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Kriete ads. Christopher Co-
First Nat. Bank of Charles-
382 Katholischer Cent. Verein 485
339 Leach ads. Dalrymple....... 51
Lussem v. Sanitary District
351 MacDonald v. Crosby........ 283
445 Marquiss ads. People ex rel.. 377
Guthrie ads.Chicago & West Mayer v. Springer.... 270
McCullouch ads. Davis.
Hammond Co. ads. Papke... 631
McLennan ads. Buchanan.. 480
Miller ads. Pearce..... 393
Morton & Co. r. Zwierzykow-
Hieronymus ads. Paige..... 546
Munsell ads. Cleveland, Cin.,
Mutual Building and Loan
Kemp ads. Glos..
PAGE. Paige v. Hieronymus
546 Sanitary District of Chicago
404 Papke v. Hammond Co...... 631
Schott ads. Gundlach.
509 Payne ads. Chicago North Shore Street Ry. Co ...... 239
Sherman ads. City of Chi
576 Pearce v. Miller ...
624 Pease ads. Lindauer...
Smith v. Ayer.. 456
270 Pels ads. Mueller
76 Springer ads. Mayer....
68 People ex rel. v. Binns....
Starkel ads. Andel.. People ex rel. v. Central Union
T Telephone Co............ 307
Thompson v. People ....
79 People ex rel. v. Church..... 302
Tomlinson ads. Carroll...... 398 People ads. Cross..
Traeger v. Mutual Building People ads. Davids...
and Loan Ass............. 166 People ads. Durden..
Trah v. Village of Grant Park 351 People ads. Kelly..
119 People ads. Knight ....... 170
U People ex rel.ads. Loewenthal 222 Union Nat. Bank v. Post ... 385 People es rel. v. Marquiss... 377 People ads. Oster..
v People ex rel. ads. Place..... 160 Vail v. Northwestern Mutual People ads. Thompson.. 79 Life Ins. Co.......
... 567 People ads. Walker., 106 Varner ads. Vermilion County Perkins v. Bertrand.
594 Peters v. City of Chicago... 437 Vermilion County Children's Peton ads. Donk Bros. Coal
Home v. Varner.. ... 594 and Coke Co.....
W Place v. People ex rel........ 160
82 Plagge ads. Carpenter...
314 Walker v. Ogden......
561 Pick ads. Mayer......
106 Walker v. People. Walsh v. O'Neill..
202 Pick v. Mutual Life Ins. Co. 157
123 Polobinski ads.
Watts v. Rice..
Western Tube Co....
113 Webster ads. City of Salem. 369 Post ads. Union Nat. Bank. 385
West Chicago Masonic Ass.
... 210 Purcell Co. v. Sage.......... 197
Western Anthracite Coal and R
Coke Co. v. Beaver..... 333
Western Tube Co. v. PoloRawle ads. McBeath...... 626
113 Regan v. Regan
Woodruff ads. Cicero & ProRice ads. Watts
123 Roche ads. Atherton..... 252
viso Street Ry. Co........ 544 Royal Trust Co. ads. Eggles
Yaggy v. City of Chicago... 104 S
Z Sage ads. Purcell Co........ 197 Zwierzykowski ads. Morton Salem, City of, v. Webster.. 369
ARGUED AND DETERMINED
SUPREME COURT OF ILLINOIS.
THE CHICAGO AND ALTON RAILROAD COMPANY
192 9 JOHN HARRINGTON.
192 9 Opinion filed October 24, 1901.
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.
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
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.