Bailey v. Department of Highways

13 Ct. Cl. 144

Opinion

RULEY, JUDGE:

The claimant seeks recovery in the amount of $280.09 for damage to the right front wheel of his 1978 Oldsmobile automobile which occurred when it struck a pothole in the outside westbound traffic lane of W.Va.-U.S. Route 460. The accident occurred at about 9:45 p.m. on March 12, 1979, at a point about 10 or 11 miles east of Princeton in Mercer County. At that time and place, Route 460 was a four-lane divided highway. Mr. Bailey was driving at approximately 50 mph and was returning from Peterstown to his home in Princeton. Immediately before the accident, he had been overtaken and passed by a tractor-trailer unit. He testified that the pothole was about 3-1/2 feet long, 2-1/2 feet wide, and 8 to 9 inches deep. He was unaware of its existence and did not see it in time to taken any evasive action. It extended from a point about two feet from the edge of the concrete pavement toward its center. Several blacktop patches were located in the same general area. Mr. Bailey also testified that one of the respondent’s claim agents later told him that the hole had been in existence for about two weeks. While that evidence obviously was hearsay, it is equally apparent that it is consistent with experience in that it is probable that a hole of such size did not develop overnight. Following the precedent of Lohan v. Department of Highways, 11 Ct.Cl. 39 (1975), which is on all fours, an award should be made.

Award of $280.09.