Lilley v. Key System Transit Lines

WOOD (Fred B.), J.

The jury awarded the minor plaintiff $1,250 for personal injuries and his father $273 for medical expenses incurred. Defendant moved for and was denied a new trial and then appealed from the judgment. It claims error in the admission of certain testimony, the allowance of an amendment to the complaint, and the giving and refusing of certain instructions.

(1)

Over the objection that it was not rebuttal testimony, plaintiffs were allowed, during their rebuttal, to adduce evidence that was really a part of their case in chief.

The order of proceedings at a trial is within the sound discretion of the court; e.g., after the plaintiff has adduced evidence on his part and defendant has put in his defense, they “may respectively offer rebutting evidence only, unless the court, for good reason, in furtherance of justice, permit them to offer evidence upon their original case.” (Code Civ. Proe., §607.)

Here, defendant did not claim surprise or that the defense was prejudiced by allowing this testimony out of order; nor did it move for a reasonable continuance to meet the situation thus presented. It claimed merely that this was “improper” rebuttal testimony. This testimony was not upon a new subject. It bore directly upon matters mentioned in plaintiffs’ opening statement and concerning which testimony had already been received. Also, it was adduced on a Monday and there was evidence that the witness was

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out of the state the preceding week (during which plaintiffs presented their case in chief), that plaintiffs’ counsel found the witness on the preceding day (Sunday) and then went out to talk to her.

Under these circumstances we find no abuse of discretion in the allowance of this testimony out of order.

(2)

Defendant claims it was reversible error to allow plaintiffs, during their rebuttal, to amend the complaint to allege that the minor plaintiff was a passenger of defendant at the time he was injured.

This, too, is a matter that rests in the sound discretion of the trial court. The evidence showed that the injury occurred shortly after plaintiff got off defendant’s bus. Defendant’s objection was that the motion was “untimely”; that plaintiffs’ counsel had known for at least 11 months that the boy was possibly a passenger; and that it was not fair to expect a defendant retroactively to defend a case on the basis that plaintiff was a passenger rather than a member of the ordinary public. Nothing further was then said by the defendant concerning any possible prejudice to the defense and no request was made then or later during the trial for an opportunity to adduce further evidence on that subject, nor for a continuance therefor.