
    
      Opinion issued May 5, 1976
    
    EDNA BEAUCHAM vs. DEPARTMENT OF HIGHWAYS
    (No. D-1024)
    
      Nancy J. Norman, Attorney at Law, of the Department of Highways, for the respondent.
   GARDEN, JUDGE:

At about 5:30 P.M. on October 26, 1975, the claimant was operating her 1967 Oldsmobile Cutlass on W. Va. Route 119 between Blair, W. Va. and Sharpies, W. Va. when she struck a large pothole which extended across the entire width of Route i 19. As a result, her entire exhaust system, including the muffler, was damaged and had to be removed from the car before the car could be extricated from the hole. In addition, her gas tank was ruptured and had to be replaced. The automobile was repaired at a cost of $174.95.

Mrs. Beaucham and her daughter had left Charleston earlier that day to attend to some personal matters in Logan County, and it was during their return trip when the accident occurred. She quite candidly admitted during her testimony that she was well aware of the existence of this hole. She stated that on the way down earlier in the day, she avoided the hole by driving onto the berm to her right and off of the paved portion of the highway. She accounts for her failure to observe the hole on her return trip by reason of it being obscured by a small knoll in the road over which she had passed just prior to striking the hole. The hole must have been quite large for she testified that school bus drivers were in the habit of discharging their children, having them walk on the berm, and then re-enter the bus after it had traversed the hole in the highway.

We have no difficulty under these circumstances in finding respondent guilty of negligence, but we cannot at the same time overlook the lack of due care on the part of the claimant. She testified that she was traveling around 45 to 50 miles per hour when she struck this hole. We doubt that her speed was that high but certainly, whatever her speed, it was too great for the conditions then and there existing, conditions of which she was fully aware. Reluctantly, we must conclude that the claimant was guilty of contributory negligence which was the proximate cause of the accident and damages to claimant’s automobile.

Claim disallowed.  