
    Richard W. Inglut, Appellant, v Consolidated Rail Corporation, Respondent.
   Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in submitting the issue of plaintiffs contributory negligence to the jury in this action brought pursuant to the Federal Employer’s Liability Act. The theory of contributory negligence presented was neither pled nor proven at trial. Thus, plaintiff is entitled to the full amount of damages awarded by the jury without any offset for his contributory negligence.

The jury’s failure to compensate plaintiff for future pain and suffering is not against the weight of the evidence. The record discloses that in the seven years since the cancerous tumor on plaintiffs bladder was diagnosed, there has been no recurrence of the condition. The jury also heard expert testimony that the chance of such a tumor recurring is greatly reduced after an individual has been cancer-free for that long. Therefore, it cannot be said that the jury’s determination was not based on a fair interpretation of the evidence (see, Crumb v Fallon, 156 AD2d 949; Kuncio v Millard Fillmore Hosp., 117 AD2d 975, Iv denied 68 NY2d 608). (Appeal from Order and Judgment of Supreme Court, Erie County, Wolf, Jr., J.—Negligence.) Present—Denman, P. J., Boomer, Pine, Balio and Fallon, JJ.  