OPINION ISSUED AUGUST 10, 1987
ANAWALT WESLEYAN CHURCH,
PASTOR JAMES BARNARD
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
This action was filed to recover the cost of repair ($2,810.10) to
rented vehicle, the damage
to which occurred as the result of an accident on December 7, 1985.
Claimant failed to name
the respondent agency when the action was filed. The Court, upon
motion, amended the
style to include the Department of Highways as the proper party
The Reverend James Barnard, incoming pastor of the Anawalt
Church, was moving
to Anawalt, McDowell Count, from Cincinnati, Ohio, at the time of
accident. A truck was
rented from Budget Rent-A-Truck, Budget Rent-A-Car. He assumes that
contract for this
transaction was in the name of Kim E. Dewhurst, his brother-in-law.
Dewhurst was the
driver of the truck, but he was not present at the hearing.
Mr. Barnard, driving his own vehicle, and Mr. Dewhurst, driving
rental truck, were
travelling in a northwest direction on Jenkin Jones Road, at
approximately 11:30 p.m. It was
dark. Mr. Barnard was proceeding ahead of the rental truck at a
of approximately 150
feet. The highway is a blacktop road and is approximately a lane
half in width. Mr.
Barnard drove his vehicle under a railroad underpass without any
problems. However, the truck
was unable to clear the trestle, and damage occurred to the truck.
Negligence is alleged on the
part of respondent for its failure to place a warning sign as to
height of the underpass at this
Mr. Charles Raymond Lewis II, Planning and Research Engineer for
respondent, testified that
part of his duties is posting signs on the various State roads. He
stated that it is not mandatory
that clearance signs be posted on every road. He further stated
signs are posted on roads
such as Jenkin Jones Road, which is McDowell County Route 8, when
specific complaint is
received. He has no knowledge of any requests to post this
underpass. He is unaware
of any requirement that all underpasses under a particular height
Adkins vs. Sims, 130 W.Va. 645, 46 S.E.2d 81 (1947) determined
failure of the
State Road Commissioner to provide guardrails, place road markers
danger signals, and paint
center lines on paved highways does not provide a moral obligation
the State to compensate
a person injured on such highway. For this reason, the Court is of
opinion to, and does,
deny the claim.