Dean G. Mirageas v. Massachusetts Bay

The Massachusetts Bay Transportation Authority, the defendant in an action in tort arising out of an incident in which one of its streetcars struck down and ran over the plaintiff, waived the defense that G. L. c. 161A, § 21, barred the plaintiff from recovery if he was to any degree negligent, where the defendant raised this argument for the first time in its motion for a new trial, and where the Judge's unobjected-to instruction to the jury in accordance with G. L. c. 231, § 85, the comparative negligence statute, was consonant with the defendant's written request at trial. [816-818] Legislative amendment of G. L. c. 231, § 85, by St. 1969, c. 761, § 1, and St. 1973, c. 1123, § 1, establishing the doctrine of comparative negligence constituted an implied repeal of the requirement in G. L. c. 161A, § 21, that nonpassengers must have been in the exercise of due care to recover in tort from the Massachusetts Bay Transportation Authority. [818-819]