Before DUFFY, Chief Judge, and SCHNACKENBERG and HASTINGS, Circuit Judges.
This was an action brought by plaintiff, Donald Affleck (appellee), a delivery clerk for defendant, Chicago and North Western Railway Company (appellant), for personal injuries suffered on December 4, 1955 during the course of his employment. Plaintiff claimed these injuries proximately resulted from the alleged negligence of the defendant, and based his action upon the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60.The jury returned a verdict of $10,000 in favor of plaintiff, and from a judgment entered thereon, defendant appeals.
The errors relied upon arise out of alleged prejudicial remarks by plaintiff's counsel in the opening statement and in the final argument, errors in certain instructions given by the court and the failure of the trial court to grant defendant's motion for a new trial.
At the outset it should be noted that defendant rested its case without the introduction of any evidence as to the accident itself, and concedes that the sufficiency of the evidence is not in issue.
The first error claimed arises out of a remark of plaintiff's counsel in his opening statement to the jury as shown by the following extract from the record:
"The plaintiff is Donald Affleck. He is 41. He was 41 years of age on December 4, 1955; married, has five youngsters -
"Mr. Gobel: I am going to object, if your Honor please, and ask that be stricken and that the jury be asked to disregard it.
"The court: Well, the question of family, number of children, is all immaterial, and the jury will not regard that aspect of the case.
"Mr. Gobel: I ask that a juror be withdrawn and a mistrial declared.
"The Court: Overruled. The jurors understand that the question of family relationship has nothing to do with the issues in the case."
Defendant further complains of certain remarks of plaintiff's counsel in his final argument to the jury wherein counsel stated:
"I don't think there is any one in this courtroom who would have wanted to go through what he went through, or ...