BETTY CORPORATION & another vs. COMMONWEALTH & others. [Note 1]

CUTTER, J. This is a petition to determine the damages caused by a railroad grade crossing elimination. Betty Corporation (Betty) recovered a verdict against each respondent. After a trial which ran from May 12 to June 11, 1965, the jury assessed damages at $60,000. Motions for a new trial were denied on condition that Betty remit $25,000 of the verdict. Betty remitted the required amount. The case is here on an outline bill of exceptions. The long record appendix contains excerpts from a 700 page transcript. The affected area is shown on the annexed sketch plan.

On May 5, 1959, the commissioners of the State Department of Public Works (DPW) by order directed that a railroad grade crossing on Western Avenue, Lowell, be closed to all traffic by placing barriers (see annexed plan at [5] and [9]) on the west and east side of the tracks for the full width of Western Avenue. A spur track to Betty's plant was to be relocated.

Western Avenue (see [7] on plan), prior to the 1959 order, ran approximately east and west across the railroad's two main line tracks (see [6] on plan). The main line tracks crossed Western Avenue at about a thirty degree angle, on a line north of Western Avenue west of the crossing, and south of Western Avenue east of the crossing. A spur track (marked [1] on the plan) ran from a coal or salt storage building (marked [2] on the plan) west to the main line, crossing Western Avenue north of, but very close to, Betty's Building C (marked [3] on the plan) and loading platform (see [4] on plan). This spur track is shown on the plan as relocated a little south of its former route.

Betty's properties (the locus) lie south of Western Avenue. These included a four story brick building, Building A (see [10] on plan), separated on its east side by a dirt drive from a one story wooden building, Building B (see [11] on plan). Both buildings are close to Western Avenue. To the east of Building B was a covered loading platform. A wide door (at [4] on the plan) gave access to this platform from Western Avenue. Immediately south of the platform

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was a large four story brick building, Building C (at [3] on the plan). Other buildings comprising the Betty plant lie to the south and west of Building C. All the principal buildings are interconnected and have the same floor levels.

The loading platform (at [4] on the plan) was used, prior to the construction under the 1959 DPW order, for receiving yarns, machinery, and merchandise used in all the principal buildings. Goods thus received could be taken about forty to fifty feet to "one of the largest freight elevators . . . in the entire plant that had access to the center of all these buildings."

The routing of goods and materials from this loading platform around the plant, for further processing and for storage, was described in great detail by Betty's principal operating official. The jury on this and other evidence would have been warranted in concluding that it was a very significant advantage to Betty, in the orderly and efficient conduct of operations, to have large trailer trucks back up to the door of the loading platform (at [4] on the plan) to deliver goods of various types.

The somewhat conflicting evidence also would have warranted the jury in reaching the following conclusions:

(1) After the construction of the barriers, it became a practical impossibility to maneuver or back standard truck box trailers thirty-five feet long and eight feet wide to the old loading platform because the westerly barrier was only twenty-six to thirty feet from the old door (at [4] on plan). The erection of this barrier necessitated immediate changes in the routing of goods through the Betty plant. In 1964 (after developments in other litigation relating to grade crossing changes had made this possible) Betty built a new, and probably less satisfactory, loading platform and door at the northwest corner (at point [8] on the plan) of Building B (see [11] on the plan) at a cost of about $7,500. The changes resulted in the loss of useful office space and prevented some use of the dirt drive or alleyway between Building A (see [10] on the plan) and Building B (see [11] on plan). The moved spur track became an obstacle to

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the use of trucks at various loading gates on the locus because the slightly raised tracks cut truck tires.

(2) For a substantial period of time during construction of the barriers, removal of railroad gates, and relocation of the spur track, usual operations at the old loading platform were interrupted.

(3) On the west side of the new westerly barrier (see [5] on the plan), Western Avenue originally was about thirty-five feet wide in front of Buildings A and B. By the barriers the usable area of Western Avenue was effectively reduced, for a distance of about 130 feet of Betty's frontage on the avenue, in an amount varying from thirty-five feet in width (north to south) to zero width. Betty was thus deprived, detrimentally and directly, of much of its principal access to a public way formerly available immediately adjacent to its property. The narrowing of the avenue made of slight, if any, value the remaining access to the northeastern part of the locus. In addition, Betty could be found to have owned the fee north of the locus as far as the center of Western Avenue, [Note 2] as it formerly ran, subject to the city's easement of travel over Western Avenue and subject also to the railroad's easement to cross the area with its tracks. This fee interest of Betty included a triangular area (the general location of which is marked [12] on the plan) north of the westerly barrier. The triangle was supposed to contain about 315 square feet.

