
    (No. 701
    LERT HILDRETH, administrator of the estate of Richard Wayne Hildreth, deceased, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed November 15, 1950
    
    
      Wyatt & Randolph (John B. Wyatt, Jr.), for claimant,
    
      W. Bryan Spillers, assistant attorney general, for respondent.
   A. D. KENAMOND, Judge.

Claimant, father of deceased and administrator of his estate, seeks an award of $10,000.00 for wrongful death of decedent. On December 27, 1948, decedent was driving a jeep automobile in state route 73, enroute from Fairmont to Morgantown, whereupon at a point near Meadowdale in Marion county, as he was rounding a turn his motor vehicle struck an icy portion of the road, causing it to skid and to be precipitated over an enbankment, resulting in death of decedent. Claimant alleges the state road commission permitted waters to seep through paved portions of road from a wet weather spring beneath the highway, which waters in freezing caused the icy condition.

Testimony adduced in this case revealed several facts concerning the highway at point of accident. The road was then paved with tarvia with a berm of two or three feet on the upper side and four to six feet on the lower side; the road there goes uphill on the way from Fairmont to Morgantown; ice on the road at point of accident could not be seen at night until a driver, going toward Morgantown, was “right on it,” by reason of a curve in the road causing headlights to be thrown against the bank at side of road; except at the hazardous area the highway was clear and dry at time of accident.

Convincing testimony was offered to the effect that the ice formed at point of accident resulted from freezing of water that oozed up through the road from wet weather springs; that even at times in summer this seepage made that portion of the ro ■d slippery; that this condition had existed for ten or twelve years; that formerly this condition had been obviated by a : ulvert under that portion of the road; that no road signs were near enough to be regarded as a warning of danger at point of accident.

Numerous accidents or near accidents have occurred there during the past ten years. Marcus Hayhurst, who lives near the scene of accident, testified ibat four or five years ago his mother-in-law with a man and his wife went over the bank at the same spot, but all were lucky, not getting hurt. A. J. Cas-sell, also living near the scene of accident, told of a woman driver of a milk truck going over the bank at the same spot ten years ago, and of a little Crosley hitting the ice at the same point .':id turning over on its side a year before the Hildreth accidr-it. A grocery truck went over at the same place last winte-, when it appears the road there had been resurfaced with coarser material than that used on the road when young Hildreth met his death.

It would appear that the state road commission could not have been unaware of the hazardous area, though nothing had been done to correct the situation. At least the dangerous condition had been called to the attention of state police as late as a month before the Hildreth accident. That remedial measures might have been taken is shown from testimony that road workers, about the first of last October, app :ared at the point of accident and attempted to break up the water seepage from beneath the road and make it flow down and underneath the road.

In Judge Riley’s opinion in the case of Taylor v. City of Huntington, 126 W. Va. 737, we find:

“That the record does not disclose whether the ity had actual notice of the driveway and that it extended above the adjacent terrain, does not preclude recovery. Since 1932 the driveway was in the same condition, except for wear and tear, as it was wb ;n plaintiff fell. In these circumstances defendant ,s charged with notice. Actual notice is, therefore, not required.”

Was young Hildreth guilty of contributory negligence? It was conceded that he wore fairly thick-lensed glasses, but he was a licensed driver and had passed his driver’s test about a year before, had a reputation for careful driving and was driving carefully and at a reasonable speed at time of accident, and, further, there was nothing in the testimony to show that he had ever before had a driving accident. With him in the jeep at the time were Margaret Austin and her infant sister, the latter being in the rear seat. Their ride from Fairmont toward Morgantown was not an episode in wild life, but was an orderly return from a visit to the Austin girls’ grandmother in Fairmont. In view of the fact that two other drivers, earlier on the night of the accident, had difficulty getting over the icy spot on their way toward Morgantown, Margaret Austin was asked if the Hildreth jeep did not have difficulty there when they passed on the way to Fairmont about three hours earlier. She said the ice had not formed on that side of the road at that time. It is possible that young Hildreth might have realized that there would be ice on the side of the road to be traversed on return later at night, but there was no satisfactory testimony in reference thereto. It is our opinion that no contributory negligence was shown. Young Hildreth was none too well acquainted with the road and commanded no fair approaching view of the dangerous spot. The facts and circumstances in this case appear identical with those in the case of Presson v. State Road Commission, 4 Ct. Claims (W. Va.) 93, in which case the members of the court were unanimous in an opinion that there was no contributory negligence.

Defense offered by respondent concentrated on two fishponds and two or more springs on property above the highway near the point of accident, and on the McQuain private roadway. Respondent attempted to show that drainage therefrom accounted for the hazardous condition resulting in the Hildreth accident. However, a preponderance of the evidence showed that overflow from fishponds and springs was properly kept from the highway by adequate drains. The McQuain private roadway joined state highway at a point lower in elavation than the point of accident, though water from this private roadway, during a hard rain could flow over state highway. Whether or not any liability was assumed, or should rightfully be assumed, by owner of private roadway for damage arising from permit to enter upon and under state roads of the state of West Virginia, as provided for in section 6, article 16, chapter 17, W. Va. code, 1931, is apparently not a matter bearing on this case.

