
    (No. 638
    E. B. ESKEW, Claimant, v. STATE LOAD COMMISSION, Respondent.
    Opinion filed February 4, 1949
    
    
      Frank Love, for claimant.
    
      W. Bryan Spillers, Assistant Attorney General, for the state.
   MERRIMAN S. SMITH, Judge.

On June 8, 1948, one Walter Caldwell was driving a 1947 Nash sedan along state secondary road No. 8, in Fayette county, West Virginia, enroute to the 4-h camp. The said automobile belonged to claimant E. B. Eskew. Caldwell was accompanied by claimant’s daughter Wilda Eskew, Anna Maxwell and Janice Ritz.

Upon rounding a righthand curve Wilda Eskew, who was on the front seat with Caldwell, the driver, saw a bee in the car, and Caldwell momentarily took one of his hands off the wheel to flip the bee out of the front left window. Upon so doing, the automobile struck a large rock which was lying on the righthand berm of the road and the car, being practically off the hard surface of the road at the time, was greatly damaged by the impact.

The visibility from the point of rounding the curve to the position of the large rock was about one hundred seventy-five feet. The hard surface of the road was nine feet in width and the berm on the left side of the road was eight feet wide. The rock was about eighteen inches from the highway on the right berm, thus making a width of eighteen and one-half feet available for driving. There was no other vehicle on the highway.

The rock had been on the berm for a period of years and the driver testified that he had driven and ridden over the road from thirty to forty times prior to this occasion.

The state is not a guarantor of the safety of the highways. The hard surface together with the berm of eighteen and one-half feet in width afforded ample room for driving and passing other vehicles. There was no negligence on the part of the state. The lone bee was the proximate cause of the accident, causing the driver of the automobile to momentarily lose control of the car.

Under such circumstances this court is of the opinion that an award be denied, and, therefore, an award is denied and the claim dismissed.  