Home GERALD L. CHRISTOFFELS & others vs. ALTON PROPERTIES, INC. & another.

362 Mass. 862

June 5, 1972

This is a bill in equity in which the plaintiffs, ten residents of Tewksbury, seek to prevent the filling of certain pond (Ames Pond) in Tewksbury and the construction of a shopping center. From a final decree dismissing the bill, the plaintiffs appeal. We have before us a report of material facts and a transcript of the evidence. Ames Pond is an area which can be lawfully filled only under the terms of G. L. c. 131, Section 140, as amended, the "Hatch Act." The plaintiffs argue that the statute is unconstitutional because it affords them no opportunity to be heard prior to the issuance by the Department of Natural Resources of an order for conditions under which the pond shall be filled, nor does it require that the Department consider the recommendations and findings which the selectmen may file with the Department after a mandatory public hearing. We do not reach the constitutional issue, since the statute protects only the public interest and confers no enforceable rights on the plaintiffs. Mullholland v. State Racing Commn. 295 Mass. 286 , 291-292. Massachusetts Commn. Against Discrimination v. Colangelo, 344 Mass. 387 , 390. The statute does not preclude proceedings under the recent statute aimed at the restraining of damage to the environment. St. 1971, c. 732. Nor does it affect any remedies which the plaintiffs may have for alleged failure of public officers to enforce their public duties in this area. Brady v. Board of Appeals of Westport, 348 Mass. 515 , 518-519. Hallenborg v. Town Clerk of Billerica, 360 Mass. 513 , 519-520. The plaintiffs further argue that the construction of the proposed shopping center and the further filling of the pond will result in a nuisance, as to noise and traffic and increased flood danger. The judge found that no such results would ensue, and we conclude, from our review of the evidence, that he was not plainly wrong in that finding. Nor was the judge plainly wrong in his findings and rulings, contrary to the assertions of the plaintiffs, that the defendants were in substantial compliance with the procedural requirements of G. L. c. 131, Section 40. We have reviewed the plaintiffs' remaining arguments and find them to be without merit.

Decree affirmed with costs of appeal.

Home LORRAINE LAPRE & another vs. MANUEL SILVIA & another.

362 Mass. 862

June 5, 1972

In this action of tort, the female plaintiff, Lorraine Lapre, alleges injury sustained while riding as a guest in an automobile operated by the defendant Manuel Silvia and owned by his wife, the defendant Maquelina Silvia. Her husband, Edward A. Lapre, seeks consequential damages. The declaration contains allegations of gross negligence. The plaintiffs are here on an exception to the action of the judge in granting the defendants' motion for directed verdicts on the plaintiffs' opening. In the opening it was said that the Silvia vehicle was being driven westerly at an unstated speed when it approached

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the intersection of a road and Route 88 in Westport where there was a stop sign and a blinking red light," which faced . . . [Manuel Silvia]." Route 88 has a blinking yellow light facing southbound traffic. While the Silvia car did not stop for the stop sign, it did diminish its speed prior to entering the intersection. Half way across Route 88 Manuel Silvia saw another car "coming fast" and accelerated his vehicle to get out of the way. There was an intersection collision. There was no other traffic on the road immediately preceding the accident, and Route 88 was visible for a distance of 1,000 feet in the direction from which the second car was coming. Manual Silvia was familiar with the intersection. Nowhere was there any speed stated for the Silvia vehicle before or after it entered the intersection. He later said to the operator of the second car "that it was my fault," and that he had accelerated his car to get out of the way but "my car had no pep." This is not a case of gross negligence. The operator of the Silvia car was carelessly inattentive but does not seem to have been deliberately so. It does not appear that he voluntarily incurred an obvious risk, that he was impatient of reasonable restraint, or that he persisted in a palpably negligent course of conduct over an appreciable length of time. He may have been negligent but he was not grossly negligent. McGrath v. G. & P. Thread Corp. 353 Mass. 60 , 62, and cases cited.

Exceptions overruled.