Ney v. Department of Highways

Near midnight on February 21, 1979, the claimant was traveling on Route 60 from Charleston, West Virginia, to her home in Eastbank. She and two companions were returning to their homes after attending a rock concert in Charleston, and, as the claimant testified, she was reducing her speed of 55 miles per hour as she neared an area near Belle where the road narrows from four lanes to two lanes. Claimant further testified that she had traveled over the same section of the road about a week or ten days before, and *134noticed a rather large pothole which appeared to have been patched.

Claimant was unable to testify as to the dimensions of the hole, but stated that both her right front and rear wheels struck the hole, rupturing both tires and bending the rims of both wheels, causing damages in the amount of $178.49. One of the passengers, James J. Shuff, who was seated in the right front seat, testified that he did not see the hole before the car struck it, but was of the opinion that the hole was from six to ten inches in depth. Mrs. Ney testified that she observed the hole when she was approximately 20 feet from it, but was unable to maneuver her car to avoid it.

No testimony was introduced from which this Court could conclude that the respondent knew or should have known of the dangerous condition of this section of Route 60. Therefore, in accordance with a multitude of prior decisions of this Court, we must disallow this claim simply on the basis that the respondent is not an insurer of the safety of motorists using the highways of our State.

Claim disallowed.