
    
      Opinion issued March 23, 1979
    
    R. L. JARRELL vs. DEPARTMENT OF HIGHWAYS
    (No. CC-78-172)
    Claimant appeared in person without counsel.
    
      Henry Haslebacher, Attorney at Law, for respondent.
   RULEY, JUDGE:

Although several residents of Greer Road, a secondary road in Mason County, joined in filing this claim, only the claimant, R. L. Jarrell, appeared and prosecuted his portion of it. His claim is for damage to his pickup truck and station wagon allegedly caused during 1977 and 1978 by disrepair of a three-mile stretch of Greer Road over which he was obliged to drive in order to reach his home. In support of his claim, an invoice in the sum of $105.77 for repair of the exhaust system on the truck, an estimate in the sum of $107.80 for replacement of four heavy-duty shock absorbers on the truck, and an estimate in the sum of $175.00 for repairs to the front end of the station wagon were offered and admitted into evidence. Mr. Jarrell testified that from September, 1977, when he moved to Greer Road, until August, 1978, when it was re-surfaced, the three-mile stretch of road was in such a state of disrepair that it took approximately fifteen minutes to drive over it, for motorists had to stop almost completely in order to negotiate the deeper holes. During that period of time, Mr. Jarrell often complained to the respondent’s superintendent in Mason County, but to no avail. The respondent offered no evidence. The evidence which was adduced establishes negligence on the part of the respondent. The doctrine of assumption of risk is asserted as a defense, but it is apparent that it has no application, because it applies only when a claimant voluntarily elects to travel over a dangerous route when an alternative safe route is reasonably available. See Ratcliff v. Dept. of Highways, 11 Ct. Cl. 291, at 293 (1977). It does not appear that the claimant was guilty of contributory negligence by failing to exercise ordinary care for his own safety. As stated in 13B Michie’s Jurisprudence “Negligence”, §24:

“The essence of contributory negligence is carelessness; of assumption of risk, venturousness.”

There was no proof that the claimant was either careless or venturous. Mr. Jarrell candidly conceded that approximately twenty-five percent of the estimate for repairs to the front end of his station wagon should be charged to use before he began to travel over Greer Road and that the truck’s shock absorbers previously had 20,000 miles on them. For those reasons, the Court believes that the sum of $291.42 would compensate him fairly for his damage, and an award in that sum is hereby made. All of the other claims are dismissed for failure to prosecute.

Award of $291.42.  