
    
      Opinion issued June 4, 1980
    
    G. LEE COX and JUNE F. COX vs. DEPARTMENT OF HIGHWAYS
    (CC-79-401)
    
      Douglas Hamilton, Attorney at Law, for respondent.
   GARDEN, JUDGE:

On July 28, 1979, the claimants’ automobile, a 1978 Chevrolet Chevette, was being operated by their daughter, Jessica Griffin, in a northerly direction on a State-maintained highway which runs between Winifrede and Chesapeake in Kanawha County, West Virginia. This particular two-lane asphalt road runs through a railroad underpass near Chesapeake. According to the claimants, neither of whom were accompanying their daughter, as their daughter proceeded through the underpass, she struck a pothole, rupturing both tires on the right side of the car and damaging both wheels. An estimate of repairs in the amount of $150.18, from Surface Chevrolet, Inc., of Cabin Creek, was introduced into evidence.

Mr. Cox testified that he was aware of this pothole prior to the date of his daughter’s accident and that the pothole had been there for two or three months prior to July 28, 1979. He further testified that he had never complained to respondent about this pothole prior to the accident. Mrs. Cox, on the other hand, testified that she had no prior knowledge of this pothole. She also testified that her daughter complained to respondent about this pothole the day following the accident, and that the next day, employees of the respondent repaired it. The daughter, Jessica Griffin, did not appear and testify at the hearing. As a result, the record fails to contain any evidence as to the speed of the car, whether Mrs. Griffin had prior knowledge of the existence of the pothole, whether she observed the pothole prior to striking it, or whether she could have taken some evasive action to avoid striking the hole, all factual matters which bear on the issue of her negligence. In spite of the lack of the foregoing, the Court is of the opinion that the claimants have failed to establish by a preponderance of the evidence that respondent was guilty of primary negligence in failing to exercise reasonable care to keep this particular road in a reasonably safe condition. Accordingly, this claim must be disallowed.

Claim disallowed.  