Orsini v. State Road Commission

4 Ct. Cl. 88

• Court: West Virginia Court of Claims
• Decided: November 4, 1947
• Docket: No. 601-S
• Status: Published

Opinion

MERRIMAN S. SMITH, Judge.

During May, 1946, employes of the state road commission were making repairs to a section of u. s. route No. 19, in the town of Worthington, Marion county, West Virginia. The particular work being done was the laying of crushed stone from the curb to the streetcar rails, in making a base preparatory to blacktopping the surface. During this time a stone or stones were thrown against the claimant’s store windows by passing cars or trucks in the normal flow of road traffic, breaking two windowpanes, two jars of wax and lids to a soft-drink cooler, damage for which amounted to $31.95, and for which amount claim is made against the state road commission. Claimant’s place of business parallels the street.

In order to accommodate the public, traffic was not held up but allowed to proceed in the normal course. This was a necessary work and for the public good and benefit. The facts presented were that stones were thrown by “person or persons unknown” from the roadbed, and nowhere is any negligence attributed to employes of the state road commission. Since the damage in the instant claim, was caused by cars or trucks of unknown persons the state road commission is not liable and accordingly an award is denied and the claim dismissed.