
    
      Opinion issued September 29, 1981
    
    CECIL WHITT, SR. vs. DEPARTMENT OF HIGHWAYS
    (CC-80-338)
    Claimant appeared in person.
    
      Nancy J. Aliff, Attorney at Law, for the respondent.
   WALLACE, JUDGE:

This claim is in the sum of $602.00 for property damage sustained by the claimant’s Ford pickup truck in an accident which happened at approximately 4:10 p.m. on September 12, 1980, at Glen Ferris, West Virginia. The claimant, who had been travelling west on Route 60, pulled into a service station where he refueled and checked the air in his tires. At that time, there was a storm drain with a steel grate cover located upon the berm of Route 60 in proximity to the point where the pavement of the highway was joined by an exit from the service station. In order to prevent motorists from running over the grate, the respondent had installed a vertical steel beam on each side of it. The steel beams projected about two feet above the surface of the ground and were painted white, and each had a reflector upon it. The claimant testified that, when he left the station using that exit, he did not see the steel beams because his view of them was blocked by the hood of his truck. He collided with one of them, damaging his truck.

While the claimant’s view of the steel beams may have been blocked by the hood of his truck when he was close to them, it is obvious that, whether or not his view was blocked completely, or the extent to which it was blocked, depends upon distance. At some time (and distance) as he approached the beams, they must have been within his view, and he would have seen them had he been maintaining a reasonable lookout. In addition, it appears that, if he had kept his vehicle upon the pavement and not driven onto the berm there would have been no collision. For those reasons, the Court concludes that, even if the respondent’s conduct in erecting and maintaining the steel beams could be viewed as negligence, the claimant himself was guilty of negligence which equalled or exceeded it. Accordingly, this claim must be denied.

Claim disallowed.  