333 Mass. 766

July 1, 1955

Order sustaining demurrer affirmed. This is an appeal from an order of a judge sustaining a demurrer to a petition for a writ of mandamus in which the petitioner alleges that on June 9, 1952, he was duly appointed a member of the board of appeals of Everett; that on December 30, 1954, the mayor notified the petitioner in writing of his removal as a member of the board of appeals for the good of the service, and filed a copy of this notice with the city clerk; that on January 19, 1955, the petitioner in writing asked for written charges and a public hearing; and that the mayor ignored his request and appointed another to succeed him. The other respondents are the city of Everett and the person named to succeed the petitioner. The petitioner relies upon G. L. (Ter. Ed.) c. 40A, Section 14, inserted by St. 1954, c. 368, Section 2, as amended in a manner not here material, which reads in part, "Every zoning ordinance . . . shall provide for a board of appeals, which may be the existing board of appeals . . .. Any member may be removed for cause by the appointing authority upon written charges and after a public hearing." But there is nothing in the record to show that the city of Everett ever adopted a zoning ordinance under c. 40A, Section 14, so that the provisions of that statute do not apply to the removal of a member of the board of appeals. "There is no judicial notice of municipal ordinances and by-laws. Cerwonka v. Saugus, 316 Mass. 152 , 153." Sunderland v. Building Inspector of North Andover, 328 Mass. 638 , 641. The case at bar is therefore governed by Roy v. Mayor of Everett, 328 Mass. 305 .


333 Mass. 766

November 7, 1955

Exceptions overruled. This is an action of tort brought by a minor, William Mohan, Junior (hereinafter called the plaintiff), by his next friend for personal injuries arising out of an accident involving a truck owned by the corporate defendant and operated by its employee who is also a defendant. The plaintiff's father also seeks to recover consequential damages. It could have been found that the accident occurred in these circumstances. About 11:45 A.M. on March 23, 1948, the plaintiff along with other children had been dismissed from a school which was located at the corner of Main and Ripley streets, Worcester. While crossing Main Street several blocks west of the school he was struck by the defendant's truck at or near the center of the street. There were many children near by when the accident occurred. The case was submitted to a jury who found for the defendants. The sole question for decision arises from the plaintiff's exception to the judge's refusal to give the following instruction: "The operator of a motor vehicle shall exercise the highest degree of care when the presence of children in the highway has been observed, and shall presume that such children may suddenly and without warning run in any direction." The judge did not err in refusing this request. The plaintiff

Page 767

argues that even if not entirely accurate the request, under the principle set forth in Bergeron v. Forest, 233 Mass. 392 , 402, was sufficient to direct the attention of the judge to an important principle of law not adverted to in the charge. The short answer is that the judge charged the jury adequately and accurately on the question of the duty owed by the defendants to the plaintiff.