
    
      Opinion issued November 28, 1979
    
    JOHN H. WARD and NANCY L. WARD vs. DEPARTMENT OF HIGHWAYS
    (CC-79-65)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

This claim was originally filed in the name of John H. Ward, but when the testimony disclosed that the damaged automobile, a 1977 Datsun, was titled in the joint names of the claimant and his wife, Nancy L. Ward, the Court on its own motion joined Nancy L. Ward as an additional claimant.

Mrs. Ward testified that she was driving the Datsun automobile on Route 52 on the morning of January 24,1979, on her way to work from her home in Milton, West Virginia. It was about 7:15 a.m. and it was raining and still dark. Mrs. Ward stated that her headlights were burning and that she was travelling at a speed of about 40 to 45 miles per hour when the right front and right rear wheels of her vehicle struck a pothole located on the right-hand side of her lane of travel. She testified that she was personally unaware of the existence of the hole and did not see it prior to the impact, possibly because it was filled with water. As a result, the Wards’ automobile sustained damage in the amount of $328.03.

Claimant, John H. Ward, a detective with the Huntington Police Department, testified that he was notified of the incident by his wife after she arrived at her place of employment, and that he proceeded to the scene of the accident, arriving at about 10:00 a.m. By the time he arrived, the respondent had filled the hole with gravel, but he made measurements and took pictures of the hole, which photographs were admitted into evidence. Mr. Ward testified that his measurements revealed that the hole was seven feet, three inches in length and one foot, eleven and one-half inches in width.

Some hearsay evidence disclosed that this pothole had existed for some time prior to the date of the accident, but no competent evidence established that respondent knew or should have known of the existence of the hole and failed to take any remedial action to repair it. Therefore, and because the respondent as a matter of law is not an insurer of motorists using the highways of this State, we must decline to make an award.

Claim disallowed.  