dissenting.
The amount of the claim involved in this case is small, but the principle involved is important and far-reaching. It will be observed upon the statement of facts contained in the majority opinion that at the time of the accident the state road commission, a governmental agency, was engaged in the exercise of a governmental function. It must be manifest that one who uses the highways of the stale is charged with the exercise of certain prudence and care. The right of the state in the exercise of a governmental function, in this case the spreading of cinders upon a highway or slippery road for the protection of *48those using the highway, is superior to the right or usage of said highway by the driver of a motor vehicle.
The record of the claim, prepared and filed in this court by the state road commission, is exceedingly meagre in its statement oí facts, and such record does not support the assumption of facts set forth in the majority opinion. Cinders were being spread upon the entire three-lane highway by two employes of the commission. The statement of claimant discloses that the driver of the motor vehicle recognized the work in which the employes of the commission were engaged, and contented himself with the mere blowing of the horn on the vehicle, and attempted to bypass the two workmen. He could not have been unaware of the danger into which he was driving his car. I cannot agree with the statement of the majority of the court that he was guiltless of contributory negligence, such contributory negligence as would defeat a claim for damages in a court of law of the state, if the state could be sued.
Since taxes may only be levied and collected for public purposes, any appropriation by the Legislature for the payment of the claim, for which the award is made, would necessarily have to be based upon the moral obligation of the state to pay it. Relying upon the West Virginia case of Bennett v. Sims, Auditor, 46 S. E. 13, which, in my judgment, would prohibit the Legislature from making an appropriation in favor of the claimant, I am unable to concur in the action of my colleagues.