# Opposition Brief — Norfolk Southern Railway Co. v. Jordan

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1436%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 559 U.S. 1068

## Text

2 See

IN THE
Supreme Court of the Gnited States

NORFOLK SOUTHERN RAILWAY COMPANY,
Petitioner,
Vv.

THOMAS DAVID JORDAN,
Respondent

On Petition for a Writ of Certiorari
to the Court of Appeals of Tennessee

BRIEF IN OPPOSITION

Adam H. Charnes* Robert M. Frey

KILPATRICK STOCKTON LLP BUTLER, SNOW, O'MARA,

1001 West Fourth Street STEVENS & CANNADA, PLLC

Winston-Salem, NC 27101 Post Office Box 6010

(336) 607-7382 Ridgeland, MS 39158-6010

(601) 948-5711

Allison M. Zieve Christopher A. Keith

PUBLIC CITIZEN LITIGATION WETTERMARK HOLLAND
GROUP & KeitH, LLC

1600 20th Street NW 2101 Highland Avenuc

Washington, DC 20009 South, Ste. 750

(202) 588-1000 Birmingham, AL 36205

(205) 933-9500

Counsel for Respondent

March 8, 2010 * Counsel of Record

QUESTIONS PRESENTED

1. Whether this Court should accept Norfolk
Southern’s invitation to use the case at bar as a
vehicle to overturn Hogers v. Mo. Pac. R.R., 352 U.S.
500 (1957) (and every one of the federal circuits), and
hold that FELA plaintiffs must prove, not the
“relaxed” standard of causation acknowledged in
Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543
(1994), but what Norfolk Southern calls “traditional”
common law proximate cause, where (a) the jury
instructions in the case at bar were, in substance,
“traditional” common Ilaw _ proximate cause
instructions; (b) at trial Norfolk Southern never
contested the existence of causation if the jury found
it negligent; and (c) the conflict among lower courts
over Rogers that Norfolk Southern claims to see is
not meaningful, and in any event does not require
attention from this Court.

2. Whether this Court should accept Norfolk
Southern’s invitation to use the case at bar as a
vehicle to examine cases reading Hogers as adopting
a “relaxed” negligence standard, where (a) the jury
instructions in the case at bar were “traditional”
common law negligence instructions; and (b) Norfolk
Southern failed to preserve its argument below.

QUESTIONS PRESENTED
TABLE OF AUTHORITIES

I.

I].

III.

TABLE OF CONTENTS

THIS CASE PRESENTS AN
INADEQUATE VEHICLE TO ADDRESS
ANY CONFLICT AMONG THE LOWER
COURTS REGARDING THE CAUSATION

STANDARD IN FELA ACTIONS...................

THE JURY INSTRUCTIONS IN FACT REQUIRED
WHAT NORFOLK SOUTHERN CALLS
“TRADITIONAL” COMMON LAW PROXIMATE

2 IR SEARS BOC DER ROP Pee ea NSE RRNA ERE

NORFOLK SOUTHERN NEITHER ARGUED NOR
PRESENTED EVIDENCE BELOW THAT, IF THE
JURY FOUND IT NEGLIGENT, THERE WAS

INSUFFICIENT EVIDENCE OF CAUSATION. ........

THE CONFLICT AMONG THE LOWER
COURTS CLAIMED BY NORFOLK
SOUTHERN IS NEITHER

INTRACTABLE NOR DEEP ............00000000000...

ON THE MERITS, THE STANDARD FOR
CAUSATION UNDER FELA IS RELAXED

Oe PES SCE CCC OSES CCRC Cee eee eee ee

COCO ema tP eee eer ewmeseeesesesere

diane F

anes 7

sues 15

ill

IV. NORFOLK SOUTHERN’S ARGUMENT
ABOUT THE FELA NEGLIGENCE
STANDARD IS NOT PROPERLY BEFORE
THE COURT, AND IN ANY EVENT, THE
JURY INSTRUCTIONS IN FACT
REQUIRED WHAT NORFOLK
SOUTHERN CALLS “TRADITIONAL”
COMMON LAW NEGLIGENCE. .....0000000.... 24

Se iis steandsanihaspadbticnnionsancnnvancensesaverese 28

lv
TABLE OF AUTHORITIES

Cases

Alverez v. J. Ray McDermott & Co., 674 F.2d
LOST (Gein Cher, Rieter cacccecinnecee0s00e- 11

Anderson By and Through Anderson/Couvillon
v. Neb. Dept. of Social Services, 538 N.W.2d 732
CNeky. 2OGG) occ..sce cae locecesccsisdcccoceseeseee 11

Brooks v. Wash. Terminal Co., 593 F.2d 1285
eee tt 19

Brown v. Baltimore & Ohio R.R. Co., 805 F.2d
1133 Geeky Cl, nnn ccccnceees. 18

Carter v. Atlanta & St. A.B. Ry. Co., 338 U.S.
430 CIDOB) s.nccacczrs eee oo oocsivcccccscccecccees. 24

Cella v. U.S., 825 F. Supp. 1383 (N.D. Ind. 1991)....12

Chapman v. Union Pac. R.R., 237 Neb. 617, 467

NV. W.26 SUG Cia vrcrscccsscecccseces.0-s. 20
Comeau v. Rupp, 810 F. Supp. 1172 (D.Kan.
1902)......<cerensslie aE oissssessseocesecceesoees 1]
Consol. Rail Corp. v. Gottshall, 512 U.S. 532
(1904) ......05<osscgshsieienEEMIRENISsDciaseoressesssccasss 17, 21
Coray v. S. Pac. Co., 335 U.S. 520 (1949)........... ie

Crane v. Cedar Rapids & Iowa City R. Co., 395
U.S. 164, 89 S.Ct. 1706, 23 L. Ed. 2d 176 (1969) .....21

Gallick v. Baltimore & Ohio R.R. Co., 372 U.S.

WES Ge aia ee eee 18, 23
Gardner v. CSX Transp., Inc., 201 W.Va. 490,

QT Fe a Se in cctnicacnccd eet hence 20
Gautreaux v. Scurlock Marine, Inc., 107 F.3d

SRE Ey ae, Fas tikecaesvercccaseeccsse aed 18
Grimes v. Norfolk S. Ry. Co., 116 F. Supp. 2d
ge SAO Re er ea tae 11
Harbin v. Burlington N. R.R. Co., 921 F.2d 129

CFR SE Rises ccscetscacerectpcaanaes ene 18
Hedgpeth v. Pulido, 129 S. Ct. 530 (2008)............... 28
Hines v. Consol. Rail Corp., 926 F.2d 262 (3rd
| | NN SAC MRE OER cei Mos can ere 18
Humphreys v. Delcourt, 2009 WL 5174245 (Tex.
App.-Houston [1 Dist.] Dec. 31, 2009) ................0.2... 11
Johannessen v. Gulf Trading & Transp. Co., 633

Fe GG Te Cie Te Sivkktcsisscecede cede 20
Lavender v. Kurn, 327 U.S. 645 (1946) ................00. 23

Losey v. N. Am. Philips Consumer Elecs. Corp.,
792 F.2d 58 (6th Cir. 1986) ...00000000...000000000.. oo 12

Marazzato v. Burlington Northern R. Co., 249
Mot. 487, GET P.2e GTS CLO ES an csccssvvcssccoocsnxsesscesaccs 19

Marzoll v. Marine Harvest US, Inc., 2009 WL
4456321 (D. Me. Nov. 29, 2009) .0..0.....ccececcceceeeeeeeeees 11

Moody v. Me. Cent. R.R. Co., 823 F.2d 693 (1st
SE TLR NS MIs BA ere 18

Mullahon v. Union Pac. R.R., 64 F.3d 1358 (9th
le EE pci acicinsievcss aconcvntincecaaiaaanaee cient 18

Nordgren v. Burlington N. R.R. Co., 101 F.3d
ne enneuisueeseel 18

Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158
GUNNUUEY cit acini aoisubieecdduomsmieesseeccedauateadaaaaueaauerans passim

Raab v. Utah Ry., 221 P.3d 219 (Utah 2009) ... passim

Richards v. Consol. Rail Corp., 330 F.3d 428
ee I srctetiraia ec ween 16, 18

Rogers v. Mo. Pac. R.R., 352 U.S. 500 (1957) .. passim

Sentilles v. Inter-Caribbean Shipping Corp., 361
Ee I eatihciccs cies avssaenvoehcsstaperiadiapasdvesdenccboceis 23

Snipes v. Chicago, Cent. & Pac. R.R. Co., 484
Ee ee Be I FI iain vceccensctadiicespecsctevancniacactexons 20

Summers v. Mo. Pac. R.R. Sys., 132 F.3d 599
I a ee 18, 19, 20

Tennant v. Peoria & Perkin Union Ry. Co., 321
LS LER a Rts ie ata eRe nO Ee er 23

Thibodeaux v. Tex. E. Transmission Corp., 548
Oe ee ee SNE chesetintievceetetccnusen 19

Union Pac. R.R. Co. v. Hadley, 246 U.S. 330
Recs pactvecsenciaeaslen CREA IRA nnn Ae OO 4

Vil

Urie v. Thompson, 337 U.S. 163 (1949).............. 23, 24
Webb v. Ill. Cent. R.R. Co., 352 U.S. 512 (1957)...... 23

Williams v. Long Island R.R. Co., 196 F.3d 402
I oo a, dco d susan sealecinaeeinmenienanns 18

Statutes and Rules

Me a es aca icnceoccnsnbavuxcaseiavdennvcatealanatnnaleceeeeds 19
Tenn. Code Amn. § 65-6-205................cccccccccscscessseceeees 1
Other Authorities

1 Dan B. Dobbs, The Law of Torts, 453 (2001) ........ 12
1 J.D. Lee & Barry Lindahl, Modern Tort Law:
Liability and Litigation, § 4.4 (2d ed. 2009)............ 12
57A Am. Jur. 2d Negligence § 411...................0...0000- 12

Keeton, et al., Prosser and Keeton on Torts,
AE ek BD GR OE, Biv envcsnsrsscccsssesccscecesesvecsexecss 12

STATEMENT OF THE CASE

In railroad parlance, the space through which a
train moves over a set of tracks is known, for obvious
reasons, as the “red zone.” 15 R. 627-29. The space
outside the red zone is known, for equally-obvious
reasons, as the “safety zone.” Jd. On a six-track
stretch in South Memphis called Broadway, the
safety zone is, according to stipulated measurements,
no more than 28 and 5/8 inches, and may be as little
as 25 and 1/8 inches. 18 R. 1072-74, 1080-81. Put
another way, a man sitting in a Norfolk Southern
locomotive on Broadway cannot stick his hand
straight out the window if there is a locomotive on
the adjacent Burlington Northern track—he must
bend his elbow. 15 R. 651-52. These tracks were,
presumably, wide enough when they were laid, over
a century ago, when trains were narrower, but today
they would be illegal under Tenn. Code Ann. § 65-6-
205, save for the statute’s grandfather clause, which
allows them to be “maintained at such clearance as
was lawful at the time of construction.”

