
    (No. 376
    HAZEN H. FAIR, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed October 13, 1944
    
    
      John K. Chase, Esq., for the claimant;
    W". Bryan Spillers, Esq., assistant attorney general, for the state.
   G. H. A. KUNST, Judge.

On the 16th day of August, 1941, Hazen H. Fair, a trucking contractor, had six trucks engaged in hauling coal from Hitchum Coal Company’s plant in Benwood, West Virginia, to industrial plants in Moundsville, West Virginia. While Levi Conner, one of his operators was driving a 1941 Chevrolet one and one-half ton empty dump truck along state route no. 2, commonly known as the Narrows Hill Road, about 3:30 o’clock in the afternoon, the truck bed was struck by a cut stone, approximately two feet by nine or ten inches square, which had rolled from the hillside, and broke through the steel bottom of truck, damaging the truck bed beyond repair. Claimant alleges accident was caused by negligence of respondent’s workmen engaged in building a retaining wall above the cliff over which the stone rolled and for which damages he asks for an award of $373.00 against the respondent; the driver of truck is in the armed forces and could not be introduced as a witness. Claimant was the only witness in his behalf and his testimony concerning the accident was largely based upon what he had been told by his driver. The evidence of state’s witnesses, employees of respondent, supported by copies of their daily reports, shows that no work was being done by respondent at that time and date at this point, although claimant stated that on that afternoon he went to hilltop and that a number of men were then there employed in dressing stone and building a wall.

Evidence does not show negligence of respondent and no award is made.  