Payne v. Department of Highways

GARDEN, JUDGE: Claimant was driving his 1975 Chevrolet van on Route 119, at Elkview, Kanawha County, West Virginia, on October 7, 1979. At approximately 1:00 a.m., claimant lost control of the vehicle and slid into a ditch line. The van, valued at $3,475.00, was a complete loss. Claimant alleges that respondent, in cleaning the ditch line earlier that day, had negligently left mud on the road, which caused claimant’s vehicle to skid, resulting in the accident. Respondent’s witness, Trooper M. J. Smith, an employee of the West Virginia Department of Public Safety, testified that he investigated the accident. He stated that he did not see mud on the road, and that the claimant had been drinking. Billy D. Ray, the foreman of the workcrew which had worked on the ditch line on October 6, 1979, stated that to his knowledge there was not a great deal of dirt left in the road. Mr. Ray stated that the road was cleaned after pulling the ditch line [331] and then fly ash was put on the road to minimize danger to motorists. Without a positive showing of negligence on the part of the respondent, this case is governed by the well settled principle of Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947), cited in Parsons v. State Road Comm’n., 8 Ct.Cl. 35 (1969), that the State is not a guarantor of the safety of travelers and the user of the highway travels at his own risk. The duty of the State in the maintenance of highways is one of reasonable care and diligence under all circumstances. The evidence in this case fails to establish a lack of reasonable care and diligence. See McCarthy v. Dept. of Highways, 12 Ct.Cl. 139 (1978). Accordingly, the Court denies the claim. Claim disallowed.