
    
      Opinion issued December 23, 1980
    
    REBA DIXIE PERRY vs. DEPARTMENT OF HIGHWAYS
    (CC-79-509)
    
      Brown H. Payne, Attorney at Law, for claimant.
    
      Douglas Hamilton, Attorney at Law, for respondent.
   WALLACE, JUDGE:

The claimant filed this claim against the respondent for damages to her automobile and physical injuries received by her in an accident which occurred on October 6, 1977, at approximately 2:30 p.m. The claimant was driving to work in her 1977 Chevrolet automobile at approximately 25 miles per hour, proceeding from Beckley, West Virginia, to the Rawlings mine at Clear Creek on W. Va. Route 1, also known as Spruce Mountain Road. The road surface was dry and the weather was clear. The road at the point of the accident was 16 to 18 feet wide. Two vehicles could pass if neither crowded the other. However, the berm on the claimant’s right-hand side had been washed out by the erosion of a stream adjacent to the road, and a truck forced the claimant off the road into the creek.

. The claimant testified, “Well, I was traveling the highway to work and there is a little, sort-of a little curve, and I come around through there and there was a big long bed truck like hauls steel to the mines and it was coming toward me and it was over on my side swinging around and I had no choice but either to let the truck hit me or try to get away. I thought, well maybe I’ll make it around it, and I dropped off the road. The hole was there and I couldn’t hold it.”

Henry Bowyer, a resident of the area, testified that the shoulder of the road had been washed away for about two months prior to the accident and that there were no warning signs or devices.

John Crawford, foreman for the respondent, testified that he was familiar with the road and that he had no prior notice of the condition, but repaired it the day after the accident. He stated that such washouts were common along creek roads.

Claimant’s vehicle sustained damages in the amount of $2,387.07. Her insurance coverage paid this amount less $100.00 deductible. The parties stipulated that the claimant incurred doctor and hospital bills in the amount of $128.75 at Raleigh General Hospital at Beckley, West Virginia, and $368.50 at Southern West Virginia Clinic, also in Beckley. She lost 120 days of work, for which she would have been paid $67.18 per day.

The record does not establish negligence on the part of the claimant, and the Court finds that the respondent knew or should have known, from the type of road involved and the nearness of the creek to the road, that washouts could occur. It was, therefore, the duty of the respondent to see that the berm adjacent to the road was sufficient to safely accommodate vehicles using the highway. See Sweda v. Dept. of Highways, 13 Ct.Cl. 249 (1980), Con v. Dept. of Highways, 13 Ct.Cl. 194 (1980).

The claimant, through her claim and amended claim, seeks recovery of the sum of $2,887.07. As the record establishes more than adequate proof of the damages, the Court makes an award to the claimant in the amount claimed.

Award of $2,887.07.  