OPINION ISSUED JULY 29, 1986
NADINE J. MATTHEW
DEPARTMENT OF HIGHWAYS
Claimant's husband, Virgil Matthew, appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
This claim was originally styled in the names of Virgil Matthew
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
reflect that fact.
The claimant's husband, Virgil Matthew, testified that while
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
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
incident, a tire and hubcap
were damaged in the amount of $161.13.
Claimant's husband testified that he was familiar with that
Route 5 and that he had
observed the pothole previous to the incident. He also testified
had notified respondent's
office in Boone County, by telephone, a month prior to this
could not identify the
person who took his complaint. He complained about the general
of Route 5 but not
about this specific pothole. Although the respondent may have had
notice of the poor
condition of this road, the claimant's husband was familiar with
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
been negligent, the
negligence of claimant's husband was equal to or greater than that
the respondent. The Court
therefore denies the claim.