Jacobson v. State Road Commission

5 Ct. Cl. 25

• Court: West Virginia Court of Claims
• Decided: February 2, 1949
• Docket: No. 634
• Status: Published

Opinion

CHARLES J. SCHUCK, Judge.

Claimant, Robert S. Jacobson, prosecutes his claim in the amount of $24.69 for damages to his automobile occasioned by striking a hole in the road on what is known as the Old Kingwood Pike in Monongalia county, West Virginia. The accident occurred in June 3, 1948, at about five o’clock p. m., at a point on said pike just outside the city limits of Morgan-town. The weather was clear and bright and claimant admits in his testimony (record p. 7) that he could see the road, although he could not pass an automobile going in the opposite direction without striking the hole in question. It necessarily follows from claimant’s own testimony that as he could plainly see the road he either saw or ought to have seen the hole; if he did not see it, he was negligent in not driving as carefully as he should have driven. On the other hand if he saw the hole and did not stop to let a car going in the opposite direction pass, he assumed the risk of any injury or damages occurring to his own automobile, and cannot now complain by reason of his own acts that were the the proximate cause of the accident.

It is true that the said pike was not much used or traveled, and that it was partially abandoned and that it was in need of repair. But a driver of an automobile on such a road must still use and exercise such care and caution as the conditions and circumstances require, and failure to do so will bar him from recovery for damages occasioned by injuries to his automobile.

The state is not a guarantor of the safety of persons using the highways within its boundaries.

The facts adduced by the evidence before us do not support the claimant’s contention, and an award is therefore denied and the claim dismissed.