
    (No. 4497
    Gene W. Mason, Claimant, vs. State of Illinois, Respondent.
    
      Opinion filed March 20, 1953.
    
    
      Petition of Claimant for rehearing denied May 12, 1953.
    
    Musgrave, Ewins, Price and Notz (John H. Hanson of Counsel), Attorneys for Claimant.
    Latham Castle, Attorney General; William H. Sumpter, Assistant Attorney General, for Respondent.
   Lansden, J.

Claimant, Gene W. Mason, seeks to recover from respondent for its alleged negligence in allowing defects to exist in one of its highways, as a result of which an accident occurred, and claimant sustained personal injuries and damages to his property.

The scene of the accident was in Cook County on State Highway No. 21, commonly known as Milwaukee Avenue, a short distance north of Dempster Street, and almost in front of the Ballard Road Highway Police Station. Milwaukee Avenue at such place was controlled and maintained by respondent.

On July 5, 1951, at about 7:30 A.M., claimant and his brother were returning to Chicago from a holiday trip to Wisconsin. Each was riding a motorcycle, and claimant was leading at a speed of about 50 miles per hour. Claimant struck some defect in the highway, which upset his motorcycle, and caused his injuries and damage to his property. The brothers had traversed the same road on July 3,1951 going north to Wisconsin.

The Departmental Report of the Division of Highways, which was admitted in evidence, reads as follows:

“On and prior to July 5, 1951, that part of State Bond Issue Route No. 21 (Milwaukee Avenue) between River Road on the north and Harlem Avenue on the south was under contract for repairs, widening, and resurfacing. Two contracts were involved — the first for patching and widening, and the second for resurfacing.

The work was proceeding from north to south, and active work of either contractor had not reached as far south as Ballard Road by July 5, 1951.

Immediately south of River Road on the west shoulder of the highway a Division of Highways’ Standard X-13 sign was erected in April, 1951, and was in place on July 5, 1951. This sign is 72" x 96" in size, and bore the following legend:

Route 21
Chicago — River Road Under Construction Patching, Widening and Resurfacing This road is being kept open for your convenience DRIVE WITH CAUTION

In addition to, and to the south of the foregoing sign, another Standard S-20A was erected. This sign is 36" x 36" in dimension, and bore the legend “ROUGH ROAD.” This sign was erected in April, 1951, and remained in place until August, 1951.

Reflectorized signs 36" x 36" with the legend “ROUGH ROAD” were erected at the following intersections, in addition to River Road and Harlem Avenue: Oakton Street, Central Avenue, Dempster Street, and Golf Road (S.B.I. 58). These signs were erected in April, 1951, and were in place on July 5, 1951. At each intersection the sign to warn south bound traffic was erected on the west highway shoulder, approximately 200 feet south of the intersecting road.”

Although it is conceded that there was some defect in the highway at the scene of the accident, the witnesses, who testified in the case, were unable to agree as to the exact nature of the defect.

Claimant and his brother said it was a low bump, which was first noticed 30 feet away. However, claimant finally said there were a series of bumps. Another witness said the bump was about seven inches high and quite sharp. Other witnesses, one of whom saw the accident at some distance, testified that there was a hole in the highway, and not a bump.

However, the precise defect is not of vital importance in this case, because claimant himself testified that Milwaukee Avenue between River Road and Harlem Avenue “generally it was a no good road”.

Under such circumstances, it was incumbent upon claimant to traverse the particular stretch of highway with care commensurate with the known danger, and, failing to do so, especially after respondent had placed warning signs at various intervals, claimant cannot recover. Previous decisions of this Court have uniformly denied recovery in factual situations similar to that developed by the testimony in this case. Beenes vs. State, No. 4377, opinion filed October 5, 1951; Terracino vs. State, No. 4420, opinion filed January 8, 1952; Doolittle vs. State, No. 4353, opinion filed September 7, 1951; Bodie vs. State, No. 4474, opinion filed March 20, 1953.

An award to claimant must be, and hereby is denied.  