
    (No. 653-S
    CLIFFORD LEONARD, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed January 12, 1949
    
   CHARLES J. SCHUCK, Judge.

Claimant Clifford Leonard claims damages in the amount of $56.62 for injuries caused to his truck while traveling on secondary road No. 56 in Marion county, West Virginia, on October 25, 1948.

The record reveals that the truck struck a stump extending out of the roadbed of the said secondary road and which stump was obscured due to a growth of weeds and other debris in and about it, seemingly making it impossible for the driver of the truck to observe the obstruction at the time he was traveling along the said route. The state road commission, through its proper agent and investigating officer, made an investigation and found that the stump was still present in the road at the time of the said investigation and the assistant maintenance superintendent of Marion county knew of its existence prior to the time of the accident, but failed to remove it from the highway.

In view of these facts, the majority of the court is of the opinion that claimant is entitled to recover the damages sustained and should be compensated accordingly.

The state road commission recommends payment and the attorney general’s department approves the claim. The record reveals that claimant was free from any negligence, and an award is therefore recommended in the amount of fifty-six dollars and sixty-two cents ($56.62).

ROBERT L. BLAND, Judge,

dissenting.

I do not agree with my esteemed colleagues that the claim is one for which a legislative appropriation of public revenues should be made. It is not, in my judgment, a claim that, in view of the purposes of the act creating the court of claims, should be paid. The state does not guarantee the safety or freedom from accident of persons traveling on its highways. If the state were suable the facts disclosed by the record, prepared by the road commission, do not present a case in which a judgment could properly be obtained in a court of law.  