Shappell v. Apex Express Inc.

• Decision Date: 15 May 1944
• Docket Number: No. 6.,6.
• Citation: 131 N.J.L. 583,37 A.2d 849
• Parties: SHAPPELL et al. v. APEX EXPRESS, Inc.
• Court: New Jersey Supreme Court

131 N.J.L. 583

37 A.2d 849

SHAPPELL et al.

v.APEX EXPRESS, Inc.

No. 6.

Court of Errors and Appeals of New Jersey.

May 15, 1944.

Appeal from Supreme Court.

Action by Guy Shappell and Anna Shappell against Apex Express, Inc., to recover damages sustained in motor vehicle collision. From a judgment for Guy Shappell for $1,500 and for Anna Shappell for $297.57, the defendant appeals.

Affirmed.

CAMPBELL, Chancellor, and COLIE, Justice, dissenting.

Bolte, Miller & Repetto, of Atlantic City (Harry Miller, of Atlantic City, of counsel), for appellant.

Edward V. Martino, of Camden, for respondents.

PERSKIE, Justice.

The questions for decision are whether the trial judge erred, as claimed, (1) in denying defendant's motions for a nonsuit or for a directed verdict, and (2) in his refusal to charge as requested.

This is a negligence case. It arises out of a motor vehicle collision which occurred in the early morning (between 6:15 and 6:30 o'clock) of October 17, 1942, on the public highway (Route No. 40) at or near Elkton, Maryland.

Guy Shappell, the driver of the car, and Anna Shappell, his wife, the owner of the car, sued defendant to recover the damages which each allegedly suffered as a result of that collision, laying the venue in Atlantic County where they resided. The actionable negligence alleged was that defendant ‘unlawfully parked’ its ‘truck’ on the ‘public highway,’ in the ‘night time,’ without ‘warning lights,’ ‘blocking the highway,’ and thus creating a constant ‘danger and nuisance to the traveling public’ more ‘particularly to the plaintiff’ Guy Shappell; that defendant failed and neglected to ‘use due care to observe the traffic conditions,’ failed to post or give warning of the ‘creation, continuance or maintenance of such dangerous conditions,’ failed to discharge its ‘duty’ to make the highway ‘reasonably safe’ for plaintiff, a lawful user thereof; and that defendant (as alleged in the amendment to the complaint) failed to cause to be ‘continuously displayed on the surface of the highway the red or yellow burning danger or caution signals * * * in such manner as to prevent personal injuries * * *, and damage to property by collision.’ Motor Vehicle Laws of the State of Maryland, Art. 56, § 194(3A), Code of 1924, § 193, as amended.

Defendant denied that it was ‘guilty of any (actionable) negligence,’ it denied that it was guilty of any act of negligence which ‘solely and proximately’ caused plaintiff's injuries, and defendant further pleaded that plaintiff was guilty of ‘contributory negligence,’ as a matter of law, and that his negligence (as the servant and agent of his wife) was attributable to his wife.

The case was tried and submitted to the jury upon the pleaded theory that the lex loci (Maryland) governed the substantive law (Friedman v. Greenberg, 110 N.J.L. 462, 466, 166 A. 119, 87 A.L.R. 849), and that the lex fori (New Jersey) governed the quantum of proof necessary to submit the case to the jury. Ferguson v. Central R. Co., 71 N.J.L. 647, 651, 60 A. 382.

As so tried and submitted, the jury rendered a verdict of $1500 in favor of Guy Shappell for his personal injuries and a verdict of $297.57 in favor of Anna Shappell, for the agree amount of the damages to her car. From the judgment based upon these verdicts, defendant appeals.

We do not think that the trial judge erred either in denying defendant's motions for a nonsuit or for a directed verdict, or in refusing to charge as requested.