The safety zones on Broadway are so narrow that
if Norfolk Southern directs an employee to work
alongside a train stopped on Broadway, that
employee will necessarily be working, at least in
part, in Burlington Northern’s red zone. As Norfolk
Southern’s attorney admitted to the Jury, “[t]here’s
no place you can stand without being, without filing
[fouling—i.e., entering the red zone of] the track,
adjacent track[,] that’s a fact.” 16 R. 790.

Close clearances were not the only hazard on
Broadway. Ordinarily a Norfolk Southern crewman

forced to work on the ground can count on being
warned in advance, by radio, of trains approaching
on the adjacent track. This was not so on Broadway,
because the adjacent tracks were operated by
different railroads that—despite the well-known
dangers—never undertook steps to permit such
communication. 15 R. 586-88; 17 R. 956-57; 17 R.
972; 21 R. 1623-24. Moreover, the lighting on
Broadway was entirely inadequate. 17 R. 957; 15 R.
598; 17 R. 970.

Norfolk Southern employees, fearful of being
struck by moving trains on adjacent tracks,
complained. 17 R. 958-59; 18 R. 1100-02. Although
Norfolk Southern attempted to suppress. those
complaints—after one Safety Committee meeting a
supervisor requested that complaints about
clearances be omitted from the minutes—it did
admit that the area was “unsafe” (Norfolk Southern’s
term), and consequently forbade some on-ground
work there. 16 R. 819-23 (re: minutes); 20 R. 1536-
37 (“unsafe”); 17 R. 913-14 & Ex. 11 (no brake
inspections allowed on Broadway); 20 R. 1536-37 &
Ex. 101 (no hanging of End of Train devices allowed
on Broadway); 15 R. 2023 (Norfolk Southern closing
argument) (no brake tests on Broadway because “it'd
be a whole lot safer” to do them elsewhere). }

1 One worker recalled working on the ground on Broadway
when “a train eased up on me without me hearing it. And it
was so close I had to squat down under the car in order to kcep
from getting hit.” 17 R. 909 (emphasis supplied). Broadway
was so dangerous that when a Norfolk Southern police officer
refused to walk out there simply to close a container door, his
boss, despite the obvious and immediate risk of pilferage, told
him his refusal was justified. 21 R. 1573.

Norfolk Southern forbade some on-ground work
at Broadway, but not all. Despite the fact that
reasonable alternatives existed, Norfolk Southern
ordered respondent Thomas David Jordan to
Broadway, in the dark, 14 R. 548, where his job
would require him to work at least partly in the red
zone of the adjacent Burlington Northern track. As
Norfolk Southern’s attorney put it at trial, 25 R. 74,
“of course, you have to fill [foul] the adjacent track, if
you are going to pull the cut lever, which is part of
what Mr. Jordan would have to do... .” Mr. Jordan
never saw the Burlington Northern train that hit
him, and left him with a career-ending, permanently-
disabling roster of injuries that still give him pain
daily.2 He first learned about the accident from his
wife, in the hospital, when he regained consciousness
almost two weeks later. 18 R. 1110-11.

It was Mr. Jordan’s theory of the case, not that
the close clearances by themselves made Norfolk
Southern liable, but that Norfolk Southern’s failure
to use due care in light of the close clearances, and
other hazards, made Norfolk Southern liable.

2 His injuries included three vertebrae fractures, 19 R. 1262, an
open fracture of the left leg, 19 R. 1281, a fracture of the greater
trochanter, 19 R. 1256, a fracture of the scapula, 19 R. 1276,
severe head trauma, 19 R. 1314, an open gash to the upper
right thigh, 19 R. 1256, and lacerations to the spine,
hemothorax, and pneumothorax. 19 R. 1330.

3 Norfolk Southern asserts that Mr. Jordan's “sole allegation as
to Norfolk Southern” was that the tracks were too close
together, Pet. 7, but in fact the FELA mandates a consideration
of “the whole” of the railroad’s conduct, which “may be greater

Norfolk Southern argued to the jury that Mr.
Jordan — a thirty-year veteran whose former
supervisor called him “a great employee” who “did a
fine job, an excellent job,” and whom Norfolk
Southern selected to teach safety classes to other
railroad workers, 21 R. 1599-1601, 1630 — was
himself solely at fault.4 According to Norfolk
Southern’s calculations, the Burlington Northern
train was visible from the spot where Mr. Jordan was
working for a full forty-three seconds before it hit
him. 15 R. 2029-30. Under Norfolk Southern’s
theory of the case, Mr. Jordan, whose work at this
point required him both to foul the Burlington
Northern track and lean his head and upper body in
between the cars of his own train, thus blocking his
vision up and down the tracks, should have stopped
working every few seconds to glance up and down the
tracks; should have seen the Burlington Northern
train approaching; and should have scrambled into
the Norfolk Southern train’s red zone. 15 R. 2030-39

than the sum of its parts,” Union Pac. R.R. Co. v. Hadley, 246
U.S. 330, 332 (1918) (Holmes, J.), and this FELA case was tried
in conformity with that mandate. Mr. Jordan’s Complaint
alleged negligence generally, the evidence established a variety
of inter-related acts of negligence, the instructions did not limit
the jury to specific acts of negligence, and the form of the
verdict asked simply “Was Defendant Norfolk Southern
Railway Company negligent under the Court's instructions?”

4 See Norfolk Southern's closing argument, 15 Tr. 2015 (Mr
Jordan “got careless one time”); sd. at 2017 (“Norfulk Southern
is not guilty of any negligence in this case”); id. at 2030-31 (“we
claim that this accident .. . was caused solely by Mr. Jordan”):
id. at 2031 (arguing that Mr. Jordan was negligent for having
his back to the Burlington Northern train)

(Norfolk Southern closing argument) (“[I]f you're
watching what you're doing you've got plenty of time
to see traffic coming from other railroads... . Mr.
Jordan wasn’t even looking at a train, he had his
back to the train. That’s not due care, that’s
negligence. . . . if he had looked, he’d have seen this
big old Burlington Northern Santa Fe train. . . He
had 43 seconds from the time that train rounded that
curve way back there, just past Mississippi
Boulevard, to observe the train if he had looked”).

Of particular note, Norfolk Southern did not
argue in the trial court that its negligence, if any,
was too remote to represent a legal cause and thus to
support legal liability. While Mr. Jordan and
Norfolk Southern each pointed at trial to the other as
the cause of Mr. Jordan’s injuries, Norfolk Southern
neither argued nor presented evidence that if the
jury found it negligent, the degree of its causation
was less than traditional proximate cause. See 15 R.
2030-31 (Norfolk Southern closing argument) (“[Wle
claim that this accident .. . was caused solely by Mr.
Jordan”). The jury found that the cause alleged by
Norfolk Southern—negligence on the part of Mr.
Jordan—simply did not exist. In short, any
difference between what Norfolk Southern calls
“traditional common law proximate cause” and
“relaxed” or “even the slightest” causation was
simply never at issue at trial

6

REASONS FOR DENYING THE WRIT

Although the question presented at the beginning
of Norfolk Southern’s petition is broad and nebulous,
Pet. i, the body of the Petition presents two discrete
questions, neither of which warrants this Court's
reviewing the case at bar.

First, Norfolk Southern seeks review of the
question whether the plaintiff in a FELA case “must
prove that the defendant’s negligence was the
proximate cause of the plaintiff's injury, or instead
need only show ‘slightest causation.” Pet. 9. This
question is not presented by this case, because the
trial court gave the jury, in substance, the very
proximate cause instruction that Norfolk Southern
seeks, and, in any event, causation was never
seriously contested at trial. Moreover, Norfolk
Southern’s argument that the lower courts are
“intractably divided” on the FELA causation
standard does not support review. Although there is
some disagreement on exactly what this Court meant
in Rogers v. Mo. Pac. R.R., 352 U.S. 500, 506 (1957),
by the phrase “even the slightest,” there is no conflict
among the lower courts in practice: Norfolk
Southern does not cite a single case in which the
“relaxed” standard was rejected in favor of what
Norfolk Southern calls “traditional common law
proximate cause.” Finally, Norfolk Southern is
simply wrong on the merits. This Court’s FELA
decisions, pre and post Hogers, clearly manifest a
“relaxed” causation standard.

Second, Norfolk Southern seeks review of the
question whether a FELA plaintiff need “prove only

‘slight’ negligence” to prevail. Pet. 16. Again, there
is no warrant for reviewing the case at bar. Norfolk
Southern asserts that one instruction, by using the
phrase “in the slightest,” invited the jury to return a
verdict against Norfolk Southern on proof of
something less than traditional common law
negligence, but in fact the instruction did not do so,
and, in any event, Norfolk Southern failed to
preserve the point.

I. THIS CASE PRESENTS AN INADEQUATE
VEHICLE TO ADDRESS ANY CONFLICT
AMONG THE LOWER COURTS REGARDING
THE CAUSATION STANDARD IN FELA
ACTIONS.

A. The Jury Instructions In Fact Required
What Norfolk Southern Calls “Traditional!”

Common Law Proximate Cause.

Norfolk Southern asks this Court to grant
certiorari to resolve a supposed conflict among the
lower state and federal courts regarding the
standard for proving causation in a FELA negligence
action. Specifically, Norfolk Southern claims that
some courts correctly insist that a FELA plaintiff
prove “traditional, common-law” proximate
causation, Pet. 10-12, while other courts, misled by
Rogers v. Mo. Pac. R.R., 352 U.S. 500 (1957), require
a plaintiff to prove only that the defendant's
negligence was the “slightest” cause of the plaintiff's
injury. Pet. 12-14.

Assuming arguendo that Norfolk Southern
correctly describes the supposed conflict (but see

infra, at 17-22), this case presents an inadequate
vehicle to address it. To begin with, the trial court’s
causation instruction was, in substance, a proximate
cause instruction. Thus this Court’s acceptance of
Norfolk Southern’s legal argument would not change
the result below.

At trial Norfolk Southern requested what it calls
a “traditional” common law proximate cause
instruction, which would have told the jury that it
could not return a verdict against Norfolk Southern
without finding that its negligence “was a proximate
cause of the plaintiffs injury”:

In order to find that it was a proximate cause,
you must find that the injury was the natural
and probable consequence of the _ ,railroad's
negligence, and that the railroad's negligence was
a substantial factor in bringing about the injury.

Pet. App. 72a. Tne trial court rejected the proposed
instruction, not because of Rogers, but because the
substance was adequately covered in the other
instructions. J/d. at 24a. Specifically, the causation
instructions given by the trial court was as follows:

A legal cause of an injury is a cause which, in
natural and continuous sequence, produces the
injury, and without which the injury would not
have occurred.

Opp. App. 13a. The Court of Appeals agreed with
the trial court that “the substance of these proposed
instructions was covered in the trial court’s
instructions.” Pet. App. 29a.

The Court of Appeals was correct. When the
“lengthy and detailed” instructions (Pet. App. 25a)
are read in full, as both jurors and judges are
required to do, it is clear that the jury was told, again
and again, that it could not rule for Mr. Jordan
without finding “fault,” which term was defined to
include negligence and “legal cause,” that is, “a cause
which, in natural and continuous sequence, produces
the injury, and without which the injury would not
have occurred.” Pet. App. 25a-26a.

