
    (No. 600
    ALEX FARLEY, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed October 31, 1947
    
   MERRIMAN S. SMITH, JUDGE.

On April 2, 1947, Alex Farley, the claimant, while returning to his home with a bushel basket of groceries on his back, upon crossing a bridge spanning Guyandotte River, on state route No. 3, at Chapmansville, Logan county, West Virginia, stepped into a hole in the floor of the bridge and skinned his leg to such an extent that the medical services rendered amounted to $20.00. He lost twelve weeks work by virtue of such injury. It was about eight o’clock in the evening when claimant was walking with the bushel basket of groceries on his back, and the headlights of an approaching automobile were so bright that he became blinded therefrom and stepped into a hole in the floor of the bridge which was about two feet by ten inches in diameter, sustaining an injury to his right leg. He therefore makes claim for $100.00 for medical services received and the loss of twelve weeks work.

The state road commissioner concurred in the payment of this claim and it was approved by the attorney general.

The state’s primary roads and all bridges should be maintained in a reasonably safe condition at all times and a hole two feet by ten inches in diameter is an unsafe condition for pedestrians, especially at nighttime. From the record there was no act of contributory negligence on the part of claimant. Therefore, an award in the sum of one hundred dollars ($100.00) is hereby granted to the claimant, Alex Farley, by a majority of the court.

ROBERT L. BLAND, Judge,

dissenting.

The basis of the claim, for which an award is made by majority members of the court, is alleged negligence of one of the governmental agencies of the state. I regret that I am constrained to file this dissenting statement, but as I perceive my duty I am compelled to do so. The claim is considered informally upon a meagre record prepared by the head of the agency involved. It does not appear from such record that “No question of fact or liability is involved.” On the contrary I think very serious questions of both fact and liability are involved. No independent investigation is made by the court. It is provided by statute that the road commission shall inspect all bridges upon state roads. If any bridge is found to be unsafe, the commission shall promptly condemn, close and repair it. Chapter 17, article 4, section 33, code. Was such action taken in the instant case? If not, why not? No such information is afforded by the record. I have fixed notions about the appropriation of the public funds. I think every case presented to this court should be carefully considered by its three members. The report of the legislative interim committee never contemplated that the shortened procedure provision of the court act, provided for small claims, should be used in such a case as presented by the record of this claim.  