Reports of Cases at Law and in Chancery Argued and Determined in the Supreme Court of Illinois

198 1. CHANGE OF VENUE—discretion of court as to granting change of 192 9 venue. Under section 4 of the Venue act, if a petition for change 200 0263 of venue is based upon the prejudice of the inhabitants of the 2015207 county, and counter-affidavits are filed, it is a matter of discretion 192 with the judge whether the petition shall be granted or denied, 202, 3134 and such discretion is not reviewable unless it has been abused.

104a13

13 5 2. SAME-court may set aside order denying petition for change of renue.

192 An order, entered in vacation, denying a petition for a change of

203 11314 venue is merely interlocutory, and may be set aside by the court 205 at the following term and leave be given to the parties to take 206 4157

106a1 2310 such steps as they might deem advisable.

el06a 10532 3. SAME-right to change for prejudice of judge is taken away by sub- 106a 1654 stitution of another judge. The right to insist on a change of venue 107a6 92 because of the prejudice of the judge is taken away where another 108a 8210

109a18244 judge of a different circuit is called in to try the case at the re

109a 5311 quest of the judge charged with being prejudiced.

192 9 4. LAW AND FACT—whether plaintiff was exercising due care is a ques- 110a 206 tion of fact. In an action against a railroad company by a switch-110a11374

192 9 210 239 112a 233

6 21

192 9 214 5300 211 13a 3621 14a 5351

man employed by another road, whether the plaintiff, in standing upon the foot-board of the switch engine instead of on top of the cars, was exercising due care for his safety is a question of fact to be determined by the jury from the evidence, and its verdict, approved by judgments of the trial and Appellate Courts, is conclusive.

5. INSTRUCTIONS-rule as to instructions which summarize facts and authorize a recorery. An instruction based upon the plaintiff's hypothesis or theory is not erroneous if it summarizes all the facts essential to a recovery on that particular theory, since it is not necessary that it embody evidence tending to establish a distinct antagonistic theory.

6. SAME-party cannot complain of error which may also be found in his own instructions. A party has no right to complain of error in his opponent's instructions when a like error appears in his own.

7. SAME-instruction may refer to the allegations of the declaration respecting negligence. If an instruction specifically sets out the negligence of the defendant, it is not erroneous because it conditions the right of recovery upon the belief of the jury, from the evidence, that the injury complained of resulted from the defendant's negligence "as charged in the declaration.”

8. SAME-instruction stating measure of damages need not recapitulate all elements of the cause of action. An instruction stating the measure of damages is not required to recapitulate all the different elements constituting the cause of action which have been set forth in other instructions.

9. WORDS AND PHRASES—word “unavoidably” construed, as used in declaration. The word “unavoidably,” as used in declaration charging that an engine and cars “were unavoidably run or driven upon the said track," does not mean “inevitably,” but merely unavoidably in the exercise of ordinary care on the part of the persons operating the engine and cars.

10. APPEALS AND ERRORS—when party cannot complain that proof is not within allegations. Although the facts proven are not within the allegations, yet neither party can complain if each procures instructions declaring the law applicable to the facts proven, regardless of the issues made by the pleading, and asks a verdict in accordance therewith.

11. FELLOW-SERVANTS-doctrine not applicable where a suit is not against the common master. The negligence of a fellow-servant is a defense where the suit is against the common master, but not where it is against a third party.

12. NEGLIGENCE-effect where combined negligence of two is the cause of injury. If the combined negligence of two parties is the proximate cause of an injury, either or both may be held responsible for the consequences resulting therefrom.

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