The Judge began by outlining the “theories and
contentions of the parties.” It was, he said, Mr.
Jordan’s “theory and _ contention” that “both
defendants were at fault and that their combined
fault was the legal cause of the accident,” adding that
each of the Defendants “denies . . . fault.” Opp. App.
9a. The Judge then went on to give “instructions
dealing with general principles of law that apply
equally to all parties.” Jd. at 1la. The first thing he
said in this section was that “the Plaintiff has the
burden of establishing by a preponderance of the
evidence all of the facts necessary to prove the
following issues: A. That the Defendants were at
fault; [and] B. [damages]. The Defendants, as an
affirmative defense, claim that Plaintiff was at
fault.” Jd.

At this point, then, it was clear that Mr. Jordan
could not recover against Norfolk Southern without
proving “fault” on the part of Norfolk Southern. The
Judge then zeroed in on “fault”:

10

Therefore, in deciding this case you must
determine the fault, if any, of each of the parties.
If you find that more than one of the parties are
at fault, you will then compare the fault of the
parties. To do this, you will need to know the
definition of fault. A party is at fault if you find
by a preponderance of the evidence that the party
was negligent and that the negligence was a legal
cause of the injury or damage for which a claim is
made.

Id. at 12a.
“Fault,” the Judge continued,

has two parts: Negligence and /ega/ cause... .
The second part of fault is Jega/ cause. A legal
cause of an injury is a cause which, in natural
and continuous sequence, produces the injury,
and without which the injury would not have
occurred. .. . If you find, by a preponderance
of the evidence, that a party was negligent
and that the negligence was a legal cause of
the injury or damage for which a claim was
made, you have found that party to be at
fault. As I said before the plaintiff has the
burden to prove fault on behalf of the
defendants. If the plaintiff fails to do so, you
should find such defendant’s fault to be zero.

Id. at 12a-14a (emphasis supplied). The instructions
went on to mention the “fault” requirement again
and again. /d. at 14a-16a.

1]

In short, under the instructions given, the Jury
could not return a verdict against Norfolk Southern
without finding that Norfolk Southern was
negligent, and that Mr. Jordan’s accident was
caused “in natural and continuous sequence” by that
negligence. This language is identical to what
Norfolk Southern calls “traditional common law”
proximate cause, as confirmed by numerous cases5

5 See, e.g., Alverez v. J. Ray McDermott & Co., 674 F.2d 1037,
1043 n.4 (5th Cir. 1982) (“traditional common law proximate
cause: the act or omission must be a cause which in the natural
and continuous sequence, unbroken by an efficient intervening
cause, produces the result complained of, and without which it
would not have occurred”) (internal quotation marks omitted);
Humphreys v. Delcourt, 2009 WL 5174245, at *6 (Tex. App.-
Houston [1 Dist.] Dec. 31, 2009) (“Proximate cause’ when used
with respect to the conduct of [Humphreys] means that cause
which, in a natural and continuous sequence, produces an
event, and without which cause such event would not have
occurred”); Marzoll v. Marine Harvest US, Inc., 2009 WL
4456321, at *35 (D. Me. Nov. 29, 2009) (“Proximate cause
requires that the unseaworthy condition is the cause which in
the natural and continuous sequence, unbroken by any efficient
intervening cause, produces the results complained of, and
without which it would not have occurred”) (internal quotation
marks omitted); Grimes v. Norfolk S. Ry. Co., 116 F.Supp. 2d
995, 1005-06 (N.D. Ind. 2000) (Indiana common law) (“a chain
of circumstances which in natural and continuous sequence
lead to the resulting injury”) (internal quotation marks
omitted); Anderson By and Through Anderson/Couvillon v.
Neb. Dept. of Social Services, 538 N.W.2d 732, 738 (Neb. 1995)
(“a natural and probable result of the negligence”); Comeau v.
Rupp, 810 F.Supp. 1172, 1177 (D.Kan. 1992) (“Proximate
cause of an injury is that cause which in natural and
continuous sequence, unbroken by an efficient intervening
cause, produces the injury and without which the injury would
not have occurred, the injury being the natural and probable
consequence of the wrongful act”) (internal quotation marks

12

as well as legal treatises. Norfolk Southern
admitted as much when it held up, as a model of
“the traditional elements of negligence,” the
functionally indistinguishable instructions given as

omitted); Cella v. U.S., 825 F. Supp. 1383, 1399 (N.D. Ind.
1991) (“traditional common law standard regarding proximate
cause” is “the defendant's “act or omission must be a cause
which in the natural and continuous sequence, unbroken by an
efficient intervening cause, produces the result complained of,
and without which it would not have occurred”); Losey v. N.
Am. Philips Consumer Elecs. Corp., 792 F.2d 58, 61 (6th Cir.
1986) (“a proximate cause is one which in a natural and
continuous sequence unbroken by any new cause produces the
injury either by itself or together with other negligence, or
which may be described as negligence that is a substantial
factor in causing the injury”) (internal quotation marks
omitted). See generally Raab v. Utah Ry., 221 P.3d 219, 226
(Utah 2009) (“[iJn its most common usage, the term ‘proximate
cause” is equivalent to ‘legal cause”) (citing Keeton, et al.,
Prosser and Keeton on Torts § 41, at 263 (5th ed. 1984)).

6 See, e.g., 1 Dan B. Dobbs, The Law of Torts, 453 (2001) (“With
slight variations in the words, courts usually instruct juries or
begin their own appellate discussions with a formal definition
asserting that a proximate cause of an injury is one which, in a
natural and continuous sequence, without any efficient
intervening cause, produces the injury.”); 1 J.D. Lee & Barry
Lindahl, Modern Tort Law: Liability and Litigation § 4.4 (2d
ed. 2009) (“More recent cases als» define proximate cause as
any cause which in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury
complained of and without which the result would not have
occurred.”); 57A Am. Jur. 2d Negligence § 411 (“One of the
most widely quoted definitions is that the proximate cause of
an injury is that cause which, in natural and continuous
sequence, unbroken by any efficient, intervening cause,
produces the injury, and without which the result would not
have occurred”) (footnotes omitted).

13

to Burlington Northern. Pet. 8; Pet. App. 70a-7la
(incorporating, by reference, the previously given
definition of “legal cause,” and expressly equating it
with “proximate cause”).

There is no substantive difference between the
instruction preferred by Norfolk Southern (“natural
and probable consequence”) and the one given to the
jury below (“natural and continuous sequence”).
Thus, the Court of Appeals was correct when, after
careful analysis, it concluded:

We find that the substance of these proposed
instructions was covered in the trial court's
instructions. Although the trial court's jury
instruction did not use the term “proximate”
cause, the court repeatedly emphasized that the
plaintiff must prove that the railroad's negligence
“in whole or in part, legally caused” the injury.
The trial court instructed the jury that “[a] legal
cause of an injury is a cause which, in natural
and continuous sequence, produces the injury,
and without which the injury would not have
occurred.”

Pet. App. 29a.

What Norfolk Southern is asking this Court to
hold — in the case at bar, at least — is not merely
that the FELA requires “traditional common law”
proximate cause, but that it also mandates the use of
the word “proximate” in the jury instructions.? The

7 Whatever differences there may be between the two
concurring opinions in Norfolk S. Ry. Co. v. Sorrell, 549 U.S.

14

petition, however, cites no legal authority for such a
proposition.

To be sure, one portion of the instructions told the
Jury that “even the slightest” negligence was
sufficient. Norfolk Southern reads that instruction
as referring to “even the slightest” causation, but this
is a misreading. The instruction, reproduced and
discussed below, p. 25, was a negligence instruction,
not a causation instruction. What is more, even if it
were a causation instruction, the case at bar is the
kind of case that even Norfolk Southern agrees is
subject to Hogers. In its brief on the merits in
Sorrell, Norfolk Southern explained:

Rogers held that, if there was evidence from
which the jury could find that both the railroad’s
negligence and the employee’s negligence were
proximate causes of injury, the question of
railroad liability must go to the jury even if it

158 (2007), there is no reason to believe that there is any
disagreement on this point:

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. “[Llegal 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.”

Id. at 180 (Ginsburg, J., concurring) (citations omitted).

played the slightest part in the injury—ze., if its
causal contribution was slight relative to the
employee’s negligence.

Brief of Petitioner at 9, Norfolk S. Ry. Co. v. Sorrell,
549 U.S. 158 (2007) (No. 05-746).

The case at bar was such a case. There was
“evidence from which the jury could find that both
the railroad’s negligence and the employee’s
negligence were proximate causes of injury.” Thus
under Norfolk Southern’s own view of Rogers, “even
the slightest” was the proper causation standard
here.

B. Norfolk Southern Neither Argued Nor
Presented Evidence Below that, if the Jury
Found It Negligent, There Was Insufficient
Evidence of Causation.

Not only did the trial court give the jury a
proximate cause instructiva, but causation was never
seriously contested at trial. What the parties
disputed was negligence. Norfolk Southern denied
that it was negligent, and argued that Mr. Jordan
was negligent. Mr. Jordan denied that he was
negligent, and argued that Norfolk Southern was
negligent. Based on the evidence presented at trial,
the cause of the accident was the negligence of one or
the other. Neither party argued, or introduced
evidence showing, that if it were negligent, such
negligence was nevertheless not the legal cause of
the accident. If Norfolk Southern was negligent (and
the Jury, which was entitled to so find, did so find),
then even under the strictest and most exacting

16

causation standard, that negligence was the
proximate cause of Mr. Jordan’s accident. There was
nothing marginal or remote about the connection
between Norfolk Southern’s failure to use due care in
light of the close clearances, poor communication,
and poor lighting, on the one hand, and the risk that
Mr. Jordan, forced to work in the Burlington
Northern red zone, unseeing and unwarned, would
be hit by a Burlington Northern train.

The reporters are filled with FELA cases in which
causation is truly at issue. Time and time again, for
example, a train will be forced to stop because of,
say, a defect in the brakes. A crewman will get out,
and he will be injured. Assuming that the brake
defect was due to railroad negligence, was that
negligence the legal cause of the injury? See, e.g.,
Richards v. Consol. Rail Corp., 330 F.3d 428, 437 n.5
(6th Cir. 2003) (answering yes, at least where injury
takes place while crewman is discharging job-related
responsibilities; speculating no if, for example, “an
employee, who has exited the train and is standing
next to it merely waiting for the brakes to be
repaired, is attacked by a rabid dog. Or the same
employee waiting for the defect to be repaired
decides to stretch his or her legs, goes for a walk,
falls, and is injured”).

The Aichards fact pattern presents itself over and
over, as the many cases cited in Aichards attest.*

8 Another is Raab v. Utah Ry. Co., 221 P.3d 219, 231 (Utah
2009) (finding proximate cause where plaintiff, a crewman on a
train that stopped due to a defective brake, exited the train and
eventually got hurt outside the train).

17

Indeed, according to amicus American Railroad
Association, there is a continuous flow of cases in
which the distinction between “traditional common
law proximate cause” and “relaxed” or “even the
slightest” causation would be decisive. Thus, to the
extent that the causation standard is otherwise
certworthy, the Court should await a case where
causation actually was disputed at trial, and where
the only causation instruction given was a Hogers
based instruction.

