Toth v. Department of Highways

This claim was originally filed in the name of Andrew Toth, but when the testimony disclosed that the damaged automobile, a 1974 Monte Carlo, was titled in the name of his father, Alex Toth, the Court on its own motion amended the style of the claim to reflect Alex Toth as the claimant.

Andrew Toth was driving his father’s automobile on Febru*481ary 14, 1983, on Route 16, south of Squire, McDowell County, West Virginia. It was 8:30 p.m., and he was travelling at 35 - 40 mph when he struck a crack or a slip in the road. The vehicle’s transmission and alignment were damaged in the amount of $491.95. Mr. Toth stated he had not travelled the road for several months prior to February 14, and did not notice any signs warning of the condition.

Testifying for respondent was Thomas O. Henderson, Jr., McDowell County Maintenance Superintendent. He stated that he had been informed of the road’s condition on February 9, 1983. On February 13, 1983, he placed “Rough Road” signs in both the north and southbound lanes of Route 16, approximately 500 feet from the crack or slip.

The evidence presented established that respondent had placed warning signs in the location of the damaged area of the road. Mr. Toth, by his own testimony, did not observe these signs. The Court concludes, therefore, that the negligence of the driver was equal to or greater than any negligence on the part of the respondent. The Court is of the opinion and does deny the claim.

Claim disallowed.