
    
      OPINION ISSUED SEPTEMBER 26, 1994
    
    GLEN RUTLEDGE II AND KATHY RUTLEDGE VS. DIVISION OF HIGHWAYS
    (CC-94-47)
    Claimants represent selves.
    Andrew F. Tarr, Attorney at Law, for respondent.
   PER CURIAM:

Claimants brought this action to recover damages to their vehicle, a 1991 Mazda 626, which occurred on January 27,1994, near Delbarton in Mingo County. Claimant’s vehicle sustained damages to a tire which was replaced at a cost of $69.15.

The evidence adduced at the hearing of this claim on May 12,1994, revealed that claimant, Kathy Rutledge, was operating claimants’ vehicle on W.Va. Route 65 in Mingo County when she was approaching the Elk Creek Bridge. She was proceeding into a curve when two coal trucks were approaching in the opposite lane. She drove to the right of her lane for the coal trucks to pass her. Her vehicle went into a very deep hole at the edge of the pavement which had a sharp edge causing damage to the tire. Claimant was traveling at approximately 20 to 25 miler per hour and she did not observe the hole. Although claimant travels this road frequently, she had not noticed the hole prior to this incident.

The Court, having reviewed the evidence in this claim which includes a photograph of the hole in the travel portion of the road, has determined that it was necessary for claimant, Kathy Rutledge, to use this portion of the road to avoid oncoming traffic. The Court is of the opinion that respondent had constructive if not actual notice of the hole on W. V a. Route 65 and failed to maintain the road in proper condition for the traveling public. The negligence of the respondent was the proximate cause of claimant’s accident.

In accordance with the findings of fact as stated herein above, the Court grants an award to the claimants in the amount of $69.15.

Award of $69.15.  