(No. 792

#### J. A. Eisele, Claimant, vs. State of Illinois, Respondent.

Opinion filed May 1, 1925.

J. E. Malone, Jr., for claimant.

Oscar E. Carlstrom, Attorney General ; A. E. Campbell, Assistant Attorney General, for respondent.

Mr. Justice Leech

delivered the opinion of the court:

This case comes before the court on a declaration filed by J. A. Eisele, in which he alleges that on October 27,1922, while *152driving Ms Packard tónring car from the city of LaSalle, LaSalle county, Illinois, to Chicago, Cook county, Illinois, traveling upon the cement road known as Temporary Route 7, and at a point upon said State road about twelve miles east of the city of Morris, Grundy county, Illinois, said Packard touring car was damaged by collision with a large truck owned, controlled and used by the Department of Public Works and Buildings of the State of Illinois, in the maintenance and upkeep of State roads, and claimant alleges that accident occurred through the negligence and carelessness of the driver of said truck.

The State of Illinois, by the Attorney General, filed a demurrer, which, as a matter of law, is sustained.

From the testimony, which has been carefully examined, it appears that the driver of said Packard car, J. A. Eisele, was driving at the rate of 35 miles an hour; that it was a wet, raiiiy morning; that he attempted to pass the truck above mentioned, which truck was traveling at the.fate of about ten miles an hour; that when he saw he was unable to pass said truck, he turned to the right and applied his brakes and that it was impossible at that time to avoid a collision. We believe that the driver of the said Packard car was guilty of contributory negligence, disregarding weather' conditions, and traveling at a high rate of speed; hence the demurrer filed by the Attorney General is sustained.