12 Ct. Cl. 31 | W. Va. Ct. Cl. | 1977
These three claims all grow out of the same accident and, accordingly, were consolidated. The physical facts in this case are clear. Claimants, Billy Joe Davis and Frank Davis, doing business as Davis Auto Parts in Paintsville, Kentucky, operate a wrecker service. On Friday, June 13, 1975, Bill Joe Davis undertook to tow a large coal truck belonging to Ishmael Collins from Paintsville to Hurricane, West Virginia. At about 2:00 p.m., while travelling toward Charleston on Route 1-64 in the outside eastbound traffic lane, Davis’ tow truck struck a hole in the surface of a bridge located approximately .8 mile east of milepost 19 on 1-64, near the town of Ona. The irregularly shaped hole measured approximately 44 by 48 inches, and, at its location, all of the pavement had dropped out of
Davis’ testimony and pictures taken after the accident establish that Friday the 13th was a clear, dry, sunny day. Davis’ testimony and that of John Mullins, driver of the car immediately behind Davis’ truck, also establish that Davis was driving carefully and within the speed limit. There were no signs warning approaching motorists about the hole in the pavement. Davis could not have stayed in the outside eastbound lane and avoided the hole, but neither could he have swerved into the inside eastbound lane to avoid it, because Mullins was in the inside lane, beginning to pass Davis.
The claimants allege that the respondent negligently failed to maintain the bridge and negligently allowed the hole to exist in the bridge without repairs or warning to motorists.
Since the landmark case of Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947), it has been established in West Virginia that the State is neither an insurer nor a guarantor of the safety of persons travelling on its roads. See also Lowe v. Dept. of Highways, 8 Ct. Cl. 210 (1971). The duty imposed on the Department of Highways is that of “reasonable care and diligence * * * under all circumstances”. Parsons v. State Road Commission, 8 Ct. Cl. 35 (1969). This Court has more recently stated that the State’s duty has been fulfilled “if streets and sidewalks are in a reasonably safe condition for travel in the ordinary modes, by day and night”. Shaffer v. Board of Regents, 9 Ct. Cl. 213 (1973).
Turning to the case at hand, respondent, in its brief, citing four Opinions of this Court, contends that the State properly performed its duties regarding the bridge on Route I-64, and
“Although the standard of reasonable care remains constant, what is reasonable care in a given situation varies with the conditions present on such road or highway. Reasonable care on a busy, often, travelled highway requires greater diligence on the part of the county commissioners than that required on a relatively little-travelled road.” (citations omitted)
See also Jenkins v. Maryland, 25 Md. App. 558, 334 A.2d 549 (1975), Braswell Motor Freight Lines, Inc. v. Toups, La. App., 255 So. 2d 155 (1971), and 4 Blashfield Automobile Law and Practice, 3rd edition, §161.9 “Extent of Liability”.
Does the respondent’s failure to repair the hole or warn approaching motorists constitute negligence? This Court stated in Frazier v. Dept. of Highways, 9 Ct. Cl. 171 (1972), “It also seems fundamental that an important cross-country highway
The evidence in this case impels the conclusion that the Department of Highways, in the exercise of ordinary care, should have known of the existence of the hole in the bridge before the accident happened. Mullins attested to its existence as early as 9:30 p.m. the day before the accident happened. In view of the evidence that the interstate highway bridges in the area apparently had required surface repairs several times before the accident, the Department of Highways had an obligation to inspect them with reasonable frequency and care. Four employees of the Department of Highways testified that they drove across the bridge in question between the hours of 9:00 a.m. and 12:30 p.m. the day of the accident. None of them saw the hole in question. The respondent suggests that it should be inferred from the testimony of its employees that the hole came into existence only momentarily before the accident happened, but that seems improbable and would require the Court to disregard the Mullins testimony.
