
    
      Opinion issued June 13, 1979
    
    JAMES C. MACKNIGHT vs. DEPARTMENT OF HIGHWAYS
    (No. CC-78-144a)
    Claimant appeared in person.
    
      Henry Haslebacher, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimant, James C. MacKnight, filed this claim against the respondent for damages to his 1977 Ford Pinto automobile.

Early in the afternoon of April 23, 1978, the claimant was driving his automobile on Route 3 south of New Haven, West Virginia, at approximately 35 miles per hour. It was cloudy and the road was wet. As he proceeded over a small rise in the highway, he came upon a hole in the road. In an attempt to miss the hole, he veered to the right onto the berm of the highway. The right front wheel struck the hole, damaging the tire and rim.

In order for negligence on the part of the Department of Highways to be shown, proof that the respondent had actual or constructive notice of the defect in the road is required. Light v. Dept. of Highways, 12 Ct. Cl. 61; Lowe v. Dept. of Highways, 8 Ct. Cl. 216 (1971). There is no evidence in the record of notice to the respondent. The State is neither an insurer nor a guarantor of the safety of persons travelling on its highways. Adkins v. Sims, 130 W. Va. 645, 46 S.E. 2d 81 (1947). Accordingly, the Court disallows this claim.

Claim disallowed.  