Zain v. West Virginia Department of Highways

10 Ct. Cl. 109

• Court: West Virginia Court of Claims
• Decided: October 9, 1974
• Docket: No. D-727
• Status: Published

Opinion

DUCKER, JUDGE:

Claimant, Emily Zain, a resident of Charleston, West Virginia, alleges that at about 6:15 o’clock in the evening of September 25, 1973, she suffered injuries in the nature of a fracture of her left foot when in alighting from a bus on Washington and Thompson Streets, Charleston, she tripped and fell in the street when her foot struck a manhole which with the paving around was left with a small ridge around it. She claims damages in the amount of $350.00.

The only evidence for the claimant was her own testimony and a photograph of the manhole. The respondent alleges contributory negligence on the part of the claimant as well as non-liability otherwise.

From the evidence it clearly appears that the manhole was a regular metal covering apparently level with the surface of the highway, with only a slightly rising ring of tar or asphalt filling between the circular metal plate and the surrounding surface of the highway, and there was nothing else which could be considered as a dangerous or hazardous condition existing in connection with the construction or maintenance of the highway at that place. The evidence further shows that the claimant used the bus every day and that she alighted at the same place, except that on the day of her accident the bus stopped several feet from the curb because of a car parked at that point. The accident occurred in full daylight with no other witnesses present.

From the description of the manhole and the photograph of it, we are of the opinion that it was not a dangerous hazard but was one that was easily discernible and should have been seen by the claimant had she exercised reasonable care in leaving the bus to go to the sidewalk, and that she was guilty of contributory negligence in her resulting fall.

Accordingly, we are of the opinion to, and do deny the claim.

No award.