Riner v. Department of Highways

The claimant’s automobile, a 1973 Cadillac, was damaged in the sum of $244.25 at about 10:00 a.m. on Monday, October 18, 1982, at the intersection of Center Street and Second Avenue in Prosperity, Raleigh County, West Virginia. Center Street was in the process of being repaved at the time of the accident. As the claimant turned off of Center Street and onto Second Avenue, he encountered a drop-off where the pavement had not been levelled with Second Avenue. The claimant testified that the drop-off was about a foot high but Bobby Daniels, an employee of the respondent, testified that the drop-off was about six inches. Respondent’s employees had begun the *433paving operation the previous Friday, but stopped when the paving machine broke down. The asphalt was raked down to try to even out the road, and the work crew returned on the day of the accident to finish the project.

The evidence clearly established that the respondent created a hazardous condition in the roadway. However, it was also established with equal clarity that the claimant was aware of that condition.

He testified that he had driven another vehicle over the same drop-off the night before. At the time of the accident, the claimant testified that he drove over the drop-off slowly, believing his car would not drag, but, unfortunately, it digl with the resulting damage to the exhaust system. In view of the circumstances, it appears that the claimant was guilty of negligence which equalled or exceeded that of the respondent; therefore, the claim must be denied.

Claim disallowed.