(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 railroad (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 negligence and employee contributory negligence in FELA actions. An 

employee will be found contributorily negligent if his negligence “directly 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 objection 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 affirmed, rejecting Norfolk’s contention that the same causation standard should apply to both parties’ negligence. 

Held: 

1. Norfolk’s attempt to expand the question presented to encompass 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 causation 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 under 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 approach. This is strong evidence against Missouri’s practice of applying 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 contributory 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” language in Section 3; 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 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 different causation standards, since Section 3 simply does not address causation. Finally, FELA’s remedial purpose cannot compensate for the 

lack of statutory text: FELA does not abrogate the common-law approach. A review of FELA model instructions indicates that there are 

a variety of ways to instruct a jury to apply the same causation standard 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 standard. On remand, the Missouri Court of Appeals should address 

Sorrell’s argument that any error in the jury instructions was harmless, 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, Washington, 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, PETITIONER 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 negligence” 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 instructions reflected a more lenient causation standard for 

railroad negligence than for employee contributory negligence. We conclude that the causation standard under 

FELA should be the same for both categories of negligence, and accordingly vacate the decision below and

remand for further proceedings. 
2 NORFOLK SOUTHERN R. CO. v. SORRELL 

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 somehow 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 responded that Sorrell’s own negligence caused the accident. 

Missouri purports to apply different standards of causation to railroad and employee contributory negligence in 

its approved jury instructions for FELA liability. The 

instructions direct a jury to find an employee contributorily negligent if the employee was negligent and his negligence “directly contributed to cause” the injury, Mo. Approved 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 

—————— 

1Missouri 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 instruction for employee contributory negligence, Norfolk objected 

on the ground that it provided a “different” and “much

more exacting” standard for causation than that applicable 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 causation 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 certiorari 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 railroad and employee negligence. See, e.g., Page v. St. Louis 

—————— 

The contributory negligence instruction, on the other hand, has remained unchanged. Mo. Approved Jury Instr., Civ., No. 32.07(B) (6th 

ed. 2002). 
4 NORFOLK SOUTHERN R. CO. v. SORRELL 

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] intended to make a distinction between proximate cause 

when considered in connection with the carrier’s negligence and proximate cause when considered in connection

with the employee’s contributory negligence”). In response, Sorrell did not dispute that Missouri courts apply

“different causation standards . . . to plaintiff’s and defendant’s negligence in FELA actions: The defendant is subject 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 railroad negligence and employee contributory negligence. In

particular, Norfolk contends that the proximate cause 

standard reflected in the Missouri instruction for employee contributory negligence should apply to the railroad’s negligence as well.

Sorrell raises both a substantive and procedural objection 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. 

. . . . . 
Cite as: 549 U. S. ____ (2007) 5 

Opinion of the Court 

“[F]or practical purposes the inquiry in these cases today 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 Consolidated 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 established 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. According to Norfolk, while most courts of appeals may have read 

Rogers as Sorrell does, several state supreme courts disagree, see, e.g., Chapman v. Union Pacific R. Co., 237 Neb. 

617, 626–629, 467 N. W. 2d 388, 395–396 (1991); Marazzato 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 Petitioner 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-
6 NORFOLK SOUTHERN R. CO. v. SORRELL 

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 contributory negligence. Thus, Norfolk did not object below

on causation grounds to the railroad liability instruction, 

but only to the employee contributory negligence instruction. App. 9–10. Now Norfolk wants to argue the opposite—that the disparity in the standards should be resolved 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 question 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 consider 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 instructions, when given together, impermissibly created different 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 
Cite as: 549 U. S. ____ (2007) 7 

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 remedies. 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 carrier . . . .” 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 employee may have been guilty of contributory negligence 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 between 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 standards 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 

—————— 

2A review 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 
Cite as: 549 U. S. ____ (2007) 9 

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 Federal 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 Instructions (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 “proximately contributed to cause”); 1 Va. Jury Instructions §§40.01, 40.02

(3d ed. 1998) (railroad negligence “in whole or in part was the proximate 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 contributory 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 Missouri’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). 
10 NORFOLK SOUTHERN R. CO. v. SORRELL 

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 principles 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 Monessen 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 Congress intended to abrogate that doctrine sub silentio”).

Departing from the common-law practice of applying a

single standard of causation for negligence and contributory 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 standard is the same—ordinary prudence—for both Employee and Railroad alike. Unless a contrary result is 
Cite as: 549 U. S. ____ (2007) 11 

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 relevance 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 standard 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 obvious 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 

—————— 

3See 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, MissouriKansas-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?”). 
12 NORFOLK SOUTHERN R. CO. v. SORRELL 

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 significance [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 statutory 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 railroad 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 commonlaw 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 address the standard of causation, and not simply to reflect 

the fact that contributory negligence is no longer a complete 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 liberal construction. We are not persuaded. FELA was 

indeed enacted to benefit railroad employees, as the express abrogation of such common-law defenses as assumption 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 requires 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 compensate for the lack of a statutory basis. 

We conclude that FELA does not abrogate the commonlaw approach, and that the same standard of causation

applies to railroad negligence under Section 1 as to plaintiff 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 remand 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 instruct 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 “direct” cause, so that even with revised instructions the 

result would not change. This argument is better addressed 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 vacated, 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, PETITIONER 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 negligence in Federal Employers’ Liability Act (FELA) suits, 

and I share the Court’s caution in remanding for the Missouri 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 degree 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 damages 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 employer acted negligently and that such negligence contributed proximately, 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 defendant 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 contributory 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 Corporation 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 comparative 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 negligence, 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 plaintiff must prove that “negligence was the proximate cause 

in whole or in part” of his injury); see also Urie v. Thompson, 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 liability] 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 partial 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 slightest, 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 multiplicity 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 recognized 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 contributory proximate cause of the decedent employee’s

death”). Second, the Rogers Court’s discussion of causation under “safety-appliance statutes” contained a crossreference 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 determines 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 exercise 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 defendant . . . then, in that event, the plaintiff is not entitled 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 plaintiff’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, PETITIONER 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), railroad 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 question 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 causation 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 conclusion that employer negligence played any part, even the 

slightest, in producing the injury or death for which damages 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 railroads and has commanded that if a breach of these obligations contributes in part to an employee’s death, the railroad 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 sometimes 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 century, 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 convenience, 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 considerations 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 thousands of workers every year,” and dissatisfied with the 

tort remedies available under state common law, “Congress 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 quotation 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 further 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 substitute “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 misunderstand its meaning.”).2 

—————— 

1 I do not read JUSTICE SOUTER’s concurring opinion as taking a position on the appropriate causation standard as expressed in Consolidated 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. 2See 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 Instructions—Civil ¶89.02, p. 89–44 (3d ed. 2006). 

Regarding contributory negligence, the relevant instruction reads: 

“To determine whether the plaintiff was ‘contributorily negligent,’ you . . . apply the same rule of causation, 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 different 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 contributed to his injury, but only indirectly. 

Norfolk urged in this Court, belatedly and unsuccessfully, 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. 

—————— 

3Norfolk’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.