Baker v. Department of Highways

11 Ct. Cl. 48

• Court: West Virginia Court of Claims
• Decided: October 31, 1975
• Docket: No. D-933
• Status: Published

Opinion

JONES, JUDGE:

On January 27, 1975, at about 10:45 p.m. the claimant, Robert Douglas Baker, was driving his automobile in a westerly direction on Route 33 and 119, about eleven miles west of Weston in Lewis County. The claimant testified that it was slightly foggy and that he was proceeding cautiously at a speed of approximately 35 miles per hour towards his home at Alum Bridge. He further testified that as he came out of an “S” curve he suddenly ran into a 12-inch deep hole extending about halfway across the road, that there was no way to miss the hole in his lane of traffic, and that there was not time to turn completely into the left or east bound lane, which would have been necessary to avoid the hole. On cross-examination he said that he had been over the road about one and one-half weeks before and had observed no hazardous condition. As a result of the collision a tire and rim of his car were damaged beyond repair.

The claimant filed his Notice of Claim on March 18,1975, and the hearing thereon was had on October 6,1975. The respondent called no witnesses and apparently had made no investigation. There being no contradiction, the testimony of the claimant must be given full credence.

Route 33 and 119 is a heavily traveled primary road, the claimant was traveling at night, the hole in the road was unusually deep and wide, and the Court believes that the reasoning expressed by Judge Garden in the recent opinion in the case of Lohan vs. Department of Highways (No. D-910) applies to the facts of this case. Accordingly, we find that the claimant, Robert Douglas Baker, is entitled to recover his damages in the amount of $35.00.

Award of $35.00.