
    No. 483
    PAULINE L. CHARLTON, administratrix of the estate of Kenneth O. Charlton, deceased, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed December 18, 1945
    
    
      Opinion on rehearing filed April 29, 1946
    
    
      W. W. Smith, for claimant;
    W. Bryan Spillers, Assistant Attorney General, for respondent.
   ROBERT L. BLAND, Judge.

about sixty miles distant, and return on that day, eight members Intending to go on a pleasure ride to the city of Charleston, of the Huntington Motorcycle Club, and several guests assembled at Twenty-fourth street and Third avenue, in the city of Huntington, West Virginia, on Sunday afternoon, March 18, 1945. The group proceeded, in cavalcade form, led by O. I. Bond, captain of the club, in an easterly direction, over U. S. route No. 60, an extensively traveled highway. When they arrived at the overpass crossing the main line of the Chesapeake & Ohio Railway, near Culloden, in Putnam county, Kenneth Q. Charlton, president of the club, riding immediately behind and to the right of Bond, hit a dip or depression at a point where a break in the concrete pavement of the road had been repaired with asphalt, and lost control of his machine. He managed to stay on his motorcycle until it had proceeded, in a wobbling condition, a further distance of two hundred feet, and again hit another depression in the road at a point where repair work had been done. This time he was thrown off the machine and sustained injuries from which he died later in the day at a Huntington hospital to which he had been removed.

In this case the administratrix of the decedent seeks an award in her favor, as such personal representative, in the total sum of $11,150.00, $10,000.00 thereof for the death of the decedent and $1,150.00 for the reasonable value of his motorcycle at the time of said accident, the funeral and other costs, outlays and expenses incident to and arising therefrom.

In her petition claimant alleges that the death of said Charlton was due to an accident sustained by him at a described point on said highway when he was thrown from his motorcycle by reason of a defect in the main or driven portion of the road, which defect was only a short distance beyond the crown of said overhead crossing and was not easily seen when one was approaching, or traveling said highway in an easterly direction. She contends that said alleged defect in said highway was brought about principally by a sinking or settling of the roadbed, fill or embankment, causing a crack or depression in the surface of the road, and that said alleged defect existed in said road for a number of months without having been repaired by the road commission. Claimant further contends that it was the duty of the road commission to repair and keép in good order and in a safe condition said highway for the use, benefit and protection of the traveling public, and that its failure, carelessness and negligence to repair and keep repaired the said highway, at the point where the accident occurred, was the direct and immediate cause of said accident and the death of said decedent.

The width of the road in question is twenty feet of concrete. By reason of the constant travel and heavy traffic over the highway. it becomes necessary to make repairs from time to time. At the point where the accident occurred there was a small hole or depression which had been repaired by the use of tar and chips. There are many miles of bo.th primary and secondary roads in Putnam county and the evidence shows that the road commission was reasonably diligent in making repairs at all points where they were deemed necessary, giving first attention to the most important places calling for repairs. No good purpose would be subserved by detailing the. testimony of the various witnesses. The members of the court visited the scene of the accident and observed the condition of the road where it had been repaired. Consideration of the whole evidence fails to satisfy the court that the road was not in a reasonably safe condition for public use and travel thereon.

It is shown that the road, at the point of the accident, was repaired by the road commission on January 19, 1945; February 12, 1945, and March 19, 1945. An employee of respondent testified that he traveled the road on Saturday evening before the accident and that he did not consider the road in any respect dangerous for public use.

It is not every accident that occurs on a state highway that calls for or justifies an award or appropriation of the public revenues.

Judge Brannon, in the opinion in the case of Slaughter v. City of Huntington, 64 W. Va. 237, says on page 241:

"There seems to be a growing disposition whenever an injury is received on a street or highway to at once sue for damages under the expectation that the taxpayers will make compensation, no matter where the blame lies; that the public will guarantee the highway under all circumstances.”

In 29th Corpus Juris at page 671, it is said:

‘‘The construction and repair of highways is a governmental duty belonging to the state, which can be performed only by agents designated for that purpose, or by municipal corporations upon which the performance of such duty is imposed by law, and, in either case, travelers using the highway have no legal right, in the absence of statute, to recover from the state or its officers for injuries caused by defects in the highway. The state may assume liability for such injuries; but such liability is limited by the terms of' the statute, ...”

In this court’s opinion in Lambert v. State Road Commission, 1 Ct. Claims (W. Va.) 186, we stated:

‘‘The state is not an insurer against accidents upon its public highways. Claims against the state for injuries or death upon the public roads should be based upon legal or equitable right. For such claims only may awards properly be made.”

No duty, express or implied, rests upon the state road commission of West Virginia to maintain the highways under its jurisdiction in more than reasonably safe condition for use in the usual manner and by the ordinary methods of travel; and the state does not guarantee freedom from accident of persons traveling on such highways.

Under the facts disclosed by the evidence in this case we are unable to see that a moral obligation rests upon the state to make an award in any amount in favor of the claimant.

An award is, therefore, denied by majority members of the court, and the claim dismissed.

CHARLES J. SCHUCK, JUDGE,

dissenting.

While I fully agree that the state road commission in maintaining the highways under its jurisdiction is only required to keep the said highways in a reasonably safe condition for use in the usual manner and by the ordinary methods of travel, and while the state is not called upon to guarantee freedom from accident to persons traveling the highways, yet I feel the record in this case, when carefully reviewed, shows beyond all question that the highway here concerned and upon which this accident happened, resulting in the death of claimant’s husband, was not kept in a reasonably safe condition for ordinary travel, and that therefore an award should be made.

