
    
      Opinion issued October 17, 1977
    
    JOSEPH and MARIE SOWERS vs. DEPARTMENT OF HIGHWAYS
    (No. CC-77-51)
    Claimants appeared in person.
    
      James W. Withrow, Attorney at Law, for respondent.
   GARDEN, JUDGE:

At approximately 9:00 p.m. on March 25, 1977, the claimants were proceeding in an easterly direction on old U.S. Route 60 in Kanawha County in their 1974 Cutlass automobile at a speed of 25 miles per hour when the right wheels of their automobile struck a pothole on the right-hand side of their lane of travel. Both right wheels were damaged, and the cost of their repair and the cost of a new tire amounted to $209.93. Prior to the accident, it had been raining hard, and, as a result, as we understand the testimony, certain portions of the highway were covered with water, including the area where the pothole was located.

The claimant, Marie Sowers, testified that she and her husband were familiar with the highway, generally travelling it several times a week. She also quite candidly admitted that they were aware of the existence and location of the pothole. Photographs taken several days after the accident portrayed the existence of a rather large hole on the southerly side of old U.S. Route 60, one which should have been apparent and which should have been repaired by respondent. However, •even assuming that respondent was guilty of negligence in failing to repair the pothole, we are compelled to find that the claimants, knowing of the existence and location of the pothole, were guilty of contributory negligence in failing to exercise a proper lookout in order to avoid striking the hole. For these reasons, we must refuse to make an award.

Claim disallowed.  