
    
      Opinion issued October 31, 1975
    
    BOBBY SHAFER V. DEPARTMENT OF HIGHWAYS
    (No. D-898)
    
      Emerson Salisbury, Attorney at Law, for the respondent.
   DUCKER, JUDGE:

Claimant, Bobby Shafer, a resident of Route 1, Clendenin, West Virginia, alleges damages in the amount of $305.85 to his 1967 Ford Fairlane automobile, by reason of an accident during the latter part of December, 1974 when his car struck rocks and was flooded with water in a creek through which a temporary roadway passage was permitted and authorized by the respondent.

The testimony was to the effect that a bridge, located about four miles south of Clendenin over a tributary creek of Elk River, was in such a dangerous condition that the respondent had placed signs on it closing the road over the bridge. The road to and from the bridge had no other passage way than by fording the creek. The bridge and the road were as to maintenance and supervision within the jurisdiction of the respondent, and the respondent at least acquiesced in the fording of the creek by automobiles traveling the road. Claimant in attempting to ford the creek on this occasion encountered large rocks and high water, which damaged and flooded his car, costing him in repair bills the amount alleged. The water in the creek was much higher than it usually was for fording the creek but there were no warning or other signs there to prohibit the regular use of that part of the road for fording it.

We are of the opinion that it was the duty of respondent, which knew of the possible hazardous condition and the reasonable foreseeable probability of damage to users of the highway, to either prohibit the traffic or to provide reasonable measures of safety to the public at that place, and we conclude that as there does not appear to be any contributory negligence on the part of the claimant, the respondent’s failure under the circumstances of this case rendered it guilty of actionable negligence.

Accordingly, we award the claimant the sum of $305.85.

Award of $305.85.  