CHARLES TOLER, Claimant, v. STATE OF ILLINOIS, Respondent. Opinaon filed. Jund 5, 19-47’. I?. LOWENSTEIN, f o r claimant. EDWIN
Case summary
Claimant sought $88.76 for damage to his 1946 Ford sedan caused by an unmarked excavation on Highway 37. The court found respondent negligent and awarded $50.00 to claimant and $38.76 to his insurer by subrogation.
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Headnotes
- HIaHwAY-DU~UgeS-clUi~nt d r w e his a u t w o b i l e into unguardkd excavation an road-when award f o r damages tlbereof justified. Where there i s a showing that the State negligently failed to warn against, barricade or guard an excavation in the road where a portion of the pavement had been removed, and that because of the rain and darkness claimant drove his automobile into said excavation thereby damaging the same, an award for said damage is justified.
Claimant fled his claim on March 26,1947 to recover the sum of $88.76 for damages to his 1946 Ford sedan caused by an open excavation on Highway 37 on October 25, 1946.
The record consists of the Complaint, Respondent’s Answer, Claimant’s Waiver of Brief, and Respondent’s Waive; of Brief. The claimant alleges, that the evidence
’ shows, that on or about October 25, 1946 claimant was driving along a portion of Highway 37 at about 7:30 in the evening at a point approximately about 4 miles south of the City of Marion, and while so driving drove into an excavation in the road ,where a portion of the pavement had been removed.
The evidence further shows that this excavation measured about 6’ x 9’ to the full depth of the pavement approximately 8”; that it was a dark, rainy evening, and the excavation was filled with water; that there was no light, barricade, or anything else to warn the claimant of this dangerous condition j that as a direct and proximate [*316]
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result of the iiegligenlce of the respondent, claimant’s
1946 Ford Sedan was damaged to the extent of $88.76;
that there was paid to claimant by the American States Insurance Company the sum of $38:76 because of a collision insurance policy they carried on his car, and to which amount the coGpany is entitled to reimbursement by reason of its right to subrogation under the policy; and that the claimant has not received feimbursement of the $50.00 damage sustained by him. v
The evidence further shows that the claimant was the sole o*er of the car which was damaged as aforesaid.
Claimant is entitled to an award in the amount of I $50.00 covering the unreimbursed amount of his damage, and also an award of $38.75 for the use of American States Insurance Company.
An award is therefore entered in favor of claimant, Charles Toler, for the sum of $50.00, and an award is also entered to Charles Toler for the use of American States Insurance Company for the sum of $38.76.