Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση
[blocks in formation]

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ILLINOIS.

venue.

[blocks in formation]

192

198

4293

9

€263

7207

9

200

201

1. CHANGE OF VENUE-discretion of court as to granting change of Under section 4 of the Venue act, if a petition for change of venue is based upon the prejudice of the inhabitants of the county, and counter-affidavits are filed, it is a matter of discretion 192 with the judge whether the petition shall be granted or denied, and such discretion is not reviewable unless it has been abused. 2. SAME-court may set aside order denying petition for change of venue. An order, entered in vacation, denying a petition for a change of venue is merely interlocutory, and may be set aside by the court at the following term and leave be given to the parties to take such steps as they might deem advisable.

3. SAME right to change for prejudice of judge is taken away by substitution of another judge. The right to insist on a change of venue because of the prejudice of the judge is taken away where another judge of a different circuit is called in to try the case at the request of the judge charged with being prejudiced.

202 13134 j202 7575 104a18 5 192

9

203 11314 205 5 21 206 4157 106a12310 el06a10532 106a 7654 107a92 108a $210

109a18244 109a 5311

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

[blocks in formation]
[blocks in formation]

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 recovery. 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.

« ΠροηγούμενηΣυνέχεια »