
    (No. 146
    JOHN S. SMITH, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed December 17, 1942
    
    
      Dayton R. Stemple, Esq., for claimant;
    
      Eston B. Stephenson, Esq., special assistant to the attorney general, for the state.
   WALTER M. ELSWICK, Judge.

On the 20th day of February 1942, William Bohan was operating claimant’s truck on a state road leading from route 250 to the 4-h camp in Barbour county, West Virginia.

The truck was loaded with lime, and when pulling a grade the driver noticed a state road truck coming in the opposite direction and pulled claimant’s truck over on his right and stopped. The state road truck, driven by Lee Cross, collided head on into claimant’s truck. Cross was on duty at the time and in the employment of the state road commission.

It appears from the evidence that the paved surface of the road at the point of the collision was about 14 feet wide; that with the berm, the road was about 18 to 20 feet wide. It also appears from statements of Cross, made at the time of the collision and in his report of the collision to the road commission, that his brakes were out of order. The road at the time was dry, and the collision occurred in daylight of the afternoon. The driver of the state road truck testified that he saw the claimant’s truck 80 feet away as it rounded a curve. As a result of the collision, the radiator on claimant’s truck had five leaks, and were of such nature that a new one was required to replace it at an exchange price of $35.00. Claimant also claimed a loss of two gallons of Prestone at a cost of $5.25. The bumper to claimant’s truck was also bent. It was a 1940 Dodge truck purchased in 1940 which had been in hauling use since that year.

From all the evidence in the case, we are of the opinion that the collision could have been avoided by the state road commission’s truck driver, and from the evidence and stipulations of claimant’s attorney and the attorney general, we are of the opinion that claimant is entitled to an award of thirty-five dollars ($35.00). An award will be made for said sum and an order entered accordingly.  