
    (No. 4722
    Joanne Kavalauskas, A Minor, and Patricia Kavalauskas, A Minor, By Emily Kavalauskas, Their Mother and Next Friend, Claimants, vs. State of Illinois, Respondent.
    
      Opinion filed June 20, 1963.
    
    Perlin and Lee, Attorneys for Claimants.
    William G. Clark, Attorney General; Edward A. Warman, Assistant Attorney General, for Respondent.
   Pezman, J.

Joanne Kavalauskas, a minor, and Patricia Kavalauskas, a minor, by Emily Kavalauskas, their mother and next friend, claimants, by their attorneys, Perlin and Lee, filed their complaint herein against the State of Illinois, on May 21, 1956, based on injuries received by claimants growing out of an automobile collision, which occurred on November 23, 1951 at 6535 S. California Avenue, Chicago, Illinois. Claimants, Joanne Kavalauskas, then age 15, and Patricia Kavalauskas, then age 6, were passengers in an automobile, which was being driven on California Avenue by one Franciska Zeruolis. It is alleged that the automobile struck an opening in the street, which had been made for the installation of a sewer, which opening was approximately 3 feet by 5 feet and approximately 1 to 1% feet deep. Claimants contend that they were seriously injured as the direct result of the automobile running into said hole, which caused the driver to swerve the car out of control and into a parked automobile. They further contend that, because of the negligence of the State of Illinois in allowing the street to remain unrepaired and failure to provide proper maintenance, said claimants were seriously injured.

Respondent did not file an answer, but made a general denial. A subsequent Departmental Report was made a part of the record. In it the State clearly admits that it has the exclusive right and responsibility to issue permits for cutting openings into or through the pavements under its jurisdiction. The same Report further indicates that the opening referred to in this cause was made by one certain Peter Loye of 5735 S. Peoria Street, Chicago, Illinois, in accordance with Permit No. 7736, issued by the City of Chicago, through its Department of Streets and Sanitation, Bureau of Streets. It was substantially proved that the City of Chicago had no authority to issue such a permit, or to grant the right to cut an opening into the street.

The State of Illinois is not an absolute insurer of any accident, which occurs upon its public highways. Claimants herein must prove that the negligence of respondent was the proximate and direct cause of the accident, and must do so by a preponderance of the evidence. We find that the evidence herein does not reveal such negligent acts on the part of respondent. The opening was apparently made by a contractor, Peter Loye, in the course of his business, and in accordance with the permit, which he had obtained from the City of Chicago. The State of Illinois was never notified that he was going to make the opening, and there was no evidence in the transcript that the opening was in the street for any-sustained period of time before the accident, nor any proof that the State of Illinois had knowledge of the opening.

We find that claimants have failed to prove their case by a preponderance of the evidence, and have not established the negligence of respondent as the proximate cause of the injuries.

An award to claimants is, therefore, denied.

Judge Perlin did not participate in the consideration and determination of this case.  