Il. THE CONFLICT AMONG THE LOWER
COURTS CLAIMED BY NORFOLK SOUTHERN
IS NEITHER INTRACTABLE NOR DEEP.

Attempting once again to obtain this Court’s
review of the causation standard in FELA cases, see
Sorrell, 549 U.S. at 164 (rejecting Norfolk Southern’s
effort to “smuggle” the causation issue into the case
after the grant of certiorari), Norfolk Southern claims
that there exists an intractable, “entrenched and
acknowledged” conflict among the lower courts on
FELA causation. It argues that while some courts
rightly insist on proof of “traditional, common-law”
proximate cause, others “treat Hogers as having
eliminated the common-law’ requirement’ of
proximate causation... .” Pet. 10-12.

There is less here than meets the eye. It is true
that there is some disagreement on the exact
meaning of Rogers. The federal courts of appeal all
seem to read Rogers as making, in effect, the same
broad statement that this Court made in Consol. Rail
Corp. v. Gottshall, 512 U.S. 532, 543 (1994), to wit,
“a relaxed standard of causation applies under

18

FELA.”9 A handful of courts have read Rogers more
narrowly. See, eg, Marazzato v. Burlington

9 Moody v. Me. Cent. R.R. Co., 823 F.2d 693, 695 (ist Cir.
1987) (“We recognize the considerably relaxed standard of
proof in FELA cases”); Williams v. Long Island R.R. Co., 196
F.3d 402, 406 (2nd Cir. 1999) (“a relaxed standard applies in
FELA cases”); Hines v. Consol. Rail Corp., 926 F.2d 262, 267
(3rd Cir. 1991) (“In Rogers, the Court held that ‘the test of a
[FELA] 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 .’ .... Similarly,
in Gallick, the Court stated that there can be a jury question of
causation when there is ‘evidence that any employer
negligence caused the harm, or, more precisely, enough to
justify a jury’s determination that employer negligence had
played any role in producing the harm”); Brown v. Baltimore
& Ohio R.R. Co., 805 F.2d 1133, 1137 (4th Cir. 1986) (quoting
Rogers as authority, for this most “lenient standard” of proof
with respect to causation in an FELA action); Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331, 335 (5th Cir. 1997)
(unanimous, en banc) (Supreme Court had used the term
“slightest” in Rogers “to describe the reduced standard of
causation between the employer's negligence and _ the
employee's injury” in FELA cases); Richards v. Consol. Rail
Corp., 330 F.3d 428, 434 (6th Cir. 2003) (Rogers “adopted this
relaxed [causation] standard in order to effectuate Congress’
intent .. . ‘to preserve the plaintiffs right to a jury trial”);
Harbin v. Burlington N. R.R. Co., 921 F.2d 129, 131 (7th Cir.
1990) (“It is well established that the quantum of evidence
required to establish liability in an FELA case is much less
than in an ordinary negligence action”); Nordgren v.
Burlington N. R.R. Co., 101 F.3d 1246 (8th Cir. 1996) (relaxed
standard for causation); Mudlahon v. Union Pac. R.R., 64 F.3d
1358, 1363 (9th Cir. 1995) (“[t]he standard for receiving a jury
trial is less stringent in FELA cases than in common law tort
cases”); Summers v. Mo. Pac. R.R. System, 132 F.3d 599, 607
(10th Cir. 1997) (quoting Rogers at length and concluding: “A
jury instruction containing both the statutory language and
the explanatory language of Hogers is certainly the clearest
articulation of the appropriate causation standard”);

19

Northern R. Co., 249 Mont. 487, 491, 817 P.2d 672,
674 (1991) (“Rogers case was addressing the issues of
multiple causes and contributory negligence after it
had been established that the employer was
negligent”); Raab v. Utah Ry. Co., 221 P.3d 219, 228-
30 (Utah 2009) (rejecting the argument that Rogers
requires only “but for” causation; “[wlhile one could
certainly read the Supreme Court's language in
Rogers to speak to the standard of causation under
FELA, this is not the best reading of the case”). And
some, like the Raab court, misconceive what their
sister courts have said about Hogers.'°

Thibodeaux v. Tex. EF. Transmission Corp., 548 F.2d 581, 587
n.12 (5th Cir. 1977) (pre-split, and thus binding in the 11th
Cir.) (“Under the Jones Act, 46 U.S.C. § 688, the test for
liability is whether ‘employer negligence played any part, even
the slightest, in producing the injury” (quoting Aogers);
Brooks v. Wash. Terminal Co., 593 F.2d 1285, 1288 (D.C. Cir
1979) (“The test whether an F.E.L.A. case should be submitted
to the jury ‘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”’) (quoting Rogers).

10 As we have just noted, the bottom line in Aaab, so far as it
concerns Hogers, is that Hogers did not do away with all
causation except “but for” causation. Raab, 221 P.3d 219, 228-30
4% 32, 35, 37. The Raab court contrasted its conclusion on this
point with that of the Tenth Circuit in Summers v. Mo. Pac.
R.R. Sys., 132 F.3d 599, 606 (10th Cir. 1997). Raab, 221 P.3d at
228-29 932 & n.35. But the holding in Summers was that that
the plaintiff was not entitled to a Aogerstbased instruction.
Summers, 132 F.3d at 606. The instruction actually given used
the statutory language (“in whole or in part”), and that, said the
Summers Court, was sufficient; plaintiff had no right to insist
on the addition of Rogersbased language (“played any part, no
matter how small”). /d. This, of course, is inexplicable if the

20

But there is no conflict among the lower courts in
practice: Norfolk Southern does not cite a single case
in which the “relaxed” standard was rejected in favor
of what Norfolk Southern calls “traditional common
law proximate cause.”!! Even the Raab court applied

Summers court thought that what Hogers “definitively
abandoned” was proximate cause in the broad sense. In fact
what the Summers court found “definitely abandoned” in
Rogers was the practice of “analyzling] liability under the FELA
in terms of proximate causation.” /d. (emphasis supplied).
Neither Summers, nor any other case so far as Mr. Jordan can
tell, suggests that Rogers abandoned the concept that some “but
for” causes are, for policy reasons, too remote to support
liability.

'\! Several of the cases cited by Norfolk Southern as insisting on
“proximate cause” cite Mogers as the standard by which
“proximate cause” is measured. Gardner v. CSX Transp., Inc.,
201 W.Va. 490, 498 S.F..2d 473 (1997), expressly declared that
Rogers “established” “(t]he causation standard in FELA cases,”
and went on to quote Hogers “even the slightest” language. /d.
at 482. The same is true of Snipes v. Chicago, Cent. & Pac.
R.R. Co., 484 N.W.2d 162, 164-65 (lowa 1992), which quoted
Rogers “even the slightest” language in order to show “(t]he
liberality with which the Supreme Court has applied this test,”
1.e., of FELA negligence and causation. Much the same is true
of Chapman v. Union Pac. R.R., 237 Neb. 617, 627, 467 N.W.2d
388, 395 (1991) (“An action brought under the Federal
Employers’ Liability Act must be submitted to a jury if the jury
could reasonably find that “employer negligence played any
part, even the slightest, in producing the injury ... for which
damages are sought.” Rogers v. Mo. Pac. R.R. Co., 352 U.S.
500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). Therefore,
“the role of the jury is significantly greater in .. . FELA cases
than in common law negligence actions. The right of the jury to
pass upon the question of fault and causation must be most
hberally viewed.” Johannessen v. Gulf Trading & Transp. Co.,
633 F.2d 653, 656 (2d Cir. 1980)”).

21

what can only be described as a relaxed standard. In
that case, a defective brake forced replacement of the
lead locomotive, which in turn required plaintiff to
enter a trailing locomotive to set the controls, where
he hit his head on a low-hanging air conditioning
unit. The court held that the jury was entitled to
find that defective brake “was a proximate cause” of
plaintiffs injury.'? Raab, 221 P.3d at 222, 231.

There is, in short, not disagreement but essential
unanimity: (1) the FELA plaintiff must prove more
than “but for” causation; but (2) the standard by
which this “more” is measured is, in comparison to
what Norfolk Southern calls “traditional common law
proximate cause,” a “relaxed” standard. The
controversy, such as it is, is entirely concerned with
whether Hogers is among the many cases in which
this Court has recognized the relaxed standard. See
Norfolk S. Ry. Co. v. Sorrell, 549 U.S. 158, 180 n.1
(2007) (Ginsburg, J., concurring) (“I do not read
Justice SOUTER’s concurring opinion as taking a
position on the appropriate causation standard as
expressed in Consol. Rail Corp. v. Gottshall, 512 U.S.
532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), and
Crane v. Cedar Rapids & Iowa City R. Co., 395 U.S.
164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969)”). And this
purely academic question, so arcane and _ so
unimportant that even Norfolk Southern did not

'2 It bears repeating that what the Aaab court said it was
rejecting was not a relaxed causation standard, but the notion
that only “but for” causation is required. Raab, 221 P.3d 219,
228-30 74 32, 35, 37.

22

notice it when it petitioned for certiorari in Sorre//,
simply does not merit this Court’s review.

Finally, the supposed disagreement among the
lower courts on which Norfolk Southern relies has
persisted for quite a lengthy period of time. The first
case that Norfolk Southern cites as applying the full
proximate cause standard in a FELA case was
decided in 1961, and the first case applying a
“relaxed” proximate cause standard dates back to
1963. Pet. 12-13 & n.5. While the supposed
disagreement dates back almost 50 years, Norfolk
Southern has presented no basis for the Court to
conclude any differences in emphasis or phraseology
in the opinions have resulted in divergent outcomes,
admuinistrability problems in the lower courts,
unfairly disparate results between different forums,
or indeed any other adverse consequences. Norfolk
Southern points to no cases that would have been
decided differently had they been pending in a
different state supreme court or federal circuit court.
Because the supposed split in authority (assuming
arguendo that it exists) has persisted for some 50
years with no negative consequences, review by this
Court simply is not warranted.

Ill. ON THE MERITS, THE STANDARD FOR
CAUSATION UNDER FELA IS RELAXED.

