361 Mass. 853

February 7, 1972

This action in tort for negligence causing injuries and death to John F. Flaherty (Flaherty) is before us on the defendant's exceptions to the denial of its motion for directed verdicts and to the judge's instructions to the jury. There was evidence as follows. About 9 A.M. on February 17, 1967, Flaherty left the defendant's Andrew Square station, crossed a six-foot wide public sidewalk, looked to his left and right, and began crossing Dorchester Avenue on a pedestrian crosswalk. When he was part way across the forty-eight-foot traveled way, he saw the defendant's bus leave the station, turn right and come toward him at an angle, its rear wheels running over a curb at the station exit. He stepped back a few steps, but the right side of the bus struck him, throwing him to the pavement, and its rear wheels ran over his body. It was a sunny day, and all the time that the bus was turning and approaching Flaherty, he was in full view of anyone looking out of the windshield of the bus. At the time of impact the bus driver was looking to his left, watching traffic on that side, and he never saw Flaherty before the accident. After the accident Flaherty was lying on the road about eighteen feet from the sidewalk in front of the station. This evidence was sufficient to permit the jury to find that the bus driver was negligent. McComb v. New England Transp. Co. 325 Mass. 221, 222-223. Ferguson v. Worth, 326 Mass. 336, 337-338. The defendant contends that its motion for directed verdicts should have been allowed because as matter of law Flaherty was not in the exercise of due care. Contributory negligence "was an affirmative defence and it is rare that the burden of proving . . . [it] can be said to have been sustained as matter of law. This is not such a case." Herwitz v. Massachusetts Bay

Page 854

Trans. Authy. 353 Mass. 594, 598. See Tookmanian v. Fanning, 308 Mass. 162, 166-167. The judge instructed the jury that "on this issue of contributory negligence of the plaintiff, . . . by statute in Massachusetts; the burden of proof is thrown on the defendant." The defendant excepted to the judge's refusal to give two instructions concerning the presumption of due care created by G. L. c. 231, Section 85. Having adequately instructed the jury on the burden of proof of contributory negligence, the judge was not required to instruct them further on "what must needs be an academic discussion of . . . [the] theoretical operation" of the statutory presumption. Brown v. Henderson, 285 Mass. 192, concurring opinion p. 197. Perry v. Boston Elev. Ry. 322 Mass. 206, 209-210. There was no error.

Exceptions overruled.