The defendant appeals from a judgment, entered after a jury trial, awarding the plaintiff damages for injuries received when a door at one of the defendant’s loading docks in Lawrence fell on the plaintiff. The primary planks in the defendant’s appeal are that its motion for judg *299 ment notwithstanding the verdict should have been allowed as there was insufficient evidence of the defendant’s negligence and that it was error for the judge to instruct the jury on the doctrine of res ipsa loquitur. The defendant also argues: that the judge abused his discretion in permitting the testimony of a previously undisclosed witness who appeared on the eve of trial, and in allowing evidence as to the plaintiff’s lost wages in the face of his failure to comply with a discovery order; and that the judge erred in refusing to allow the plaintiff’s credibility to be impeached by a conviction of larceny in a bench trial in the District Court which was on “appeal” for a de novo trial in the jury-of-six session. We find no error and affirm the judgment.
1.
Sufficiency of evidence.
The jury could have found the following facts, taking the evidence in the light most favorable to the plaintiff, the standard applicable in weighing whether a motion for a directed verdict or judgment notwithstanding the verdict should be allowed.
Curtiss-Wright Corp.
v.
Edel-Brown Tool & Die Co.,
On the day of the accident, when the plaintiff arrived at the dock, the center door was open. He picked up his freight from the shipping room and, while he was loading the material onto his truck, the center door, which was directly over him, descended, pushing him to the ground. After he was hit, the plaintiff noticed a piece of wood and other debris on the dock which had not been there before and also saw “a kind of a cable-type spring mechanism dangling to one side.”
*300 At the time of the incident, the door was at least five years old and, prior to the accident, Honeywell had no system for its periodic inspection. The defendant was seen testing the door a few days after the accident, and at that time, the door would not stay up. It kept coming down “a little bit beyond the halfway point.” No specific explanation of why the door had fallen was offered by either party. The door was subsequently replaced, apparently for reasons unrelated to the May 6, 1985 accident.
The judge charged the jury that under the doctrine of res ipsa loquitur they were permitted to infer that the defendant was negligent if they were persuaded that the instrumentality causing the accident “was in the sole and exclusive control and management of the defendant, and . . . that the event or accident is of the type or kind that would not happen in the ordinary course of things unless there was negligence by the defendant.”
While the judge, perhaps, should have avoided use of the Latin phrase, see
Evangelio
v.
Metropolitan Bottling Co.,
More than the fact of the door’s falling down was shown here. Contrast
Hill
v.
Iver Johnson Sporting Goods Co.,
From these facts and the jury’s common knowledge and experience — the door was similar to an overhead garage door — they could reasonably determine that the spring mechanism holding the door had failed, see
Poirier
v.
Plymouth,
Contrary to the defendant’s contention, the judge did not suggest that the jury should infer that the defendant was negligent under the principles of res ipsa loquitur. His instructions correctly allowed them to make or reject the inference. The defendant’s other claims of error relating to negligence are without merit.
2. Eleventh hour witness and evidence as to the plaintiffis wages. Prior to trial, the defendant sought, through interrog *302 atories, to have the plaintiff disclose the name of each person who inspected or tested the door or who “has any knowledge whatsoever of any other facts surrounding the plaintiffs occurrence.” As late as the week before trial, when the plaintiff supplemented his answers to interrogatories, the answer to that question was unchanged: “Someone told me the door had been broken. I am uncertain of the name of this person or persons.”
On the first day of trial, prior to the empanelment of the jury, the plaintiff filed a motion in limine seeking, inter alia, permission to allow Robert Porzio, 2 a fellow employee of the plaintiff, to testify.
The plaintiffs motion was discussed in an unrecorded lobby conference. The record, however, discloses that counsel wanted Porzio to testify as he “possibly has testimony as to the condition of the overhead door .... at or about the time” the plaintiff was struck. The judge stated that he would not rule on the admissibility of Porzio’s testimony prior to a voir dire and suggested that he was troubled both by the late disclosure of the proposed testimony (“Does it smell of fabrication . . . ?”) and by the fact that it is “about the time after this incident.”