That the highway where the accident happened was in bad repair cannot be doubted when we take into consideration the evidence of the witnesses sponsored by the state itself, and in charge.of making the necessary repairs to the road to make it reasonably safe. The fact is that this highway or road at the very place where the accident happened had been twice repaired within sixty days previous to the time of the accident, namely both in January and February of 1945, and that in both instances the repairs had been inadequately and improperly made, since, when the final repairs were made the day after the accident and as the evidence reveals, with more care and in a workmanlike manner, no defect has appeared in the road since that' time; all of which indicates to my mind that the necessary care and caution was not taken in making the repairs in January and in February, and that if the same character of repairs had been made on either one of these occasions, then the accident would not have happened and this claim would not be before this court for consideration. In this connection the witness McGhee, who was a salesman, and who traveled the road about five days a week, testified that the hole in question was six or eight inches in depth and had been in the road for a period of at least six weeks previous to the time of the accident. He also testified that it was difficult to see the hole when coming over the ridge, or riding toward Charleston; such being the direction that the motorists in question were traveling at the time of the accident. The witness Sponagle, who lives nearby, says that the hole was patched several times before the date of the accident but that the patching did not hold and that the hole was in the road some three or four weeks previous to the time of the accident; that the hole was about four feet square and that the repairs that were made on the day after the accident were of such a type as to keep the road in good repair since that time. He also testified that previous to the time of the repairs on March 19, it was a dangerous hole, evidently, as shown by his testimony, one that would be highly dangerous to the traveling public. So far as the evidence reveals neither one of these witnesses, McGhee or Sponagle, have any interest in the outcome of this matter; did not know the parties, and, consequently, so far as we know, were no doubt testifying truthfully and without any feeling or bias in the matter.

Under all of these circumstances, there being nothing in the record that would sustain the imputation of contributory negligence, I cannot see but that the state was negligent in not keeping the road in proper repair, and therefore should be called upon, to some degree at least, to compensate claimant.

The only testimony that we had before us as to the speed at which the cavalcade was traveling was that they were moving at a rate of approximately twenty-five miles per hour. No witness testified to the contrary. In view of this fact, and the fact that it was difficult to see the holes in question until, as the witness above stated, you were “right on it,” and in view of the further fact that no warning signs of any kind had been displayed, a fact which is not disputed but corroborated by the state’s witnesses, no contributory negligence of any kind, in my judgment, can be attributed either to the deceased or any member of his party. If this deduction be correct then we have only the negligence of the state to deal with, and with disinterested witnesses giving us the full facts, we find that there was a hole six to eight inches deep and about four feet square; that it was difficult to see the hole when coming over the so-called ridge or elevation, traveling in the direction of Charleston; that the previous repairs had been undoubtedly inadequate, and improperly made; that the deceased was a very careful driver, and that not only he, but another member, at least, of his party was thrown at the same place by reason of the first hole, or the one nearer the crown of the road; that the dangerous condition of the road was allowed to exist for at least three or four weeks before the accident; all of which facts, uncontradicted and taken together make a case of negligence that is not disputed in any way by the testimony in the case.

I am therefore of the opinion that an award should have been made.

ROBERT L. BLAND, JUDGE,

upon petition for rehearing.

Upon a rehearing of this case which was allowed to enable the claimant to adduce certain evidence which she was precluded from introducing, without fault on her part, on the original hearing, the new evidence offered was merely cumulative in character and insufficient to change in any way the determination of the claim against the state formerly made-by majority members of the court.

For reasons set forth in the original majority opinion, now ratified and confirmed, and' with respectful deference to the opposing views expressed in the carefully prepared original dissenting opinion filed in the case by Judge Schuck, an award is denied and the claim dismissed.

CHARLES J. SCHUCK, Judge,

dissenting.

The evidence adduced at the rehearing of this claim confirms in every particular the conclusions reached in my dissenting opinion and definitely shows that the overwhelming preponderance of the evidence is to the effect that the hole in question was highly dangerous to the traveling public; was six to eight inches deep and three or four feet wide; that it was difficult to see when traveling in the direction from Huntington to Charleston; was allowed to remain in its highly dangerous condition for a period of weeks before the accident; that previous repairs had been inadequate and that the repairs made on the day after the accident have been found good and sufficient, notwithstanding the fact that more than a year had elapsed from the date of the accident and final repairs to the time of the rehearing on the merits of the claim in this court.

The majority opinion on rehearing, ratifying the original majority opinion, is based solely on the theory that the new evidence offered was cumulative in character and insufficient to change the former determination; cumulative evidence, yes, in quality, given by taxpayers and wholly disinterested, and, so far as we know, creditable witnesses, who have no interest in the outcome of the matter and undoubtedly prompted solely by a desire to do justice as between the parties directly involved; cumulative evidence sustaining and supporting every material allegation showing negligence and proving the right and justice of the widow’s claim; and cumulative evidence which was so qualitative as to make a good and sufficient case, without the consideration of the evidence presented in the original hearing; cumulative evidence, not merely quantitative or additional, but essential to every element of merit involving the claim here presented. I repeat that under these circumstances and the evidence, I would favor an award.  