Weirton Cigar & Candy Co. v. State Road Commission

5 Ct. Cl. 61

• Court: West Virginia Court of Claims
• Decided: July 19, 1949
• Docket: No. 670-S
• Status: Published

Opinions

JAMES CANN, Judge.

The claimant, Weirton Cigar & Candy Company, of Weirton, West Virginia, seeks reimbursement in the amount of $75.38, which amount claimant was obliged to pay for repairs to its automobile, damaged by fragments of a large stone which had rolled off a slope onto West Virginia state route no. 30, at Stewart’s Cut, in Hancock county, West Virginia.

The record reveals that one Nick Dimos, on the fourth day of May, 1949, at about three o’clock p. m. of that day, was operating a 1941 De Luxe Ford two-door automobile, belonging to claimant, driving west on state route no. 30; that as he approached Stewart’s Cut, where a crew of the state road commission was shooting and sloping stone at said cut, he was stopped by the flagman stationed at the east end. Flagmen were stationed at both the east and west end of said cut where the state road commission crew was working. After a short time the driver of claimant’s car was given the signal by the flagman at the east end to proceed, and when he had driven for about fifty to seventy-five yards, a large stone, thrown over the top of said cut, rolled to the highway with such force that it splintered and some of the fragments struck claimant’s automobile causing the damages complained of.

From the record it appears that the employes of the state road commission working at said Stewart’s Cut were negligent and careless in the performance of their duties, and that no negligence is attributed to the driver of claimant’s automobile.

The state road commission does not contest the claimant’s right to an award for the said amount claimed, but concurs in the claim for that amount, and the claim is approved by the assistant to the attorney general as one that should be paid. We have carefully considered the case upon the record submitted, and a majority of the court is of opinion that it should be entered as an approved claim and an award is accordingly made in the sum of seventy-five dollars and thirty-eight cents ($75.38).