(No. 3049

#### Edgar G. Merwin and Carrie Merwin, Claimants, vs. State of Illinois, Respondent.

Opinion filed March 11, 1941.

Frederick L. Habbegger, for claimant.

George F. Barrett, Attorney General; Glenn A. Trevor, Assistant Attorney General, for respondent.

Mr. Justice Linscott

delivered the opinion of the court:

*460This case is before the court on a motion to dismiss the complaint which consisted of two counts.

The first count alleges that Edgar G~. Merwin was the owner of a Packard automobile, which he was driving in a .northerly direction over State Highway No. 3, also known as United States Highway No. 67, between Jerseyville and Carrollton, Illinois, and that his wife, Carrie Merwin, was riding as a passenger with him; that they were in the exercise of due care and caution for their own safety and that of the property of the claimant, Edgar G-. Merwin; that at the time the State owned and operated an automobile, and was operating the same by its servants; that as the claimants were traveling on the highway, without any warning, the servant of the State backed his car rapidly upon the highway at such time and in such a manner that the claimants could not avoid running into him, and both claimants suffered severe injuries.

Count I alleged damages in the sum of $5,000.00 and Count II alleged damages in the sum of $1,000.00.

A motion to dismiss was made by the Attorney G-eneral. We will consider that motion.

The facts set forth in the complaint are sufficient to show negligence on behalf of the servant of the State, a resulting injury and damages, and to show that the agent of the State was an employee of the Highway Department and that the State was engaged in a work that comes fairly within its governmental powers.

Many times this court has held that the State, in the construction and maintenance of its hard-surfaced highways, is engaged in a governmental function.

> Chumbler vs. State, 6 C. C. R. 136;

> Highland vs. State, 6 C. C. R. 384;

> Bucholz vs. State, 7 C. C. R. 241;

> Wilson vs. State, 8 C. C. R. 72;

> Wetherholt vs. State, 8 C. C. R. 100.

Also that in the exercise of such governmental functions it is not liable for the negligence of its servants or agents, in the absence of a statute making it so liable.

> Braun vs. State, 6 C. C. R. 104;

> Chumbler vs. State, 6 C. C. R. 138;

> Bucholz vs. State, 7 C. C. R. 241;

> Baumgart vs. State, 8 C. C. R. 220;

> Childress vs. State, 8 C. C. R. 223;

> *461 Ryan vs. State, 8 C. C. R. 361;

> Kramer vs. State, 8 C. C. R. 31;

> Johnson vs. State, 8 C. C. R. 67;

> Wilson vs. State 8 C. C. R. 72.

Such decisions of this court are in harmony with repeated decisions of our Supreme Court.

> Hollenbeck vs. County of Winnebago, 95 Ill. 148;

> City of Chicago vs. Williams, 182 Ill. 135;

Minear vs. State Board of Agriculture, 259 Ill. 549;

Gebhardt vs. Village of LaGrange Park, 354 Ill. 234.

We must, therefore, sustain the motion to dismiss made by the Attorney General and deny an award.