Home SAMUEL PEARLIN, administrator, & individually vs. GRACE FARRELL.

356 Mass. 741

January 30, 1970

This action of tort for personal injuries sustained by the plaintiff's wife, Irene Pearlin, and for consequential damages sustained by the plaintiff arose from an accident in which the plaintiff's wife was struck and knocked down by an automobile owned and operated by the defendant on the Southern Artery in Quincy. The action was heard before an auditor, findings of fact not final, who found for the plaintiff. A trial before a judge and jury resulted in a verdict for the defendant. The case is here on the plaintiff's exceptions to the denial of twelve requests for instructions and of his motion for a new trial. We have reviewed the charge which we find to be comprehensive and exact and aided greatly by the defendant's analysis in her brief of the interrelationship of the plaintiff's requests and the charge itself. No good purpose would be served by an elaborate account of the facts and an item by item treatment of the requests. It suffices to say that we agree with the defendant that all requests which might properly have been given were covered in the charge, in some instances in more detail than was sought in certain of them. There was no error in the disposition of the requests. Campbell v. Shea, 332 Mass. 422 , 425, and cases cited. Nor was the verdict of the jury so greatly against the weight of the evidence that it could be said that the denial of the plaintiff's motion for a new trial was an abuse of discretion amounting to an error of law or a miscarriage of justice. Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56 , 59-61, and cases cited.

Exceptions overruled.


356 Mass. 741

February 3, 1970

The city seeks (by this suit in equity reported without decision on the pleadings and agreed facts) declaratory relief concerning the Authority's eminent domain taking of a portion (the locus) of Neptune Road, East Boston, surrounded on three sides by Authority land. See the map in Loschi v. Massachusetts Port Authy. 354 Mass. 53 , cert. den. 393 U.S. 854. The taking became necessary only when it was discovered, in late 1968 or early 1969, that the city owned the fee in the locus. We hold, (1) that under principles set out in the Loschi case, 354 Mass. 53 , 57-59, the Authority's 1967 agreement with the Federal Aviation Agency was made with the expectation that the locus was or would become airport property to be used "for . . . protecting . . . aerial approaches to runways . . . [and] meeting runway clear zone requirements"

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within the meaning of St. 1964, c. 383, Section 2, and that it was properly taken for such purposes; (2) that the statement of purposes in the taking order permissibly referred not only to the language of St. 1964, c. 383, Section 2, but also to the Authority's general powers of eminent domain (St. 1956, c. 465, Sections 3 [k] and 4); and (3) that there was, in exercising those general taking powers, no invalid diversion of public land close to the airport from one public use to another. Statute 1966, c. 733 (see St. 1964, c. 383, Section 2), and the legislative history and sequels of these and prior statutes amply show specific "legislative awareness" of the proposed airport use of the locus. See Robbins v. Department of Pub. Works, 355 Mass. 328 , 331; 1966 House Doc. No. 4082. The past public use of the locus for access to Wood Island Park was inevitably destroyed by the runway extension project. In the Superior Court a decree is to be entered declaring that the Authority's taking of the locus by its order of February 12, 1969, was valid and gave the Authority an unrestricted fee title to the locus.

So ordered.