
    (No. 670-S
    WEIRTON CIGAR & CANDY COMPANY, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed July 19, 1949
    
   JAMES CANN, Judge.

The claimant, Weirton Cigar & Candy Company, of Weirton, West Virginia, seeks reimbursement in the amount of $75.38, which amount claimant was obliged to pay for repairs to its automobile, damaged by fragments of a large stone which had rolled off a slope onto West Virginia state route no. 30, at Stewart’s Cut, in Hancock county, West Virginia.

The record reveals that one Nick Dimos, on the fourth day of May, 1949, at about three o’clock p. m. of that day, was operating a 1941 De Luxe Ford two-door automobile, belonging to claimant, driving west on state route no. 30; that as he approached Stewart’s Cut, where a crew of the state road commission was shooting and sloping stone at said cut, he was stopped by the flagman stationed at the east end. Flagmen were stationed at both the east and west end of said cut where the state road commission crew was working. After a short time the driver of claimant’s car was given the signal by the flagman at the east end to proceed, and when he had driven for about fifty to seventy-five yards, a large stone, thrown over the top of said cut, rolled to the highway with such force that it splintered and some of the fragments struck claimant’s automobile causing the damages complained of.

From the record it appears that the employes of the state road commission working at said Stewart’s Cut were negligent and careless in the performance of their duties, and that no negligence is attributed to the driver of claimant’s automobile.

The state road commission does not contest the claimant’s right to an award for the said amount claimed, but concurs in the claim for that amount, and the claim is approved by the assistant to the attorney general as one that should be paid. We have carefully considered the case upon the record submitted, and a majority of the court is of opinion that it should be entered as an approved claim and an award is accordingly made in the sum of seventy-five dollars and thirty-eight cents ($75.38).

ROBERT L. BLAND, Judge,

dissenting.

The maintenance of a public highway is a governmental function. On the day of the accident on account of which the claim in this case is made, the state, through its road commission, was engaged in shooting and sloping stone at Stewart’s Cut, as shown in the majority opinion.

In the exercise of a governmental function the state is not liable for the negligence — if there actually be negligence — of its agents and servants in the absence of a statute making it so liable. There is no such statute in West Virginia.

The state does not guarantee safety or freedom from accident of persons using its highways. Per-sons using such public highways assume all risks incident to such travel. The state owes no duty to persons using its highways further than to keep them in reasonably safe condition for public travel thereon.

The fact that flagmen were stationed at the eastern and western ends of said cut or road was sufficient to put the driver of claimant’s vehicle on notice of any danger that he might assume or incur in proceeding upon the highway. His privilege of using such highway was subordinate ¡o the greater right of the state to repair the road. The mere signal given by the flagman at the eastern end of the cut to proceed did not constitute actionable negligence. The driver actually did travel from fifty to seventy-five yards before his automobile was struck by a'fa'iling rock. This case only strengthens and confirms my conviction that the shortened procedure provision of the court act should never be used in cases where facts are controversial. In the instant case the record in which the claim is presented to this court is a one-sided affair. The road commission concurs in the claim and presents it to the court from its point of view and it is approved by an assistant attorney general. As a matter of fact the award is made by the state road commission and the attorney general’s office. The court of claims is merely used in the premises as a ratifying instrumentality. Its consideration of the facts is necessarily limited to one side of the case, that side being the one considered by the road commission alone.  