Sabella

I dissent.

I would reverse the judgment on the ground that the misconduct of counsel for plaintiff deprived defendant of its right to a fair trial.

In his opening statement, counsel for plaintiff made a preliminary appeal to the sympathy of the jury by stressing that plaintiff had left school after the seventh grade to go to work and had worked for defendant for 36 years. Thereafter in the course of the trial, counsel deliberately sought to implant prejudice in the jury against defendant. He insinuated without offering any evidence to prove it, that defense counsel had withheld photographs favorable to plaintiff. He referred *322 to defendant and its attorneys as ‘ cheapskates. ’ ’ He asked rhetorical questions calculated to convey the impression that defense witnesses were not honest in their testimony. Nor was that all. After several days of trial, when a trial court is normally reluctant to grant a mistrial, he used his closing argument to intensify his appeal to the passion and prejudice of the jury. The appeal was the more insidious because it followed upon a fulsome declaration of his great trust in the jury system. His trust was such that he urged a verdict on issues…

Defendant appeals from a judgment in favor of plaintiff under the Federal Employers’ Liability Act. The jury brought in a verdict of $115,500, but by remittitur to which plaintiff consented the award was reduced to $80,000. Defendant cites as error the trial court’s refusal to admit evidence of a disability pension, and purported misconduct by plaintiff’s counsel. We conclude that the judgment must be affirmed.

Plaintiff Mike Sabella was injured while working as a “ car-man cutter” for defendant railroad. Among other duties, it was his task to cut damaged freight cars into scrap. While doing so, plaintiff fell from the roof of a car he was cutting and sustained severe back injuries. He alleged that his fall was caused by the negligence of defendant’s crane operator in moving the roof section, which had been attached to the crane preparatory to lifting the section off, while plaintiff was still walking on it; and by the failure of defendant to provide a reasonably safe place in which to work. The defense was based *314 on a denial of negligence and an allegation of contributory negligence, which may reduce an F.E.L.A. award.

At the conclusion of the trial, and following the…