
    
      Opinion issued October 6, 1976
    
    ROY G. SHAWVER vs. DEPARTMENT OF HIGHWAYS
    (No. CC-76-42)
    
      Gregory W. Evers, Attorney at Law, for the respondent.
   WALLACE, JUDGE:

The claimant, Roy G. Shawver, instituted this claim in the amount of $183.91 for damages to his automobile occasioned by an accident on Big Tyler Road west of Charleston, West Virginia.

The claimant was driving his 1973 green Mercury Montego automobile in an easterly direction up Tyler Mountain toward Charleston, West Virginia about daybreak on a February morning in 1976. The exact time and date were not clear. The claimant testified he did not remember the exact date, but that the time of the accident was about 7:45 a.m. Upon cross examination he stated it was probably before 7:00 a.m. due to the fact that he had an appointment at 7:00 a.m. or shortly thereafter. He was travelling at approximately 20 to 25 miles per hour. His parking lights were on.

Although it was not snowing at the time of the accident, the road was covered with ice and there was an accumulation of light snow on the berm of the road.

The claimant lived about 280 yards from the place of the accident and had lived there about 28 years. He travelled the road almost daily. The testimony of the claimant was that a KRT bus was proceeding down the mountain, the bus skidded across the road, and the claimant in order to avoid hitting the bus, drove to the right, at which time his right front wheel struck the first of two holes. When the car struck the first hole it continued to the second hole where it stopped. The car had to be jacked up in order to move it out of the hole. The testimony reveals that the holes were three or four inches from the edge of the highway about nine inches apart and about one to two feet deep.

The claimant contends that there had been many holes in the road and that the respondent had patched them from time to time. After the accident, the claimant reported it to employees of the respondent who furnished him with the necessary forms to file this claim. Although not substantiated by the testimony, the claimant stated that other persons had reported the condition of the road to the respondent.

Although the claim filed herein alleged that the claimant hit an eight-inch drop-off on the right side of the road as he passed a bus, the claimant testified that the accident was caused when he hit two holes three to five inches from the edge of the paved portion of the road.

Respondent’s witness, Claude C. Blake, a claims investigator, testified that the claimant advised him that a KRT bus coming down the hill forced him off the road into a ditch beside the road. He also testified there was an eight-inch ditch at the edge of the road and that the entire edge of the curb had been patched.

Every day in all parts of this State the travelling public contends with holes in the roadway and drops, frayed edges and ruts along the borders of our highways. In the event there was a defect in the highway, the question is, whether the holes in the highway or a break in the pavement was such a defect as would support a claim of negligence and a consequent moral obligation of the State to compensate the claimant. This State is not an insurer of the travelers on the highways. They travel at their own risk. In the instant case, the preponderance of the evidence does not establish that the accident was caused by the negligence of the respondent, but instead the claimant was damaged in an effort to avoid an accident with a bus.

Anyone who sustains damages must prove that the negligence of the State was the proximate cause of the injury complained of in order to render the claim and the State liable.

Claim disallowed.  