Moore v. Department of Highways

13 Ct. Cl. 77

• Court: West Virginia Court of Claims
• Decided: November 28, 1979
• Docket: CC-79-71
• Status: Published

Opinion

WALLACE, JUDGE:

This claim was originally filed by Charles P. Moore and Carsie K. Moore, the latter being the only witness who testified in the claim, and when it was developed through her testimony that the car, a 1974 Mercury Montego, was titled in the name of her husband, Charles P. Moore, she was dismissed as a party claimant on the Court’s own motion.

Mrs. Moore testified that on or about the 23rd day of January, 1979, at about 3:40 p.m., she was taking her son to basketball practice at Winfield High School and was travelling on State Route 35. According to her testimony, the roads were slick and snowy. During the trip, she passed what she thought to be a truck belonging to respondent, which was proceeding in the opposite direction on State Route 35. The truck was throwing cinders, and as the two vehicles passed each other, a cinder or rock was thrown against Mrs. Moore’s windshield and cracked it. An estimate of the cost for replacement of the cracked windshield in the amount of $174.90 was admitted into evidence.

In addition to being unable to identify the subject truck as being a vehicle owned and operated by the respondent, Mrs. Moore was unable to relate in her testimony whether the object that cracked her windshield came from the bed of the truck, was thrown from the bed of the truck by a person spreading cinders, or was possibly thrown into the windshield by the tires of the truck. Because the claimant has failed to establish by a preponderance of the evidence that the windshield was damaged as a result of some act of negligence on the part of respondent, this claim must be disallowed.

Claim disallowed.