Halloran v. New York, New Haven, & Hartford Railroad

Sheldon, J. The judge had a right to allow the plaintiff to amend her declaration, even after verdict. Whipple v. Rich, 180 Mass. 477, 480. Commonwealth v. National Contracting Co. 201 Mass. 248. The defendant’s objection to the admission of evidence of special damages was not rested upon the pleadings and the merits appear to have been fairly tried without any reference to the insufficiency of the declaration. Quimby v. Jay, 196 Mass. 584. Lemay v. Springfield Street Railway, 210 Mass. 63. The evidence that the plaintiff had been studying music with the intention of becoming a singer for hire, in connection with evidence of injury to her voice, had some bearing upon the question of her earning capacity. It was competent, especially under the amendment. Ballou v. Farnum, 11 Allen, 73, 77. McGarrahan v. New York, New Haven, & Hartford Railroad, 171 Mass. 211. Evidence of the loss of the engagement to sing at the Hotel Somerset was not incompetent under the amendment, if this was due to her injury and resulted in a direct loss of money. It would not be too remote. It does not come within the reason of most of the decisions relied on by the defendant. There was no exception to the admission of the evidence as to her competition for a scholarship, though it was at first objected to. The defendant’s counsel was content with what was said by the judge about this. It was not wrong to admit the photograph. It tended to indicate the violence of the crash. It was taken very soon, almost immediately, thereafter. Whether it was likely to be practically instructive to the jury was for the judge to say. The facts that the colliding engine had been backed away, and that when the photographer left the place after taking the picture men were at work on the car, were not decisive. We cannot sustain this exception. Commonwealth v. Robertson, 162 Mass. 90, 97. Beals v. Brookline, 174 Mass. 1, 18. De Forge v. New York, New Haven, & [134] Hartford Railroad, 178 Mass. 59. McKarren v. Boston & Northern Street Railway, 194 Mass. 179. Field v. Gowdy, 199 Mass. 568, 574. The photograph having been admitted, it was for the judge to say whether it should be taken to the jury room. We cannot revise the exercise of his discretion. Boston Hairy Co. v. Mulliken, 175 Mass. 447, 448. Exceptions overruled.