
    
      Opinion issued January 9, 1979
    
    HAYES STANLEY vs. DEPARTMENT OF HIGHWAYS
    (No. CC-77-145)
    Claimant appeared in person.
    
      Henry Haslebacher, Attorney at Law, for respondent.
   GARDEN, JUDGE:

During the evening of June 3, 1977, the claimant's son, Bruce Erwin Stanley, was driving his father’s 1977 Chevrolet Monza through the Dingess Tunnel in Mingo County when he struck a rather large hole located approximately 45 feet from the end of the tunnel. As a result, young Stanley lost control of the vehicle, and as he emerged from the tunnel, he struck some brush that had been placed on the side of the road but close to the travelled portion of the road. According to the claimant, the brush further caused him to lose control of the automobile, and it then proceeded over an embankment, striking several trees. The car was rendered a total loss, and the claimant’s insurance carrier paid him the sum of $4,750.00. Claimant seeks an award in the amount of $462.00, being the difference between the amount paid by the insurance carrier and the amount which the claimant believes to be the true value of the automobile.

Young Stanley testified that the length of the tunnel was between a half mile and three quarters of a mile, that the tunnel was narrow and would only accommodate one lane of traffic, and that no artificial lighting was provided. Young Stanley also testified that he was travelling at a speed of 35 miles per hour and that he was quite familiar with the tunnel because he passed through it on his way to and from school. He further admitted that he was well aware of the existence of the hole, but simply had forgotten about it on the evening of the accident.

The claimant and owner of the car, Hayes Stanley, testified •that he was the Postmaster at Breeden, West Virginia, and that, like his son, he was aware of the existence of the hole in Dingess Tunnel. He stated that he and other postmasters in the area had registered complaints at respondent’s garage in Williamson, and that in April of 1977, several months before the subject accident, he personally conferred with respondent’s assistant supervisor, Willard Sturgill, and was told by the latter that they were going to get to it. Needless to say, no repairs were made to the large hole prior to June 3, 1977.

The Court is of the opinion that the respondent was on notice of this defect in the tunnel, and that its failure to effect repairs constituted negligence. On the other hand, the Court feels that young Stanley, in driving at a speed of 35 miles per hour through a one-lane, unlighted tunnel with knowledge of this rather large hole, was likewise guilty of negligence which proximately contributed to the accident. For this reason, we must decline to make an award.

Claim disallowed.  