
    
      OPINION ISSUED FEBRUARY 5, 1993
    
    LEWIS JUNIOR SWANN VS. DIVISION OF HIGHWAYS
    (CC-92-37)
    Claimant present in person.
    James D. Terry, Attorney at Law, for respondent.
   PER CURIAM:

Claimant, Lewis Junior Swann, seeks an award from the Division of Highways for property damage sustained in a single-vehicle accident which took place about 6:50 p.m. on December 13, 1991, on Kincheloe Road, also designated Route 35, in Harrison County, West Virginia.

From the evidence adduced at the hearing on October 14, 1992, it appears that the claimant was operating his vehicle, a 1982 Nissan four wheel drive pick-up truck, on Kincheloe Road when he met an on-coming pick-up truck and when he attempted to drive to the right side of the road, his truck hit a pile of cinders on the side of the road, causing damage to his truck in the amount of $1,457.50.

The claimant testified that he was traveling in an easterly direction on Kincheloe Road, which is a blacktop road that is 15 feet and 10 inches wide, and he noticed a truck coming in a westerly direction towards him. The road was narrow, therefore, in order to avoid hitting the truck as it passed, the claimant pulled his truck over to the side of the road where it struck a cinder pile located at the edge of the road and on the berm area of the road. This caused the truck to flip up two wheels and into an embankment, knocking out two fence posts and an old telephone pole. Claimant stated that the pile of cinders extended from a fence line onto the blacktop area of the road and the pile was approximately two feet high. He had noticed the pile the day before the accident. He also stated that the driver of the other truck, Vernon Hughes, did not force him off the road.

For the claimant, Joel Baird, who lives on Kincheloe Road, testified that he was on his way to work when he came upon the scene of the accident. He described the pile as being a ton or a ton and one-half of cinders dumped partially on the berm and partially on the pavement, with the highest point of the pile being in the berm area of the road.

For the respondent, Delbert BeBerry, area maintenance supervisor, employed by the respondent, testified that he was called to the scene of the accident on December 13, 1991. He stated that the pile of cinders was placed in that location for snow and ice control. He had not received any calls prior to the accident to inform him that the cinders were in the road.

Also for the respondent, Bill Wyckoff, assistant maintenance superintendent for Harrison County, employed by the respondent, testified that he was called to the scene of the accident with Mr. Berry and that there were a few cinders that were scattered on the road, but that it only took two or three minutes to scrape them off with a shovel. He stated that the pile alongside the road had only been there for a couple of days before the accident.

The Court finds, as a matter of fact, that the claimant was aware that the cinder pile existed prior to the accident; that the claimant could have avoided the pile by appropriate defense driving; that the negligence of the claimant was equal to or greater than that of the respondent, if any; and that the claim shall be denied under the doctrine of comparative negligence.

Claim disallowed.  