
    (No. 573
    GEORGE E. O’CONNOR, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed February 5, 1947
    
    Appearances:
    
      Claimant, in his own behalf.
    
      W. Bryan Spillers, Assistant Attorney General, for the state.
   CHARLES J. SCHUCK, JUDGE.

Early on the morning of October 15, 1946, while driving on Coal Fork road, about one mile from the intersection with Davis Creek road, at Loudendale, Kanawha county, and while accompanied by his wife and two minor daughters, the right front wheel of claimant’s automobile dropped into an opening in the highway several feet in diameter, and located adjacent to a certain bridge crossing what is known as Davis Creek, causing damages to the car and slight injuries to one of the children. Since the accident, however, the said child has suffered no ill effects by reason thereof, is in good health, and no claim is made by or for her except the cost and expenses of doctors examinations to determine the nature and extent of the injuries, if any, that she might have had.

The evidence shows that the opening or hole in the road was covered by grass and weeds which had improperly and negligently been allowed to grow and spread, and that consequently the defect could not be seen by one using the road as a traveler in an automobile and while approaching the bridge in question, as claimant was doing at the time of the accident. Claimant was driving at the rate of about ten miles per hour and seemingly using the necessary care in approaching the bridge and nowhere does the record in the case reveal that there was any negligence on his part contributing in any manner to the happening of the accident. The evidence further tends to show that the condition of the highway had been called to the attention of the road authorities prior to claimant’s accident, but no effort of any kind was made to remedy the defect, until after the accident.

Under all the facts and circumstances adduced we are of the opinion that the state is morally bound to reimburse the claimant for the damages suffered by him.

Accordingly an award is made in favor of the claimant in the sum of ninety-two dollars and eighty-five cents ($92.85), being the amount of the damages to his automobile and medical expenses incurred by him on behalf of his daughter.  