There was no error in dismissing the petition for a writ of mandamus to compel the commissioner to enforce the zoning ordinance of the city as it stood prior to an amendment by the city council in 1964 which changed the locus owned by the Post, the intervener, from a general residence district to an industrial district. The amendment affected only the locus. The judge made findings of fact based upon a stipulation, documentary evidence and a view. Prior to the amendment the locus, at the edge of a general residence district, abutted, to the west, on a business district where nearby industrial activities including a junk yard and a car wash were carried on; faced, to the south, immediately across the street, an industrial park district which included a shopping complex with an automotive center; and, to the east, was proximate to an industrial district. The Post proposed to construct a skating rink and conduct an annual carnival at the locus. It is to be observed that here a variance is not involved, but rather a change of district by the local legislature whose judgment, if fairly debatable, must be sustained. The amendment recognized that the locus, although nominally in a residence district, had taken on substantially the same character as the nonresidence districts which surrounded it, and should be fairly incorporated into one of them. It was not spot zoning. The case is covered in essentials by Raymond v. Commissioner of Pub. Works of Lowell, 333 Mass. 410.

Order dismissing writ of mandamus affirmed.

The plaintiff excepts to the direction of a verdict for the defendants in this action of tort for personal injuries allegedly sustained by her while a tenant at will of the defendants due to a fall on snow and ice on premises under their control. The plaintiff occupied one of four apartments in a large house, in which the defendants and two other tenants occupied the

Page 698

other apartments. While on the driveway leading to the house and entering an automobile, the plaintiff slipped on a small piece of ice in a four-inch wide rut in a general area which the defendant Jack Petrelli had sanded two days before. There was no error. We set to one side the question whether in the light of the evidence of previous attention by the defendants they had a duty to sand icy areas of which they reasonably should have had knowledge. The record is silent on the length of time during which the ice had been present or the rut had existed. The temperature had varied from below to above freezing for a number of days prior to the accident. The time of origin of both rut and ice was in the realm of speculation. "We are not here dealing with comparatively fixed conditions shown to be existent at a given time from which some inferences as to a prior existence may be permissible." Allan v. Essanee, Inc. 309 Mass. 1, 6. The evidence was uncertain at best and so permeated with conjecture that the court was warranted in directing the verdict.

Exceptions overruled.