
    
      Opinion issued November 10, 1980
    
    ALBERT TED WOOD vs. DEPARTMENT OF HIGHWAYS
    (CC-79-580)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

On May 13, 1979, in the late afternoon, the claimant, Albert T. Wood, was operating his 1977 Mercury Monarch in a southwesterly direction on Route 93 about 7 miles north of Scherr in Grant County when he lost control of his car, as a result of striking a large rut in the edge of his lane of travel and in the berm, ran off the road, and struck a tree. Neither the claimant nor his wife, Brenda Gail Wood, were injured, but the car was damaged extensively. Two estimates for repair were introduced into evidence, one reflecting that the car was a total loss and the other indicating a cost of repair in the amount of $1,743.29.

According to the claimant, Route 93 in the area of the accident is a two-lane asphalt road, the two lanes being separated by a double yellow line, and the edge of the road on the claimant’s right was marked with a white line. The claimant was travelling at a speed of about 40 miles per hour and was entering a curve to his left when he observed a truck approaching him which appeared to be moving left of center and into his lane of travel. Claimant turned slightly to the right in order to pass the truck safely, but, in so doing, he struck a rut seven to nine inches deep in the right edge of the pavement. As a result, the right wheels of the car left the paved portion of the road and went onto the berm which, according to the officer who investigated the accident, was five to six inches below the paved surface of the road. Claimant thereupon lost control of his car, which then came back on and across the road, ran up on an embankment on the left, and then proceeded back on and across the road, finally striking a tree on the right side of the road.

The investigating officer, Trooper Leslie D. Sharp, testified that he had not made any measurements at the time because he had made them earlier. Pressed on this point, Trooper Sharp testified that on April 20, 1979, less than a month before the claimant’s accident, he had investigated an accident that occurred in exactly the same place and in the same manner. He further testified that, after the first accident, he called respondent’s local headquarters, advised them of the berm condition, and suggested that the same be repaired to avoid a further accident. No repairs were effected prior to the accident involving the claimant.

The Court, being of the opinion that claimant has established that he was forced off the road onto the berm by the truck approaching from the opposite direction, that the berm was in a defective condition and that respondent had actual notice of the berm’s defective condition, hereby makes an award in favor of the claimant in the amount of $1,743.27.

Award of $1,743.29.  