
    
      Opinion issued September 9, 1968
    
    LOIS AND DAYTON SHINN vs. STATE ROAD COMMISSION STATE OF WEST VIRGINIA
    (Claim No. D-47)
    Claimant appearing in person.
    
      Thomas B. Yost, Assistant Attorney General, and Thomas P. O’Brien, Assistant Attorney General for the State Road Commission.
   Ducker, Judge:

The claimants, Lois Shinn and Dayton Shinn, allege damages in the sum of $1,400 on account of their 1963 Fiat automobile having been struck by a State Road Commission 1962 Ford truck on November 24, 1967 at or near the junction of Leon Baden State Secondary Road 23 and U.S. Route 35 in Mason County. The claimant’s car, owned entirely by Lois Shinn, was parked along Route 35 and some seven feet or more from the paved road when the brakes on the State Road Commission truck, driven by Andrew McCallister, an employee of the Commission, south on Route 23 into the intersection area of Route 35, failed and struck the Shinn car as so parked. The evidence is undisputed, and the fact that the accident was caused by the failure of the brakes on the State truck and the inability of the driver to stop the truck as it proceeded down the hill of the Leon Baden State Road No. 23 and into Route 35 where claimants and other cars were parked along side of Route 35, the State Road Commission driver having been forced to have his truck either hit claimant’s car or go over the steep bank and down on the railroad tracks and possibly into the river below the road, convinces us that the State was entirely responsible for the damage done. An examination of the brakes by the State garage mechanics corroborated the fact that the brakes on the truck were defective and broken.

The claimant obtained estimates of the cost of repair of his car in the sum of $1,118.16 and $1,185.37 respectively, from two garages in the area, but claimant admitted that she was willing to settle for the used car book value of $460, less a salvage value of $25.00.

As the facts are undenied and there is a clear case of liability on the part of the Road Commission, and that the claim is just, we are of the opinion to and do hereby award to Lois Shinn, the sum of $435.00.

Award of $435.00.  