OPINION ISSUED MARCH 27, 1987
SANDRA MCELHENIE, PERSONAL REPRESENTATIVE OF THE ESTATE OF
MARVIN MCELHENIE, DECEASED
DEPARTMENT OF HIGHWAYS
William S. Steele and Ted Kanner, Attorneys at Law, for claimant.
Nancy J. Aliff, Attorney at Law, for respondent.
This is a wrongful death action which arises out of a truck
which occurred on June 2,
1983. The wife of the deceased driver of the truck, Sandra
alleges negligence on the
part of the respondent for its failure to provide warning signs at
The claimant and respondent, by their attorneys, entered into a
stipulation wherein the parties
agreed to the following facts. The date upon which this accident
occurred was June 2, 1983.
The location of the accident was the intersection of Routes 52 and
Mingo County. Sandra
McElhenie is personal representative of the Estate of Marvin Earl
McElhenie. Marvin Earl
McElhenie died as a result of the accident. On the date of the
there were no signs
warning drivers to use lower gears on the downgrade at the scene.
52, approaching the
State Route 65 intersection, is an 11 percent downgrade. The
does not allege a defect
in roadway surface or design.
The decedent was operating a semi-tractor and trailer loaded with
wooden planks. He was
proceeding down Buffalo Mountain which approaches the intersection
U.S. Route 52 and
State Route 65, Mingo County. He apparently lost control of the vehicle
at some point on the
hill. The tractor-trailer rig overturned at the intersection, and
McElhenie died as a result
of the accident.
Randy Stepp, a deputy sheriff, investigated this accident. He
the site of the accident
as being a "T intersection." He stated that it is at the bottom of
mountain. He approximated
the down grade to be a mile and a half from the crest of the hill.
further revealed that, from
the evidence of his investigation, he discerned that the driver of
rig lost control at the foot of
Schela Sydnor, employed by respondent in the Personnel Division,
District 2, took citizens'
complaints concerning roads in the spring of 1983. She identified
complaint made by Abraham
R. Evans concerning the high speed of the tractor trailers at the
of the accident in question in
April, 1983. The complaint letter requested a sign indicating the
of the hill. When queried,
she stated that she reviewed the complaint records from 1980
June 2, 1983. The
complaint made by Mr. Evans is the sole complaint which she
for that time period.
Ken Kobetsky, Director of the Traffic Engineering Division of
respondent, testified that there
were warning signs for down grades on less than 11 percent of the
in West Virginia. He
further stated that he assumed it is probably true that there are
warning signs for stretches of
down grade that are less than 8,000 feet in length. Mr. Kobetsky
that there were no signs
indicating the down grade, but
there were signs that the decedent passed coming up the hill which
indicated that there was a
Floyd McElhenie, brother of the deceased and a certified licensed
mechanic in Michigan,
stated that he is familiar with the truck involved in this
testified that repairs had
been done on the truck before June 2, 1983. These repairs included
replacing the rear brake
lining and the maxi brake system. He examined the truck after the
accident and determined that
the brakes were functioning when the deceased proceeded down the
He also stated that
there was a 15 mile- per-hour speed limit sign with a curve sign
attached to it at the top of the
mountain before the downgrade portion of the road begins.
The contention of the claimant that the respondent was negligent
failing to properly place
grade signs indicating that the grade of Route 52 required special
attention to braking is a
contention without merit. It is the opinion of the Court that
on the part of the
respondent has not been established. The principle of law that
travel at their own risk
was enunciated by the Supreme Court of Appeals in Adkins v. Sims,
W.Va. 645, 46 S.E.
2d 81 (1947). This Court has adhered to that principle consistently
former opinions. See
Bickerstaff v. Dept. of Highways, 11 Ct.Cl. 254 (1977) and Ct.Cl.
(1977) and Cassel v.
Dept. of Highways, 8 Ct.Cl. 254 (1971).
The record in this claim reveals that the decedent was unfamiliar
this section of highway in
West Virginia. For reasons unknown to the Court, the decedent lost
control of the tractor-trailer
rig which he was operating on a down-grade of Route 52. To make an
to the claimant
would require speculation on the part of the Court. This Court
to resort to speculation
in the determination of a claim.
For these reasons the Court is constrained to and does disallow