
    
      Opinion issued March 29, 1971
    
    DOROTHY ELSWICK vs. DEPARTMENT OF HIGHWAYS
    (No. C-32)
    
      Warren R. McGraw, for the Claimant.
    
      Donald L. Hall, Attorney for Department of Highways for the Respondent.
   DUCKER, JUDGE:

Claimant, Dorothy Elswick, alleges that on August 4, 1965, she was driving a 1950 Ford Station Wagon on State Route 10 out of Pineville, West Virginia, down through the last curve of Jesse Mountain toward Oceana, when a rock from a cut on the side of the mountain came down and struck her car doing damage to the front of the car and causing personal injuries, for which she seeks damages in the amount of $50,000.00. As to the damages to the automobile she makes no claim, because she says she was compensated therefor by insurance.

As to the cause of the accident, claimant testified that the rock came from within 10 to 12 feet of the edge of the pavement of the road, that her car “came to a stop someway” and that she remembered jerking her feet and that the impact jerked her body “every which way.” Claimant did not go to a doctor until a day or two after the accident although she said she had a severe headache and was nauseated and “shook all over” immediately after she got out of her car at that time, and that she thought that at the time of the accident her foot struck the pedals in the car. Claimant alleges injuries to her foot, her lower back, and that she has difficulty in bending.

At the instance of the respondent, M. M. Ralsten, M.D., on March 27,1968 examined the claimant and his opinion and conclusion was that “she was afflicted merely by fright due to the impact of the surrounding circumstances and that apparently she is not aware that her body made any contact with any object so as to cause contusions or other objective evidence of injury.”

The claimant testified that if there were any “falling rock” signs at the time of the accident she did not see any, but that she did see one after the accident. She said the rock fell suddenly; that she had traveled this road many times. The claimant produced no other witness to testify as to facts, although she had a passenger in the car with her at the time of the accident, which witness was now a resident of Florida.

A review of the testimony and the lack of evidence to substantiate the allegations, as well as nothing to indicate the condition of the road or the area adjoining the place of the accident, forces this Court to conclude that the claimant has not proved negligence on the part of the respondent. The fact that a rock fell is not alone sufficient to show such negligence. Damages cannot be awarded unless caused by negligence. Nor, in the light of the evidence of Dr. Ralsten, do we consider the evidence of injuries alleged as attributable to the accident satisfactory for an award.

For the reasons stated, we are of the opinion to, and do hereby disallow this claim, and make no award herein.

Claim disallowed.  