As explained above, the courts almost uniformly
apply a relaxed standard of causation instead of
what Norfolk Southern calls “traditional common
law proximate cause.” Norfolk Southern claims that
a relaxed standard is inconsistent with this Court’s
cases, but it is not. There are numerous cases

23

(many decided before Rogers) in which this Court
unmistakably applied a relaxed standard.!3 Nor is
the relaxed standard inconsistent with the statute.
Norfolk Southern finds in Urie v. Thompson, 337
U.S. 163 (1949), a hard and fast rule that FELA
adopted then-existing common law except where
otherwise stated, but the Urie Court looked, not
merely to the common law, but also to another
contemporaneously-enacted statute, id. at 184, “the
spirit the statute [the FELA] contemplated for its
administration and application,” sd at 186, “the
breadth of the statutory language, the Act's

13 See, e.g., Tennant v. Peoria & Perkin Union Ry. Co., 321
U.S. 29 (1944) (railroad employee last seen walking out of view
behind locomotive; his dismembered body later found strewn
down the tracks: Ae/d: jury entitled to find that locomotive
negligently backed over him, even though other scenarios were
equally likely); Webb v. Ill. Cent. R.R. Co., 352 U.S. 512 (1957)
(railroad employee slipped on cinder; Ae/d: jury entitled to find
that cinder came from railroad, despite the fact that there was
no direct evidence to this effect, and multiple non-railroad
sources were possible); Sentilles v. Inter-Caribbean Shipping
Corp., 361 U.S. 107, 109 (1959) (Jones Act) (crewman washed
overboard, subsequently manifested tuberculosis; Ae/d: jury
entitled to find that dunking aggravated the T.B., despite fact
that no medical witness so testified, and that medical
witnesses testified to the opposite, and other potential causes
were not negated. "he members of the jury, not the medical
witnesses, were sworn to make a legal determination of the
question of causation"); Gallick v. Baltimore & Ohio R.R. Co.,
372 U.S. 108 (1963) (employee bitten by mosquito; infection
and amputation followed; Held: jury entitled to find that
mosquito in question was hatched and grew in one of the pools
of water that railroad negligently allowed to stand on right-of-
way). See generally Lavender v. Kurn, 327 U.S. 645, 651
(1946) (expressly approving a measure of “speculation and
conjecture” in FELA cases).

24

humanitarian purposes, its accepted standard of
liberal construction in order to accomplish those
objects, the absence of anything in the legislative
history indicating a congressional intent to require a
restricted interpretation or expressly to exclude
such occupational disease, and the trend of existing
authorities dealing with the question... .”!4 Jd. at
181. See also Coray v. S. Pac. Co., 335 U.S. 520
(1949) (irreconcilable with Norfolk Southern’s
theory that common law principles necessarily
govern FELA causation), and Carter v. Atlanta &
St. A.B. Ry. Co., 338 U.S. 430 (1949) (same) (relying
on Coray).

IV. NORFOLK SOUTHERN’S ARGUMENT ABOUT
THE FELA NEGLIGENCE STANDARD IS NOT
PROPERLY BEFORE THE COURT, AND IN
ANY EVENT, THE JURY INSTRUCTIONS IN
FACT REQUIRED WHAT NORFOLK
SOUTHERN CALLS “TRADITIONAL”
COMMON LAW NEGLIGENCE.

At the end of its Petition, Norfolk Southern turns
to the question of whether FELA negligence, like

14 This last point is worth additional attention. Citing just four
lower court cases, “[n]Jot all of [which] could be sustained” under
the railroads’ interpretation, the Urie Court wrote: “We would
be most hesitant to adopt a construction of ‘injury’ as used in
this Act which would overrule the decisions last cited or
seriously impair their authority.” Urie, 337 U.S. at 186. The
Court should be much more hesitant to adopt a construction of
“in whole or in part” that would overrule, or seriously impair,
decisions from every one of the courts of appeal. See n.19,
supra.

25

FELA causation, is governed by a “relaxed” standard.
Pet. 14. That question is not properly before the
Court, because Norfolk Southern did not argue it in
the trial court, and, in any event, the instruction
given was a traditional common law negligence
instruction.

The Jury instruction to which Norfolk Southern
attempts to fasten this argument read in full as
follows:

DEFECT OR INSUFFICIENCY IN TRACKS OR
EQUIPMENT

The law under which plaintiff brings this action
provides that defendant shall be liable for injury
resulting "by reason of any defect or insufficiency,
due to its negligence, in its cars, engines,
apphances, machinery,’ tracks, _roadbeds,
works,... or other equipment." This statutory
provision does not mean that the railroad
employer is responsible for injury of an employee
merely because it was caused by some defect or
insufficiency of one of the items referred to. To
the contrary, the statute imposes liability on the
railroad employer only when the defect or
insufficiency is due to negligence, even the
slightest, on the part of the employer. If there is
an injury as the result of some defect or
insufficiency, you must decide the extent to which
such defect or imsufficiency was due _ to
negligence, even the slightest, on the part of the
railroad.

Opp. App. 20a. The term “negligence” had previously
been defined as “the failure to use ordinary or

26

reasonable care. It is either doing something that a
reasonably careful person would not do, or the failure
to do something that a reasonably careful person
would do, under circumstances similar to those
shown by the evidence.” /d. at 12a-13a.

Norfolk Southern asserts that these words “even
the slightest” could have allowed the jury to find
Norfolk Southern liable under a “slightest
negligence” standard. Pet. 8-9. The Court should
decline to review this issue.

First, Norfolk Southern failed to preserve the
point below. At trial, Norfolk Southern complained
continuously that the words “even the slightest,” as
used in this instruction, gave the wrong causation
standard. It never once, however, suggested that the
instruction affected the negligence standard.
Indeed, the first suggestion to this effect came in its
rebuttal brief in the Court of Appeals. Thus, Norfolk
Southern errs when it says (Pet. 8) that it “reiterated
its argument” about “slightest negligence” in the
Court of Appeals; the first time it made that
argument was in its Court of Appeals rebuttal brief.
Even then, it did so only in passing, in half a dozen
words unaccompanied by authority or reasoning. See
Norfolk Southern’s Rebuttal Brief in the Court of
Appeals p. 12 (“The trial court incorrectly instructed
the jury based upon the so-called ‘watered down’
version of causation and negligence”). So little, and
so late, was Norfolk Southern’s attempt to argue
“shghtest negligence” that the Court of Appeals saw
the jury instruction issue as purely a causation issue.
Pet. App. 9a (“Norfolk Southern raises the following
issues on appeal, which we slightly reword: ... .2.

27

Whether the trial court erred in instructing the jury
concerning causation”).

Indeed, Norfolk Southern’s petition does not
comply with this Court’s Rule 14.1(g)(@), which
requires that a petiticr state “when the federal
questions sought to be reviewed were raised; the
method or manner of raising them and the way in
which they were passed on by those courts; and
pertinent quotations of specific portions of the record
or summary thereof, with specific reference to the
places in the record where the matter appears . . . so
as to show that the federal question was timely and
properly raised and that this Court has jurisdiction
to review the judgment on a writ of certiorari.”

The second problem wth Norfolk Southern’s
argument is that it is simply incorrect. The
instruction did not have any effect on the previously-
defined negligence standard. What it told the Jury
was that Mr. Jordan had to prove at least some
negligence. Proof of a defect or insufficiency in
tracks or equipment was not enough; there had to be,
in addition, proof that “the defect or insufficiency is
due to negligence, even the slightest, on the part of
the employer [railroad].” Opp. App. 20a. In this
context, the words “even the slightest” did no more
than put FELA’s pure comparative negligence
scheme in operation. The jury was still required to
find “negligence,” and nothing in the instruction
suggests that the standard for negligence was
anything other than as previously defined, the
failure to use “ordinary and reasonable care.” Opp.
App. 25a. Logically, in order to find that “negligence,

28

even the slightest,” was present, the jury had to find
that negligence was present.!5

CONCLUSION
The petition for certiorari should be denied.

Respectfully submitted,

Adam H. Charnes Robert M. Frey

KILPATRICK STOCKTON LLP BUTLER, SNOW, O’MARA,

1001 West Fourth Street STEVENS & CANNADA, PLLC

Winston-Salem, NC 27101 Post Office Box 6010

(336) 607-7382 Ridgeland, MS 39158-6010

(601) 948-5711

Allison M. Zieve Christopher A. Keith

PUBLIC CITIZEN LITIGATION |WETTERMARK HOLLAND
GROUP & KEITH, LLC

1600 20th Street NW 2101 Highland Avenue

Washington, DC 20009 South, Ste. 750

(202) 588-1000 Birmingham, AL 36205

(205) 933-9500

15 Finally, and in any event, there is absolutely nothing to
suggest that the instruction had any effect on the verdict.
Where, as here, the verdict is a general verdict, and might have
rested on something other than the supposedly erroneous
instruction, the verdict must be affirmed unless it is shown that
the supposed flaw in the instructions “had substantial and
injurious effect or influence in determining the jury's verdict.”
Hedgpeth v. Pulido, 129 S. Ct. 530, 530-31 (2008) (internal
quotation marks omitted). Norfolk Southern never has
attempted to make, and never could make, such a showing.

APPENDIX

la

IN THE CIRCUIT COURT OF TENNESSEE
FOR THE THIRTIETH JUDICIAL DISTRICT AT
MEMPHIS

NO. CT-004175-03
DIV. I

JURY DEMAND

THOMAS DAVID JORDAN,

Plaintiff,

BURLINGTON NORTHERN SANTA FE

RAILROAD COMPANY, A corporation;

and NORFOLK SOUTHERN RAILWAY
COMPANY, A corporation,

Defendant.

JURY CHARGE

2a

Ladies and Gentlemen of the Jury:

You have now heard all of the evidence in this
case, and after lunch you will hear the final
arguments or summations of the lawyers for the
parties. [t is my duty to instruct you on the rules of
law that you must follow and apply in arriving at
your decision in this case, and you must follow the
law as I instruct you.

As jurors, it is your exclusive duty to decide
all questions of fact submitted to you and for that
purpose to determine the effect and value of the
evidence.

You must not be influenced by sympathy,
prejudice or passion.

You are to consider all of my instructions as a
whole and are to regard each in the light of all the
others. If in these instructions any rule, direction or
idea is repeated or stated in varying ways, no
emphasis thereon is intended by me and none must
be inferred by you. For that reason you are not to
single out any certain sentence or any individual
point or instruction and ignore the others.

The order in which the instructions are given
has no significance as to their relative importance.

Remember that any questions, objections,
statements or arguments made by the lawyers
during the trial are not evidence in this case;
however, if the lawyers have stipulated or admitted
any fact, you will regard that fact as being

3a

conclusively proved as to the party or parties making
the stipulation or admission.

If an objection to 2 question was sustained,
you must not speculate as to what the answer might
have been or the reason for the objection, and you
must assume that the answer would be of no value to
you in your deliberations.

You must not consider for any purpose any
offer of evidence that was rejected, or any evidence
that was stricken out by the Court; any such matter
is to be treated as though you had never known it.

You must never speculate to be true any
insinuation suggested by a question asked a witness.
A question is not evidence and may be considered
only as it supplies meaning to the answer.

In reaching your verdict, you are to consider
only the evidence in this case. You are not required
to set aside your common knowledge, however, as
you have the right to weigh the evidence in the light
of your own observations, experiences and common
sense.

The masculine form as used in_ these
instructions applies equally to a female person or a
corporation. The masculine form is simply used for
convenience. Likewise, whenever the singular is
used in these instructions, it may be taken equally to
mean the plural if the context requires it.

The fact that a corporation is a party must not
influence you in your deliberations or in your

4a

verdict. Corporations and persons are equal in the
eyes of the law. Both are entitled to the same fair
and impartial treatment and to justice by the same
legal standards.

EVIDENCE

You are to decide this case only from the
evidence which was presented at this trial. The
evidence consists of :

1) the sworn testimony of the witnesses
who have testified, both in person and by deposition;

2) the exhibits which were received and
marked as evidence; and

3) any facts to which all the lawyers have
agreed or stipulated.

