
    (No. 728-S
    ORBAN ROBERTS, father of GARY ROBERTS, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed January 22, 1951
    
   A. D. KENNAMOND, Judge.

The record of the claim involved in this case was prepared by the state road commission and filed with the clerk of the court of claims on January 8, 1951, to be considered upon the record submitted, under the shortened procedure provision of the court act.

This claim is for injuries received on August 24, 1949, by Gary Roberts, then seven years old, the son of Orban Roberts, of Hamlin, West Virginia. The facts in the case were fully investigated by John L. Moore, safety director for district one, Putnam county, and by Harry R. Bell, claims agent for the state road commission, and their statements of fact are found in the record submitted and may now be briefly recited by the court.

While working on the Big Creek Road in Putnam county, state workmen left a dynamite cap lying by the side of the road when they quit work, and this cap (exploder) was found by the child and exploded by him causing painful injury. The child has several pieces of this exploder imbedded in various parts of his body, which his physician, Dr. C. W. Thompson, of Hamlin, says will eventually work out. The father, Orban Roberts, was delayed for several days in his work of caring for a large tobacco crop in order to take the boy to the doctor at Hamlin, a distance of several miles, and had doctor bills including treatment of wounds, anti-tetanus shots and administering penicillin.

On January 5, 1951, Orban Roberts and Lena Roberts, father and mother of Gary Roberts, executed a release, witnessed by Locie Johnson, releasing the state road commission from any and all liability for damages, doctor bills, compensation for lost time, etc., accruing from the accident wherein the said Gary Roberts was injured, upon an award being made and payment being made to them in the sum of two hundred dollars, said amount to be in full settlement of any claim they now have or may have in the future against the state road commission by reason of this accident.

Taking into consideration the immaturity of the child Gary Roberts, the negligence of employes of the state road commission, the absence of any intervening third cause, and also time lost by the child’s father as a result of the accident, we are impressed with the merit of this claim.

The head of the agency concerned concurs in the claim and the attorney general’s office approves it as a claim which in view of the act creating the court of claims should be paid.

An award is therefore made in favor of the claimant Orban Roberts for the sum of two hundred dollars ($200.00).  