
    (No. 729-S
    H. E. CRAMER, Claimant, v. STATE ROAD COMMISSION, Respondent.
    Opinion filed January 25, 1951
    
   JAMES CANN, Judge.

The claim involved in this case is submitted to this court under the shortened procedure provision of the state court of claims act.

After an investigation by the respondent, or its agent, of the circumstances which are the basis for the instant claim, a record was made and submitted to this court and it revealed the following state of facts.

On the afternoon of the twenty-ninth day of November, 1950, while claimant was operating his automobile over and across a small wooden bridge located on Figgett road in Kanawha county, West Virginia, a part of the undercarriage of the bridge gave away causing the front end of his automobile to drop into a large hole thereby causing damages to it in the amount of S36.ll.

It appears that this bridge was a small wooden structure approximately two feet in depth and approximately sixteen feet in width; that on the day previous to the day of the accident the employes of the respondent had attempted to move a large piece of equipment — a bulldozer — over the bridge, and because of its weight it broke through; the said employes then filled the break with rock, gravel and dirt to road level, as a temporary foundation, to make it passable. No doubt the bridge was in a very poor and weakened condition due to the above incident, and no attempts were made by the respondent to advise the general public of it being unsafe. The record discloses that after this accident a “Road under construction, travel at own risk” sign was erected at the scene of this accident.

No negligence is shown on the part of the claimant. The respondent recommends the payment of this claim and the same is concurred in by the attorney general.

In view of all the facts and circumstances as submitted an award, by majority members of the court, is made in favor of claimant H. E. Cramer, for the sum of thirty-six dollars and eleven cents ($36.11).

ROBERT L. BLAND, Judge,

dissenting.

The facts, constituting the basis of this claim for which an award has been made, as certified to the court of claims by the head of the agency concerned, are as follows:

“This accident was caused by the automobile belonging to this claimant wrecking on a wooden bridge located on Figgett Road, which road was under construction at the time. The bridge had been broken by heavy equipment passing over it and had been filled with dirt and gravel. It seems that when claimant attempted to cross bridge it collapsed and the automobile dropped into a hole causing damage to it.”

It occurred to me at the time the claim was being informally considered that the record submitted to the court was inadequate. I was of opinion that it should have been returned to the department .for supplementary information.

It will be observed that the bridge on which the accident occurred was under construction. Could not the claimant have observed that fact? Why did he attempt to cross the bridge when it must have been apparent that the road was under construction? In doing so was he guilty of such contributory negligence as would defeat his claim for an award? The court is necessarily bound by the limited informatnon contained in the record.

Not being satisfied that the claimant has a meritorious claim against the state I cannot concur in the award made, and make this brief note setting forth my dissent to such award.  