
    (No. 372
    V. E. MACE, M.D., Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed October 13, 1944
    
    
      V. E. Mace, M. D., in person;
    W. Bryan Spillers, Esq., assistant attorney general, for the state.
   G. H. A. KUNST, Judge.

On the morning of March 12, 1944, about six-thirty o’clock, V. E. Mace, a physician of Charleston, West Virginia, accompanied by his secretary and her mother, while driving in an automobile at a speed of about thirty miles an hour, from Charleston to Mullens, over route 19, near Cotton Hill, in Fayette county, West Virginia, had his car injured by being driven into and over a large stone in the road and claimant asks an award of $101.74, for the cost of repairing damages to the car. The boy operating the car is now in the United States Navy and cannot appear as a witness.

At the place where the accident occurred, during rainy and freezing weather, rocks fall on the road from the cliff on the side of the road, and because of this, a road sign, twenty-four by twenty-four inches, painted yellow and with an inscription “Caution — Falling Rocks” in large black letters is placed about two hundred feet distant on the side of the road approaching this area from either direction. This fact is established by state’s witnesses, although it is denied by claimant’s witnesses, who failed to see the sign as they neared the rocks.

The road superintendent having in charge this portion of the road continuously patrolled it and in bad weather removed stones several times a day and at night placed a guard here. At the time of the accident it was raining hard. There is a slight curve in the road not far from the danger area but there is a view of about a thousand feet, and while on this morning the visibility was poor, the evidence shows that large rocks could have been seen in time to stop the car. The paved road opposite the cliff is eighteen feet in width and has a shoulder, or berm of twenty feet making a roadway thirty-eight feet in width, and large falling stones do not roll but a short distance from base of cliff and it is possible with ordinary care to avoid striking them.

The court is of opinion that if reasonable care had been exercised by the driver of the car, this danger could have been seen and the injury to the car avoided, and for this reason no award is made.  