(No. 1279

#### Carroll D. Schnepp, an individual, doing business as Carroll D. Schnepp Co., Claimant, vs. State of Illinois, Respondent.

Opinion filed January 15, 1929.

Penick, Adair & Penick, for claimant.

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

Mr. Justice Leech

delivered the opinion of the court:

The claimant represents that on the 6th day of October, 1927, he was the owner of a Chrysler Coupe, Model Sixty, purchased new April 9th, 1927; that on October 6th, 1927, the claimant was driving the said Chrysler Coupe, bearing an Illinois automobile license for the year 1927 numbered 1-004-054, from the City of Pittsfield, Illinois, to the City of Barry, Illinois, in Pike County.

Claimant further states that he was driving and operating the said automobile upon the State hard surfaced road, Route number Thirty-six approaching the City of Barry, Illinois, about three miles therefrom, that while so driving on the concrete slab of said road the claimant began the ascent of a grade or incline and when he neared the top of the ascent the grade or incline a machine or device commonly known as a traffic line marker, which was being used for the purpose Of marking a black line in the center of the concrete slab on said highway and said Traffic Line Marker was in the rear of and connected to a motor vehicle belonging* to the State of Illinois.

Claimant further represents that as he proceeded, with due care and caution, having proper regard for his own safety and for the safety of others, and when about four hundred feet from said Traffic Line Marker, this claimant saw several men motioning him to stop his automobile.

The claimant further represents that he did stop and did drive his automobile as far off the concrete slab as the shoul*125der at the right hand side of said concrete slab would permit.

The claimant further represents that the Traffic Line Marker by some means unknown had become disconnected from said automobile truck and under its own weight and pull of gravity began to descend the grade or incline gaining speed as it approached the automobile' occupied by this claimant.

The claimant further represents that said Traffic Line Marker was travelling "at a great rate of speed and it swerved into, struck and collided with the claimant’s automobile, damaging claimant’s automobile in the sum of Five Hundred Ninety-one and 40/100 ($591.40) Dollars.

The Attorney General filed a demurrer which as a matter of law is sustained.

The Attorney General also filed a statement and attached thereto is a letter signed by Frank T. Sheets, Chief High-way Engineer, which is as follows:

> “Court of Claims December 8, 1928.

> Hon. Oscar E. Carlstrom,

> ■Attorney General Supreme Court Building Springfield, Illinois My dear Mr. Carlstrom:

> Answering your communication of November 20th, with reference to the above mentioned case, we have examined the report made by the party in charge of the State truck and marker at the time the accident occurred, and from the report it appears that the accident was unavoidable.

> Therefore, we feel that Mr. Schnepp is entitled to reimbursement to the extent of the actual amount of money expended on the repairs to his car, which as we understand from your letter amounts to $191.40.

> Very truly yours,

> Director.

> (Signed) Frank T. Sheets,

> Chief Highway Engineer:

The Attorney General recommends that the court allow the claimant the sum of One Hundred Ninety-one and 40/100 ($391.40) Dollars.

Acting in accordance with the letter of the Chief Highway Engineer and the recommendation of the Attorney General, the court allows the claimant the sum of One Hundred Ninety-one and 40/100 ($191.40) Dollars as full damages in this case.