
    
      OPINION ISSUED DECEMBER 11, 1992
    
    PAULA GILLIAM AND LUKE GILLIAM VS. DIVISION OF HIGHWAYS
    (CC-92-48)
    Belinda S. Morton, Attorney at Law, for claimant.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

In this proceeding Paula Gilliam and Luke Gilliam, wife and husband, claim $1,360.93, plus medical expenses and compensation for personal injuries sustained by Paula Gilliam on 2 January, 1991, when their motor vehicle, a 1977 Ford truck driven by Paula Gilliam, went out of control on West Virginia Route 16, in Fayette County, West Virginia, and hit an embankment and was extensively damaged.

It appears from the evidence that the accident took place at about 7:45 a.m., and resulted from a skid on ice that had accumulated on the surface of the road during the preceding night, at a point where the posted speed limit was 55 miles per hour, and that Mrs. Gilliam was driving about 30 to 35 miles per hour and did not see the ice on the road in front of her until she was on it and had started to slide. The testimony of her and her brother-in-law was to the effect that because of a partially blocked drain, surface water would from time to time escape from the roadside ditch and spread over the pavement, a fact of which Mrs. Gilliam was well aware before the accident.

From the evidence the Court concludes that the drainage ditch was partially and temporarily obstructed, that a hazardous condition existed at the point where the skid took place, of which the respondent had a least constructive notice, and which was a proximate cause of the accident.

It also appears, however, that Paula Gilliam was aware or should have been aware of the hazardous condition of the road at the time and place of the accident, and failed to see what plainly could be seen, and was operating her vehicle at a speed which was excessive in the light

of existing conditions, and that her negligence was a proximate cause of the accident, which was equal in producing the accident to that of the respondent.

Under the rule of comparative negligence, the claim is disallowed.

Claim disallowed.  