A voir dire was held after the plaintiff testified. Over the defendant’s objection, the judge ruled that Porzio could testify. The defendant suggested that the plaintiffs counsel had had knowledge of Porzio’s name several days prior to the motion, but it does not appear on the record that the plaintiffs counsel knew of the full import of the witness’s testimony prior to the voir dire. 3
*303 Although the witness’s testimony was significant, we find no abuse of discretion in the judge’s allowing Porzio to testify. The defendant claims that its opening statement would have been different had counsel known of Porzio’s testimony and also that the late disclosure prevented counsel from taking Porzio’s deposition and, as a result, prevented adequate cross-examination. While we do not know what was said at the lobby conference, the record shows that, prior to opening statement, the plaintiffs counsel explained that Porzio would testify about the condition of the door and that the judge showed concern that the proposed testimony related to the time after the incident. Since the defendant was at least generally apprised of Porzio’s evidence, its claim about a different opening statement does not carry much force. Moreover, the defendant’s counsel did not, as claimed in its brief, “promise to the jury that no one would give any proof about any defect in the door.” The portion of its opening referred to by the defendant 4 was not inaccurate in stating what the jury would hear.
Although the defendant complains that it was unable to depose Porzio, the defendant did not seek a continuance for this purpose prior to Porzio’s testimony. Moreover, on cross-examination the defendant’s counsel forcefully brought out the fact that despite Porzio’s having known the plaintiff for eleven years, and despite having learned of the accident on the very day it had occurred, Porzio did not come forward with the information he testified to until the week prior to trial.
We see no abuse of discretion here. “The conduct and scope of discovery is within the sound discretion of the judge . . .[, and appellate courts will] not interfere with the judge’s
*304
exercise of discretion in the absence of a showing of prejudicial error resulting from an abuse of discretion.”
Solimene
v.
B. Grauel & Co.,
KG,
The defendant has also not shown an abuse of discretion by the judge in admitting evidence as to the plaintiff’s lost wages. Even if considered sufficient to comply with Mass.R.A.P. 16(a)(4),
3.
Impeachment of Wilson by his bench trial conviction.
The plaintiff’s motion in limine which sought to admit Porzio’s testimony also requested the exclusion of the plaintiff’s criminal record. The defendant made an offer of proof that the plaintiff had been convicted of larceny at a bench trial and that the conviction was on appeal to a jury-of-six session of the District Court for a trial de novo. The next hearing date in that matter was only a month away. The trial judge ruled that he would exclude the record of conviction as he did not consider the bench trial conviction “final” for purposes of impeachment. The plaintiff urges, relying on
Mann
v.
Commonwealth,
In a criminal case a trial judge has discretion to exclude evidence of the defendant’s prior convictions.
Commonwealth
v.
Maguire,
Judgment affirmed.
Notes
an Poirier, a finding of negligence was upheld without reference to the principles of res ipsa loquitur.
Porzio was the witness who at trial testified that he had seen the defendant test the center door a few days after the accident and that it would not stay up.
The witness testified under subpoena. In this court, the plaintiffs counsel acknowledged that he had had knowledge of Porzio’s name the weekend prior to trial. He should have informed the defendant’s counsel “seasonably” upon learning of this witness. This is required by the rules of discovery. See Mass.R.Civ.P. 26(e)(1)(A),
The defendant points to the following sentence of opening argument. “And I think if you look at the evidence closely, you will hear that the plaintiff doesn’t know what hit him, that he was dazed and foggy after the incident and .really didn’t know what happened, and that [the] door was not in disrepair, was not defective, either before the incident or after the incident.”
Consistent with its opening, the defendant produced evidence at trial that its testing showed the door was not defective after the incident.
The plaintiff moved in this court for leave to include a supplemental appendix containing a portion of his deposition in which he indicated that his wages came from two separate entities. In view of the information contained in the interrogatories, the supplemental appendix is not needed, and we need not rule on the motion.
We do not consider whether a judge must exclude a bench trial conviction on appeal to a jury-of-six session. See
Keyes
v.
State,