(No. 4409

#### Margaret M. Weese, admx., et al, Claimant, vs. State of Illinois, Respondent.

Opinion filed April 14, 1952.

Hemphill and Kelsey, Attorneys for Claimant.

Ivan A. Elliott, Attorney General; C. Arthur Nebel, Assistant Attorney General, for Respondent.

Delaney, J.

Margaret M. Weese, as administratrix of the estate of Charles F. Weese, is the claimant in this case. She was appointed administratrix of the estate on July 19, 1950 by the County Court of Macoupin County, Illinois. It is alleged in the complaint that the said Charles F. Weese came to his death on March 11, 1950, as the direct and proximate result of the negligent and careless manner in which the respondent maintained one of its highways, to-wit, Illinois State Route No. 111.

*211The record consists of the original copy of complaint with attached Letters of Administration, copy of complaint, motion of respondent for an extension of thirty days in which to file pleadings, answer of respondent, reply of claimant to answer of respondent, transcript of evidence, abstract of evidence, and waiver of claimant of right to file statement, brief and argument.

The testimony of witnesses showed that at about 8:00 A.M. on the date of March 11, 1950 the claimant’s intestate, Charles F. Weese, was driving and operating ah automobile in a general northerly direction, upon, along and over Illinois State Highway No. 111. At a point approximately three miles south of the Village of Brighton, Jersey County, Illinois, his automobile was driven over a part of the highway, which it is claimed respondent had allowed to become and remain in a dangerous and hazardous condition. It is further claimed that the surface of the highway at this point had become uneven, and there was a large hole between 3 inches and 6 inches in depth, and about 36 inches across. At that same point on the highway the hole, when struck by the automobile in which Mr. Weese was riding, caused his automobile to be thrown into and upon the west lane of the said highway into the path of a truck, which was being driven in the opposite direction. This collision between the truck and Mr. Weese’s automobile resulted in Mr. Weese receiving fatal injuries.

Melvin Stone testified that the speed of Mr. Weese’s car, at the time of the accident, was under 45 miles per hour. The car of deceased traveled about 150 feet after hitting the hole, and before colliding with his truck. His truck struck the car of deceased where the door fastens on the windshield.

*212George Kruse testified that he drove over the spot where the accident occurred five days a week, and also about ten minutes before the accident occurred. He stated that there was a rough black top patch at that point, which was down about 3 inches.

James L. Benson testified that the truck and car stopped after the accident about 100 feet from the break in the pavement.

Wilson Shultz testified, when asked to describe the break in the pavement where the accident occurred, that “it was not too big a break, and it was noticeable”.

Marion L. Laubscher, in his testimony, stated that the condition of the highway at the place of the accident on March 10, 1950 was wavy, with no holes.

Alfred Watson, in his testimony, stated that he 1 passed over the break in the pavement on March 11, 1950 at a speed of 45 miles an hour to see how rough it was. He stated that his steering wheel did not jerk, nor turn the wheel.

Claimant, having failed to present sufficient proof of any negligence on the part of the respondent, the State of Illinois, as being the proximate cause of the collision between the truck and Mr. Weese’s automobile, and resulting fatal injuries to Mr. Weese, must be denied an award, and said cause is hereby dismissed.