The respondent contends that, even if it were negligent, awards should be precluded by the contributory negligence of
Turning to the issue of damages, the claimants, Frank Davis and Billy Joe Davis, doing business as Davis Auto Parts, have asserted a claim in the sum of $66,000.00 attributable to damage to the 1969 Ford model 950 wrecker truck which was owned by them. Although both claimants testified that the wrecker truck was a total loss (and there was no evidence to the contrary), it was rebuilt by Frank Davis, who worked on it part-time for approximately one year. Frank Davis testified that it could have been rebuilt in three months if he had worked on it 40 hours per week. Included in this claim are items for the cost of repair of the truck, loss of use of the truck, loss of a large quantity of tools which it was claimed were in the truck at the time of the accident and apparently were carried away by unknown third persons, and a towing charge in the sum of $325.00 for moving the wrecker truck from Hurricane back to Paintsville. The undisputed evidence is that the fair market value of the wrecker truck was $35,-000.00 immediately before the accident and $10,000.00 immediately after the accident, the difference being the sum of $25,000.00, but that the cost of repair was $18,800.00, viz., $14,000.00 for parts and materials and $4,800.00 for labor. In Cato v. Silling, 137 W.Va. 694, 73 S.E.2d 731 (1952), Syl. 7, the general rule is stated as follows:
“[T]he proper measure of damages for injury to personal property is the difference between the fair market value*36 of the property immediately before the injury and the fair market value immediately after the injury, plus necessary reasonable expenses incurred by the owner in connection with the injury. When, however, injured personal property can be restored by repairs to the condition which existed before the injury and the cost of such repairs is less than the diminution of the market value due to the injury, the measure of damages may be the amount required to restore such property to its previous condition.”
Accordingly, the award to these claimants should include the cost of repair in the sum of $18,800.00 plus the towing charge of $325.00. It appears from the evidence and under applicable law that the award should also include some reasonable sum for loss of use of the wrecker truck. See Jarrett v. E. L. Harper & Son, Inc., _ W.Va. _, 235 S.E.2d 362 (1977). A tortfeasor “is held responsible for all the consequences of his negligent act which are natural and probable”. Ohio-West Virginia Co. v. Chesapeake and Ohio Railway Co., 97 W.Va. 61, 124 S.E. 587 (1924). See also Stewart v. Pollack-Forsch Co., 105 W.Va. 453, 143 S.E. 98 (1928). The respondent’s negligence certainly caused these claimants to lose the use of the wrecking truck, and the claimants deserve an award for loss of use for a period of time reasonably required to effect repairs on the truck. The proof offered for determining damages due to loss of use consisted of Davis Auto Parts’ records for receipts from their wrecker operation's covering the period from 18 months before the accident to a date two years after the accident. Those records showed that, before the accident, Davis Auto Parts’ three wreckers (the large one damaged in this accident and two smaller ones) produced an average gross income of $1,786.00 per month; during the time the truck was under repair, wrecker income averaged only $445.00, a difference of $1,341.00 per month. Testimony regarding the expenses of operating the large wrecker included a definite figure of $60.00 per month for gasoline, with no definite proof of the cost of oil, tries, or any maintenance, which the Davis brothers did themselves. A loss of profit, when not awarded, is generally excluded because “there are no criteria by which
Billy Joe Davis, who was 27 years of age when these claims were heard on December 7, 1976, has asserted an individual claim in the sum of $10,500.00 for personal injuries which he sustained in the accident and for loss of a wrist watch. The only evidence respecting the value of the wirst watch, which was damaged beyond repair, was that its cost on December 18, 1974, was $131.25. Respecting his personal injuries, there was evidence that he sustained cuts and bruises, a fracture of his skull, and a fracture of his twelfth thoracic vertebra. There was no evidence whatsoever concerning the extent or severity of either of the fractures, but there was evidence that, for some time after the accident, Billy Joe suffered from headaches
The claimants, Hartford Accident & Indemnity Company and Ishmael Collins, the collision insurer and owner, respectively, of the 1974 model Brockway coal truck, have asserted a claim in the sum of $26,667.95 for damage to it. The undisputed evidence is that the damage to the coal truck rendered it a total loss. It appears that the claim which is asserted is made up of the sum of $26,167.95 paid by Hartford to Collins (and to which Hartford thereupon became subrogated) and the sum of $500.00 representing Collins’ deductible portion of his collision insurance. Although there was some confusion about the matter in the evidence, it appears from the evidence that the fair market value of the coal truck immediately before the accident was $24,550.00 and that it was sold for salvage subsequent to the accident for the sum of $2,723.50. Accordingly, an award in the sum of $21,826.50 should be made to these claimants.
Award of $21,125.00 to claimants, Frank Davis and Billy Joe Davis, doing business as Davis Auto Parts.
Award of $750.00 to claimant, Billy Joe Davis.
Award of $21,826.50 to claimants, Hartford Accident & Indemnity Company and Ishmael Collins.