
    
      Opinion issued February 9, 1970
    
    EARL T. HANSON vs. STATE ROAD COMMISSION
    (No. D-186)
    Claimant appearing in person.
    
      George E. Lantz, Assistant Attorney General, and Robert R. Harpold, Jr., Attorney at Law, for the State.
   DUCKER, JUDGE:

Earl T. Hanson claims damages in the amount of $363.38 as a result of a rock falling upon his automobile while the same was being driven by his wife on February 9, 1969, on Route 119 near Blue Creek, Kanawha County, West Virginia. Claimant’s wife and three children were in the oar at the time the car was struck by a rock which was described by the claimant as a boulder weighing 25 or 30 pounds and which he said disintegrated when it hit the car. The claim consists of $114.00 hospital and x-ray charges incurred for the son and daughter of claimant, which costs were paid by insurance, and the balance as damages to the automobile. The road contained “watch out for falling rock” signs. No report of the accident was made to the Road Commission until about two weeks after the accident. The State does not deny the allegation that a rock hit the car, but does deny liability in the matter.

As the rock had not previously fallen and was not in the road at the time of the accident, reliance can not be had on any theory that the driver of the car should have seen it and avoided the accident. However, as the State is not an insurer of the safety of those traveling on the public roads, any one who is injured or who sustains damages must prove that the State has been negligent in order to render the State liable. To blandly state that the Road Commission should have made it reasonably impossible for a rock to fall from a pre-cipitious cliff adjacent or close to the highway is not sufficient for this Court to conclude negligence on the part of the State.

As we are of -the opinion that the evidence introduced does not satisfactorily establish negligence, we are constrained to and do disallow the claim.

Claim disallowed.  