
    
      Opinion issued December 8, 1977
    
    ROBERT M. HASTINGS & LINDA HASTINGS, d/b/a HASTINGS STABLES vs. DEPARTMENT OF HIGHWAYS
    (No. CC-77-94)
    Claimants appeared in person.
    
      Richard Carlton, Attorney at Law, for respondent.
   GARDEN, JUDGE:

The claimants are the owners of property which fronts on the Old Kingwood Pike in Monongalia County. On this property they maintain a small stable where they board horses. They also use part of the property as a pasture field which was fenced prior to the severe winter of 1976-77. Claimants testi-field that, during the winter, employees of respondent, in conducting snow plowing operations, damaged a .2 mile-long section of the pasture field fence fronting on the Old Kingwood Pike. Claimants contend that as a result of this damage, they have been unable to turn horses out in this pasture, and their business has suffered, although no evidence of the amount of such loss was introduced into evidence.

Robert M. Hastings testified that on one occasion during the winter, he observed respondent’s equipment being used to clear snow from Old Kingwood Pike at its intersection with Green-bag Road. On that occasion, the respondent’s employees were pushing all of the snow over and against the subject fence line, and the claimant observed a grader on top of the drifting snow actually breaking the top off of the fence posts. Mr. Hastings was of the opinion that the weight of the snow being pushed into and on top of the fence was the reason for the fence line’s being damaged.

Linda Hastings testified that she observed respondent’s equipment during the winter working in the fence line area of the road clearing snow, and that she never observed anyone else such as the National Guard or other independent parties engaged in snow removal. She testified further that, in order to repair the fence, she and her husband would have to purchase 110 locust posts at $1.50 each and 8 rolls of 12% gauge barbed wire at $25.00 per roll, for a total expense of $365.00.

Fred Siegworth, a general foreman of respondent, testified that he was familiar with the road situation in the subject area during the winter of 1976-77, and that the respondent had contracted with one Raymond Dalton to plow Old Kingwood Pike, and that Dalton furnished his own equipment and men. However, he did not testify that employees of respondent were never engaged in plowing operations during the winter on Old Kingwood Pike.

Whether the damage to the claimants’ fence was caused by employees of the respondent or by employees of Raymond Dalton, in our opinion, is not material; the damage resulted from negligent conduct, and in accordance with our reasoning set forth in the recently decided claim of Hubbs v. Department of Highways, Claim No. CC-77-83, we hereby make an award in favor of the claimants in the amount of $365.00.

Award of $365.00.  