
    
      Opinion issued February 2, 1970
    
    THE KROGER COMPANY vs. STATE ROAD COMMISSION
    (No. D-245)
    
      Sebert Cooper, Store Manager, for the Claimant.
    
      George H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., for the Respondent.
   JONES, JUDGE:

The claimant, The Kroger Company, seeks damages in the amount of $226.33 for the cost of replacement of a large plate glass window in the front of its store, located on United States Route 60 at Gauley Bridge, which was shattered by a flying rock during the morning of May 2, 1969. Hearing the crash, the store manager immediately went outside, ‘and saw an employee of the respondent, State Road Commission, mowing grass along the opposite side of the highway. He picked up a rock near the point of impact, about the size of a half dollar; and he discussed the incident with the lawn mower operator.

When the lawn mower is in operation, it throws grass cuttings and such stones or other objects as it may pick up out its right side, which at the time of this incident, was the side nearest the claimant’s store. Only the claimant’s store manager and the respondent’s lawn mower operator testified and they both agreed that when the window was broken there were no other persons or vehicles in the area.

While the evidence is circumstantial, the Court is satisfied that there was a direct causal connection between-the operation of the lawn mower and the breaking of the window. The respondent has a duty to operate its equipment so as not to endanger persons or property on or near a public highway; and, in our opinion, the respondent’s employee did not exercise due care in this regard. Therefore, invoking equity and good conscience, we are constrained to allow this claim, and do hereby award the claimant, The Kroger Company, the sum of $226.33.  