Relative to a person killed as the result of defective condition of highway under control of state, we note the following from an opinion of our Supreme Court of Appeals in the case of Price v. Sims, 58 SE 2d at 666:

“That the personal representative of the decedent has no cause of action against the State and has no legal right to recover damages from it is not a sound or sufficient reason to deny the power of the Legislature voluntarily to declare a moral obligation in favor of a citizen whose life it has taken through negligence of its agents, or voluntarily to make an appropriation as compensation for its wrong.”

From all the testimony in this case we conclude that the state road commission failed to give proper attention and remedy to the hazardous condition involved in the accidental death of Richard Wayne Hildreth, and allowed to exist for several years prior thereto, and accordingly we favor an award of four thousand dollars ($4,000.00) to the claimant.

ROBERT L. BLAND, Judge,

dissenting.

It is unfortunate and most regretable that the claimant’s intestate, Richard Wayne Hildreth, should have met with an accident and lost his life on state route No. 73, but an award of the public funds may not be made on the ground of sympathy. Negligence of the state road commission in the maintenance of said highway is charged in the claiman’t petition as the direct and proximate cause of said accident and death, and the burden rests upon the claimant to prove the truth of such allegations and that said Richard Wayne Hildreth was free from fault in the premises. This, in my judgment, has not been done; and, as I see my duty, I am unable to concur in the award of $4,000.00 made in favor of the claimant by majority members, and from which award I am obliged to note my dissent.

The accident and death occurred around about eleven thirty o’clock on the night of December 17th, 1948. The said Richard Wayne Hildreth was driving a jeep on said route No. 73, between Morgantown and Fairmont, accompanied by Margaret Austin, aged about seventeen, and her sister, aged about twelve. The decedent was eighteen years, six months and six days of age. Both he and Margaret Austin, who sat together on the front seat of the jeep, could not have been unfamiliar with the highway, since both had driven over it prior to the accident. Just beyond Meadowdale the jeep ran into a “spot” of ice and the accident occurred, resulting in the death of the young man. Miss Austin and the decedent had driven over the road several times before the happening of the accident. The young sister of the said Margaret Austin sat in the back seat of the jeep. The said Margaret Austin testified in the case. Her sister did not. The testimony of the said Margaret Austin clearly discloses the fact that there was discussion of the icy point on the road before the accident occurred. It will be observed that the accident happened at nearly midnight on December 27, 1948. The alleged cause of such accident, relied upon by claimant to establish his right to an award and approved by the majority opinion was that respondent “permitted waters to seep through paved portion of road from a wet weather spring beneath the highway, which waters in freezing caused the icy condition.” I do not think that it may be reasonably maintained that responsibility rests upon the state road commission to actually prevent seepage of water and formation of ice on the highways of the state in the wintertime. It occurs to me that such obligation would be preposterous. The court of claims hitherto has never sustained such responsibility on the part of the state in the maintenance and operation of its highways. No possible obligation or duty would demand such action. All that the state is required to do is to maintain its highways in a reasonably safe condition for public travel thereon'. It appears from the testimony of Corporal E. D. Hamilton of the state department of public safety, who had been stationed in the county for approximately fifteen years, that the road commission spreads cinders upon the road on which the accident occurred from time to time and employed other measures to keep the thoroughfare in reasonably safe condition for public travel thereon.

In the case of Artenis G. Morton v. Road Commission, 2 Ct. Claims (W. Va.), 262, this court held that:

“An award will be refused where alleged negligence ■ of respondent is not proved, and when claimant, knowing the conditions and existence of a danger, • voluntarily and unnecessarily exposed herself to it, when an ordinarily prudent person would not have incurred the risk of injury which such conduct involved.”

We have held that under the act creating the court of claims negligence on the part of the state agency involved must be fully shown before an award will be made. This, in my judgment, has not been done in the instant case. We have also held that no duty, express or implied, rests upon the state road commission of West Virginia to maintain the highways under its jurisdiction in more than reasonably safe condition for use in the usual manner and by the ordinary methods of travel. Such holding was based upon a West Virginia Supreme Court decision. We have also held that the state does not guarantee freedom from accident of persons traveling on such highways. We have also held that when the basis of a claim prosecuted against a state agency is negligence and omission of duty, and it is clearly established by the evidence that it is not a claim which the state as a sovereign commonwealth should discharge and pay, an award will be denied. I do not think that it anywhere appears from the evidence adduced before the court that the instant claim is one that a sovereign commonwealth should discharge and pay.  