Wise v. Department of Highways

At or about 9:45 p.m. on the evening of March 28, 1977, the claimant was operating his 1974 Chevrolet Nova automobile in a southerly direction on Route 214 in Kanawha County, West Virginia, approximately 10-12 miles south of the City of Charleston. Route 214 in this area is a two-lane blacktop road, and, according to measurement, is 21 feet in width. The claimant had just negotiated a slight turn to the right on a relatively level area of the road. The weather was clear and the road was dry.

*99The claimant testified that, as he emerged from the right-hand turn at a speed of about 40 miles per hour, he observed a large pothole on the right-hand side of his lane of travel about 30 feet in front of him. Upon seeing this pothole, the claimant turned his car to the left' and into the northbound lane of travel, but, upon observing two northbound cars almost upon him, he turned his car back to the right. As a result, his right front and rear wheels struck the pothole. The car was then thrown to the left, and, in order to avoid the oncoming northbound cars, he again steered to the right. Apparently, he reached the right berm and lost control of the car. The vehicle then went to the left side of the road again, narrowly missing the second of the two northbound vehicles, struck a cut stone mailbox, proceeded further to the east, and overturned in a creek which meandered along the east side of Route 214. Claimant’s car, in his opinion,Rad a fair market value on the date of the accident of $2,500.00. The car was completely demolished, but he did receive $100.00 for its salvage value. Claimant further indicated that he paid to the owner of the cut stone mailbox the sum of $100.00 as restitution for the damage the claimant inflicted on the mailbox.

Claimant testified that after the accident, he inspected the pothole and found it to be about 12 inches deep, from 18 to 24 inches wide, and about 18 inches long. Claimant testified that the hole had been filled two days after the accident. He further indicated that, while he traveled the road infrequently, he had never observed the hole prior to the accident. However, one of claimant’s witnesses, John Graley, III, who was operating the second of the two northbound vehicles, testified that the hole had been in existence for at least a month and a half. Contrary to the testimony of the claimant, Mr. Graley stated that the pothole was located some 120 to 125 feet south of the point where a southbound motorist would have negotiated the right-hand turn.

Lewis Caruthers, one of respondent’s foremen in Kanawha County, testified that in both January and February of 1977, his crew had spot-patched Route 214. In addition, Mr. Caruthers demonstrated through foreman’s time sheets for March 7, 8, 9, and 10, 1977, the respondent was engaged in spot-patching on Route 214. He further stated that he was unaware of the existence of the subject pothole on or prior to the night of claimant’s accident.

This Court has held, in a litany of cases, that the respondent is not an insurer of motorists using the highways of this State, but *100only owes the duty to exercise reasonable care to maintain the highways in a reasonably safe condition. Claimant, although being unrepresented by counsel, presented his claim in a very thorough and capable manner. However, the Court is of the opinion that he failed to demonstrate by a preponderance of the evidence that the respondent knew or should have known of the existence of this pothole, and the claim must accordingly be disallowed.

Claim disallowed.