
    
      Opinion issued October 24, 1978
    
    FOREST JOE KING, ET AL., vs. DEPARTMENT OF HIGHWAYS
    (No. CC-77-37)
    
      James H. Coleman, Attorney at Law, for the claimant.
    
      Nancy J. Aliff, Attorney at Law, for the respondent.
   RULEY, JUDGE:

The claimants in this case are Forest Joe King and Patricia Ann King, husband and wife, and their two infant children, Denny Joe King and Beverly King, all of whom seek damages for personal injuries which they sustained in a single-vehicle accident which happened at approximately 2:20 P.M., on Saturday, March 13, 1976, at a point on West Virginia Route 54 in the village of Hotchkiss, in Raleigh County. At the time and place of the accident, Forest Joe King was driving his 1971 model Ford F-100 truck in a general southerly direction upon the highway and the other claimants were passengers in it. His claim includes the following special damages: $5,134.00, representing the total medical expense incurred by all four occupants of the truck for the treatment of their injuries; $1,300.00 for damage to his vehicle; $1,267.00 for lost wages; and $1,000.00 for services of a housekeeper, prescriptions, and transportation. All of those sums and items were received in evidence by agreement and stipulation of the parties.

The evidence shows that, as a southbound vehicle approached the place where the accident happened, it travelled around a curve to the right and then entered a straight stretch of highway at least 300 feet long at the end of which there was a curve to the left. The highway was paved with a blacktop surface which was dry at the time of the accident. At about 100 feet from the south end of the straight stretch, there were three large potholes in proximity to each other in the southbound traffic lane. The evidence shows that they had been in existence for a substantial length of time before March 13, 1976. In fact, Trooper Bradford Vaughan of the Department of Public Safety, who investigated the accident, testified that he himself had hit the holes while operating his cruiser in either February or March before the accident happened. The evidence shows that the holes were of sufficient size to present a considerable danger or hazard to vehicular traffic but that the respondent had not taken any action to warn vehicle operators of that danger. Mr. King travelled over the straight stretch at about 30 to 40 miles per hour. He saw the first of the three potholes at a distance of about 100 to 200 feet and then slowed to about 20 to 25 miles per hour. Due to oncoming traffic, he was unable to miss the hole nearest the south end of the straight stretch which was struck by the right wheels of the truck. That hole was about 3 feet wide, 3 feet long, and 6 to 8 inches deep. The impact of that collision broke the steering mechanism of the truck, causing it to leave the pavement and travel 96 feet over the west berm of the highway and down an imbankment into a ditch. This evidence impels the Court to resolve the issue of liability in favor of the claimants. While it is true that the respondent’s county maintenance supervisor testified in effect that the respondent was doing all that it could do to maintain the highways of Raleigh County before the accident happened, no explanation was offered for its failure to warn motorists of the danger created by the potholes which precipitated this accident. And the evidence plainly shows that such dangerous condition had existed for a sufficient length of time that the respondent either knew, or, in the exercise of ordinary care, should have known of its existence.

Turning to the matter of damages, the evidence shows that, in addition to the special damage aggregating $8,701.00 previously delineated, Forest Joe King sustained undisplaced complete vertical fractures of the anterior aspects of the left third and fourth ribs and a sprain of his cervical spine. Patricia Ann King sustained a compound comminuted fracture of the mid-shaft of her left femur and a compound fracture of her nose. Denny Joe King sustained a fracture of the right frontal portion of his skull. Beverly King sustained a cerebral contusion. All of the occupants of the truck sustained abrasions and contusions and all of them were admitted as patients to Raleigh General Hospital following the accident. Beverly King was discharged from the hospital on March 16, 1976, Denny Joe King was discharged on March 18, 1976, and Patricia Ann King was discharged on April 3, 1976. There is no evidence of the date on which Forest Joe King was discharged. Apparently, no member of the family sustained a permanent injury other than Mrs. King. In the report of an orthopedic evaluation performed March 20, 1978, it is stated that she has a one-half inch shortening of the left lower extremity with generalized muscular atrophy and limitation of flexion of the knee by 30%. The orthopedist estimated her disability at 15%. At the time of the examination, she was 22 years of age. In view of the evidence, the Court is disposed to make awards as follows: to Forest Joe King, the sum of $11,000.00; to Patricia Ann King, the sum of $20,000.00; to Denny Joe King, the sum of $2,500.00; and to Beverly King, the sum of $2,500.00.

Award of $11,000.00, to Forest Joe King;

award of $20,000.00, to Patricia Ann King;

award of $2,500.00, to Denny Joe King; and

award of $2,500.00, to Beverly King.  