
    
      Opinion issued September 28, 1984
    
    HARRY E. WILMOTH vs. DEPARTMENT OF HIGHWAYS
    (CC-83-161)
    Claimant appeared in person.
    Nancy J. Aliff, Attorney at Law, for respondent.
   LYONS, JUDGE:

Claimant filed this claim alleging damages in the amount of $491.64 to his 1977 model Mercury Monarch. The claimant, on September 11, 1982, was driving on Harrison Avenue, U.S. Route No. 33, near the intersection of North Randolph Avenue and U.S. Route 219 in Elkins, Randolph County, West Virginia, when his vehicle struck a broken and unmarked steel culvert in the paved portion of the roadway, damaging his right front rally wheel and rim, shock absorber, and tires.

The evidence indicates that the grading of the culvert was about five inches below the roadway surface. The culvert abuts the curb.

The evidence further indicates that the claimant travelled this road approximately three or four times per day for nearly twenty-five years, but never observed the culvert.

The undisputed evidence is that the condition of the culvert had existed for some time and was a condition that was hazardous to all who travelled on that portion of the highway.

A preponderance of the evidence showed that the claimant was not negligent, and that the Department of Highways should have had notice of this condition as the evidence indicated that it had existed for a number of months.

The evidence further revealed that the claimant’s actual damage was $250.00.

The Court, therefore, makes an award to the claimant in the amount of $250.00.

Award of $250.00.  