There are two kinds of evidence - direct and
circumstantial. Direct evidence is direct proof of a
fact, such as testimony of a witness about what the
witness personally observed.

Circumstantial evidence is indirect evidence
that gives you clues about what happened.
Circumstantial evidence is proof of a fact, or a group
of facts, that causes you to conclude that another fact
exists. It is for you to decide whether a fact has been
proved by circumstantial evidence. If you base your
decision upon circumstantial evidence, you must be
convinced that the conclusion you reach is more
probable than any other explanation.

Sa

You are to consider both direct and
circumstantial evidence. The law permits you to give
equal weight to both, but it is for you to decide how
much weight to give to any evidence.

WITNESSES

While you must consider all of the evidence
which is admitted during the trial, this does not
mean that you must accept all of the evidence as
true or accurate.

You are not to decide an issue by the simple
process of counting the number of witnesses who
have testified on the opposing sides. You must
consider all the evidence in the case. You may decide
that the testimony of fewer witnesses on one side is
more convincing than the testimony of more
witnesses on the other side.

You are the sole and exclusive judges of the
credibility or believability of the witnesses who have
testified in this case. You must decide which
witnesses you believe and how important you think
their testimony is. You are not required to accept or
reject everything a witness says. You are free to
believe all, none, or part of any person's testimony.

In deciding which testimony you believe, you
should rely on your own common sense and everyday
experience. There is no fixed set of rules to use in
deciding whether you believe a witness, but it may
help you to think about the following questions.
These are the same questions [| mentioned in my
preliminary instructions. I will review them for you.

6a

l. Was the witness able to see, hear, or be
aware of the things about which the witness
testified?

2. How well was the witness able to recall
and describe those things?

3. How long was the witness watching or
listening?

4. Was the witness distracted in any way?
5. Did the witness have a good memory?
6. How did the witness look and act while

testifying?

7. Was the witness making an honest
effort to tell the truth, or did the witness evade
questions?

8. Did the witness have any interest in the
outcome of the case?

9. Did the witness have any motive, bias,
or prejudice that would influence the witness's
testimony?

10. How reasonable was the _ witness’s
testimony when you consider all of the evidence in
the case?

ll. Was the witness's testimony
contradicted by what that witness has said or done
at another time, by the testimony of other witnesses,
or by other evidence?

7a

12. Has there been evidence regarding the
witness’s intelligence, respectability, or reputation
for truthfulness?

13. Has the witness’s testimony been
influenced by any promises, threats, or suggestions?

14. Did the witness admit that any part of
the witness’s testimony was not true?

There may be discrepancies or differences
within a witness’s testimony or between the
testimony of different witnesses. This does not
necessarily mean that a_ witness. should be
disbelieved. Sometimes when two people observe an
event they will see or hear it differently. Sometimes
a witness may have an innocent lapse of memory.
Witnesses may testify honestly but simply may be
wrong about what they thought they saw or
remembered. You should consider whether a
discrepancy relates to an important fact or only to an
unimportant detail.

You may conclude that a witness deliberately
lied about a fact that is important to your decision in
the case. If so, you may reject everything that
witness said. On the other hand, if you decide that
the witness lied about some things but told the truth
about others, you may accept the part you decide is
true and you may reject the rest.

Usually witnesses are not permitted to testify
as to opinions or conclusions. However, a witness
who has scientific, technical, or other specialized
knowledge, skill, experience, training, or education

8a

may be permitted to give testimony in the form of an
opinion. Those witnesses are often referred to as
“expert witnesses.”

You should determine the weight that should
be given to each expert’s opinion and resolve
conflicts in the testimony of different expert
witnesses. You should consider:

:. the education, qualifications, and
experience of each witness; and

2. the credibility of each witness; and

2. the facts relied upon by the witness to
support the opinion; and

4. the reasoning used by the witness to
arrive at the opinion.

You should consider each expert opinion and
give it the weight, if any, that you think it deserves.
You are not required to accept the opinion of any
expert.

In this case certain expert witnesses were
asked to assume that certain facts were true and to
give an opinion based upon those assumptions. This
is called a hypothetical question. You must
determine if any fact assumed by the witness has not
been established by the evidence and the effect of
that omission, if any, upon the value of the opinion.

9a

THEORIES AND CONTENTIONS

Ladies and gentlemen, I am going to tell you
the theories and contentions of the parties.

It is the theory and contention of the Plaintiff,
Thomas David Jordan, that on November 13, 2002,
he was employed by the Defendant, Norfolk
Southern Railway Company, performing work in the
furtherance of his duties by preparing a train for
interchange at a location known in the local railroad
world as “Broadway” at a point between “Tower 17”
and “K C Junction.” It is the Plaintiffs theory and
contention that, while performing tasks required of
him by his employer, he was struck by a train owned
and operated by Defendant, Burlington Northern
Santa Fe Railroad Company, which was passing on
its adjacent track, resulting in severe permanent
and disabling injuries to him.

It is the further theory and contention of the
Plaintiff that both defendants were at fault and that
their combined fault was the legal cause of the
accident and resulting injuries, and for which he
brings this suit to recover money damages from
them.

Each of the defendants, Norfolk Southern
Railway Company and Burlington Northern Santa
Fe Railroad Company, categorically denies
negligence under the circumstances then and there
existing; and they each deny fault to any extent
whatsoever.

10a

Moreover, it is the theory and contention of
each Defendant that if either of them should be
found to be at fault, which they deny, then the
Plaintiff himself was at fault and that his fault was
the sole, direct, proximate and legal cause of the
accident such that his right to recover is either
barred thereby or diminished by his degree of fault.

Ladies and gentlemen, I have given you the
theories and contentions of the parties so I can tell
you where the law places the burden of proving the
issues in this case.

It is now my duty to explain the law that
applies to the specific facts of this case. If any of the
lawyers in this case have told you that the law is
different than what I will tell you, you will take the
law as given to you by the Court. It is your duty and
yours alone to determine what the facts are. After
you determine what the facts are, it becomes your
further duty to apply those facts to the law as given
to you by the Court free from any bias, prejudice or
sympathy one way or the other.

In this case plaintiff has sued two (2)
defendants both of which are Railroads. Plaintiff has
sued Norfolk Southern Railway Company which is
his employer. He has also sued Burlington Northern
Santa Fe Railroad Company which is not his
employer. Since certain legal principles are different
where the employee is suing his employer, and
where he is suing someone other than his employer,
I will segregate the instructions as follows:

lla

‘. I will first give you instructions dealing
with general principles of law that apply equally to
all parties.

z: I will next instruct you on the law that
applies exclusively between plaintiff and his
employer, the defendant, Norfolk Southern Railway
Company.

3. I will then instruct you on the law that
applies exclusively to the case of the plaintiff against
the defendant Burlington Northern Santa Fe
Railroad Company.

BURDEN OF PROOF AND PREPONDERANCE
OF EVIDENCE

In this action, the Plaintiff has the burden of
establishing by a preponderance of the evidence all
of the facts necessary to prove the following issues:

A. That the Defendants were at fault;

B. The nature and extent of the Plaintiff's
injuries and damages.

The Defendants, as an affirmative defense,
claim that Plaintiff was at fault. The effect of this
affirmative defense is that if proved, it will either
prevent Plaintiff from recovering a judgment in this
case or will reduce the recovery of Plaintiff.

The Defendants have the burden of
establishing by a preponderance of the evidence all
of the facts necessary to prove the fault of Plaintiff.

12a

The term “preponderance of the evidence”
means that amount of evidence that causes you to
conclude that an allegation is probably true. To
prove an allegation by the preponderance of the
evidence, a party must convince you that the
allegation is more likely true than not true.

If the evidence on a particular issue is equally
balanced, that issue has not been proven by a
preponderance of the evidence and the party having
the burden of proving that issue has failed.

You must consider all the evidence on each
issue. Your verdict must not be based upon mere
speculation, guess, or conjecture.

Therefore in deciding this case you must
determine the fault, if any, of each of the parties. If
you find that more than one of the parties are at
fault, you will then compare the fault of the parties.
To do this, you will need to know the definition of
fault.

A party is at fault if you find by a
preponderance of the evidence that the party was
negligent and that the negligence was a legal cause
of the injury or damage for which a claim is made.

Fault, as defined, has two parts: Negligence
and legal cause. Negligence is the failure to use
ordinary or reasonable care. It is either doing
something that a reasonably careful person would
not do, or the failure to do something that a
reasonably careful person would do, under
circumstances similar to those shown by the

13a

evidence. The amount of caution required of a person
in the exercise of ordinary care depends upon the
conditions apparent to him or that should be
apparent to a reasonably prudent person under
circumstances similar to those shown by the
evidence. Negligence will not be inferred from mere
happening of an accident or occurrence of injury. It
must be proved by direct or circumstantial evidence.
A person may assume that every other person will
use reasonable care unless the circumstances
indicate the contrary to a reasonably careful person.

The second part of fault is legal cause. A legal
cause of an injury is a cause which, in natural and
continuous sequence, produces the injury, and
without which the injury would not have occurred.

An act or omission which fails to prevent
injury is a legal cause of the injury. There may be
more than one legal cause of an injury.

To be a legal cause of an injury, there is no
requirement that it be the only cause, the last act, or
the one nearest to the injury, so long as it is a factor
in producing the injury or damage.

The foreseeability requirement does _ not
require the person guilty of negligence foresee the
exact manner in which the injury takes place or the
exact person who would be injured. It is enough that
the person guilty of negligence could foresee, or
through the exercise of reasonable care should have
foreseen, the general manner in which the injury or
damage occurred.

l4a

If you find, by a preponderance of the
evidence, that a party was negligent and that the
negligence was a legal cause of the injury or damage
for which a claim was made, you have found that
party to be at fault. As I said before the plaintiff has
the burden to prove fault on behalf of the
defendants. If the plaintiff fails to do so, you should
find such defendant’s fault to be zero. Likewise, the
defendants have the burden to prove fault on behzif
of the plaintiff. If the defendants fail to do so, you
should find the plaintiffs fault to be zero. If you find
both the plaintiff and one or both of the defendants
to be at fault, you must then determine the
percentage of fault chargeable to each of them.

You must also determine the total amount of
damages sustained by the plaintiff. You must do so
without reducing those damages by any percentage
of fault you may have charged to any party. I will
instruct you on the law of damages in a few minutes.

When you have made these decisions, as I
have instructed you, it becomes my duty under the
law to determine the amount of damages that you
have awarded depending upon your finding as to
fault, if any, with respect to each of the parties.

Your first obligation is to determine the fault,
if any, of the parties. Next, you must assign a
percentage of fault, if any, to each party. This
percentage figure for each party may range from
zero (0) percent to one hundred (100) percent. When
the percentages of fault of all parties being compared
are added together, the total must equal either 0% or
100%.

lSa

The parties to whom you may assign fault are:

Norfolk Southern Railway Company, A
corporation

Burlington Northern Santa Fe Railroad
Company, A corporation

Thomas David Jordan

If you find more than one party at fault, you
must compare the fault of each party in order to
apportion the fault among such parties.

You should weigh the respective contributions
of each person te the occurrence in question and,
considering the conduct of each as a_ whole,
determine whether one made a larger contribution
than the other(s), and if so, to what extent it exceeds
that of the other(s).

