
    (No. 426
    MRS. JOHN P. KATTONG, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed August 31, 1945
    
    Appearances:
    
      H. D. Rollins, for the claimant;
    
      W. Bryan Spillers, Assistant Attorney General, for the state.
   CHARLES, J. SCHUCK, Judge.

Claimant, Mrs. John P. Kattong, asks damages in the amount of $150.00 for the loss of a horse which fell over an embankment adjacent to the highway or road near Bentree, Clay county, the horse having been killed by the fall.

The testimony reveals that the horse in question was running at large over the highway and adjacent territory; that it had come to a high embankment or cut in the highway near the Bentree schoolhouse and while on the said embankment in some manner fell to the highway and was killed. Claimant herself testified that the road or highway itself was “all right” and no testimony was offered to show that the condition of the highway or road or the traveled portion thereof, had any connection whatever with the accident. Of course, claimant maintains that the state should have a fence or barrier on top of the embankment to prevent any animals from falling over it, but no obligation, legal or moral, was imposed upon the state to construct or maintain such barrier, as is plainly shown by the testimony. Considering the mountainous and hilly conditions that present themselves along the highways in West Virginia, the cost of constructing such fences or barriers on the many embankments would be prohibitive, and not being directly connected with the use of the highways themselves impose no obligation on the state. There is even a question as to whether or not the ground or place from which the horse fell was under control of the state road commission. At all events, we hold that the claimant is not entitled to an award and dismiss the claim.  