(No. 1332

#### Allyn C. Breed, Claimant, vs. State of Illinois, Respondent.

Opinion filed January 15, 1930.

Soholes, O’Connor & Dougherty, for claimant.

Oscar E. Carlstrom, Attorney General; Roy D. Johnson, Assistant Attorney General, for respondent.

Mr. Chief Justice Clarity

delivered the opinion of the I court:

It appears that claimant, was riding from Freeport, lilinois, enroute to Rock Island, Illinois, on the fifth day of July, 1927, the car being driven by the wife of claimant by whom it is alleged that the car was being driven at the rate of thirty to thirty-five miles an hour and at a point about three miles East of Morrison, Illinois, in passing another automobile going in the opposite direction, the right rear wheel dropped off the pavement and in an attempt to get the car back on the pavement, on account of the alleged fact that the shoulder was six inches below the pavement, which caused the car to swerve and run off the road into the ditch injuring the claimant’s wife and daughter.

From all of the facts and circumstances in the case, it would not appear that a prudent driver would recognize a necessity of going off the pavement under the circumstances in question and therefore, it is the opinion that no action should lie against the State of Illinois.

It is also shown that the shoulder was not six inches below the pavement and that if reasonable caution was exercised by the driver of the. car in question, that no accident should occtir.

This court recommends that this claim be disallowed.