
    
      Opinion issued September 23, 1970
    
    HERMAN D. AFFOLTER, Claimant, vs. STATE ROAD COMMISSION, Respondent.
    (No. D-221)
    Claimant appeared in person.
    
      George H. Samuels, Assistant Attorney General, and Donald L. Hall, Esq. for Respondent.
   PETROPLUS, JUDGE:

The Claimant in this case is Delbert Gene Affolter, who was substituted for the original Claimant, Herman D. Affolter, because title to the vehicle in question was registered in the name of Delbert Gene Affolter.

This claim which came on for hearing against the West Virginia Department of Highways (formerly the State Road Commission) arises from a windshield broken by a flying object, believed to have been a rock or gravel, coming from a State Road Commission truck which passed the Claimant’s motor vehicle traveling in an opposite direction, while Claimant was returning to Charleston from Clendenin. A line of traffic was coming up the hill and the Claimant was going down the hill, also in a line of traffic. The driver of Claimant’s automobile, Herman D. Affolter, who was unable to stop his motor vehicle because of the traffic congestion, could not identify the truck from which the rock or gravel came as a vehicle of the State Road Commission. He did know, however, that it was a yellow truck because he saw it approaching. His 13 year old granddaughter told him it was a State Road truck. The driver also was unable to describe the type of truck or definitely state that the missile came from the truck. He did see two men or boys in back of the yellow truck, who he stated might have thrown the rock.

The granddaughter who identified the truck as a State Road truck did not testify in the case.

From the above facts developed at the hearing which were vague and uncertain, this Court cannot determine responsibility for the accident. Although hearsay evidence is admissible under the Statute creating the Court of Claims, the Court is constrained to give such evidence only the weight that it deserves. Statements of a 13 year old girl to her grandfather and related by him on the stand, do not constitute satisfactory proof, particularly when the State does not have the opportunity to cross-examine. The claim is based on speculative assumptions as all yellow trucks on the highway are not State Road Commission trucks.

On the present state of the record, this claim will be disallowed.

Claim disallowed.  