
    
      OPINION ISSUED FEBRUARY 14, 1989
    
    DARLENE S. FEDERER VS. DEPARTMENT OF HIGHWAYS
    (CC-88-204)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

On June 24, 1988, claimant was travelling on Route 14 in the vicinity of Clarksburg, Harrison County. As she drove across railroad tracks which were raised above the normal level of the road, her vehicle was damaged. She seeks $168.40 which is the expense of the cost of repair to claimant's vehicle.

Claimant testified that the automobile which she was operating was a 1977 Plymouth Volare which is titled in her name. She explained that she was accompanied in the vehicle by her children. They had been swimming at Sycamore Lake and were returning home to Clarksburg. The railroad tracks were approximately a quarter of a mile from old Route 50. She had travelled to Sycamore Lake by means of Route 50, but she returned by an alternate route as it was more scenic. She had been on this route two years before the incident and, therefore, she was not aware of the condition of the railroad crossing. She was travelling at 30 to 35 miles per hour.

Her automobile required alignment and welding to the muffler. She also replaced the hubcaps and bought two retread tires to replace two tires which had been damaged. Claimant alleges that there had been construction work going on in the area of the accident site and the railroad track had been removed. She also contends that respondent was negligent for failure to erect warning devices at this area.

Ronald Cook, Harrison County Maintenance Supervisor for respondent, testified that he is familiar with the accident site. There was a contractor hired by CSX to remove the track, and CSX Railroad was responsible for providing signs and maintaining the railroad track and the crossing at this location at the time of claimant's accident. If respondent is aware of a complaint, it refers that complaint to CSX. Respondent had not received any complaints regarding this particular track prior to claimant's accident.

This Court finds that an independent contractor of CSX was engaged in construction work, and the respondent is not liable for negligence, if any, of such independent contractor. Therefore, the Court is of the opinion to, and does, disallow this claim.

Claim disallowed.  