Wheeler v. Department of Highways

14 Ct. Cl. 184

• Court: West Virginia Court of Claims
• Decided: July 2, 1982
• Docket: CC-82-39
• Status: Published

Opinion

PER CURIAM:

Claimant Drema Faye Wheeler suffered damage to her 1974 Buick Impala in an accident with a road grader operated by an employee of the respondent.

On September 1, 1981, claimant was proceeding on State Route 19/21 Bypass when she approached a flagman with a “Slow” flag who was directing vehicles around a road grader. The road grader was in claimant’s lane of travel. Claimant testified as follows:

A. “Well, I was driving and I saw a flagman with a ‘Slow’ flag. So all the traffic was going slow and there was a grader up ahead and as each vehicle got behind the grader, it would go around it. When I got behind him, it was in a curve and I couldn’t see to go around him and I was going to follow him so around the curve until I could see, and he stopped and I stopped.

Q. This was the grader operator?

A. Yes, and he started backing up. When I seen that he wasn’t going to even look back, then I started to put my reverse in to move the car and go back and it stalled on me.

Q. You started to back up?

A. Yes, sir.

Q. And your car stalled?

A. Yes.

Q. Then I presume he struck you?

A. Yes, he backed on top of the hood of my car.”

Ray Pack, a foreman for the respondent, testified that at the time of the accident the road grader was pulling shoulders. There were signs on both ends of the operation indicating “Shoulder Work” and “Flagmen Ahead.” The flagman on one end would pass a ring to the last vehicle in the line of traffic to give to the flagman on the other end for the one-lane traffic pattern to proceed around the shoulder work. Mr. Pack testified as follows:

“. . .as the traffic was going through, Mrs. Wheeler got in the right-hand lane behind the grader and our laborer that was between the flagman and the grader directed her to the left-hand lane. As soon as she passed the laborer then, she got back in the right-hand lane behind the grader and followed him to a stop.”

Mr. Pack did not observe the accident as it occurred in the curve out of his view.

The road grader operator, Emery Plumley, testified that he was backing up in the usual manner on a ditching project; that he had observed traffic proceeding around him in the other lane; and that he looked back and then proceeded to back up, whereupon the grader struck claimant’s vehicle. He did not observe the claimant’s vehicle prior to striking it.

The Court is constrained to hold that, under the factual situation presented here, the claimant’s failure to remain in the line of traffic directed to proceed around this ditching operation was negligence which was the proximate cause of the damage to her vehicle. Accordingly, the Court must disallow the claim.

Claim disallowed.