
    (Claim No. 655-S
    HEWITT L. CABELL, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed January 12, 1949
    
   MERRIMAN S. SMITH, Judge.

The wife of claimant Hewitt L. Cabell was driving claimant’s Plymouth sedan along state route No. 79, about noon, on August 28, 1948, when nearing Leewood, Kanawha county, it was necessary for her to cross a state-owned wooden-floor bridge. As the car proceeded over the bridge the front wheels of the car threw a loose floor board up under the car, damaging the differential housing, broke an axle, cut a tire and a wheel, necessitating repairs to the extent of $226.07.

This accident was investigated by Wm. S. Walker, maintenance superintendent of district one of the state road commission, and statements were obtained from three or four witnesses, and constitute a part of the record in this claim, to the effect that the loose floor board was the proximate cause of the damage to claimant’s car.

The state is not a guarantor of the safety and condition of the state roads and highways. However, the Legislature, in its wisdom, enacted a statute, code 17-4-33, pertaining to that portion of the highways known as bridges, and as respects the instant claim the bridge was not in a reasonably safe condition for traffic to drive across it. The claimant’s car was being driven in a legal manner in the regular course of traffic, and through no contributory negligence on the part of the driver, but solely because of the defective condition of the bridge, this damage was sustained.

The state road commission concurs in this claim and it is approved by the attorney general. .A majority of the court of claims hereby makes an award in the amount of two hundred twenty-six dollars and seven cents ($226.07) in behalf of claimant Hewitt L. Cabell, and recommends that same be authorized by the Legislature.

ROBERT L. BLAND, Judge,

dissenting.

I am unable to view this claim as my colleagues see it. I perceive nothing in the record prepared by respondent and know of no law that would warrant an appropriation of the public revenues for the payment of the claim. All questions of contributory negligence are ignored. The award made by majority of the court amounts to a mere ratification of what the state road commissioner and his employes think should be done in the case. There has been no sufficient investigation of the facts by the members of this court in whom, alone, authority is vested by statute to investigate the merits of all claims asserted against the state. I respectfully dissent.  