cause in
FELA actions. See, e.g., Crane, 395 U. S., at 166 (A FELA
plaintiff “is not required to prove common-law proximate
causation.”); Summers v. Missouri Pacific R. Co., 132 F. 3d
599, 606 (CA10 1997) (“During the first half of this cen
tury, it was customary for courts to analyze liability under
. . . FELA in terms of proximate causation. However, the
Supreme Court definitively abandoned this approach in
Rogers.” (citation omitted)); Oglesby v. Southern Pacific
Transp. Co., 6 F. 3d 602, 609 (CA9 1993) (“[Our] holding is
consistent with the case law of several other circuits which
have found [that] ‘proximate cause’ is not required to
establish causation under the FELA.”). It would be more
accurate, as I see it, to recognize that Rogers describes the
test for proximate causation applicable in FELA suits.
That test is whether “employer negligence played any
part, even the slightest, in producing the injury or death
for which damages are sought.” 352 U. S., at 506.
Whether a defendant’s negligence is a proximate cause
of the plaintiff’s injury entails a judgment, at least in part
policy based, as to how far down the chain of consequences
a defendant should be held responsible for its wrongdoing.
See Palsgraf v. Long Island R. Co., 248 N. Y. 339, 352, 162
 Cite as: 549 U. S. ____ (2007) 3

GINSBURG, J., concurring in judgment

N. E. 99, 103 (1928) (Andrews, J., dissenting) (“What we
do mean by the word ‘proximate’ is, that because of con
venience, of public policy, of a rough sense of justice, the
law arbitrarily declines to trace a series of events beyond a
certain point.”). In FELA cases, strong policy considera
tions inform the causation calculus.
FELA was prompted by concerns about the welfare of
railroad workers. “Cognizant of the physical dangers of
railroading that resulted in the death or maiming of thou
sands of workers every year,” and dissatisfied with the
tort remedies available under state common law, “Con
gress crafted a federal remedy that shifted part of the
human overhead of doing business from employees to their
employers.” Gottshall, 512 U. S., at 542 (internal quota
tion marks omitted); see also Wilkerson v. McCarthy, 336
U. S. 53, 68 (1949) (Douglas, J., concurring) (FELA “was
designed to put on the railroad industry some of the cost
for the legs, eyes, arms, and lives which it consumed in its
operations.”). “We have liberally construed FELA to fur
ther Congress’ remedial goal.” Gottshall, 512 U. S., at
543. With the motivation for FELA center stage in Rogers,
we held that a FELA plaintiff can get to a jury if he can
show that his employer’s negligence was even the slightest
cause of his injury.
The “slightest” cause sounds far less exacting than
“proximate” cause, which may account for the statements
in judicial opinions that Rogers dispensed with proximate
cause for FELA actions. These statements seem to me
reflective of pervasive confusion engendered by the term
“proximate cause.” As Prosser and Keeton explains:
“The word ‘proximate’ is a legacy of Lord Chancellor
Bacon, who in his time committed other sins. The
word means nothing more than near or immediate;
and when it was first taken up by the courts it had
connotations of proximity in time and space which
4 NORFOLK SOUTHERN R. CO. v. SORRELL

GINSBURG, J., concurring in judgment

have long since disappeared. It is an unfortunate
word, which places an entirely wrong emphasis upon
the factor of physical or mechanical closeness. For
this reason ‘legal cause’ or perhaps even ‘responsible
cause’ would be a more appropriate term.” W. Keeton,
D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton
on Law of Torts §42, p. 273 (5th ed. 1984) (footnotes
omitted).
If we take up Prosser and Keeton’s suggestion to substi
tute “legal cause” for “proximate cause,” we can state
more clearly what Rogers held: Whenever a railroad’s
negligence is the slightest cause of the plaintiff’s injury, it
is a legal cause, for which the railroad is properly held
responsible.1
If the term “proximate cause” is confounding to jurists,
it is even more bewildering to jurors. Nothing in today’s
opinion should encourage courts to use “proximate cause,”
or any term like it, in jury instructions. “[L]egal concepts
such as ‘proximate cause’ and ‘foreseeability’ are best left
to arguments between attorneys for consideration by
judges or justices; they are not terms which are properly
submitted to a lay jury, and when submitted can only
serve to confuse jurors and distract them from deciding
cases based on their merits.” Busta v. Columbus Hospital
Corp., 276 Mont. 342, 371, 916 P. 2d 122, 139 (1996).
Accord Mitchell v. Gonzales, 54 Cal. 3d 1041, 1050, 819
P. 2d 872, 877 (1991) (“It is reasonably likely that when
jurors hear the term ‘proximate cause’ they may misun
derstand its meaning.”).2
——————
1 I do not read JUSTICE SOUTER’s concurring opinion as taking a posi

tion on the appropriate causation standard as expressed in Consoli
dated Rail Corporation v. Gottshall, 512 U. S. 532 (1994), and Crane v.
Cedar Rapids & Iowa City R. Co., 395 U. S. 164 (1969). See supra, at
1–2.
2 See also Stapleton, Legal Cause: Cause-in-Fact and the Scope of

