Gerald R. Kelly v. Kansas City Public

The plaintiff, Gerald R. Kelly, driving a 1956 Plymouth station wagon north on Prospect Avenue passed through the light-controlled
intersection of 27th Street and by reason of a "traffic jam" at 26th Street stopped with the traffic ahead opposite 2619 Prospect,
just behind a Sears delivery truck. While he was thus stopped a Kansas City Public Service Company trolley bus, operated by
Harold B. Backer, ran into the rear end of the stopped station wagon, jamming the front end of it into the rear end of the
stopped Sears truck. To recover damages for his resulting personal injuries and the injury to his station wagon Kelly instituted
this action against the Kansas City Public Service Company and its trolley bus operator, Backer. A jury awarded the plaintiff
a total of $36,000 damages and upon this appeal the defendants make four principal claims: that they are entitled to a new
trial because the court erred in giving to the jury instructions 1 and 8, abused its discretion in permitting the plaintiff
to offer evidence in rebuttal, and if they are not entitled to a new trial that the verdict is excessive and should be reduced
by remittitur. First as to the rebuttal evidence: at the close of the defendants' case the plaintiff, over the objection of the defendants,
called five witnesses in rebuttal. The defendants, while asserting that the court abused its discretion, admit that they "have
found no Missouri decision holding that the trial court had abused its discretion in this regard." And, 6 Wigmore, Evidence,
Secs. 1873, 1876, pp. 510, 519, the authority upon which they rely, likewise does not indicate that the court erred in this
particular regard. The defendants' tacit admission is perhaps sufficient to dispose of this claim of error. However, without
detailing at length and illustrating, some of the testimony was in point of fact rebuttal in character, some of it was collateral
if not immaterial, and some of it was appropriately a part of the plaintiff's case in chief. The subject was recently reviewed
in Peters v. Dodd, (Mo.) 328 S.W.2d 603, 609-610, in which the court excluded rebuttal testimony and here as in that case
it does not plainly appear that the court's discretion "has been clearly abused." And see Jones v. C., B. & Q.R. Co.,
343 Mo. 1104, 1127, 125 S.W.2d 5, 17-18.