358 Mass. 807

November 4, 1970

In this action of tort for personal injuries allegedly caused by the defendant's negligence the only exceptions are to the denial by the judge of the defendant's motions for a directed verdict and for the entry of a verdict under leave reserved. The evidence most favorable to the plaintiff showed that she was a twenty-five year old housewife, was washing a window of her third floor apartment, was seated on the windowsill with her back outside and her thighs and legs inside the house, and was holding the window with her left hand and washing it with her right. The lower sash was high enough to allow her thighs to fit under it. She heard an explosion like a plane breaking the sound barrier. The window shook a little; she felt "a medium" vibration. She was startled. The next thing she knew she was falling to the ground. Simultaneous with the explosion, a divan in a nearby dwelling on which a neighbor of the plaintiff was reclining, "shook." The defendant concedes that the jury could find that the explosion was caused by the negligent repair of a joint in a manhole controlled by it. On the evidence the jury could find that the explosion had a physical impact on the plaintiff's dwelling, that the force of the impact was transmitted physically in some measure to the plaintiff accompanied by a great noise causing fright to and an involuntary physical response by the plaintiff and resulting in her injury. Thus viewed, the case is controlled by what Holmes, C.J. said in Cameron v. New England Tel. & Tel. Co. 182 Mass. 310, distinguishing Spade v. Lynn & Boston R.R. 168 Mass. 285, relied upon by the defendant. Conley v. United Drug Co. 218 Mass. 238.

Exceptions overruled.


358 Mass. 807

December 3, 1970

A plan showing the subdivision of a tract of land in Dracut into many small lots was recorded in the appropriate registry of deeds in 1922. Included in the lots were those numbered 11, 12, 18, 19, 20 and 21. They were contiguous and together they formed a large corner lot having a frontage of 145.54 feet on Freeman Avenue and 86.92 feet on Meadow Road, its two other lines being eighty feet and 111.5 feet in length respectively. The area of the six lots together was 10,280 square feet. In 1946 Dracut first adopted a zoning by-law which either then or later classified these six lots in a General Residence district and required that lots in such district comply with the following minimum sizes: area, 22,000 square feet; frontage and width, 125 feet; and depth, 100 feet. The by-law also provided that the minimum area and width requirements would not apply to a lot "lawfully laid out and duly recorded by plan or deed prior to the effective date of this by-law." On April 4, 1968, the building inspector issued a building permit to Eva Panagis (owner) to erect a two apartment house on the six lots. Ralph Gaudet, a neighbor, seeks a writ of

Page 808

mandamus to compel the inspector to enforce the by-law and to enjoin the construction which is alleged to be in violation of the by-law. The six contiguous lots are treated as a single lot for the purpose of the zoning by-law. Vassalotti v. Board of Appeals of Sudbury, 348 Mass. 659. Smigliani v. Board of Appeals of Saugus, 348 Mass. 794. Thus viewed, they meet the minimum frontage requirement on Freeman Avenue, even though they are deficient in depth by twenty feet. The owner has the benefit of the exemption provided in the by-law; and she also has the benefit of the more recent exemption created by G. L. c. 40A, Section 5A, as amended through St. 1961, c. 435, Section 1, for lots otherwise nonconforming but having a minimum area of 5,000 square feet and a minimum frontage of fifty feet. Considering both exemptions, and the limited record before us, we hold that the petition was properly denied.

Order for judgment denying petition affirmed.