5 Mass. App. Ct. 786

March 1, 1977

It was error to direct a verdict for the defendant in this action of tort arising out of a collision between the automobile in which the plaintiff was a passenger and the automobile driven by the defendant travelling in the opposite direction. There was testimony by the plaintiff, the defendant, and a police officer who was called to the scene of the accident and who interviewed the defendant and the driver of the automobile in which the plaintiff had been a passenger (the plaintiff's driver). Portions of the testimony by each witness, which the jury could have chosen to believe, disregarding other portions (Calderone v. Wright, 360 Mass. 174, 176 [1971]; Donovan v. DiPaolo, 4 Mass. App. Ct. 576, 577-578 [1976], and cases cited), would have permitted the jury to form a coherent picture of the collision from which they could have found that the defendant was negligent. The police officer testified that the road was "slippery, ic[y], narrow [about fifteen feet] with hard snow on the side." The jury could have found that the defendant was travelling downhill and saw the other automobile about one hundred yards ahead of him, and that the plaintiff's driver "pulled to the right as far as he could." The collision caused both automobiles to be "totalled." Under the road conditions which the jury could have found to exist it was for them to determine (1) whether the defendant's speed, as indicated by his testimony (ten to fifteen miles an hour), or as indicated by the extent of the damage caused by the collision, was excessive (G. L. c. 90, Section 17; see Hennessey v. Moynihan, 272 Mass. 165, 167-168 [1930]; McKeague v. Henry Jenkins Transp. Co. Inc. 323 Mass. 404, 405-406 [1948]; Costello v. Hansen, 327 Mass. 264 [1951]; Interstate Busses Corp. v. McKenna, 329 Mass. 1, 3 [1952]), (2) whether the defendant was travelling to the left of the middle of the road in violation of G. L. c. 89, Section 1 (see Calderone v. Wright, supra, and Donovan v. DiPaolo, supra), or (3) whether the testimony that the brakes locked, coupled with the defendant's testimony that "I slowed down as fast as I could," indicated insufficient caution in applying the brakes (see Arnold v. Brereton, 261 Mass. 238, 241-242 [1927]; Hennessey v. Moynihan, 272 Mass. 165, 167 [1930]; contrast Goyette v. Amor, 294 Mass. 355, 357 [1936] [no evidence that the brakes were applied suddenly]), or (4) whether there was a combination of one or more of (1) through (3). The cases cited by the defendant holding that unexplained skidding is not evidence of negligence are inapposite. Neither the plaintiff nor the defendant testified to skidding, and the jury could have discounted the police officer's testimony that the plaintiff's driver told him that the defendant had skidded. Moreover, even if the jury had accepted the testimony concerning skidding they could have found that it was "caused or accompanied by negligence." Costello v. Hansen, 327 Mass. at 265. See Wrenn v. Domar, ante, 777 (1977).

Judgment reversed.


5 Mass. App. Ct. 786

March 3, 1977

This is an appeal from the dismissal in the

Page 787

Superior Court of an action attacking the validity of an amendment to the zoning ordinance of the city of Woburn. We see nothing in this case which permits us to interfere with the judgment of the city, expressed in that amendment, to enlarge a business district by shifting a parcel of land to that district from an adjoining residential district. Peters v. Westfield, 353 Mass. 635, 637, 639-640 (1968). Martin v. Rockland, 1 Mass. App. Ct. 167 (1973). Apart from the bare fact of the change and some unsupported assertions in their brief, the plaintiffs have presented practically no evidence to sustain their heavy burden of proving beyond reasonable doubt that the amendment is invalid because it conflicts with a constitutional provision or does not fall within the scope of The Zoning Enabling Act. Lanner v. Board of Appeal of Tewksbury, 348 Mass. 220, 228 (1964). Martin v. Rockland, supra. Raymond v. Building Inspector of Brimfield, 3 Mass. App. Ct. 38, 43 (1975). The recommendation by the planning board adverse to the amendment on the ground that "an extension of the business zone at this time would not be in the best interest to the city of Woburn" was no more than advisory in nature. Caires v. Building Commr. of Hingham, 323 Mass. 589, 595-596 (1949). Noonan v. Moulton, 348 Mass. 633, 639 (1965). Vagts v. Superintendent & Inspector of Bldgs. of Cambridge, 355 Mass. 711, 714 (1969). Raymond v. Building Inspector of Brimfield, supra, at 40. The controlling judgment was that of the legislative body of the city. The plaintiffs complain that they were not allowed to ask the chairman of the planning board what items were discussed in reaching its recommendation (which was favorable to the plaintiffs and which, therefore, they were not attempting to impeach). But they made no offer of proof and, in any event, "[w]hat the planning board was told by those favoring or opposing rezoning was of no consequence . . . [T]he evidence heard by the board was of no materiality in a court proceeding to determine the validity of the ordinance." Barrett v. Building Inspector of Peabody, 354 Mass. 38, 45 (1968). The trial judge also properly foreclosed an attempt to prove through one of the plaintiffs, who had testified that fill had been transported to the locus, that such transportation was illegal. We fail to see how this could be relevant to the plaintiffs' present contention that the amendment is invalid; nor was an offer of proof made indicating any such relevance.

Judgment affirmed.