OPINION ISSUED DECEMBER 29, 1988
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
Claimant is the former owner of a 1981 Chevy truck which was
when it stuck an
uncovered hole on the Dawes Bridge, Cabin Creek, Kanawha County, on
September 20, 1987.
The hole had been covered with a metal plate which was missing on
day of this incident. The
automobile required two new tires and an alignment job in the
Claimant testified that it was dry and that he was travelling at
miles per hour. He travels
this route frequently and had contracted respondent three days
this incident concerning
the missing plate. The day following his complaint, the plate was
replaced. Claimant was
following a coal truck at the time of this incident, and he stated
coal trucks knock the plate
off the hole. Although the respondent may have had actual notice of
existence of the missing
plate, the claimant was operating his vehicle at a speed which was
excessive for the known
hazardous condition of the road. (Jarrell vs. Dept. of Highways,
issued January 15,
It is the opinion of the Court that although the respondent may
been negligent, the
negligence of the claimant was equal to or greater than that of the
respondent. The Court
therefore denies the claim.