
    
      Opinion issued June 30, 1983
    
    ARMEDA JEAN BUSH vs. DEPARTMENT OF HIGHWAYS
    (CC-81-204)
    
      Ross Maruka, Attorney at Law, for the claimant.
    
      Nancy J. Aliff, Attorney at Law, for the respondent.
   RULEY, JUDGE:

This claim in the sum of $50,000.00 for damages for personal injuries grows out of an accident which happened at about 9:30 a.m., on October 17, 1979, on W.Va.-U.S. Route 19, Jackson Street, in Fairmont, Marion County, when the claimant fell while walking across the street. Claimant alleges that her fall was caused by a “hump” of blacktop pavement which, according to the undisputed evidence, was about six inches high. Claimant contended, and the contention may be inferred fairly from the evidence, that the hump was caused by the respondent while removing the old blacktop with a Rotomill machine in preparation for repavement. There was no evidence that the respondent had utilized any warning signs or devices incident to the repairing project. The gist of the evidence of the respondent was that the machine usually left a relatively level surface but there was no specific testimony respecting the surface at the time and place of the accident. However, that area was lighted by street lamps and there was no evidence that the street surface was obscured in any way. From that evidence, it appears that the respondent was negligent in that it created a condition dangerous to pedestrians and then left it without any sign or device whatever to warn pedestrians of the hazard. It also appears that the claimant herself was negligent in failing to maintain an adequate lookout upon the surface where she was walking. The negligence of both parties combined to cause the accident and the Court is disposed to allocate the negligence 70% to the respondent and 30% to the claimant.

Turning to the issue of damages, the claimant sustained a fracture of her right kneecap but it does not appear from the evidence that there was any resulting permanent injury. Her medical expense was $364.50 and her net lost earnings were $416.39. The Court finds that $1,500.00 is a fair and just compensation, and reduces that sum by 30% to reflect claimant’s contributory negligence.

Award of $1,050.00.  