NORFOLK SOUTHERN RAILWAY CO. v. SORRELL
No. 05-746
Supreme Court of the United States
Argued October 10, 2006—Decided January 10, 2007
549 U.S. 158
Carter G. Phillips argued the cause for petitioner. With him on the briefs were Stephen B. Kinnaird, Eric A. Shumsky, Laura D. Hunt, James W. Erwin, and David Dick.
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,
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
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(B), p. 519 (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
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 re-
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 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 sub-
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.
“[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 contrary 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
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 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,
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:
“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.
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 course
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
“[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 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); 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
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,”
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 address the standard of causation, and not simply to reflect the fact
Finally, in urging that a higher standard of causation for plaintiff contributory negligence is acceptable, Sorrell 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 common-law 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
Sorrell maintains that even if the instructions improperly 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.
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,
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,
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.
Rogers left this law where it was. We granted certiorari in Rogers to establish the test for submitting a case to a jury
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
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 to the Missouri Court of Appeals to determine in the first
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 standard of causation 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 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
These decisions answer the question Norfolk sought to “smuggle... into” this case, see ante, at 164 (majority opinion), 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 603, 606-609 (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 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
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 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
Sound jury instructions in FELA cases would resemble the model federal charges cited in the Court‘s opinion. Ante, at 167-168, 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 172, 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. 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
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 163. That argument cannot be reconciled with our precedent. See supra, at 177-178. 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.