1. As to negligence and contributory negligence.

Defendant concedes that it was its common law duty to have exercised ‘reasonable care’ to the end that its disabled vehicles ‘did not constitute a danger to other users of the highway,’ American Express Co. v. Terry, 126 Md. 254, 94 A. 1026, Ann.Cas. 1917C, 650; cf. Niles v. Phillips Express Co., 118 N.J.L. 455, 461, 193 A. 183; that the exercise of reasonable care required it, to employ ‘reasonable measures' to give or post ‘reasonable warning of the presence of its disabled vehicles on the highway,’ and to remove its disabled vehicles from the highway as soon as it was reasonably possible for it to do so. These were also its statutory duties. Motor Vehicle Laws of Maryland (1939 Ed.), Art. 56, § 194(3A), Code of 1924, § 193, as amended (regulating the type of danger and caution signals to be displayed), and Sec. 235 of the same article (providing for the removal of a disabled vehicle from the paved part of the highway as soon as reasonably possible).

Defendant stoutly argues here, as it did below, that it had fully discharged the duties which it owed to the plaintiff; that it was not guilty of any actionable negligence, that is, negligence which was the proximate cause of the personal injuries or the property damage suffered by the respective parties; but that plaintiff was guilty of contributory negligence as a matter of law. But the jury found otherwise and not without proper proofs in support of its determination.

Generally stated, these proofs disclose that the driver of defendant's tractor to which was attached a trailer (also referred to as a truck) started from Perth Amboy, N. J., about 12:30 a.m., on October 17, 1942, for Baltimore, Maryland. It had been ‘raining’ and it turned out to be a ‘misty and foggy’ night. En route, defendant's driver traveled in part over the public highway (Route No. 40) in Maryland. This is a dual public highway. It consists of two lanes for both south bound and north bound traffic. The two lanes (north and south bound) are separated by a plot of grass. The entire width of the paved portion of the south lane is between 22 and 24 feet; and the width thereof is further extended by a ten foot gravel shoulder. About 4:30 a.m., while defendant's truck was traveling on the right side of the paved portion of the south bound lane, motor trouble developed. The driver heard a ‘sputtering sound’ in the motor. He seemed to be ‘running out of gas.’ He tried to switch over the flow of gas from ‘the other’ available ‘tank.’ But the flow did not take the ‘gasoline into the carburetor’ and hence ‘there was no ignition to turn over the motor.’ Notwithstanding the fact that the motor was not running, the driver further continued to experiment by coasting along, hoping that by so doing the gas line would clear. It was not until he had so coasted for about ‘five hundred yards' that he became convinced that he would not be able to pick up the gas, ‘because there wasn't enough speed in the wheels to turn over the motor,’ that he tried to turn the tractor and trailer off the highway to the gravel portion thereof. He succeeded only in partially getting the front right wheels of the tractor off the concrete portion of the highway onto the gravel portion thereof where, as he says, in substance, because of a ‘heavy downpour of rain,’ the wheels sank a couple of inches. All of the trailer, except the right front wheel, which was on the gravel shoulder, was left parked on the paved part of the highway in a slanting position so that the rear left corner thereof was about two feet from the center (designated by a white line) of the paved highway, to the right. The result was that the right side of the south land was blocked but admittedly there was sufficient space for a car to pass to the left of the trailer. The driver was unable to fix the motor trouble. He concluded to get the aid of the motor mechanic. Prior to his having done so, he turned off the lights on the trailer in order ‘to have enough juice for the battery.’ Then, according to his own testimony, he placed what he calls three pot flares, bomb type, on the highway in the following positions; on alongside the trailer, one slightly to the rear of the trailer and at or about the white line dividing the two lanes of the south bound paved portion of the highway, and one about 50 feet to the rear of the trailer, toward the gravel side of the white line. These lights are concededly not in accordance with the prescribed statutory type. They are otherwise described as ‘an oil lamp,’ ‘bomb type lamp.’ True, such lamps have a longer burning power than those of the statutory type but the flare of the latter casts a ‘much brighter light and would be visible for a greater distance.’ The lights used ‘throw a sort of a yellow light that flickers and it doesn't light a great area. It is not very bright in comparison with the intense flame and bright light you get from the flare’ of the statutory type signal light. After placing these lights in the manner stated, defendant's driver went for the help of a mechanic.

In the meantime, plaintiff, Guy Shappell, was on his way, driving, by himself in his wife's car, to his place of employment at Port Deposit Navy Base Training Station in the State of Maryland. As plaintiff was driving he would pass through an occasional pocket of fog or...