Cleaver v. State Conservation Commission

6 Ct. Cl. 86

• Court: West Virginia Court of Claims
• Decided: April 30, 1952
• Docket: No. 763-S
• Status: Published

Opinion

JAMES CANN, Judge.

The facts as disclosed by the record in this case show that on the 18th day of September, 1951, Lemuel A. Cleaver, Jr., claimant’s deceased husband, was then an employe of respondent in the construction of the Spring Run Fish Hatchery, near the Dorcas Post Office, in Milroy district, Grant county, West Virginia; that on the date aforesaid, in the course of his employment and at the direction of his employers, he made a trip to Petersburg, in said Grant county, in his own automobile, a 1941 Ford sedan; on his return from Petersburg to the place of his employment he was stopped by other employes of the respondent approximately 200 yards from where dynamite or other explosive blasting operations were being conducted by the respondent in the construction of said fish hatchery, and was told not to proceed any further until said blasting operations were completed. Whereupon the said Lemuel A. Cleaver, Jr. stopped his car as directed and was sitting in the left front seat thereof when a large stone came hurtling through the air as a result of an explosive charge set off by the employes of respondent and struck his car on the roof of same with such force and velocity that it pierced the roof of said automobile and struck him on the head and body causing him grave and serious injuries, resulting in his death shortly thereafter, and also causing considerable damages to his automobile.

The record further discloses that said Lemuel A. Cleaver, Jr. left surviving him at the time of his death, his widow, Tressie V. Cleaver, the claimant, and two children, all of whom are now receiving benefits from the West Virginia workman’s compensation fund by reason of the death of the said Lemuel A. Cleaver, Jr. caused by injuries received while in the course of his employment. That said claimant on the 9th day of October, 1951, duly qualified as administratrix of her husband’s estate and as such prosecutes this claim for the damages done to decedent’s automobile as above set out, estimated by the exhibits filed to amount to $256.80.

It is contended by the claimant that the employes of the respondent in conducting explosive blasting operations at the time and place aforesaid disregarded and were unmindful of their duty to use all due care and caution so as not to endanger life or property out of the area designated to be the danger area and also to use care and caution in the amount of explosives used in conducting said blasting operations in order not to endanger life or property out of said designated danger area.

Under the circumstances disclosed we are of the opinion to agree with claimant’s contention and hold that the lack of due care and caution on the part of the employes of respondent, as stated, was the sole and proximate cause of the injuries received by the said Lemuel A. Cleaver, Jr., resulting in his death, and of the damages done to his automobile.

The state agency concerned concurs in this claim and the same is approved by the attorney general as one that, in view of the purpose of the court of claims statute, should be paid.

We therefore make an award in favor of claimant, Tressie V. Cleaver, admx, etc., for the sum of two hundred fifty-six dollars and eighty cents ($256.80).