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Shappell v. APEX Express Inc.

Decided: May 15, 1944.

GUY SHAPPELL AND ANNA SHAPPELL, PLAINTIFFS-RESPONDENTS,
v.
APEX EXPRESS, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



On appeal from the Supreme Court.

For the appellant, Bolte, Miller & Repetto (Harry Miller, of counsel).

For the respondents, Edward V. Martino.

Perskie

The opinion of the court was delivered by

PERSKIE, J. 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 17th, 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; the 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 highway the red or yellow burning danger or caution signal * * * in such manner as to prevent personal injuries * * *, and damages to property by collision." Motor Vehicle Laws of the State of Maryland, section 177, article 56, 194(3A), Acts of 1924, 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; 116 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 Railroad Co., 71 N.J.L. 647, 651; 60 A. 382.

As so tried and submitted, the jury rendered a verdict of $1,500 in favor of Guy Shappell for his personal injuries and a verdict of $297.57 in favor of Anna Shappell, for the agreed 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 ...


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