
    (No. 673
    RUTH CHARTRAND, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed April 17, 1950
    
    
      Claimant, in her own behalf.
    W. Brizan Spillers, Assistant Attorney General, for the State.
   MERRIMAN S. SMITH, Judge.

On the rainy night of June 26, 1949, between the hours of nine and ten o’clock, claimant Ruth Chartrand, was driving her Chevrolet sedan from Clarksburg enroute to Kingwood, Preston county, West Virginia, along state road No. 26. At a point about three miles southwest of Kingwood, near Sniders Crossing, while driving downgrade and around a slight curve, her automobile skidded on the slippery black top road surface causing her to completely lose control of same and the car headed into the bank to the right, throwing her out, after which the car crossed to the other side and ran into a maple tree. As a result of the said accident the radius bone of her right arm was broken and considerable damage was done to the automobile due to the impact with the maple tree, for all of which damages in the sum of $604.00 are requested in this claim to reimburse her for such financial loss sustained as a result of said accident.

This state road No. 26 is a black top and asphalt highway and during certain hours of the day is heavily traveled and by virtue of the composition of black top road material, especially during the hot days, the surface is known to “bleed” —that is tar in the mixture oozes or sweats causing a slippery condition which is greatly aggravated when it is rained upon; consequently at the point of this accident such condition existed while claimant was driving over it. At no point alongside the highway were there any road signs or markers warning the traveling public of the slippery condition of the highway. It is for such failure on the part of the state road commission to erect such warning signs that the claimant bases her claim.

The Supreme Court of West Virginia, in Adkins v. Sims, 130 W. Va. 646, holds that the failure of the state road commissioner to erect markers or danger signals at a particular point on any highway in this state does not create a moral obligation on the part of the state to compensate a person injured on such highway. However, in Judge Fox’s opinion he stated that the court did not mean to say that situations may not arise where the failure of the road commissioner properly xo maintain a highway, and guard against accidents, occasioned by the condition of the road may not be treated as such positive neglect of duty as to create a moral obligation against the state for which the Legislature may appropriate money to pay damages which proximately resulted therefrom. This court does not believe that the instant claim could possibly come within the exception to the general rule applicable to such claims for damages.

This court has repeatedly held that no duty express or implied rests upon the state road commissioner of West Virginia- to maintain the highways under its jurisdiction in more than reasonably safe condition for use in the usual manner and by the ordinary methods of travel; and the state does not guarantee freedom from accident of persons traveling on such highways. Claimant testified that she had driven over this same route several times in traveling to and from her home in Clarksburg to Kingwood. Therefore, she was more familiar with the road conditions than if it had been her first attempt. One witness stated that he had traveled over the same highway daily for years under various weather conditions without any mishaps and another stated that he considered this as good a highway as was in the entire county and that he had traversed the said highway for months at least eight times daily without accident.

Considering the fact that this roadbed was made of black top which by the very nature of the substance is disposed to “bleed” where subjected to the suns rays and becomes slippery under weathering conditions, and at the point of the accident the terrain was not such as to be considered a dangerous curve; the traveling public of this state is familiar with such universal conditions and the state should not be charged with any negligence where the highways are kept and maintained in a reasonably safe condition.

Accordingly an award is denied and the claim is dismissed.

JAMES CANN, Judge,

dissenting.

I respectfully desire to record my dissent to the majority opinion filed in the above case. There is no need to repeat the facts and circumstances leading to the accident which caused the injuries and damages complained of in this case for Judge Smith in his opinion states them very clearly and concisely. However, I do not agree with the majority opinion when it states that “At no point alongside the highway were there any road signs or markers warning the traveling public of the slippery condition of the highway. It is for such failure on the part of the state road commissioner to erect such warning signs that the claimant makes her claim.” This is not a complete statement of the claim of the claimant. She states her claim on the theory that not only because the state road commission failed to erect warning signs warning the traveling public of the slippery condition of the highway, but that the highway or road itself, because of the neglect and omission on the part of the servants and employes of the state road commission, was permitted to exist and remain in a dangerous and hazardous condition, and therefore not reasonably safe for travel. The facts and evidence, in my opinion, clearly supports the theory. The majority opinion admits that by virtue of the composition of black top road material the surface is known to “bleed”— that is tar in the mixture oozes or sweats causing a slippery condition which is greatly aggravated when it is rained upon; consequently, at the point of this accident such condition existed while claimant was driving over it. With this admission I wholly agree, for it is those facts which I believe takes this case out of the theory expressed and relied upon in this case by a majority of this court, based upon the proposition of law stated by our Supreme Court in the case of state ex rel. Adkins v. Sims, Auditor, 130 W. Va. 646.

Judge Fox in his opinion in the Adkins case, supra, stated that the court did not mean to say that situations may not arise where the failure of the road commission properly to maintain a highway, and guard against accidents, occasioned by the condition of the road may not be treated as such positive neglect of duty as to create a moral obligation against the state for which the Legislature may appropriate money to pay damages which proximately resulted therefrom. The majority opinion states that the instant claim could not possibly come within this exception. I firmly believe and state that it does, for the following reason: The record clearly shows that this road covered with asphalt or tar, bled profusely in the summer and the mixture oozed or sweated causing a slippery condition to exist; that Mr. Deihl saw a number of accidents occur because of the condition of said road during the summer months of 1949 and prior years; that he advised the servants and employes of the state road of this state of affairs; that on only one occasion was this stretch of road roughed up to make it safe for public use; that the supervisor of the state road commission for that district in which this accident occurred had skidded on at least one occasion near the scene of the accident; that the supervisor stated that they had not paid much attention to the several calls they had received concerning the condition of the road because the state police had not called them; that the servants and employes of the state road commission testified that the speed limit over this particular stretch of road was fifty miles per hour, yet they said that they did not believe said road to be dangerous at any time, providing the speed of an automobile was not over thirty or thirty-five miles per hour, which certainly left an inference and convinced me that something was wrong with said road; all of this being known by the servants and employes of the state road commission for some time and nothing done to make said road reasonably safe for the traveling public.

