
    
      OPINION ISSUED NOVEMBER 19, 1985
    
    JOE SCARDINA VS. DEPARTMENT OF HIGHWAYS
    (CC-84-250)
    Nancy Jane Scardina, appeared on behalf of claimants.
    Nancy J. Aliff, Attorney at Law, for respondent.
   PER CURIAM:

This claim was originally filed in both the names of Joe Scardina and Nancy Jane Scardina, but when testimony established that the damaged vehicle, a 1973 Plymouth, was titled solely in the name of Joe Scardina, the Court amended the style of the claim to reflect that fact.

Nancy Jane Scardina, claimant's wife, was operating the vehicle in a northerly direction on Route 19, in Morgantown, Monongalia County, on August 16, 1984, at about 11:45 a.m., when her mother, seated in the right front seat, pulled the ashtray out and it dropped to the floor. There was a lighted cigarette in it. Mrs. Scardina pulled off to the berm on her right, opposite the Coliseum, and stopped to retrieve the ashtray and lighted cigarette. While doing this, her mother suggested walking the children to a fruit stand some distance behind them. Instead, Mrs. Scardina elected to back the car, on the berm, to the fruit stand. In so doing, she backed the car into a growth of weeds three to four feet tall. As she did so, she backed over the stump remains of a metal light pole, hidden by the weeds. The car was hung up. A wrecker removed it. The car seemed to Mrs. Scardina to be driveable, and she drove to a restaurant' nearby, at Star City, and stopped for coffee. Returning to the car, she saw a puddle of oil but thought it might be from a car previously parked there. As she drove to Clarksburg, her home, a noise grew louder. She took her mother and granddaughter to their respective homes and then drove to the Department of Highways garage for Harrison County where her husband, the claimant, was employed. He heard his car arriving. He had her drive it to some office, and then on home, barely making it. Inspection later revealed leaking transmission seals and damage to the new bumper, floor pan, muffler, tail pipe, etc. Estimates of repair and the wrecker bill were in the total amount of $747.94, the amount claimed.

James M. Beer, II, respondent's Area Maintenance Engineer for Monongalia, Preston and Taylor counties, testified that the object which she struck was what was left of a 30-foot light pole owned by the City of Morgantown; that Monongahela Power Company had the responsibility for its maintenance.

The Court perceives no negligence on the part of the respondent. It is the opinion of the Court that when Mrs. Scardina voluntarily backed the car into the patch of weeds three or four feet tall, she assumed the risk that something, hidden from her view by the weeds, might be there.

Claim disallowed.  