
    
      Opinion issued October 6, 1980
    
    M. WOOD STOUT and LOVA STOUT vs. DEPARTMENT OF HIGHWAYS
    (CC-80-166)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   GARDEN, JUDGE:

At approximately 7:55 a.m. on January 7, 1980, the claimant, M. Wood Stout, was driving a 1976 Plymouth automobile south on West Virginia Route 20 in Upshur County when the windshield was struck by an object, allegedly thrown from a Department of Highways cinder-spreader, causing damage which, by March 5, 1980, developed into a twelve-inch long L-shaped crack in the windshield, making it necessary for the windshield to be replaced. The cost of that repair was $159.55.

The claimant testified that January 7,1980 was a cold, snowy day and that it was snowing when this accident happened. There was snow on Route 20 and it had not been plowed. The claimant was moving at approximately 25 mph when he met and passed an alleged Department of Highways cinder-spreader, and something hit his windshield causing a slight nick on the inside of the glass. The truck was moving at approximately 15 mph, and the claimant identified it as a Department of Highways vehicle by its coloring and the work it was doing. The claimant never saw the object that hit the windshield. On March 5, 1980, the claimant noticed the L-shaped crack in the windshield, which ran through the nick for several inches on either side.

A witness for the respondent, Mr. Verl Gene Powers, employed by the respondent as an Assistant Superintendent in Upshur County, testified from Department of Highways records that there were no Department of Highways vehicles on Route 20 on the morning of January 7, 1980. These records were foremen’s daily reports showing what equipment was used and when and where it was used. He had all of the foremen’s daily reports for January 7, 1980, none of which showed cinder-spreaders on Route 20 that morning.

The Court concludes that it has not been established by a preponderance of the evidence that the object which struck the claimants’ windshield came from a Department of Highways vehicle, and, for that reason, the claim must be denied.

Claim disallowed.  