OPINION ISSUED DECEMBER 29, 1988
THOMAS TREADWAY
VS.
DEPARTMENT OF HIGHWAYS
(CC-87-417)
Claimant appeared in person.
Nancy J. Aliff, Attorney at Law, for respondent.
PER CURIAM:
Claimant is the former owner of a 1981 Chevy truck which was
damaged
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
the
day of this incident. The
automobile required two new tires and an alignment job in the
amount of
$175.77.
Claimant testified that it was dry and that he was travelling at
35-40
miles per hour. He travels
this route frequently and had contracted respondent three days
prior to
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
that
coal trucks knock the plate
off the hole. Although the respondent may have had actual notice of
the
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,
Opinion
issued January 15,
1986)
It is the opinion of the Court that although the respondent may
have
been negligent, the
negligence of the claimant was equal to or greater than that of the
respondent. The Court
therefore denies the claim.
Claim disallowed.