
    (No. 188 and No. 189
    FRED HARVEY, Claimant, v. STATE ROAD COMMISSION, Respondent. ROSA HARVEY, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed November 21, 1942.
    
    Appearances:
    Claimants, Fred Harveij and Rosa Harvexi in their own behalf;
    
      Eslov B. Stephenson, special assistant to the Attorney General for the state.
   WALTER M. ELSWICK, Judge.

The Claimants, Fred Harvey and Rosa Harvey, were traveling in a truck on route No. 80 leading from their home in Mingo county, West Virginia, in the direction of Gilbert, West Virginia, on Sunday, December 14,1941, at about seven o'clock p. M., when said truck struck a large stone or boulder lying on their right side of the said highway. It appears from the evidence that this boulder had fallen from the mountainside sometime about midnight on the previous night. No report was made to any of the state road commission authorities by anyone until the day following the mishap. The boulder was about five feet long and forty inches thick (record p. 78). It had broken off the mountainside above a twelve inch seam of coal. The rock had laid above this seam of coal about 15 to 25 feet above the road surface and had broken out lengthwise with the highway. There had not been any appreciable falling of rocks in this particular vicinity prior to this time, (record pp. 62 and 77). There was a clearance of about eight feet on claimant’s left side of the highway including the berm (record 71); of such width as to enable vehicles to pass (record p. 79). The mishap occurred on a misty, foggy night at a point where claimants were approaching near another vehicle coming from the opposite direction on the highway. The driver of the other vehicle had come to a stop at the time of the mishap, waiting, as he stated, for claimants’ vehicle to pass. The driver of the other vehicle testified that he had not seen the rock or slide until claimants’ vehicle had struck same. Fred Harvey, the owner and operator of the vehicle in which claimants were riding testified that he did not see the rock until he was “thirty or forty feet” from the rock, that he was traveling up grade at from 15 to 20 miles per hour, that he had traveled the same road almost daffy, that ordinarily he would have had a vision on the highway at the scene of the mishap “a few hundred feet” back from this rock, “one hundred feet” on a clear night. From the first curve down the road from which claimants had traveled to the “slide” where the rock was lying one witness stated that it measured a distance of 800 feet. (Record p. 80).

Fred Harvey’s truck was damaged considerably from the collision and Rosa Harvey, his mother, received painful injuries on the face and head. This injury to Rosa Harvey has left the nasal hone on the left side distorted and the Iseptum seems to be out of line also. She still has tenderness in {the left nasal bone and over the left frontal sinus, and complains of bad vision in both eyes since injury. She is now past 72 years, of age.

From the evidence, it appears that the state road employees made routine examinations of the highway and had not received any warning of the likelihood of this rock falling, from such examinations or otherwise, and had no knowledge of the rock being in the highway until the day after the r. ishap. There was a conflict in the testimony of witnesses as to whether the slide and stone was removed on Monday or Tuesday after the mishap but we fail to see that this in anyway pertained to the cause of the collision. We fail to find any evidence of negligence on the part of the state road commission employees, in the record, or that they had notice of the possibility of the stone in question falling to the highway, or that they could have known of the possibility of the said stone slipping or falling by an examination of the embankment at the scene of the mishap. The state is not a guarantor of safety to the traveling public, since, if it had such burden placed upon it, the state as a whole, might soon be bankrupt and unable to function as a commonwealth or as a body politic. (See holding in Claim of L. C. Clark No. 117). Considering all facts and circumstances in the case, we deny an award.  