Davis v. Department of Highways, No. CC-76-18

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No. CC-76-18 | W. Va. Ct. Cl. | Jul 19, 1976

JONES, JUDGE:

On February 14,1976, at about 11:30 p.m. the claimant, William L. Davis, drove his Ford station wagon up the ramp entering State Route No. 119 at Big Chimney in Kanawha County. According to his testimony he was travelling at about 25 miles per hour when his left front and left rear tires struck a hole in the pavement, causing them to blow out. He alleged damages in the amount of $66.00. The claimant says that he did not see the hole, and while he estimated its depth at eight inches, no measurements were made, no pictures taken, nor any corroboration had by any other witness. The claimant’s home is at Clendenin and he is well-acquainted with Route No. 119 and its approaches, although he said he had not travelled this ramp for about two months, at which time he saw no defect at the point of the accident.

There is no evidence that the respondent had notice of any extraordinary hazard, although the claimant said there was no way to avoid the hole and it is well known that hundreds of vehicles traverse this ramp every day. While the claimant says he did not see the hole, the Court is constrained to believe that if he was travelling at the modest rate of 25 miles per hour and had adequate headlights, he should have seen a hole of the size complained of, and that if the claimant had been operating his vehicle with proper care, he would not have struck the hole with such force as to blow out two tires.

*151This Court consistently has followed the decisions of our Supreme Court of Appeals in holding that the State is not an insurer of its highways and its duty to travellers is a qualified one, namely, reasonable care and diligence in the maintenance of its highways under all the circumstances. In view of the foregoing principles, the Court finds that there is no satisfactory proof of actionable negligence on the part of the respondent, and, to the contrary, we find a lack of care by the claimant contributing to his injury.

Accordingly, the Court is of the opinion to and does hereby disallow the claim.

Claim disallowed.