
    
      Opinion issued December 5, 1983
    
    ELSIE MAST and ELSIE MAST & WILLIS MAST, D/B/A/ WILLIS MAST LIVESTOCK TRUCKING vs. DEPARTMENT OF HIGHWAYS
    (CC-80-371)
    Gregory W. Evers, Attorney at Law, for claimant.
    Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

Claimant seeks an award in the amount of $29,977.93 for damages incurred when her tractor trailer truck was involved in an accident on Route 50/16 near West Union, Doddridge County, West Virginia. The accident occurred on October 14, 1978. Claimant alleges that respondent’s negligent maintenance of the road was the proximate cause of the accident. From the record in this claim, it appears that the tractor trailer truck was titled in the name of Elsie Mast, individually. The livestock loss was incurred by Elsie Mast and Willis Mast, d/b/a Willis Mast Livestock Trucking. The style of the claim has been so amended.

Claimant’s employee, Dale D. Doup, was the driver of the truck at the time of the accident. Mr. Doup testified that he drove down Route 50/16 to pick up a truckload of cattle. As he drove back down Route 50/16, which is a two-lane road, he moved over to give room to an automobile passing in the other direction. As he did,

“. . . the truck just stopped moving and I pushed on the accelerator and it still didn’t go and I heard a loud crack and I looked back and I seen the trailer was tilting and about the time the cattle shifted and the trailer just kept tilting on over and just dragged the tractor and trailer and all right down the hill.”

Mr. Doup said that a portion of the road under the trailer had given way. The trailer was about four feet from the edge of the roadway at that time. Mr. Doup said that he saw no signs or other warning devices on the road, nor were there any signs posting a weight limit. He estimated the combined weight of truck and livestock at 70,000 pounds. He also stated that this was the first time he had occasion to drive on Route 50/16.

Trooper David L. Doak investigated the accident. He made measurements of the road just before the slip and determined that the width was 18 feet. At the slip, the road’s width was 11 feet. Trooper Doak stated that in the slip were “several logs and brush” and that fill had been placed in the road “for some time.”

John Gum, maintenance supervisor for Doddridge County, testified that the road had been subject to slips for twenty years. He could not say whether there were any hazard signs on the road on the date of the accident. Mr. Gum said the road has been marked with hazard paddles, but that the signs have been subject to theft. The evidence presented indicates that the respondent had knowledge of the condition of the roadway and was negligent in failing to post signs warning of the potential hazard or for not limiting the weight of vehicles travelling on Route 50/16.

Willis Mast, co-owner of Willis Mast Livestock Trucking, testified that damages to the truck amounted to $19,500.62. These damages included the replacement of the cab and repairs to the trailer. He also expended $1,200.00 in towing charges. The loss of several head of cattle amounted to $4,261.53, of which all but $1,000.00 was paid by insurance. The truck was out of service for 12 or 14 days and Mr. Mast estimated that his loss of business was $5,015.78. He later stated that this was a gross loss and would figure that his net loss was around $2,000.00. The Court finds that the loss of business damages are too speculative and declines to make an award for that element of damage. Therefore, the Court grants an award of $21,700.62.

Award of $20,700.62 to Elsie Mast.

Award of $1,000.00 to Elsie Mast and Willis Mast, d/b/a Willis Mast Livestock Trucking.  