
    
      OPINION ISSUED APRIL 2, 1990
    
    DOUGLAS L. DOUGLAS VS. DEPARTMENT OF HIGHWAYS
    (CC-89-23)
    Claimant appeared in person.
    Jeff Miller, Attorney at Law, for respondent.
   PER CURIAM:

Claimant brought this action for damage to his automobile which struck a rock on West Virginia Route 2 and U.S. Route 250 in an area known as "The Narrows." Cost of repairs to the vehicle was $200.00. The incident occurred on December 20, 1988, at approximately 6:30 p.m. The claimant's wife, Sharon K. Douglas, was driving in a northerly direction from Glen Dale to their home in McMechen. She had driven this route approximately 15 times since she and her family moved to the area in September 1988.

Claimant's wife testified that the speed limit was 50 miles per hour, and that her speed was 45 mph on the four-lane, concrete roadway. She was traveling uphill around a curve, and it was raining. She observed the rock immediately before she struck it, and described it as being 1 Vz feet in diameter. Mrs. Douglas did not recall whether or not warning signs for the rocks were posted.

Gordon Peake, respondent's Assistant Maintenance Engineer for District 6, testified that he is familiar with the area known as "The Narrows." He stated that there are "Falling Rock" signs at both ends of "The Narrows," and that he had no record that the signs had been knocked down before Sharon Douglas' accident. Earlier that day, an accident caused by falling rocks had occurred. At 7:15 a.m., the respondent was notified to pick up the rocks. Mr. Peake assumed that the respondent sent people to clear the rocks, but he could not confirm that fact.

Although the record establishes that the respondent had notice of the condition of the road prior to the accident, it also establishes that the driver of the vehicle was familiar with the road and its poor condition. Under the doctrine of comparative negligence, the negligence of the driver in traveling a road while aware of a defect, was equal to or greater than the negligence of the respondent in its failure to remove the defect. A traveler on the highways travels at his own risk. The State is not a guarantor of his safety. Adkins vs. Sims, [130 W.V. 645, 46 W.E.2d 81 (1947).] The claim is therefore disallowed.

Claim is disallowed.  