Home JOHN A. MURDOCK, trustee, vs. BOARD OF APPEALS OF DUXBURY.

342 Mass. 778

April 4, 1961

Decree affirmed. This is an appeal from a final decree of the Superior Court under G. L. c. 40A, Section 21, as amended, which annulled a decision of the board of appeals of Duxbury as in excess of its authority. The board's decision denied the plaintiff permission to build a dwelling house giving as a reason that there would be a violation of a zoning by-law relating to minimum size and frontage of lots. The by-law is unique, and the only question is one of its individual interpretation. We are of opinion that the judge made the right interpretation.

Home JOHN SENATORE & another vs. ROY L. BLINN.

342 Mass. 778

April 26, 1961

Decree affirmed. The plaintiffs have appealed from a final decree dismissing their bill to enjoin a private nuisance on the premises of the defendant. The parties are neighbors residing in a residential section on the edge of Wellesley and Weston. A master, to whom the case was referred, found that, for a period of three or more years, the defendant has permitted his son, a boy of high school age, and sometimes his friends, to use his property in pursuance of the hobby of dismantling and repairing old automobiles. From the end of 1958 to the spring of 1960, four cars were dismantled and most of their parts taken to the junk yard. Some of the work was done with an acetylene torch. On four occasions since the suit was brought in 1959 different old cars have been the subject of substantial repair work. The plaintiffs have been annoyed by the noise of the work, and the unsightly appearance of the old cars and the equipment used in working on them. The acts complained of have been sporadic. The existence of a nuisance is a question of fact to be determined from all the circumstances. Ferriter v. Herlihy, 287 Mass. 138 , 143. Kasper v. H. P. Hood & Sons, Inc. 291 Mass. 24 , 27. It cannot be said from the reported facts that the use of the defendant's premises has been so persistent and unreasonable that an injunction is justified.

Home EVA MEREDITH vs. MARION MCLAUGHLIN & another.

342 Mass. 778

April 26, 1961

Exceptions overruled. In this action of tort the judge directed a verdict for the defendants, subject to the plaintiff's exception. There was evidence

Page 779

of the following: The plaintiff and her daughter visited the home of the defendants for social purposes. During the visit they stated that they were going to the bathroom, which was on the second floor. They had been to the defendants' home on prior occasions but there was no evidence that they had ever been upstairs. When they went up the stairs there was no light in the upper hall. As the plaintiff was approaching the second floor landing she "called down to . . . the defendants . . . `Where is the light?'" One of the defendants replied, "It's on the wall, keep walking and you'll find it." The plaintiff "thereupon turned right at the second floor landing" and while "feeling" for the light switch she "fell down an open stairway that she knew nothing about." The stairway was unlighted and there were no barriers or handrails; it was "located at the right of the upper landing and within several feet or "two or three steps' of the head of the first stairway and off the same landing." The plaintiff, who was a guest of the defendants, could recover only upon proof of gross negligence. Comeau v. Comeau, 285 Mass. 578 . The evidence would not warrant a finding of gross negligence and the judge rightly directed a verdict for the defendants. See Aragona v. Parrella, 325 Mass. 583 ; Palter v. Zarinsky, 338 Mass. 256 ; Holiday v. First Parish Church of Groton, 339 Mass. 692 .