I am mindful of the fact that in the case of Margaret Elizabeth Lowers v. State Road Commission (reported elsewhere in this volume) in which I wrote the majority opinion, I based my finding on the proposition of law stated by our Supreme Court in the Adkins case, supra, which was that every user of the highway travels at his own risk and that the state cannot assure one of a safe journey; but the facts in the Lower case were different from those in this case. In that case the claimant claimed that the state should have erected proper guardrails and provided proper markers. In this case the claimant, in substance, claimed that the state should have kept the road in a reasonably safe condition for the traveling public. The court will note that at the close of my opinion in the Lower case, supra, I quoted Judge Fox, from the Adkins case, supra. in which he stated:

“Here the simple proposition is: No fault was found with the road; but only that certain precautions had not been taken . . (Italics mine.)

This indicates to me that if some fault had been found with the road in that case the decision of the court might have been different and the case placed squarely within the exception stated by Judge Fox.

Judge Smith in his opinion makes reference to the fact that claimant had travelled over this particular road several times and therefore she was more familiar with its condition than if it had been her first attempt. This in my opinion does not excuse the state from its duty to maintain this road in a reasonably safe condition. In this connection let me call the court’s attention to the case of Katherine Presson v. State Road Commission, 4 Ct. Claims (W. Va.) 92. In this case claimant was injured by stepping in a hole in state road No. 20. It developed in that case that claimant knew of the hole there, for she had seen the hole on previous occasions, yet because she stepped in this hole in the darkness, this court by a unanimous opinion, granted an award stating among other things:

“The State, of course, is morally bound to make its highways reasonably safe for travel and to keep them in proper repair for the use of the public. This in our opinion was not done with the highway here involved, by reason of which neglect the hole in question continued as dangerous and a menace to those obliged to use the highway. . . .”

Why not use the same reasoning in the instant case? In my opinion the neglect of the state road commission to keep the road in question reasonably safe for travel and to keep it in proper repair for the use of the traveling public, by more frequent “roughing up” process or other means at their disposal to alleviate the slippery condition caused by bleeding and sweating, especially when that condition was known to them for some time, made the state liable.

For the reasons herein stated I would have made an award for the damages claimed.

ROBERT L. BLAND, Judge,

concurring.

The claimant in this case is a machine shorthand reporter and maintains an office in the court house at Clarksburg, in Harrison county, West Virginia. She is a lady of superior intelligence and accomplishments. In addition to being an assistant reporter of said court of Harrison county, she is also official reporter of the circuit court of Preston county in this state and does freelance work for West Virginia corporations. For about four years she has been employed as reporter for the public service commission of West Virginia at Clarksburg, West Virginia. On account of the inability of her attorney of record to be present on the day her claim was fixed on the trial calendar of the court of claims for hearing and investigation, she personally took charge of the case and conducted it thenceforward, examining in chief her own witnesses and cross examining all witnesses introduced by the state in opposition to her claim with such skill and ability as would reflect credit upon the most experienced trial lawyer. By her own testimony she displayed a remarkable understanding of the gravity of the burden that rested upon her to establish a case that would justify the Legislature in making an appropriation of public funds in satisfaction of her claim. The transcript of evidence embraces one hundred and seventy-six pages. But unfortunately for claimant, in the judgment of two out of three members of the court, in all that vast record nothing can be found that would create a moral obligation of the state to pay the claim.

The court of claims has repeatedly held that “Under the act creating the court of claims negligence on the part of the state agency involved must be fully shown before an award will be made.” The last declaration of this principle is contained in point one of the syllabi in the claim of Farm Bureau Mutual Insurance Company, et al, v. Adjutant General’s Department, Case No. 669, in which Judge Cann prepared a very strong opinion, denying an award in these words:

“We find the state and its agent free from any negligence and therefore hold that negligence on the part of the state agency involved, or its agents, must be fully shown before an award will be made. This has not been done and the claim is denied.”

In part two of the syllabi of the same case Judge Cann further declares this rule, based on the authority of Sigmon v. Mundy, 125 W. Va. 591:

“The mere fact that an automobile skids on the road is not evidence of negligence.”

In case No. 675, Birtie Watts v. State Road Commission, (reported elsewhere in this volume) this court announced this rule:

“A claimant seeking an award in the court of claims by way of compensation for personal injuries sustained on account of alleged defective condition of a state-controlled highway must, in order to be entitled to such an award, establish facts and circumstances from which it appears that an appropriation of the public revenues should be made by the Legislature.”

In case No. 637, Fleta Corder v. State Road Commission (reported elsewhere in this volume) this court declared in the syllabus of its opinion as follows:

“The right of a person to use the highways of the state is subject and subordinate to the right of the state to exercise and discharge its governmental functions; and the state does not guarantee freedom from accident of persons using such highways.”

I think that the court of claims of West Virginia can well afford to adopt and follow for its guidance the rule laid down by the court of claims of Michigan:

“Sitting as the Court of Claims without a jury the Court is the judge of the facts and must apply the law to the facts as found, and of the weight of testimony and the credibility of the witnesses.” See Reports of Michigan Court of Claims for the biennium ending December 3, 1942.  