The percentage of fault assigned to any person
whose conduct may be compared should depend upon
all of the circumstances of the case. The conduct of
each person may make that person more or less at
fault, depending upon all of the circumstances. In
order to assist you in making this decision, you will
be given a list of factors to consider. But the
determination of fault on the part of any person and
the determination of the relative percentages of
fault, if any, is a matter for you alone to decide. You
may use some, all, or none of the factors listed, and
you may also consider any other factors that you find
to be important under the facts and circumstances of
this case.

l6a

1. Whose conduct more directly caused the
injury to the plaintiff,

2. How reasonable was the _ person's
conduct in confronting a risk; for example, did the
person know of the risk or should the person have
known of it;

3. Did the person fail to reasonably use an
existing opportunity to avoid an injury to another;

4. Was there a sudden emergency
requiring a hasty decision;

5. What was the significance of what the
person was attempting to accomplish by the conduct.

By listing these factors, I do not mean to
indicate that these are the only factors you could
consider in apportioning fault between parties who
are negligent, nor do I intend to suggest to you that
any party is negligent. That is a matter entirely for
you to decide and you should rely on your own
common sense and _ ordinary experience’ in
apportioning fault.

Your next obligation is to determine the full
amount of damages, if any, sustained by:

Thomas David Jordan

In arriving at the full damage figure for a
party, you should not consider in any way the
question of fault. Do not reduce the damages by any
percentage of fault.

17a

The court will provide you with a special
verdict form that will assist you in your duties.

LAW AS RELATES TO NORFOLK SOUTHERN
RAILWAY COMPANY
AS EMPLOYER OF THOMAS DAVID JORDAN,
EMPLOYEE

Although there are two defendants in this
lawsuit, it does not follow from that fact alone that if
one is liable, both are liable. Each defendant is
entitled to a fair consideration of his own defense,
and is not being prejudiced by the fact, if it should
become a fact, that you find against the other.
Unless otherwise stated, all instructions given you
govern the case as to each defendant.

Please remember, all of my earlier
instructions regarding fault of the parties including
negligence and legal cause apply to this Defendant.

In this case plaintiff has sued two railroad
defendants. Plaintiffs claim against his employer
Norfolk Southern Railway Company is brought in
plaintiffs capacity as an employee. The rights,
duties and obligations between plaintiff employee
and the employer Norfolk Southern’ Railway
Company in this case are based upon a law of the
United States commonly called the Federal
Employers’ Liability Act. This title does not mean
that every employer is liable to every employee for
every injury. The instructions | am about to give you
apply exclusively between the plaintiff employee and
the defendant employer Norfolk Southern Railway
Company and have no application to plaintiffs claim

18a

against the other defendant, Burlington Northern
Santa Fe Railroad Company.

The plaintiff in this case claims damages for
personal injuries, alleged to have been suffered as a
result of negligence on the part of the Norfolk
Southern Railway Company, his employer.

Section 1 of the Federal Employers’ Liability
Act as set forth in 45 U.S.C.A. §51, under which the
plaintiff claims the right to recover damages in this
action, provides in part that:

“Every common carrier by railroad
while engaging in commerce between
any of the several States * * * shall be
liable in damages to any person
suffering injury while he is employed by
such carrier in such commerce, * * * for
such injury * ** resulting in whole or
in part from the negligence of any of the
officers, agents, or employees of such
carrier.”

It is established that, at the time and place
alleged in the complaint, this defendant was a
common carrier by railroad engaged in interstate
commerce; that the plaintiff was then an employee of
this defendant engaged in such commerce; and that
the plaintiff's right, if any, to recover against Norfolk
Southern Railway Company is governed by the
provisions of the Federal Employers’ Liability Act.

This is a negligence action. This means that
before plaintiff can recover he must prove that his

19a

injury resulted in whole or in part from the
negligence or fault of this defendant.

A railroad is not an insurer of the safety of its
employees, and negligence on the part of the railroad
may not be presumed or inferred from mer? proof of
the happening of an accident.

No liability may be imposed upon the railroad
unless the evidence disclosed (1) that it failed to
exercise reasonable care under the circumstances,
and (2) that any such failure in whole or in part
legally caused the injuries of the plaintiff. As I said
before, the burden is upon the plaintiff to prove both
of the foregoing elements of his case by a
preponderance of the evidence.

UNAVOIDABLE RISKS OR DANGERS

A railroad is not liable for those risks or
dangers which it could not avoid in the observance of
its duty of due care; in order to recover plaintiff is
required to prove by a preponderance of the evidence
that the defendant through its agents, servants or
employees was guilty of negligence, which, in whole
or in part, legally caused the accident and injury.
You must determine the extent to which, if any, the
risks and dangers involved in this case were
unavoidable, if at all.

The Federal Employers’ Liability Act also
provides that in any action brought against any
common carrier under or by virtue of the Act. Such
employee shall not be held to assume any risk of his
employment in any case where such injury resulted

20a

in whole or in part from the negligence of the
railroad. If you find that the Defendant, Norfolk
Southern Railway Company was negligent and that
such negligence was a legal cause of injury sustained
by the Plaintiff, then even if the Plaintiff may have
continued to work though he knew of the unsafe
nature of the dangers existing, Plaintiff is entitled to
recover damages.

DEFECT OR INSUFFICIENCY IN TRACKS OR
EQUIPMENT

The law under which plaintiff bmngs this
action provides that defendant shall be liable for
injury resulting “by reason of any defect or
insufficiency, due to its negligence, in its cars,
engines, appliances, machinery, tracks, roadbeds,
works, .. . or other equipment.” This statutory
provision does not mean that the railroad employer
is responsible for injury of an employee merely
because it was caused by some defect or insufficiency
of one of the items referred to. To the contrary, the
statute imposes liability on the railroad employer
only when the defect or insufficiency is due to
negligence, even the slightest, on the part of the
employer. If there is an injury as the result of some
defect or insufficiency, you must decide the extent to
which such defect or insufficiency was due to
negligence, even the slightest, on the part of the
railroad.

SAFER MANNER OF DOING WORK

It was the continuing duty of the defendant,
as an employer, at the time and place in question, to

2la

use ordinary care under the circumstances, in
furnishing the plaintiff with a reasonably safe place
in which to work, and to use ordinary care under the
circumstances to maintain and keep such place of
work in a reasonably safe condition. This does not
mean, of course, that the employer is a guarantor or
insurer of the safety of the place to work. The extent
of the employer's duty is to exercise ordinary care,
under the circumstances, to see that the place in
which the work is to be performed is reasonably safe,
under the circumstances shown by the evidence in
the case.

DUTY REGARDING “TRACK, TOOLS,
APPLIANCES, AND EQUIPMENT” AND
“OPERATIONS”

The defendant has a duty to use ordinary care
to provide its employees with reasonably safe and
suitable tracks, tools, machinery and appliances
with which to do their work, and which reasonably
serve the purpose for which they were intended. As a
general guideline for you, the test is not whether the
appliances to be used are absolutely safe, but
whether or not the employer has exercised
reasonable care and diligence commensurate with
the practical operation of the railroad to make them
reasonably safe.

However, the employer is not required to
furnish the latest, best and safest track, tools,
machinery or appliances, or to discard standard
tools, machinery track or appliances upon the
discovery of later developments or better equipment
or appliances. Neither is there any duty on the

22a

employer to anticipate misuse of such equipment nor
to guard against the consequences of misuse.

Ordinarily, an employee is not required to
make an inspection of the tools and equipment
furnished him by his employer. In the absence of
knowledge to the contrary and in the absence of
circumstances that caution him or would caution a
reasonably prudent person in like position to the
contrary, an employee may assume that the
employer has furnished him with safe tools and
appliances with which to perform his work, and he
may rely and act on that assumption.

However, it is the duty of the employee to use
ordinary care to discover open and obvious defects
which render such tools or equipment dangerous to
use in the performance of his work.

ACTUAL OR CONSTRUCTIVE NOTICE OF
DEFECTIVE CONDITION

Before you may find a railroad liable for the
injury of an employee resulting from a defective
condition in equipment or his place of work, you
must be satisfied that the railroad had either actual
or constructive notice of the defective condition and
that it had a reasonable opportunity to remove or
repair the defect before the occurrence involved in
this action.

Actual notice of a condition is said to exist
when one has direct information of the condition.
Constructive notice of a condition is said to exist
when the condition is plainly visible or has existed

23a

long enough that by the use of reasonable care it
should have been discovered. The legal effect of
constructive notice is the same as actual notice.

To find that a railroad had notice, actual or
constructive, of a defective condition, you must be
satisfied that such notice was received by an
employee who was authorized to repair or remedy
such condition, or by an employee having a duty to
report such condition to one in authority or by a
person who, in a_e reasonable delegation of
responsibility, ought to have had such authority and
duty.

DUTY OF PLAINTIFF TO EXERCISE
REASONABLE CARE

It was the continuing duty of the plaintiff to
exercise reasonable and ordinary care for his own
safety and protection. In your consideration of this
issue, you may consider the plaintiffs actions in the
light of any conditions known to him. If you find that
he did net exercise such care as a_ reasonably
prudent pers’n would under like circumstances, and
that such conduct contributed, in whole or in part, to
the plaintiffs injury, then he is negligent.

The plaintiff was also under a duty, constant
and continuing, to exercise reasonable care to inform
himself of the proper methods of doing his work and
to minimize for himself the risks and hazards
necessarily inherent in it and which the defendant
could not remove by the exercise of ordinary care. It
was his duty to exercise reasonable care to inform
himself of his surroundings, of the character and

24a

type of the instrumentalities with which he was
engaged or with which he might come in contact and
of any condition which might create any danger or
hazard for him, including working in close clearance
conditions on Broadway, and to use such care to
avoid injury from it.

DUTY REGARDING “ORDINARY RISKS OR
HAZARDS”

During all the time he was working, and at
the time he was injured, the law imposed upon
plaintiff the duty to exercise reasonable care for his
safety. The defendant owed him no duty to exercise a
higher degree of care for his safety than he owed to
himself.

Plaintiff was required to exercise reasonable
care to protect himself from injury from the ordinary
hazards and dangers of his employment not
resulting from defendant’s negligence and to protect
himself from injury from such hazards however and
whenever they might be encountered.

Because the amount of care exercised by a
reasonably prudent person varies in proportion to
the danger known to be involved in what is being
done, it follows that the amount of caution required,
in the use of ordinary care, will vary with the nature
of what is being done, and all the surrounding
circumstances shown by the evidence in the case. To
put it another way, as the danger that should
reasonably be foreseen increases, so the amount of
care required by law also increases as to both
parties.

25a

In determining whether or not the employer
and employee to this cause discharged the duties
imposed upon each of them in exercising reasonable
care and diligence, it is proper for you to take into
consideration the plaintiffs familiarity with the
place in which he customarily worked, and his
familiarity with the nature of the work which is
customarily performed in that place by other
employees.

All work on a railroad involves some danger,
but it has to be done and the dangers involved do not
involve liability provided the railroad _ takes
reasonable precautions consistent with the conduct
of the business.

