
    (No. 629-S
    R. C. WHITAKER, and AMERICAN CENTRAL INSURANCE COMPANY, Claimants, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed July 14, 1948
    
   MERRIMAN S. SMITH, Judge.

Claimant R. C. Whitaker was traveling on U. S. route 50, September 15, 1947, and upon crossing a steel bridge (Fetterman Bridge) in Taylor county, West Virginia, his 1947 Packard sedan was spotted with aluminum paint. The painters, employed by the state road commission, were spraying the overhead structure of the bridge at the time with the aluminum paint which was blown around in the air and settled on the ground. At the time of his crossing the bridge there were no warning signs nor any watchman and traffic was permitted to travel the span without any notice of the painting operation. Under such circumstances there was no contributory negligence on the part of the claimant and the sum of $41.93 appearing to be a fair assessment for the damages sustained and the said amount having been concurred in by the state road commission and approved by the attorney general, the majority of the court hereby makes an award and recommends the payment of forty-one dollars and ninety-three cents ($41.93) to claimants E. C. Wihtaker and the American Central Insurance Company.

EOBEET L. BLAND, Judge,

dissenting.

As I view this case the meagre facts relied upon do not warrant an appropriation of the public funds. Meagre facts present controversial questions, yet the case is submitted under section 17 of the court act. The road commission was engaged in the exercise of a public function. Was the driver of the automobile guilty of contributory negligence? What, if any, precaution did he employ to avoid the accident? Did he see the employes of the road commission at work and fail to stop before proceeding through the bridge? According to the facts as stated in the record claimant E. C. Whitaker’s automobile “Passed through the bridge and while passing small mist of aluminum paint carried by the wind fell on car, spotting or dotting the body, fenders and top.” (Italics ours.) If warning signs had been installed could the result have been different? Evidently the award sought is one way of subrogation.

Since I cannot see the case in the same light of my colleagues I most respectfully record my dissent.  