OPINION ISSUED APRIL 30, 1986
ELMER PACK & JANICE DAILEY
DEPARTMENT OF HIGHWAYS
Thomas R. Parks, Attorney at Law, for claimants.
Andrew Lopez, Attorney at Law, for respondent.
In the evening of April 22, 1982, claimants Elmer Pack and Janice
Dailey, the granddaughter
of Elmer Pack, were travelling by automobile from Williamson, Mingo
County, to the
unincorporated community of Holden in Logan County.
Claimant Elmer Pack, who was operating the vehicle at
miles per hour, took
Route 65 to U.S. 119 into Holden. In the area of Batchelder and
Streets, he observed
two signs. The first sign had an arrow pointing to the left. The
sign read 'One Lane
Bridge." Claimant Pack had not driven this particular route since
In 1947, one might have
proceeded straight onto Trace Street and over the Trace Creek
Since that time, the
bridge over Trace Creek had been removed and a barrier erected to
prevent traffic from going
into the creek. Traffic had been rerouted, turning left and
different bridge, one which
had originally been a two-lane bridge but was later made a one-lane
bridge because the
sidewalk on the bridge collapsed. On this occasion, claimants
onto Trace Street and
drove into the creek. Claimants seek $200,000.00 for personal
and for damage to the
It is the position of the claimants that the respondent was
for failing to erect a warning
barrier and for failing to remove the "One Lane Bridge' sign.
There was conflicting evidence regarding the issue of whether
Street was under the
maintenance and control of respondent in 1982.
Eric O'Briant, who lived on Trace Street in April 1982, testified
when he moved to that
address in 1981, there was no bridge there; that there was a
and on one occasion
O'Briant had witnessed respondent's truck replacing the barricade.
The evidence did not clearly establish that Trace Street is a part
the State road system. Nor
was there any evidence that respondent negligently erected barriers
Trace Street in the area of
the Trace Street bridge.
Ralph Brown, Jr., who had previously resided next to Eric
testified that the Island
Creek Coal Company removed the bridge at the intersection of
and Trace Streets
and put up barriers. He described the barriers as consisting of two
three barrels and "X"
marks to prevent people from going into the creek.
Harold Ronald Simmons, a research analyst with respondent,
that he could not say
whether respondent actually 'pulled maintenance on the road," but
Trace Street has been a
part of the State highway system since 1933.
Parris Preston Young, a retired employee of the Island Creek Coal
Company, testified, that
between 1979 and 1980, he helped remove the Trace Street bridge. He
assisted by a crew
in the employ of the Island Creek Coal Company.
John Wilson Braley, District Bridge Engineer with respondent,
that he was under the
impression that the Trace Street bridge was not included in the
system. He felt that "the
Trace Street bridge was merely a public road ... and, therefore,
respondent did not have
possession of it."
However, the Court finds that the claimants have failed to prove,
preponderance of the
evidence, that any negligence of the respondent caused their
and disallows the claim.