Tassinari v. Massachusetts Turnpike Authority , 347 Mass. 222 ( 1964 )

Spiegel, J.

This is a petition for assessment of damages under Gr. L. c. 79. The jury viewed the locus. Upon con-elusion of the petitioner’s opening statement the court allowed a motion by the respondent for a directed verdict “upon the pleadings and the opening,” to which the petitioner excepted.

When a verdict for the respondent is directed upon the pleadings and the opening statement, the “facts set forth in the opening must be considered as true and in the light most favorable” to the petitioner. Aragona v. Parrella, 325 Mass. 583, 584. Cohen v. Suburban Sidney-Hill, Inc. 343 Mass. 217. In his opening to the jury, counsel for the petitioner stated the petitioner’s claim substantially as follows: “Petitioner is the owner of the premises numbered 17-19 and 21-23 Ferry Street. The building numbered 21-23 is occupied by the petitioner. The building numbered 17-19 is vacant. Prior to the taking of the area near the property owned by the petitioner and prior to the time that two walls were constructed as part of the entrance to . . . [a] tunnel petitioner’s father conducted the business upon the premises numbered 21-23 Ferry Street. Petitioner has conducted this business for approximately nine years prior to the commencement of this action. Some time during September, 1959, the respondent commenced construction of the opening for the tunnel. Up to that time the petitioner’s business had been conducted in the usual manner in which it had theretofore been conducted. Prior to the construction of the entrance to the tunnel, Ferry Street was a through street open on either end, and the petitioner conducted a meat and provisions business upon the above premises. Prior to the construction of the walls, access to petitioner’s property was open from either end of Ferry Street. Trucks and cars would drive up to the property and an established number of customers would come to purchase merchandise on credit and/or on a cash and carry basis. The flow of business was constant until some time after the respondent began to erect the approach walls and opening of the tunnel. Once construction of these walls had begun, petitioner noticed a marked decline in the volume of business she was doing and also in the profit from that business. The decline began at the time that access to Ferry Street from the north was cut off by the commencement of the erection of the walls. Trucks and cars would no longer enter Ferry Street. Once having entered Ferry Street, the only means of egress was to back up the length of the street to Fulton Street. As a result of the loss of access to petitioner’s property from the northerly end of Ferry Street the value of the two buildings substantially declined. Through a real estate expert and through other testimony, the fair market value of the two properties after the walls had been erected would be shown to have been substantially reduced.”

The record is devoid of any description of what the jury saw in their view and is also devoid of a number of alleged facts stated in the petitioner’s brief. For example, the petitioner asserts, “Ferry Street is very narrow and the way in the road is no more than 15 feet from curb to curb. It is similar to most every street in that part of the city [the North End], in that the sidewalks are very narrow, the buildings are placed near the line of the street, and the ways in the roads are very narrow.” We do not take judicial notice of the width of streets and sidewalks in the North End of Boston, for, by doing so, we should logically take notice of the width, and perhaps the length, of every street in the Commonwealth. The petitioner also states in her brief: “The jury could have concluded that, once a motor vehicle had driven to the petitioner’s premises, it could leave only by backing the length of the street [Ferry Street] to Fulton Street and then backing into and through the intersection and around the corner, and thereby violating the law. ’ ’ There is nothing in the record to indicate that it is illegal to back into a through street from a dead-end side street. This is not a matter for judicial notice.

The petitioner contends that the “direction of a verdict for the respondent upon the pleadings and the opening was reversible error . . . since the respondent was bound by its stipulation in a pre-trial order that the ‘pleadings are complete. ’ ” We reject this contention. We are of opinion that the stipulation regarding the pleadings meant only that the parties had agreed that all procedural steps preparatory to trial had been taken. See General Motors Corp. v. Blevins, 144 F. Supp. 381, 389. It is the rule in this Commonwealth that “ [i]f the opening plainly fails to show a cause of action, a verdict may be ordered.” Ara-gona v. Parrella, 325 Mass. 583, 584.

Since the petitioner’s property was not taken, the petitioner may recover damages for any injury which she may have suffered as a result of the respondent’s acts only when that injury is “special and peculiar” within the meaning of Gr. L. c. 79, § 12.¹ We are satisfied that as to the type of damage suffered by this petitioner, the law in this Commonwealth is clear. “By reason of the discontinuance of the street within the location of the railroad, the petitioners, in order to cross the railroad, are obliged to go back on Ferry Street and pass around up the new street and over a bridge. If they suffer damages by reason of the discontinuance of Ferry Street . . . their damage is not special and peculiar, but is the same in kind as that of the general public, although it may be relatively great in degree. It is well settled that there can be no recovery for such damage. ’ ’ Hyde v. Fall River, 189 Mass. 439, 440.

We are of opinion that the cases cited by the petitioner are distinguishable on their facts from the ease at bar. Even the case of Wine v. Commonwealth, 301 Mass. 451, which we think closest in analogy to the instant case is clearly distinguishable. In that case the highway on which the petitioner operated a gasoline filling station was entirely closed to traffic. Although we held that the damage to the petitioner’s business as a result of the closing was special and peculiar, we do not believe that the rule can be applied to the situation where the street on which the petitioner’s property is located was closed only at one end.

Exceptions overruled.

1 The relevant part of this statute reads: “In determining the damages to a parcel of land injured when no part of it has been taken, regard shall be had only to such injury as is special and peculiar to such parcel . . ..”