
    
      Opinion issued September 9, 1968
    
    EMANUEL FEDERICO vs. BURL A. SAWYERS, AS STATE ROAD COMMISSIONER OF THE STATE OF WEST VIRGINIA
    (No. C-20)
    
      Frank Pietranton, Esq. for the Claimant.
    
      Thomas P. O’Brien, Assistant Attorney General, and Robert R. Harpold, Jr., Esq. for the State.
   Ducker, Judge:

The petitioner, Emanuel Federico, claims damages in the sum of $8,914.50 for hospital, medical, truck repair expenses, cargo loss, personal pain and suffering past and future, and permanent disfigurement, all as the result of his 1966 GMC van truck overturning on U.S. Route 22, Cove Hill Road, just east of a place known as Country Cottage, Weirton, West Virginia, on November 9, 1966 at or about 2:00 p.m.

The evidence shows that the claimant conducted a grocery business in Steubenville, Ohio, and after making purchases of produce and grocery items at Pittsburgh was returning to Steubenville with a load of such items, and that while so driving his truck down grade on said Cove Hill Road the wheels of the truck dropped off the northern paved portion of the highway into a depression or gully resulting, when the driver attempted to get back on the pavement, in the truck turning over, spilling the cargo of the truck and injuring the claimant driver. The depression or gully in the very wide berm of the road was variably estimated to be four to eight inches in depth, from six to eight inches in width, and the paved part of the road was thirty-six feet consisting of three lanes, one westerly, or downhill, and two easterly, or uphill. The road was dry and the claimant was driving between twenty and twenty-five miles per hour, and when claimant’s truck wheels went into the depression or gully on driver’s right side of the road claimant, according to his testimony, “veered to the left and found myself rolling on my lane,” turning the truck over completely. It appears that there were curve signs on the road indicating such at the place of the accident. Claimant also testified that he made one or two trips a week over this road. There is some conflict in the evidence as to the color of the material in the berm of the road at the place of accident, witnesses for the petitioner stating it was practically the same as the blacktop paved portion of the road, while the State’s witness stated it was much darker, which latter testimony is corroborated by pictures of the road taken subsequently in January 1967, which pictures this Court considers as quite corroborative in that there is little likelihood that any substantial change in the color of the road and the berm could have occurred.

There is no contradiction as to the loss and damages suffered by the claimant. The State defends solely on the ground that it is not liable because the facts show that the proximate cause of the accident was the claimant’s negligence, and if such negligence was not the sole cause then it was a contributing cause sufficient to find the driver guilty of contributory negligence. In other words, the accident would not have happened if the claimant had driven his six foot wide truck over the road which he well knew, and which was twelve feet wide in his lane at the place of the accident, in a careful and prudent manner.

It seems apparent from the facts as hereinabove recited that claimant was negligent in allowing the wheels of his truck to go off the paved portion of the road into the gully edge of the wide berm when there was ample room in the paved portion of the road, especially when it does not appear that other vehicles were passing in either direction on the thirty-six foot wide road. While the berm of the road might have been left in a condition not good for travel or even emergency necessities, we can hardly say that the accident was sufficiently attributable to such condition. Claimant feeling the jerk in his front wheels attempted to turn them back to the left to get back on the road, but with the front wheels in the gully he was unable to negotiate the left turn. The berm of a road is not a travel section and the maintenance of it is primarily for the protection of the paved portion of a road and not for travel.

So in the light of the facts as shown by the evidence, we are of the opinion to and so find that the claimant is not entitled to recover from the State the damages he claims, and, accordingly, we make no award to him in this case.

Claim Disallowed.  