OPINION ISSUED FEBRUARY 13, 1986
A. E. QUEEN AND PAULINE QUEEN
DEPARTMENT OF HIGHWAYS
Claimant A. E. Queen for claimants.
Andrew Lopez, Attorney at Law, for respondent.
On February 21, 1985, claimant A. E. Queen was travelling at
approximately 7:30 p.m. in his
1980 Toyota Corolla on Route 52, from Bluefield to Mount Gay, when
automobile hit a
rock. His friend, Haskell Stamper, was driving the car. Claimant A.
Queen originally filed this
claim in his own name; however, the record reflects that the
is titled in both the name
of A. E. Queen and that of his wife, Pauline Queen. The Court, on
own motion, amended the
style of the claim to include Pauline Queen as a party claimant.
The claimant, A. E. Queen, testified that the rock was about two
wide and about three
and one half to four feet long. Haskell Stamper testified that they
travelled the same route
on the morning of the incident and that the rock had not been
Benny Ellis, a Sergeant with the Mingo County Sheriff's
testified that he notified
respondent of the rock when he became aware of it, about ten
before the accident
occurred. Ellis personally observed the removal of the rock while
claimant, A. E. Queen,
and Haskell were waiting for the tow truck.
The law of West Virginia is well established that the State is
an insurer nor a guarantor
of the safety of persons travelling on its highways. Adkins vs.
130 W.Va. 645, 46 S.E. 2d
81 (1947) . In this instance, respondent effected a remedy
upon notice of the road
defect. The claim must be denied.