1. A major contention of the respondents, presented in various forms, is that there was no compensable taking of,

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or interference with, Betty's land and property interests. The statute giving a right to damages is G. L. (Ter. Ed.) c. 159, Section 75, the relevant part of which is set out in the margin. [Note 3] The practical effect of the 1959 DPW order was to discontinue so much of Western Avenue as lay between the barriers, even if it did not involve actual taking of the fee in such land. The evidence permitted the jury to find not only that Betty was deprived of access, even for travel, to its land within Western Avenue between the barriers (see Bullard v. New York, N. H. & H. R.R. 178 Mass. 570, 574) but also that it was deprived of reasonable use, in the respects already noted, for trucks of the old loading platform (at [4] on the plan). The jury could also have found that (a) because of the arrangement of buildings on the locus, the deprivation of reasonable truck highway access to buildings B and C caused damage to Betty in a manner, and of a type, wholly different from the injury suffered by the public generally from the discontinuance of a part of Western Avenue, and (b) the damage did not arise merely because Western Avenue became a "dead-end street," but rested in principal part upon the circumstance that reasonable truck access to Western Avenue from the old

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loading platform became impossible, an injury "confined only to . . . [Betty's] property . . . [which] cannot be said to be . . . of a general and public nature." See Webster Thomas Co. v. Commonwealth, 336 Mass. 130, 138. See also Holbrook v. Massachusetts Turnpike Authy. 338 Mass. 218, 223. The present case involves special, direct, peculiar injury to an important part of Betty's parcels, substantially more intense in its impact on the eastern part of the locus than any inconvenience suffered generally by other members of the public. See Wine v. Commonwealth, 301 Mass. 451, 458. This circumstance distinguishes this case from Tassinari v. Massachusetts Turnpike Authy. 347 Mass. 222, 225, and LaCroix v. Commonwealth, 348 Mass. 652, 657. [Note 4] It could have been found that Betty suffered damage compensable under G. L. c. 159, Sections 70, 75 (see fn. 3), read with the relevant provisions of c. 79. See Sheehan v. Fall River, 187 Mass. 356, 361 (access to building temporarily "rendered more difficult"); Cutter v. Boston, 200 Mass. 400, 402. [Note 5] See also Buck v. Great Barrington, 203 Mass. 372, 375-376.

2. The respondents contend, in effect, that the use made by Betty of its old loading platform (at point [4] on the plan) was illegal, unreasonable, and in violation of statutes (see G. L. c. 90, Section 15, as amended through St. 1961, c. 248) [Note 6]

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and a Lowell traffic ordinance. [Note 7] There was, indeed, testimony from which the jury could have found that trailers were left standing during unloading operations for as much as two hours, and that, when so standing, they extended as much as eighteen to twenty feet into Western Avenue. Examination of the annexed plan and the exhibits shows that the north end of a thirty-five foot trailer parked perpendicular to the north line of the old loading platform might come to a point about five feet from the south rail of the main line track. The present western barrier is about eleven feet from the nearest rail. The distance between freight cars passing in opposite directions on the main line tracks is two feet, which "is considered a safe and adequate distance." There had been no prosecutions of Betty for alleged traffic violations because of its unloading methods. The police officer on the beat regarded Betty's former practice of backing trucks up to the old loading platform as "a natural thing."

The judge left to the jury the question whether, in all the circumstances, the parking ordinance had been violated by Betty in unloading about two trucks a day, and some loading, at the old platform. Because of the ordinance exception for unloading, Betty's unloading practices if reasonable, would not have been violations of the letter of the ordinance. See Leveillee v. Wright, 300 Mass. 382, 386-387. A member of the general public does not create a nuisance, or act improperly, by standing a vehicle on a public way for a reasonable length of time, without violation of a specific prohibition or interfering "unreasonably . . . with the rights of the public," and in a manner "reasonably necessary for the transaction of business." See Loosian v. Goudreault, 335 Mass. 253, 256. Betty, in addition to the rights of a member of the general public, possessed the rights of an

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abutting owner which could have been found to own the fee under the south side of the traveled portion of Western Avenue. It was open to the jury to conclude that Betty did not exceed proper bounds in its unloading practices prior to the erection of the barriers even if (under the principles of the Loosian case, just cited) Betty was in a position successfully to prevent similar action, without its consent, by persons not abutters. The Lowell ordinance, if construed to permit the unloading practice, made a reasonable exception to the general prohibitions of the ordinance. See Commonwealth v. Sargent, 330 Mass. 690, 692.

