Matthew v. Department of Highways

This claim was originally styled in the names of Virgil Matthew and Nadine J. Matthew, but when the testimony indicated that the vehicle, a 1972 Ford LTD, was titled solely in the name of Nadine J. Matthew, the Court, on its own motion, amended the style to reflect that fact.

*94The claimant's husband, Virgil Matthew, testified that while operating his wife's vehicle on Route 5 at Prenter Hollow, Boone County, West Virginia, the vehicle struck a pothole. Claimant was a passenger in the vehicle at the time. The incident occurred on April 14, 1985, at approximately 7:00 p.m., or after dark. The claimant's husband was travelling 29 to 30 miles per hour and had the vehicle's lights on low beam. As a result of the incident, a tire and hubcap were damaged in the amount of $161.13.

Claimant's husband testified that he was familiar with that section of Route 5 and that he had observed the pothole previous to the incident. He also testified that he had notified respondent's office in Boone County, by telephone, a month prior to this incident. He could not identify the person who took his complaint. He complained about the general condition of Route 5 but not about this specific pothole. Although the respondent may have had actual notice of the poor condition of this road, the claimant's husband was familiar with the route and should have taken precautions necessary to avoid striking the hole in the road.

It is the opinion of the Court that . although the respondent may have been negligent, the negligence of claimant's husband was equal to or greater than that of the respondent. The Court therefore denies the claim.

Claim disallowed.