
    
      Opinion issued March 21, 1977
    
    TWILA JEAN GILES vs. DEPARTMENT OF HIGHWAYS
    (No. CC-76-43)
    
      Gregory W. Evers, Attorney at Law, for respondent.
   GARDEN, JUDGE:

The claimant, Twila Jean Giles, a nurse and student from Gallagher in Kanawha County, testified that on April 7, 1976, she was proceeding in a northerly direction on Paint Creek Road, which is a hard-surface, two lane road — one lane for southbound traffic and one lane for northbound traffic — in her 1976 Chevette automobile. Her mother-in-law was accompanying her and was seated in the right front seat. She was proceeding to her home in Gallagher after a shopping trip to a grocery store in Montgomery. The weather was good, and although it had rained earlier, the road was dry around noon when the accident occurred.

The claimant testified that she was following a car and another car was following her; that she was travelling at a speed between 25 and 30 miles per hour, although the posted speed in the immediate area was 45 miles per hour. She further testified that as she neared the scene of the ultimate accident a southbound van was approaching her, and that although she was aware of the existence of the pothole which she later struck, she was unable to veer to the left because of the approaching van or to the right because of a narrow berm and a rock cliff. Both her right front and rear wheels hit the hole which was oblong in shape and 2 to 2V% feet wide and 3¥2 to 4 feet in length. The hole was located about 18 inches from the right hand edge of the travelled portion of the road, but because the hole was partially filled with water, the claimant could not testify as to its depth. As a result of striking this hole both right wheels of the car were damaged and both tires were ruptured. To repair the damage, including the cost of two new tires, the claimant expended the sum. of $107.84.

The claimant’s mother, Blanche Gwin, testified that she lived in the Bluefield-Princeton area and had travelled to Charleston on business in November of 1975, and took that occasion to visit her daughter and had driven Paint Creek Road to reach her daughter’s residence. She testified that she could only travel at the rate of 20 miles per hour because of the condition of the road, and that upon her return home on November 19, 1975, she telephoned respondent’s maintenance department in Charleston and complained of the condition of the road and requested that it be checked and repaired. She further indicated that no repairs had been effected between the date of her telephone call and the date of her daughter’s accident.

The respondent presented no testimony in defense of the claim asserted against it, but we do not believe that the record establishes any evidence of negligence on the part of the claimant which proximately caused or proximately contributed to causing this accident. We have held on numerous occasions that the respondent is not an insurer of the safety of those using the highways of this State, but we feel that the facts in this claim justify a departure from the general rule by reason of the notice received by the respondent some six months prior to claimant’s accident, and its subsequent failure to effect repairs of any nature. We accordingly award the claimant the sum of $107.84.

Award of $107.84.  