
    
      Opinion issued October 31, 1975
    ATHEL BUTCHER vs. DEPARTMENT OF HIGHWAYS
    (No. D-967)
    
      Nancy Norman, Attorney at Law, for the respondent.
   JONES, JUDGE:

The claimant in this case, Athel Butcher, seeks recovery from the respondent, Department of Highways, for damages to the right rear wheel of his 1975 Chrysler New Yorker automobile while he was driving the vehicle south on Route 10 at Henlawson in Logan County.

The claimant testified substantially as follows: The time of the accident was about 4:00 o’clock in the afternoon on May 26, 1975; the two-lane asphalt road was level, straight and dry, and the day was clear; cars were approaching, being driven on or near but not over the center line, and the claimant was paying particular attention to them; the claimant’s speed was approximately 35 miles per hour; his right rear wheel dropped off the edge of the road, straight down a foot or more to the berm, the force of the drop causing the damage complained of; prior to the accident the claimant had driven over this road at least once a week for a long time and had observed no hazard; and the claimant charged that the respondent was negligent in allowing a hazardous condition to exist.

Perhaps the respondent .knew or should have known that a hazardous condition existed along this road, but we cannot avoid the conclusion that in the exercise of due care the claimant should have observed the edge of the blacktop surface of the road and having sufficient room on his side of the road to operate his vehicle in safety, he should have stayed in his lane of traffic and thereby avoided the accident. We, therefore, hold that the contributory negligence of the claimant bars recovery, and this claim is disallowed.

Claim disallowed.  