
    
      Opinion issued March 18, 1980
    
    GEORGE E. BURGESS and MONTENA BURGESS vs. DEPARTMENT OF HIGHWAYS
    (CC-77-225)
    
      Ralph C. Dusic, Jr., Attorney at Law, for claimants.
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimants filed this claim against the respondent for damages to their 1977 Ford four-wheel drive pickup truck and injuries sustained by the claimant, Montena Burgess. The accident occurred on August 19, 1977, between 10:30 and 11:00 p.m. as the claimants were returning home to Leewood, West Virginia, on Route 79/3 from Montgomery. The weather was clear. As they were proceeding home, claimant George E. Burgess observed a reckless driver in front of them. He drove off the highway at Chelyan to notify the deputies at the deputy sheriffs office but found no one there. As he began to drive back onto the highway, he drove into and across a ditch, damaging his vehicle and injuring his wife.

Along the side of the highway where the claimants turned off the road, there was a State-maintained drainage ditch. The ditch was constructed in such a manner that culverts were put in and covered to provide accesses or driveways to various businesses located on the right-hand side of the road. There were two such driveways approximately sixteen feet wide for ingress and egress to the deputy sheriffs office.

The accident was the result of the claimants’ missing the driveway from the sheriffs office to the highway and driving into the ditch. Mr. Burgess testified that he had been to this office previously, that he travelled the road daily to work but had never noticed the ditch, and that there were no warning signs or lights. He further stated that the headlights on his truck were on low beam, and when he struck the ditch he was going three or four miles per hour. His foot hit the gas pedal at the time of impact, causing his truck to go over the ditch and onto the highway.

It was stipulated by the parties that the claimant, Montena Burgess, incurred medical expenses in the amount of $998.00 for treatment of injuries sustained in the accident. Mrs. Burgess testified that her doctor had advised surgery for the injury she sustained to her back, but she refused to undergo the operation.

While Mr. Burgess contended that he did not see the ditch, the Court is constrained to believe that if he were travelling at the modest speed of three or four miles per hour and had adequate headlights, he should have seen the ditch. If the vehicle had been operated with proper care, it would not have struck the hole. See Clarke v. Department of Highways, 11 Ct.Cl. 15 (1975), Davis v. Department of Highways, 11 Ct.Cl. 150 (1976).

The Court is of the opinion, from the record, that the respondent is free from negligence and that the negligence of the claimant was the cause of the accident. Accordingly, the Court hereby denies the claim.

Claim disallowed.  