
    
      OPINION ISSUED FEBRUARY 13, 1986
    
    A. E. QUEEN AND PAULINE QUEEN VS. DEPARTMENT OF HIGHWAYS
    (CC-85-151)
    Claimant A. E. Queen for claimants.
    Andrew Lopez, Attorney at Law, for respondent.
   PER CURIAM:

On February 21, 1985, claimant A. E. Queen was travelling at approximately 7:30 p.m. in his 1980 Toyota Corolla on Route 52, from Bluefield to Mount Gay, when the automobile hit a rock. His friend, Haskell Stamper, was driving the car. Claimant A. E. Queen originally filed this claim in his own name; however, the record reflects that the automobile is titled in both the name of A. E. Queen and that of his wife, Pauline Queen. The Court, on its own motion, amended the style of the claim to include Pauline Queen as a party claimant.

The claimant, A. E. Queen, testified that the rock was about two feet wide and about three and one half to four feet long. Haskell Stamper testified that they had travelled the same route on the morning of the incident and that the rock had not been present at that time.

Benny Ellis, a Sergeant with the Mingo County Sheriff's Department, testified that he notified respondent of the rock when he became aware of it, about ten minutes before the accident occurred. Ellis personally observed the removal of the rock while the claimant, A. E. Queen, and Haskell were waiting for the,tow truck.

The law of West Virginia is well established that the State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins vs. Sims, 130 W.Va. 645, 46 S.E. 2d 81 (1947) . In this instance, respondent effected a remedy immediately upon notice of the road defect. The claim must be denied.

Claim disallowed.  