Home PLANNING BOARD OF BARNSTABLE vs. BOARD OF APPEALS OF BARNSTABLE & another.

358 Mass. 824

March 3, 1971

This is an appeal by the plaintiff from a final decree adjudging that the decision of the defendant board granting a zoning variance to permit construction of an apartment building was valid. In his "Findings, Rulings and Order," the judge stated, inter alia, that "[c]onsidering the totality of `circumstances, characteristics and area' of . . . [the] locus as a whole and not as separate items, . . . [a] literal enforcement of the [z]oning [b]y-[l]aw would involve substantial financial hardship to . . . [the owner of the locus]" and that "[t]he substantial hardship relates both to the land and to . . . [the owner]." The findings of the judge regarding the physical characteristics of the locus and the economic impracticality of using it for residential purposes do not support his conclusion. The fact that a more economical and practical use of the land might be made if it were used for apartment rather than single family purposes does not support the variance. See Sullivan v. Board of Appeals of Belmont, 346 Mass. 81 , 84. Garfield v. Board of Appeals of Rockport, 356 Mass. 37 , 41. The fact that the owner of the locus may personally suffer financial hardship because he erroneously assumed that the locus was zoned for business, paid $7,000 for it and has not received an offer higher than $2,500 does not result from "conditions especially affecting" his property "but not affecting generally" other land in that zoning district as required by G. L. c. 40A, Section 15, as amended through St. 1958, c. 381. Shacka v. Board of Appeals of Chelmsford, 341 Mass. 593 , 594. Garfield v. Board of Appeals of Rockport, supra, pp. 40-41. There are no "conditions especially affecting" the locus within the meaning of Section 15 as found in Dion v. Board of Appeals of Waltham, 344 Mass. 547 , 550-552, and Sherman v. Board of Appeals of Worcester, 354 Mass. 133 , 135-136. The final decree is reversed and a new decree is to be entered adjudging that the decision of the board was in excess of its authority and is annulled.

So ordered.

Home JAMES P. CUNNINGHAM, administrator, vs. THURMAN TRANSPORT, INC. & another.

358 Mass. 824

March 3, 1971

This is an action of tort to recover for the death

Page 825

of the plaintiff's son, aged three years and five months, caused by the negligent operation by the individual defendant of the truck of the corporate defendant. The plaintiff excepts to the direction of a verdict on behalf of each of the defendants. The evidence most favorable to the plaintiff is as follows: The truck, backed into a driveway behind a candy store in a densely populated neighborhood in Dorchester with many children, was parked with its motor running and its cab extending across the sidewalk into the street while the driver made a delivery. When the driver returned, he saw children playing about 100 to 150 feet away, but there was no evidence that anyone saw the plaintiff's intestate. As the truck turned right from the driveway onto the street, its outside right rear wheel struck and killed the child. The child's tricycle was also struck and was seen bouncing in the street. There was a blind spot in the right rear view mirror in which the driver could not see anything within four feet of the ground in the area of the right rear tire. By bringing this action, the plaintiff assumed the obligation to show that the negligence of the defendants caused the child's death, an affirmative burden not to be "left to surmise, conjecture or imagination." Richard v. R. S. Brine Transp. Co. 357 Mass. 768 . In the opinion of a majority of the court, the plaintiff failed to sustain this burden. The evidence shows only that the driver failed to see the child. There is no evidence that the child was in sight of the driver, that he had reason to expect the child to be on the right side of the truck, or that a driver exercising ordinary prudence would have seen the child. "For all that appears, he did all that ordinary prudence would dictate before starting" the truck. O'Reilly v. Sherman, 298 Mass. 571 , 572-573. Burke v. Durland, 312 Mass. 291 , 292. Cioffi v. Lowell, 316 Mass. 256 , 258. Callahan v. Lach, 338 Mass. 233 , 235. Parsons v. Ryan, 340 Mass. 245 , 249. There was no error in directing verdicts for the defendants.

Exceptions overruled.