
    
      OPINION ISSUED APRIL 30, 1986
    
    ELMER PACK & JANICE DAILEY VS. DEPARTMENT OF HIGHWAYS
    (CC-84-130)
    Thomas R. Parks, Attorney at Law, for claimants.
    Andrew Lopez, Attorney at Law, for respondent.
   LYONS, JUDGE:

In the evening of April 22, 1982, claimants Elmer Pack and Janice Dailey, the granddaughter of Elmer Pack, were travelling by automobile from Williamson, Mingo County, to the unincorporated community of Holden in Logan County.

Claimant Elmer Pack, who was operating the vehicle at approximately 25 miles per hour, took Route 65 to U.S. 119 into Holden. In the area of Batchelder and Trace Streets, he observed two signs. The first sign had an arrow pointing to the left. The second sign read 'One Lane Bridge." Claimant Pack had not driven this particular route since 1947. In 1947, one might have proceeded straight onto Trace Street and over the Trace Creek bridge. Since that time, the bridge over Trace Creek had been removed and a barrier erected to prevent traffic from going into the creek. Traffic had been rerouted, turning left and crossing a different bridge, one which had originally been a two-lane bridge but was later made a one-lane bridge because the sidewalk on the bridge collapsed. On this occasion, claimants proceeded onto Trace Street and drove into the creek. Claimants seek $200,000.00 for personal injuries and for damage to the vehicle.

It is the position of the claimants that the respondent was negligent for failing to erect a warning barrier and for failing to remove the "One Lane Bridge' sign.

There was conflicting evidence regarding the issue of whether Trace Street was under the maintenance and control of respondent in 1982.

Eric O'Briant, who lived on Trace Street in April 1982, testified that when he moved to that address in 1981, there was no bridge there; that there was a barricade, and on one occasion O'Briant had witnessed respondent's truck replacing the barricade.

The evidence did not clearly establish that Trace Street is a part of the State road system. Nor was there any evidence that respondent negligently erected barriers at Trace Street in the area of the Trace Street bridge.

Ralph Brown, Jr., who had previously resided next to Eric O'Briant, testified that the Island Creek Coal Company removed the bridge at the intersection of Batchelder and Trace Streets and put up barriers. He described the barriers as consisting of two or three barrels and "X" marks to prevent people from going into the creek.

Harold Ronald Simmons, a research analyst with respondent, testified that he could not say whether respondent actually 'pulled maintenance on the road," but that Trace Street has been a part of the State highway system since 1933.

Parris Preston Young, a retired employee of the Island Creek Coal Company, testified, that between 1979 and 1980, he helped remove the Trace Street bridge. He was assisted by a crew in the employ of the Island Creek Coal Company.

John Wilson Braley, District Bridge Engineer with respondent, testified that he was under the impression that the Trace Street bridge was not included in the State system. He felt that "the Trace Street bridge was merely a public road . .. and, therefore, respondent did not have possession of it."

However, the Court finds that the claimants have failed to prove, by a preponderance of the evidence, that any negligence of the respondent caused their injuries and disallows the claim.

Claim disallowed.  