Moreover, if there was any defect in the pleadings, which we do not intimate, it was in matter of form only and would not be a sufficient reason for taking the case from the jury at the trial. Cammisa v. Ferreira, 277 Mass. 141, 142. Lewis v. Russell, 304 Mass. 41, 44.
Twombly v. Selectmen of Billerica, 262 Mass. 214, 216. Cammisa v. Ferreira, 277 Mass. 141, 142. But where it is apparent from the record as a whole that the case was fully and fairly tried upon the real issues of fact involved, untainted by any error of law, it is proper to allow an amendment that will prevent a retrial of the very issues that have already been passed upon.
It must be assumed that these instructions were followed. Allen v. Boston Elevated Railway, 212 Mass. 191, 194. Buoniconti v. Lee, 234 Mass. 73. Commonwealth v. Cooper, 264 Mass. 368, 374. No exception was taken to the charge and it must be presumed that adequate instructions covering every material aspect of the case were given. Ganley v. Lamson, 274 Mass. 236. Cammisa v. Ferreira, 277 Mass. 141. Exceptions overruled.