The judge's charge with respect to Betty's former unloading practices was sufficiently favorable to the respondents. She instructed the jury that Betty could not recover damages based on the loss of an illegal use. See Joly v. Salem, 276 Mass. 297, 303. She correctly refused to instruct that there was a violation of G. L. c. 90, Section 15 (fn. 6), a statute designed only to require motorists to reduce speed when approaching railroad grade crossings. See Verrocchi v. Boston & Maine R.R. 322 Mass. 376, 378. The evidence did not show that Betty's unloading practices had created any such hazard as to require the judge to give instructions concerning that hazard and its nature. In any event the failure of the respondents' counsel to renew objections to the charge, after the trial judge had given further instructions in response to objections by them and after their apparent acquiescence in the amended charge (see fn. 5), leaves them now in no position to contend that the further instructions were inadequate. See Cozzo v. Atlantic Ref. Co. 299 Mass. 260, 268-269; Duff v. Webster, 315 Mass. 102, 105; Bloomberg v. Greylock Bdcst. Co. 342 Mass. 542, 551. See also Herrick v. Waitt, 224 Mass. 415, 417.

3. The respondents contend that the judge during the trial revealed a prejudice against them which prevented the jury from reaching a fair verdict. They interpret as a reproof of counsel a comment by the judge made when counsel for the Commonwealth submitted further requests for instructions (apparently in behalf of all the respondents) just

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before final arguments were to begin. This action of counsel seems to have been viewed by the judge as in contravention of some understanding, by the judge and all counsel, that requests would be submitted sufficiently early to enable the judge to study them in advance of the arguments. The incident appears to have been magnified in the respondents' brief to an extent greatly disproportionate to any significance it may have had. In the context of a long trial the judge's remarks seem of slight consequence. See Charles L. Hazelton & Son, Inc. v. Teel, 349 Mass. 617, 621; Commonwealth v. Leonard, 352 Mass. 636, 641-642. The impact of the remark was not such that explanation of it to the jury was essential.

The respondents also argue that they were prejudiced by the trial judge's delaying closing arguments (until the next day) to afford her time to study the additional requests. This delay, they say, was in addition to the effect of other delays during trial to which the respondents make reference. After a trial of nearly a month, the jury, indeed, might have been "irked and frustrated" by further delay, as the respondents suggest. The respondents do not persuade us, however, that they were hurt more than Betty was by the particular postponement or by the long proceedings. This trial should have proceeded more rapidly. There should have been greater judicial effort to expedite it. Nevertheless, we cannot say that either the delay in arguments or the unnecessarily slow pace of the trial constituted prejudicial error.

4. There is no merit to an exception to the judge's action in preventing a line of argument by counsel for the Commonwealth on the ground that there was no evidence to warrant the contentions made. The judge, in a somewhat extended bench conference, gave counsel opportunity to point out such evidence, but no such evidence was intelligibly drawn to the attention of the judge.

5. The judge did not err in refusing (on motion by counsel for the Commonwealth which did not specify grounds for the requested action) to strike expert testimony at the

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close of the trial. Much of it had been admitted without objection or exception. See Cummings v. National Shawmut Bank, 284 Mass. 563, 568; Leonardi v. Peabody, 351 Mass. 706. See also analogy of Costonis v. Medford Housing Authy. 343 Mass. 108, 116. Cf. Gazianis v. Clinton, 350 Mass. 758. Although the evidence originally had been admitted de bene, this appears to have been done solely because the witness was taken out of order. There was no clear showing that the witness had given such weight to elements of damage not properly to be considered as would require striking all his testimony. The judge, in any event, charged that the jury could not take these elements into account.

6. Other exceptions have not been argued sufficiently, have not been adequately set out or referred to in the outline bill of exceptions (see S. J. C. Rule 1:22 [2], [8], [10], 351 Mass. 742-745), relate to discretionary matters or to requested instructions adequately given in substance, or are not significant enough to merit discussion.

Exceptions overruled.