This is an appeal by the plaintiffs from a summary judgment by which the Superior Court affirmed a decision of the board of appeals granting the defendant Marini a special permit for the construction of an apartment house on the locus. The pleadings and affidavits establish that on January 14, 1976, the planning board endorsed a perimeter plan of the locus under G. L. c. 41, Section 81P ("approval not required"), that at that time the locus was zoned in a "general residence" district, in which apartment houses were a specially permitted use, and that since that time the locus has been rezoned as "single residence" district, in which apartment buildings are not a permitted use. The plaintiffs' sole contention is that the second paragraph of G. L. c. 40A, Section 7A (as in effect prior to St. 1975, c. 808, Section 3; see now G. L. c. 40A, Section 6, sixth par., as appearing in the said Section 3), gives its three-year protection only to uses which were permitted as of right before a zoning change and not to those which were subject to a special permit. That contention finds no support in the language of Section 7A, second par. ("[T]he use of the land shown on such plan shall be governed by the applicable provisions of the zoning ordinance or bylaw in effect at the time of the submission of such plan . . ."). The sentence in Bellows Farms, Inc. v. Building Inspector of Acton, 364 Mass. 253 , 254 (1973), upon which the plaintiffs rely ("At all times prior to March, 1971, the by-law expressly permitted land in such a district to be used, as a matter of right and not merely by special permit, for the purpose of apartments . . ." [emphasis supplied]) read in context is merely a factual recitation of the content of the by-law before its amendment and not a suggestion that the uses protected against amendment by the second paragraph are confined to those which had been previously permitted as of right.
There is no merit to the defendants' contention that the evidence was insufficient to warrant the jury's findings that they were negligent in servicing the Spanoses' boiler and that their negligence was the cause of the fire
which damaged the building. On those portions of the highly conflicting evidence most favorable to the plaintiffs the jury could have found that the Spanoses relied on the defendants to service their oil burner; that the defendant Kahn, the general manager of the corporate defendant, had repaired a crack in the boiler on the evening of December 28, 1972; that he was working next to the boiler on the tankless hot water heater on the afternoon of January 3, 1973; that at about 5:40 P.M. three loud cracks were heard from the boiler; that the boiler began leaking water; that Kahn and his assistant left the premises shortly before 6:00 P.M., leaving the water leaking from the boiler without having turned off the furnace or determined whether the boiler's automatic low-water cutoff was operating properly; that shortly after 6:00 P.M. the top of the furnace was discovered to be glowing red from the heat; and that that condition and the resulting fire was caused by the furnace's continuing to operate despite the loss of water from the boiler. The witness Ryan testified, in answer to an unobjected to question, that the probable cause of the fire was the failure of the low-water cutoff; the defendant Kahn himself acknowledged that it was "[o]ne of the probable reasons." That the leak was significant in volume was inferable from the short period which elapsed between the time of its initial occurrence and the time the boiler overheated. The jury could infer negligence in these circumstances without the benefit of expert testimony. Compare Stewart v. Worcester Gas Light Co., 341 Mass. 425 , 433-434 (1960); Toppin v. Buzzards Bay Gas Co., 348 Mass. 397 , 401 (1965). Contrast Stewart v. Worcester Gas Light Co., 341 Mass. at 435; Triangle Dress, Inc. v. Bay State Serv., Inc., 356 Mass. 440 , 441-442 (1969).