
    
      Opinion issued July 26, 1968
    
    CHARLES C. OLIVER vs. STATE ROAD COMMISSION STATE OF WEST VIRGINIA
    (Claim No. D-24)
    Claimant appearing in person.
    
      Thomas B. Yost, Assistant Attorney General, and Robert R. Harpold, Jr., representing the State.
   Ducker, Judge:

The petitioner, Charles C. Oliver, claims damages in the sum of $175.94 by reason of alleged negligence on the part of the State Road Commission on June 9,1967 in allowing a large rock to be or remain in the Browns Creek Road in Pocahontas County, which rock was struck by petitioner’s wife, Louise Oliver, in driving his 1967 Pontiac automobile on said road, damaging the oil pan and other under parts of claimant’s car.

The evidence shows the Road Commission road crew was cleaning ditches at that place in the afternoon of that day, pulling the dirt out in the road and picking it up with an end loader and hauling it out about two feet on the pavement. A “men working” sign had been placed ahead on the curving road about 8/10th of a mile according to the complainant’s witness and 2/10th to 3/10th of a mile according to the respondent’s witness, from the place of the accident. The road was dry and the petitioner’s car was traveling between twenty and thirty miles an hour. The driver of the car admitted she saw dirt where ditches had been cleaned, but she said it had been cleaned until she came to the turn in the road before she struck the rock, and that the rock was a “huge rock” among small rocks and dirt, and that she did not see the rock until after she had hit it. The road is a two lane road and no traffic was then approaching claimant’s car. There was no watchman directing traffic and no hauling truck in sight.

The respondent denies items of damages such as the cost of an oil filter, oil pump, distributor cap and some of the labor charge of $70.25 as not having been caused by the accident. The claimant’s loss was partly covered by liability insurance, but there is no subrogation claim filed herein.

A review of these facts clearly indicate to this Court that the driver of claimant’s car was apprised of the fact that men were working on the road at or near the place of the accident, that she saw dirt on the road from the ditches but failed to see a huge rock in the road which she should have seen, or if seen she could have gone around on the two lane road with no vehicles approaching. These facts amount to such negligence on her part as to prevent her from recovering damages on account of this accident. Whether the Road Commission was negligent in not taking more precautions under the circumstances is doubtful, but inasmuch as we are of the opinion that there was at least contributory negligence on the part of the driver of claimant’s car, we must hold that there can be no recovery on the part of claimant, and, consequently, we deny and make no award to the petitioner on his claim.

Claim disallowed.  