Home FRANCIS E. SKERRY, administrator vs. MICHAEL J. MARZEC & another (and a companion case [Note 1]).

357 Mass. 784

June 12, 1970

In these two actions of tort for negligence in the operation of a motor vehicle, tried together before a judge without a jury, findings were made for the plaintiffs against the defendant operator. The cases are here on the defendants' consolidated bill of exceptions which shows that the judge, subject to exception, declined to rule that "The evidence does not warrant a finding that . . . [the defendant operator] was negligent." There was no error. The defendant operator testified that his vehicle, proceeding west on the Massachusetts Turnpike at a speed estimated by him as sixty miles an hour, passed a trailer truck, continued on until the trailer was 300 yards behind, shot toward the median strip and rolled over or flipped into the air over the median strip, crashed into a Volkswagen causing it to burst into flames and killing the driver, and then struck another eastbound car, tearing off its roof and injuring the occupants. The judge was not required to believe the defendant's testimony of his speed or his opinion that the accident was caused by a "tire blowout" when he was on the westbound roadway. The physical evidence did not support his testimony of a "tire blowout." The judge could infer that with the vehicle solely in the defendant's control, the accident, in light of all attending circumstances, was more likely due to the defendant's negligence than to any other cause. Gangi v. Adley Exp. Co. Inc. 318 Mass. 762 , 764. Noon v. Beford, 349 Mass. 537 , 543-544, and cases cited.

Exceptions overruled.


[Note 1] Dorothy Aries & others vs. Michael J. Marzec & another.


357 Mass. 784

June 15, 1970

Owners of property near the airport seek by mandamus to restrain the commissioners (as such and as members of the Martha's Vineyard Airport Commission) from acquiring any land or easement within the Martha's Vineyard State Forest for extending runway approach zones or from cutting trees within the State Forest, until authorized to do so by specific legislation. Upon stipulated facts and reported evidence a Superior Court judge ordered that the writ issue subject to the proviso that it "shall not . . . restrict . . . the respondents . . . in the exercise of rights granted by" a 1957 "avigation easement" and a 1964 deed. The 1957 easement over land in the State Forest, executed by the then Commissioner of Natural Resources, was recorded. There is no evidence that this was executed after public hearing and with the approval of the Governor and Council. See G. L. c. 132, Section 34A (as amended through St. 1950, c. 574). The 1964 transaction was approved

Page 785

"in compliance with . . . Section 34A." The judge correctly ruled that no statute relied on (Section 34A, and G. L. c. 21, Section 4A, inserted by St. 1953, c. 631, Section 1, c. 90, Section 51I, as amended through St. 1947, c. 593, Section 2, and c. 90, Section 51J, inserted by St. 1946, c. 613, Section 1) is "explicit enough" to authorize this inconsistent public use (under the 1957 easement and 1964 deed) of State Forest land. The case is governed by Robbins v. Department of Pub. Works, 355 Mass. 328 , and by Brookline v. Metropolitan Dist. Commn. ante, 435. See Gould v. Greylock Reservation Commn. 350 Mass. 410 . The writ was properly issued, but the proviso should not have been included. There was no implied legislative consent to the proposed new public use, which was inconsistent with the existing public use. Cf. Commonwealth v. Massachusetts Turnpike Authy. 349 Mass. 1 , 4. See the Robbins case, supra, at p. 330. The proviso is to be omitted from the order for judgment, but judgment is not to be entered under that order until such time as the Superior Court may fix as appropriate to allow opportunity for seeking legislative action. As so modified the order for judgment is affirmed.

So ordered.