You have been instructed that plaintiff was
under a duty to exercise reasonable care for his own
safety. In your consideration of this issue, you may
consider plaintiffs action’s in the light of any
condition known to him (or conditions which should
have been known to him in the exercise of ordinary
care.)

The plaintiff was under a duty to observe
obvious and apparent conditions. Every person owes
to himself the duty to see what is plainly to be seen
by the ordinary use of his senses and, if clearly
visible, it is deemed, in law, to have been seen. If you
find from the evidence in this case, that the
condition of which the plaintiff complains was one
which a person using ordinary and reasonable care
could have discovered and avoided, then you may
find that person to have been negligent.

26a

COMPANY RULES AND REGULATIONS

Reference has been made in this case to
certain rules adopted by the railroad for the safety of
its employees. These rules were not admitted into
evidence as legal standards of duty but as evidence
of the degree of reasonable care to be exercised on
the part of either the plaintiff or the defendant in
situations to which the rules apply.

LAW AS RELATES TO BURLINGTON
NORTHERN SANTA FE
RAILROAD COMPANY

I have previously instructed you upon the law
as applies to Norfolk Southern Railway Company, as
the employer of the plaintiff. [ will now instruct you
on the law as applies to the defendant Burlington
Northern Santa Fe Railroad Cormnpany.

As I have explained before, the Plaintiff
Thomas David Jordan is not an employee of
Defendant Burlington Northern and Santa Fe
Railway Company. As such, the Federal Employers’
Liability Act has no application to Defendant
Burlington Northern and Santa Fe Railway
Company and Burlington Northern and Santa Fe
Railway Company has no duty to provide plaintiff a
reasonably safe place to work. The plaintiffs theory
against Burlington Northern Santa Fe is under
common law negligence.

27a

A claim for negligence requires the following
elements:

(1) a duty of care owed by the defendant to
the plaintiff,

(2) co.uduct by the defendant falling below
the standard of care amounting to a breach of that

duty;
(3) an injury or loss;
(4) causation in fact; and
(5) proximate or legal cause.

If you find from the greater weight or
preponderance of the evidence that the headlight on
the Burlington Northern train was not shining at all,
as alleged, then you have found Burlington Northern
was negligent.

Similarly, if you find from the greater weight
or preponderance of the evidence under the
circumstances then and there existing that
Burlington Northern had a duty to engage either the
bell, or horn, or both, by its failure to do so, then you
have found that Burlington Northern was negligent.

In determining whether Burlington Northern
was at fault, you must then proceed to determine
whether any negligence that you may have found on
the part of Burlington Northern was a legal cause of
the accident in question. In doing so you must follow
all of my earlier instructions regarding legal cause.

28a

DAMAGES

If you find that the Plaintiff is entitled to
recover from the Defendant, then you should award
an amount to the Plaintiff for each of the following
elements of claimed loss or harm, provided you find
that it was or will be suffered by him/her and it was
legally caused by the fault of the defendant.

First you should determine what, if any,
reasonable compensation Plaintiff is entitled to
recover for the following:

1. Past physical pain and_ suffering,
including loss of capacity for the enjoyment of life,

2. Permanent impairment,

3. Future physical pain and _ suffering,

including future loss of capacity for the enjoyment of
life.

These are often referred to as “non-economic”
damages.

No definite standard or method of calculation
is prescribed by law by which to fix compensation for
such injuries; nor is the opinion of any witness
required as to the amount. In making such
calculation, you shall exercise your authority with
calm and sensible judgment and the damages you fix
shall be just and reasonable in the light of the
evidence.

29a

You should also consider what, if any,
“economic” damages were or will be suffered. These
include:

& the reasonable value of medical care,
services, and supplies reasonably required in the
future treatment of the Plaintiff, and

2. the value of earning capacity lost in the
past and that will be reasonably certain to be lost in
the future as a result of the injury in question.

In determining what, if any, award should be
made for lost earning capacity, you should consider
any evidence of Plaintiffs earning capacity,
including, but not limited to, the following: the
Plaintiffs health, age, character, occupation, past
earnings, intelligence, skill, talents, experience and
record of employment. You should also consider the
Plaintiffs physical capacity to perform work at the
time of injury and thereafter. It is not the loss of
time or actual earnings that may be recovered, but
the loss of the ability to earn.

You are not permitted to award speculative
damages, which means compensation for future loss
or harm which, although possible, is conjectural or
not reasonably certain.

However, you should compensate a Plaintiff
for any loss or harm which is reasonably certain to
be suffered as a legal result of the injury in question.

If you find from a preponderance of the
evidence that the plaintiff has and will with

30a

reasonable certainty in the future experience pain
and suffering as a result of his injuries, he is entitled
to be fairly and reasonably compensated therefor,
but such compensation may not be determined by
you based upon any hourly, daily, monthly or other
unit of time measurement for there is no
mathematical formula by which factors of this kind
can be fairly determined.

Your award, if any, will not be subject to any
income taxes, and you should not consider such taxes
in fixing the amount of your award, if any.

Thus, in the event that you should find that
plaintiff is entitled to an award of damages in this
case for loss of wages and/or future earning capacity,
you should take into consideration such loss after
income tax; that is, you should determine the actual
or net amount that plaintiff has lost or will lose,
taking into consideration that any past or future
earnings would be subject to income taxes, and you
should award plaintiff only what he actually has lost
or will lose, that is, his earnings less any such tax
that would be due on them. Further, in consideration
of such loss and to the extent there is evidence
concerning such, you may take into consideration the
following factors: the number of years the plaintiff
may be expected to live and work; his wages and
fringe benefits, his likely wage increases due to
promotions, seniority or experience raises, merit
raises, and the effect of inflation or deflation of his
future wages.

Since money can earn interest, an amount to
cover a future loss of earnings is more valuable to

3la

plaintiff if received today than if the same amount is
received in the future. Therefore, if you decide to
award plaintiff an amount for future loss of earning
capacity, it must be discounted to present value by a
factor equal to an after tax rate of return on a risk-
free investment according to accepted economic
principles. Although you are not bound to accept the
conclusions or opinions of the economists who
testified during the trial, [ instruct you that their
testimony on discount was based on acceptable
economic principles. However, it is for you and you
alone to determine the weight, faith and credit to be
given to any witness.

In the event you find that plaintiff is entitled
to receive an award for physical disability, mental
and/or physical pain and suffering, past, present,
and future, I instruct you that such an award is not
subject to income tax, and any amount which you
award on this basis will not be taxed by the federal
or state government. You are not to consider the
effect of tax on said sum because no tax will be due
on it. [Lunch Break]

CONCLUDING INSTRUCTIONS

[ have given you various rules of law to help
guide you to a just and lawful verdict. Whether some
of these instructions will apply will depend upon
what you decide are the facts. My instructions on
any subject, including instructions on damages,
must not be taken by you to indicate my opinion of
the facts you should find or the verdict you should
return.

32a

Your attitude and conduct at the beginning of
your deliberations are very important. It is rarely
productive for any juror to immediately announce a
determination to hold firm for a certain verdict
before any deliberations or discussions take place. If
you were to do that, it might be difficult for you to
consider the opinions of your fellow jurors or change
your mind, even if you later decide that you might be
wrong. Please remember that you are not advocates
for one party or another. You are the judges of the
facts in this case.

Each of you should deliberate and vote on
each issue to be decided.

Before you return a verdict to the Court,
however, each of you must agree on it in its final and
complete form so that each of you will be able to
state truthfully that the verdict is his or hers. The
verdict must represent the considered judgment of
each juror. In order to return a verdict, it is
necessary that each juror agree thereto. Your verdict
must be unanimous.

It is your duty to consult with one another and
to reach an agreement, if you can do so without
violence to individua! judgment. Each of you must
decide the case for yourself, but do so only after an
impartial consideration oi the evidence with your
fellow jurors. In the course oi your deliberations, do
not hesitate to re-examine your own views and to
change your opinion if you are convinced that it is
not correct. But do not surrender your honest
conviction as to the weight or effect of evidence solely

33a

because of the opinion of your fellow jurors, or for the
mere purpose of returning a verdict.

The law forbids you to determine any issue in
this case by chance. Thus, if you decide that a party
is entitled to recover, you must not arrive at the
amount of damages to be awarded by agreeing in
advance to take each juror’s independent estimate of
the amount to be awarded, to total those amounts, to
divide the total by twelve and to make that resulting
average the amount you award.

Some of you may have taken notes during the
trial. Once you retire to the jury room you may refer
to your notes, but only to refresh your own memory
of the witnesses’ testimony. You are free to discuss
the testimony of the witnesses with your fellow
jurors, but each of you must rely upon your own
individual memory as to what a witness did or did
not say.

In discussing the testimony, you may not read
your notes to your fellow jurors or otherwise tell
them what you have written. You should never use
your notes to persuade or influence other jurors.
Your notes are not evidence. Your notes should not
be considered as a transcript of the testimony and
should carry no more weight than the unrecorded
recollection of another juror.

If, during your deliberations, you would like to
review the exhibits, then please knock on the door of
the jury room and ask my court officer to bring them
to you.

34a

If a question arises during deliberations and
you need further instructions, please print your
question on a sheet of paper, knock on the door of the
jury room, and give the question to my court officer.

1 will read your question and I may call you
back into the courtroom to try to help you. Please
understand that I may only answer questions about
the law and cannot answer questions about the
evidence. [Lawyers to Bench/Excuse Mrs. Peyton]

You will now retire and select one of your
number to act as presiding juror who will preside
over your deliberations. As soon as all twelve of you
have agreed upon a verdict, your presiding juror will
complete and sign the Verdict Form and you will
knock on the jury deliberation room door to advise
one of my court officers that you have agreed on a
verdict.

Remember that you may deliberate only when
all of you are present in the jury room. You may not
resume your deliberations after any breaks until all
of you have returned to the jury room.

35a

VERDICT FORM

We, the jury, make the following answers to
the questions submitted by the Court:

i. Was Defendant, Norfolk Southern
Railway Company negligent under the Court’s
instructions?

YES NO

2. Was Defendant, Burlington Northern
Santa Fe Railroad Company negligent under the
Court’s instructions:

(a) by turning the headlight off?

YES No

(b) by not engaging the bell or horn or
both?

YES NO

(If your answers to Questions 1 and 2 are all
“no,” sign the verdict form and return it to the
courtroom. If you answered “yes” to any question in
1 or 2 above, proceed to Question 3, 4 and 5.)

5. Was Plaintiff, Thomas David Jordan,
negligent under the Court’s instructions?

YES NO_

36a

4. Considering your answers to Questions
1, 2 and 3, please state in percentage terms the
relative fault, if any, to be attributed to the parties
under the Court’s instructions.

Defendant, Norfolk Southern
Railway Company

% (0-100%)

Defendant, Burlington Northern
Santa Fe Railroad Company

% (0-100%)

Plaintiff, Thomas David Jordan

% (0-100%)

TOTAL: 100%

5. Without considering the percentage of
fault found in Question 4, what total amount of
damages do you find to be sustained by Plaintiff,
Thomas David Jordan?

Date Presiding Juror

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1436%3A2. Public record. Not legal advice.