Serge v. Department of Highways

14 Ct. Cl. 68

• Court: West Virginia Court of Claims
• Decided: November 9, 1981
• Docket: CC-81-95
• Status: Published

Opinion

GARDEN, JUDGE:

Shortly after midnight on March 20, 1981, the claimant was operating his new Chevrolet Citation automobile in a southerly direction on Route 250 between Farmington and Fairmont in Marion County, West Virginia. He was returning from his place of employment at Consolidation Coal Company to his home in Fairmont. The weather conditions were very bad in that the roads were icy and at least one inch of snow had fallen. The claimant was following another car on this two-lane road when he observed a northbound truck which appeared to be spreading cinders or salt on the highway.

Upon observing the approaching truck, which was travelling, in the opinion of the claimant, at a speed of 40 to 45 miles per hour, the claimant moved to the right of his lane of travel and came to a complete stop with both of his right wheels on the berm. As the truck, with activated flashing lights, passed claimant’s car, salt and/or cinders were thrown against his car, damaging it to the extent of $139.05. Claimant candidly admitted that he did not observe any sign or logo on the truck identifying it as a vehicle belonging to the respondent, but he was sure, by reason of the color of the vehicle, that it was the respondent’s vehicle. The respondent, in its Answer, while not admitting that the subject truck was one of its units, did not deny ownership. Furthermore, the respondent offered no evidence at the hearing to dispute the ownership of the vehicle.

The Court, being of the opinion that the claimant did establish by a preponderance of the evidence that the offending truck was owned and operated by the respondent, and that its operator was negligently operating it at an excessive speed under the conditions then prevailing, makes an award to the claimant in the amount of $139.05.

Award of $139.05.