
    (No. 641-S
    DEE JACKSON, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed October 19, 1948
    
   CHARLES J. SCHUCK, Judge.

On the night of September 15, 1947, between the hours of eight and nine o’clock, claimant, while crossing a bridge on the secondary route spanning Buffalo Creek, near Lun-dale, in Logan county, stepped into a large hole in the flooring of the bridge, causing him to be thrown, injuring his leg and suffering considerable pain therefrom, which pain has continued, according to claimant’s statement, to the present time, nearly a year after the accident. Claimant is sixty-nine years of age; was unemployed at the time he was hurt, and is still unemployed, though not by reason of his accident. Claimant maintains that he seldom crossed the bridge in question and that when he did he walked on the opposite side from that on which he was walking when injured. These statements are uncontra-dicted so far as the record of the claim reveals.

An x-ray was ordered by the physician to whom claimant was taken by the companions accompanying him at the time of the accident, but not having the necessary funds an examination was refused by the hospital authorities.

The road department, through its safety director, made an investigation of the facts and has recommended a compromise settlement of $100.00 in full payment and satisfaction for all injuries and pain suffered by the claimant, and to this amount or settlement the claimant agrees. The attorney general’s office has approved the proposed settlement. In view of the facts as presented, the nature of the injuries received, the pain suffered and the further fact that claimant was free from any negligence on his part, a majority of the court feels that the sum of $100.00 is a just and proper settlement and accordingly recommends to the Legislature that an appropriation be made in the said sum in favor of the claimant, and that upon the payment of the aforesaid sum, a receipt in full of all damages arising by reason of the said accident be executed by the claimant to the state.

ROBERT L. BLAND, Judge,

dissenting.

The facts certified to this court by the state road commission in support of its concurrence in the claim involved in this case are as follows:

“On Sept. 15, 1947, between 8:00 and 9:00 o’clock P. M., in company of James Vaughn, Buster Clay and Rev. W. E. Jackson, Claimant, while crossing a bridge on Secondary Rt. No. - spanning Buffalo Creek, near Lundale, Logan County, stepped into a large hole in the flooring, causing his left foot, leg and upper part of his body to drop, injuring his leg, which still causes him pain. Doctor bills amounting to $_, plus compromise figure of $ _ for injuries, bring claim to $100.00 which will be in full settlement of injuries sustained.”

Upon the above facts the case is informally considered by the court of claims and an award made in favor of claimant by majority members. In view of the holding of the Supreme Court of Appeals of West Virginia in the recent mandamus action of Jacob F. Bennett v. State Auditor, I regard the above facts as insufficient to warrant an appropriation of the public funds and most respectfully dissent to the award made.

It will be observed that the actual settlement of the claim is made by respondent and the attorney general’s office. The award in question is merely a ratification of their action.

Why was the hole in the bridge allowed to exist by the road commission? How long had it existed before the accident? Why was it not repaired? Did the claimant know of the presence of the hole? Was he guilty of contributory negligence?

The public funds are not to be indifferently appropriated by the Legislature.

I respectfully record this my dissent to the award made.  