
    
      Opinion issued October 21, 1974
    
    H. RONALD HARRIS vs. DEPARTMENT OF HIGHWAYS
    (No. D-655)
    
      Gregory W. Evers, Esq., for the respondent.
   PETROPLUS, JUDGE:

The claimant’s wife, while driving and parking his 1968 Buick Skylark automobile on Seventh Avenue, a designated State route in the City of Charleston, West Virginia, on June 25, 1973, without noticing that a storm sewer drain had sunk or settled approximately eighteen inches, dropped the front right wheel in the above-mentioned drain, causing damage to the wheel and tire in the amount of $78.92. The accident was reported to the respondent, and on the evening of that date, the drain was covered by a metal sheet and has since been repaired.

At the hearing, the only witness, claimant’s wife, testified that she did not observe the drain opening as her attention was directed to traffic and the parking of her automobile. The drain was alongside the curb and was not visible to her. The respondent offered no evidence to controvert the facts as related by the driver.

The only issue before the Court is whether the driver of the vehicle was guilty of contributory negligence, in failing to observe the drain while parking her car. It is the finding of the Court from the evidence that she was not guilty of contributory negligence, and that it was impossible for her to observe the sunken drain while engaged in the parking of her car. The road being out of repair in a congested traffic area of the City of Charleston constitutes negligence, and although no evidence was offered as to the length of time this condition existed, it is inferred from the evidence that the drain had been out of repair for a sufficient length of time to make the respondent aware of the hazard.

For the foregoing reasons, the claim is allowed and an award is made to the claimant in the amount of $78.92.

Claim allowed in the amount of $78.92.  