Liability for Consequences, 54 Vand. L. Rev. 941, 987 (2001) (“[T]he
 Cite as: 549 U. S. ____ (2007) 5

GINSBURG, J., concurring in judgment

Sound jury instructions in FELA cases would resemble
the model federal charges cited in the Court’s opinion.
Ante, at 8, n. 2. As to railroad negligence, the relevant
instruction tells the jury:
“The fourth element [of a FELA action] is whether
an injury to the plaintiff resulted in whole or in part
from the negligence of the railroad or its employees or
agents. In other words, did such negligence play any
part, even the slightest, in bringing about an injury to
the plaintiff?” 5 L. Sand, J. Siffert, W. Loughlin, S.
Reiss, & N. Batterman, Modern Federal Jury Instruc
tions—Civil ¶89.02, p. 89–44 (3d ed. 2006).
Regarding contributory negligence, the relevant instruc
tion reads:
“To determine whether the plaintiff was ‘contributo
rily negligent,’ you . . . apply the same rule of causa
tion, that is, did the plaintiff’s negligence, if any, play
any part in bringing about his injuries.” Id., ¶89.03,
p. 89–53.
Both instructions direct jurors in plain terms that they
can be expected to understand.
Finally, as the Court notes, ante, at 13–14, on remand,
the Missouri Court of Appeals will determine whether a
new trial is required in this case, owing to the failure of
the trial judge properly to align the charges on negligence
and contributory negligence. The trial court instructed
the jury to find Norfolk liable if the railroad’s negligence
“resulted in whole or in part in injury to plaintiff.” App.
——————
inadequacy and vagueness of jury instructions on ‘proximate cause’ is
notorious.”); Cork, A Better Orientation for Jury Instructions, 54
Mercer L. Rev. 1, 53–54 (2002) (criticizing Georgia’s jury instruction on
proximate cause as incomprehensible); Steele & Thornburg, Jury
Instructions: A Persistent Failure to Communicate, 67 N. C. L. Rev.
77 (1988) (demonstrating juror confusion about proximate cause
instructions).
6 NORFOLK SOUTHERN R. CO. v. SORRELL

GINSBURG, J., concurring in judgment

14. In contrast, the court told the jury to find Sorrell
contributorily negligent only if he engaged in negligent
conduct that “directly contributed to cause his injury.” Id.,
at 15 (emphasis added). At trial, Norfolk sought a differ
ent contributory negligence instruction. Its proposed
charge would have informed the jury that Sorrell could be
held responsible, at least in part, if his own negligence
“contributed in whole or in part to cause his injury.” Id.,
at 11.
Norfolk’s proposal was superior to the contributory
negligence instruction in fact delivered by the trial court,
for the railroad’s phrasing did not use the word “directly.”3
As Sorrell points out, however, the instructional error was
almost certainly harmless. Norfolk alleged that Sorrell
drove his truck negligently, causing it to flip on its side.
Under the facts of this case, it is difficult to imagine that a
jury could find Sorrell negligent in a manner that contrib
uted to his injury, but only indirectly.
Norfolk urged in this Court, belatedly and unsuccess
fully, that the charge on negligence was erroneous and
should have been revised to conform to the charge in fact
delivered on contributory negligence. See ante, at 4. That
argument cannot be reconciled with our precedent. See
supra, at 1–2. Even if it could, it would be unavailing in
the circumstances here presented. Again, there is little
likelihood that a jury could find that Norfolk’s negligence
contributed to Sorrell’s injury, but only indirectly.
* * *
With the above-described qualifications, I concur in the
Court’s judgment.

——————
3 Norfolk’s
proposed instruction was, nevertheless, imperfect. As the
Court notes, if the employee’s negligence “contributed ‘in whole’ to his
injury, there would be no recovery against the railroad in the first
place.” Ante, at 12.