
    
      Opinion issued October 17, 1977
    
    TOM PROFFIT and MYRNA PROFFIT vs. DEPARTMENT OF HIGHWAYS
    (No. CC-77-69)
    Claimant, Myrna Proffit, appeared in person.
    
      Gregory W. Evers, Attorney at Law, for respondent.
   GARDEN, JUDGE:

The claimants were the owners of a 1977 Grand Prix automobile which was damaged to the extent of $154.85 on the 11th of April, 1977, when it struck a pothole on U.S. Route 61 in Kanawha County, West Virginia. The testimony of the claimant, Myrna Proffit, revealed that she was proceeding in an easterly direction toward her home in Hansford around 10:00 p.m. at a speed of about 20 to 25 miles per hour; that the hole was from five to six inches in depth and extended from the center of the two-laned road into both lanes of travel; and that she was fully aware of the existence of this particular hole but was unable to straddle it, as she had done on prior occasions, by reason of the approach of a vehicle in the opposite lane.

The respondent is, of course, not an insurer of those using the highways of this State, but we have made awards in “pothole” claims under various factual situations. Here, however, and without deciding the issue of the respondent’s negligence, we feel that it is clear from the testimony that the negligence of the claimant was the proximate cause, or, at least, a proximately contributing cause, of the accident and resultant damage to the automobile. With admitted knowledge of the existence of the condition of the road and of the particular pothole, claimant chose to approach the same at a speed of 20 to 25 miles per hour. We feel that this demonstrates a lack of due care on her part, and, for this reason, we must deny the claim.

Claim disallowed.  