OPINION ISSUED FEBRUARY 14, 1989
DARLENE S. FEDERER
DEPARTMENT OF HIGHWAYS
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
On June 24, 1988, claimant was travelling on Route 14 in the
of Clarksburg, Harrison
County. As she drove across railroad tracks which were raised above
normal level of the
road, her vehicle was damaged. She seeks $168.40 which is the
the cost of repair to
Claimant testified that the automobile which she was operating was
1977 Plymouth Volare
which is titled in her name. She explained that she was accompanied
the vehicle by her
children. They had been swimming at Sycamore Lake and were
home to Clarksburg.
The railroad tracks were approximately a quarter of a mile from old
Route 50. She had travelled
to Sycamore Lake by means of Route 50, but she returned by an
route as it was more
scenic. She had been on this route two years before the incident
therefore, she was not
aware of the condition of the railroad crossing. She was travelling
30 to 35 miles per hour.
Her automobile required alignment and welding to the muffler. She
replaced the hubcaps
and bought two retread tires to replace two tires which had been
damaged. Claimant alleges that
there had been construction work going on in the area of the accident
site and the railroad track
had been removed. She also contends that respondent was negligent
failure to erect warning
devices at this area.
Ronald Cook, Harrison County Maintenance Supervisor for
testified that he is
familiar with the accident site. There was a contractor hired by
remove the track, and
CSX Railroad was responsible for providing signs and maintaining
railroad track and the
crossing at this location at the time of claimant's accident. If
respondent is aware of a complaint,
it refers that complaint to CSX. Respondent had not received any
complaints regarding this
particular track prior to claimant's accident.
This Court finds that an independent contractor of CSX was engaged
and the respondent is not liable for negligence, if any, of such
independent contractor. Therefore,
the Court is of the opinion to, and does, disallow this claim.