
    
      Opinion issued September 20, 1979
    
    ESTELLE M. MARTIN vs. DEPARTMENT OF HIGHWAYS
    (CC-79-64)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimant filed this claim in the amount of $181.05 against the respondent for damages to her 1978 Ford Fiesta automobile.

The accident occurred on January 22,1979, at approximately 7:30 a.m. on Big Tyler Road. The claimant was proceeding northerly toward Sissonville, West Virginia. Snow was beginning to accumulate. The claimant testified that she traveled the road five to ten times each week and knew that the road was full of potholes. In explaining what happened, the claimant stated:

“I was headed north. The southbound lane had bumper-to-bumper traffic in it at a standstill, and just to explain a little bit about what happened, I was driving up and I came upon the hole after the car in front of me had gone by, and the traffic in the southbound lane was over some, and I swerved to avoid it and I hit the edge of the hole, and the hole is approximately, I’d say, two feet wide and I’d say around three to four feet, or three to four inches, deep.”

The hole was located about four to five inches from the right-hand side of the road. The right front wheel of claimant’s automobile struck the hole, causing the damages.

Under cross-examination, the claimant testified that she saw the hole after an automobile in front of her missed it and she slowed down to “maybe 5-10 miles per hour.”

Without a positive showing of negligence on the part of the respondent, this case is governed by the well settled principle of Adkins v. Sims, 130 W.Va. 645, 46 S.E. 2d 81 (1947), that the State is not a guarantor of the safety of travelers and the user of the highway travels at his own risk. The existence of a defect in the highway does not establish negligence per se.

The claimant testified that she swerved to avoid the southbound traffic and then struck the hole after the automobile in front of her missed it.

The evidence in the record is not sufficient to establish such negligence on the part of the respondent as to create liability for the claimant’s damage. Accordingly, the Court is of the opinion to and does disallow the claim.

Claim disallowed.  