2 Ct. Cl. 206 | W. Va. Ct. Cl. | 1943
Frank T. Marshall, the claimant, engaged in the wholesale merchandise business, was severely, and perhaps permanently, injured by a collision with a state owned and operated road truck, while he was proceeding south toward the city of Huntington in his truck on route no. 2, commonly known as the Ohio River Road. The accident occurred on the eighth day of October 1942 at about 8:30 o’clock in the morning, and at or about what is known as Clutts store, near Greenbottom in Cabell county, West Virginia. The highway was dry, and while there seems to be some question as to fog affecting visibility on different parts of the road, an examination of the record fairly discloses that there was no fog to obstruct the view of a driver going north or south on the highway at the time and place of the accident. In fact, the driver of the state truck himself testified (record p. 58) that there was no fog at the place of the accident at the time of its happening. The
The claimant testified that he was driving at a lawful and reasonable rate of speed; that the state truck, going in the opposite direction, and without any apparent reason or warning to him, was driven to the left of the highway and directly in front of claimant’s truck and so near to his own truck that it was impossible to stop, thus causing the collision by which his truck was demolished and causing as well the injuries to him of which he complains.
The state truck driver disputes and contradicts this testimony and maintains that claimant’s truck was driven on his (cláimant’s) left side of the road and directly in the path of the oncoming state truck.
Under all of these circumstances we are obliged to look for aid to the relative position of the trucks immediately after the collision for an answer to the question of which one of the drivers was negligent, and consequently whether or not an award should be made.
The trooper in question, immediately upon his arrival at the scene of the accident, noted the position of the trucks (which had as yet not been moved) and has presented to this court what is known as state’s exhibit No. 1, showing that the heavier state road truck was entirely off the highway to the left thereof; in other words on the opposite side from which the state truck was being driven at the time, and that it was
This conclusion is further sustained by the witness Gill who testifies that he was sitting on the steps of the Clutts store at the time, watching the state trucks drive by, and that these trucks were not very far apart, and that he thought there was a state truck immediately ahead of the truck involved in the collision, and that he “imagines” there were more than two or three such trucks ahead of the said state truck (record p. 103). If this testimony can be relied on it would necessarily preclude the idea that the claimant could have driven to his left side of the highway and been seen only 25 feet away for the first time just previous to the collision. Gill was presented as a witness by the state.
Having determined that the driver of the state truck was negligent, and that, consequently, the state -is liable, the question now presents itself as to how seriously the claimant was