
    
      Opinion issued September 20, 1979
    
    GARY McFANN vs. DEPARTMENT OF HIGHWAYS
    (CC-78-257)
    
      Nancy J. Aliff, Attorney at Law, for respondent.
   WALLACE, JUDGE:

On or about September 16,1978, at approximately 10:00 p.m., the claimant was driving on Route 61 between Cabin Creek and Montgomery, West Virginia. The claimant testified that he was proceeding at a speed of approximately 35 miles per hour. It was raining and the visibility was poor. As he encountered three or four cars coming in the opposite direction in the vicinity of Crown Hill, West Virginia, the claimant struck a hole in the berm of the road, which hole was six to eight inches deep and extended into the highway for an estimated eight to ten inches. Claimant’s automobile sustained damages in the amount of $276.30.

At the time of the accident, Route 61 between Cabin Creek and Montgomery was undergoing extensive re-paving and berm work. Construction signs of the Black Rock Construction Co. were posted at each end of the construction area. The claimant testified that he was aware of the road construction in the area.

Without a positive showing of negligence on the part of the respondent, this case must fall within the purview of the well-settled principles of Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) to the effect that the State is not an insurer of the safety of a traveler on its highways. There is nothing in the record by which actual negligence on the part of the respondent can be established. Therefore, the Court is of the opinion to and does hereby disallow the claim.

Claim disallowed.  