OPINION ISSUED MARCH 24, 1988
WALTER M. SOUTH
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Andrew Lopez, Attorney at Law, for respondent.
On May 19, 1987, at approximately 12:00, noon, claimant was
Route 61/5 when
his vehicle struck a railroad spike located in the road. His
1984 GMC truck,
sustained damages in the amount of $54.60. Claimant seeks an award
the damage done to
the tire of his vehicle.
Claimant testified that he was travelling south on 61/5 enroute to
home. He was travelling at
approximately 25 mph and stated that the road was wet, due to rain,
previous to the accident.
He explained that the highway is a one-land road, and he had to
travel portion of the
road to permit oncoming vehicles to pass. As he left the road for
oncoming vehicle, his vehicle
made contact with the railroad spike. Claimant alleges that the
respondent had pulled ditches or
graded the road approximately a week prior to this accident and ...
"threw up these gravel."
Claimant's wife, Kathryn F. Sough, confirmed the testimony of
In addition, she stated
that she, her husband, and her daughter picked up 25 spikes in the
afternoon of the accident or
perhaps the next day. She described the spikes as about six, maybe
seven, inches in length. The
State is neither an insurer or guarantor of the safety of motorists
its roads. Adkins vs. Sims,
130 W.Va. 645, 46 S.E.2d 81 (1947). In order for the respondent to be
found liable for the
damage sustained, proof of actual or constructive notice of the
must be shown. Since there
was no proof in this case that respondent had notice of the defect,
claim must be denied.