Roselli v. Riseman Et Al‪.‬

RUGG, C. J. The plaintiff seeks in this action of tort to recover compensation for personal injuries sustained by her, while walking on a public way, through the negligence of the defendant in operating a motor vehicle. The action was originally brought against both the defendant and his mother. The defendant rightly was required to answer the question whether the motor vehicle involved belonged to him. The reply was that it was his motor vehicle but that he registered it in his mother's name and that his mother did not live with him. The ownership of the motor vehicle was an issue in the case because, if not registered in the name of the owner, it was a trespasser upon the highway. Rolli v. Converse, 227 Mass. 162, 116 N.E. 507; Shufelt v. McCartin, 235 Mass. 122, 126 N.E. 362; Kilduff v. Boston Elevated Railway, 247 Mass. 453, 142 N.E. 98. The defendant was bound by his positive testimony that he was the owner of the motor vehicle and that it was not registered in his name. Sullivan v. Boston Elevated Railway, 224 Mass. 405, 112 N.E. 1025. The allowance of the amendment at the close of the evidence striking out the name of the mother of the defendant as a co-defendant was within the discretionary power of the trial Judge. Pizer v. Hunt, 253 Mass. 321, 148 N.E. 801. The pleadings thus were made to conform to the proof. The allowance of the amendment was conclusive that thereby no change was wrought in the identity of the cause of action. Shapiro v. McCarthy (Mass.) 181 N.E. 842, and cases cited. This is true even though the cause of action would be barred by the statute of limitations if then instituted. Johnson v. Carroll, 272 Mass. 134, 138, 172 N.E. 85, 69 A. L. R. 1244. Evidence as to the wages earned by the plaintiff at the time of the injury was competent on the issue of damages without special averment in the declaration. It was an element to be considered in determining the amount of compensation to which the plaintiff was entitled. The circumstance that the plaintiff was a married woman made no difference in this particular. Sibley v. Nason, 196 Mass. 125, 131, 81 N.E. 887, 12 L. R. A. (N. S.) 1173, 124 Am. St. Rep. 520, 12 Ann. Cas. 938; Mahoney v. Boston Elevated Railway, 221 Mass. 116, 108 N.E. 1033; Ackerly v. Boston Elevated Railway, 275 Mass. 94, 175 N.E. 99; Chelsea Moving & Trucking Co., Inc., v. Ross Towboat Co. (Mass.) 182 N.E. 477. A verdict could not rightly have been directed for the defendant. Whether the conduct of the plaintiff was wanting in due care and contributed to her injury was plainly a question of fact. The evidence need not be narrated. The charge of the presiding Judge appears to be printed in full. At its Conclusion the defendant excepted to 'the giving of the foregoing instructions.' This is a general exception to the entire charge. Such an exception does not lie and cannot be considered under our settled practice. Commonwealth v. Duncan, 250 Mass. 405, 407, 145 N.E. 561, and cases cited. Commonwealth v. McDonald, 264 Mass. 324, 335, 162 N.E. 401. The only specific exception to the charge was to the instruction to the effect that the burden of proof was on the defendant to show that the plaintiff was guilty of contributory negligence. That instruction was correct. O'Connor v. Hickey, 268 Mass. 454, 458, 167 N.E. 746; G. L. (Ter. Ed.) c. 231, § 85.