13. EVIDENCE-hypothetical question may be asked if based upon the evidence. A hypothetical question may be put to an expert witness if there is evidence tending to prove the facts stated in the question.

14. SPECIAL INTERROGATORIES-the court may refuse special interrogatories and substitute others. The trial court has power to refuse requested special interrogatories and substitute others of its own motion.

15. SAME-special interrogatories should relate to matters controlling the general verdict. Special interrogatories are properly refused which call for evidentiary facts only, and not ultimate ones, which would control the general verdict.

16. SAME when special interrogatory is properly refused. A special interrogatory requiring the jury to find whether the "act of the plaintiff in negligently placing himself" in a certain position contributed to cause the injury, is properly refused because it assumes that the plaintiff was negligent.

17. SAME-what does not render erroneous special interrogatories prepared by the court. Special interrogatories substituted by the court, of its own motion, for those prepared by the defendant, are not rendered erroneous because they are preceded by the statement, “If you find a general verdict for the plaintiff in this case you will also answer and return with your verdict the following questions." Chicago & Alton R. R. Co. v. Harrington, 90 Ill. App. 638, affirmed.

Appeal from the Appellate Court for the Fourth District;-heard in that court on appeal from the City Court of East St. Louis; the Hon. B. R. BURROUGHS, Judge, presiding.

This is an action on the case, brought in the summer of 1897 by the appellee against the appellant company to recover damages for a personal injury. The first trial of the cause resulted in a judgment in favor of the appellee for $11,000.00. An appeal was taken from this judgment to the Appellate Court. The Appellate Court reversed the judgment and remanded the cause. This judgment of reversal and remandment was entered by the Appellate Court at the February term, A. D. 1898, thereof. Appellee filed a remanding order; and the cause was again tried, resulting in a verdict in favor of the appellee for $15,000.00. Upon the argument of the motion

for a new trial on November 4, 1899, the trial court required the appellee, plaintiff below, to enter a remittitur of $5000.00, and appellee, having entered such remittitur, judgment was then rendered in his favor against the appellant on November 4, 1899, for $10,000.00. An appeal from this second judgment was taken to the Appellate Court, and the Appellate Court has affirmed the judgment. The present appeal is prosecuted from such judgment of affirmance.

The East St. Louis freight yard of the Toledo, St. Louis and Kansas City railroad, (commonly called the "Clover Leaf,") is what is called a stub-yard, and the only way of getting into and from the yard with cars is from the east end of it. A main or lead track runs from the east end of the yard to the freight house at the west end. From this main or lead track a number of switches branch off westerly, on which are received freight cars coming from other roads, at all hours of the day and night. The switch tracks are connected with the main or lead track by switches.

On January 27, 1897, early in the morning, and while it was yet dark and was snowing, a switch crew of the appellant company transferred a number of cars of perishable freight from appellant's road to a switch track of the Clover Leaf road, and, in doing so, omitted to place the cars a sufficient distance down the switch track to allow a locomotive and cars to pass along the lead track without coming in contact with the last car so placed on the switch track, and also omitted to close the switch, but left it open.

Several hours before the servants of the appellant company had thus transferred its cars to a switch track of the Clover Leaf road, a switching crew of the Clover Leaf road had gone out of the yard up to Madison, or Miller's Station, to take some cars, and returned to the freight yard of the Clover Leaf road after appellant's switching crew had finished their work and left the yard.

The switching crew of the Clover Leaf road, which thus entered the freight yard between four and six o'clock on the morning of January 27, 1897, consisted of five men. Of these five men one was the fireman and one was the engineer. Besides the fireman and engineer there was a foreman and there were also two helpers. Appellee was one of these helpers. When the switching crew of the Clover Leaf road came down the lead track, two freight cars were fastened to the locomotive ahead of it, so that the two freight cars were pushed forward by the locomotive. When the switching crew entered the freight yard, the engineer and fireman were in their proper places upon the locomotive. The foreman was in the cab of the engine. One of the helpers was on top of the forward car of the two cars which were pushed by the engine. Appellee, the other helper, was standing upon the footboard in front of the engine, and between the engine and the second or last of the two cars. The engineer was named Neff. The fireman was named Thomas or Thompson. The foreman was named Donahue. The helper on the forward car was named Fox. They were shoving the two cars westward to the freight house, and it was the intention to cut the cars off and leave them.

When the servants of the appellant transferred appellant's cars, containing perishable freight, from appellant's road to one of the switch tracks of the Clover Leaf road in the freight yard of the latter, they left the switch open, and the hindmost of appellant's cars projected over from the side switch, upon which said cars stood, on to the main or lead track. The result was that, when the engine and the two cars ahead of it, which the switching crew of the Clover Leaf road were pushing, reached the switch track on which appellant's servants had left its cars, the cars, so pushed by the Clover Leaf switching crew, ran into and collided with appellant's cars. The result of this collision was that the locomotive, on the front foot-board of which appellee was riding, and

the rear car of the two cars in front of the locomotive, came together, breaking appellee's legs, tearing off a finger, and otherwise severely injuring him.

The negligence, charged in the declaration against the servants of appellant, was that they left the cars, containing perishable freight, on the switch track, and neglected to close the switch.

The declaration contains only one count, and alleges that the plaintiff, on January 27, 1897, was in the employ of one Pierce, receiver of the Toledo, St. Louis and Kansas City Railroad Company, or the Clover Leaf company, as a switchman at the depot and yards of the receiver in East St. Louis; that the defendant, in delivering nine cars to the receiver upon his track at such yard in the night time, negligently left and placed the same so near the switch connecting such track with the lead or main track, that room was not left for other cars or engines to pass along such lead or main track without colliding therewith; that appellant's servants carelessly left said switch open, which they ought to have closed and set for such lead or main track; that, while plaintiff was riding on the foot-board of a certain switching engine of the receiver, to which two freight cars were attached, with due care and diligence, "said engine and cars were unavoidably run and driven upon said track where the defendant's servants had left the cars aforesaid, by reason of said switch being left open as aforesaid, and up to and against said cars with such force that the car next to the engine, upon which the plaintiff was so riding, was pushed and jammed against the plaintiff and said engine, whereby the plaintiff was caught between the car and engine and crushed and injured."

CHARLES P. WISE, for appellant.

F. C. SMITH, M. MILLARD, and A. R. TAYLOR, for appellee.

Mr. JUSTICE MAGRUDER delivered the opinion of the court:

First After the cause was re-instated in the trial court upon the reversal and remandment thereof by the Appellate Court, appellant made two applications for a change of venue. The first application was made in vacation on November 26, 1898, to the judge of the city court of East St. Louis after due notice given to appellee, and the petition for a change of venue alleged that the inhabitants of the city of East St. Louis were so prejudiced against appellant, that it could not obtain a fair trial in the city court of East St. Louis. Attached to the petition were affidavits in support of its allegations. The court refused to grant the change of venue, to which appellant excepted, and on the same day presented its bill of exceptions, which was signed by the judge, and filed. On December 5, 1898, the city court of East St. Louis met for its December term, and on December 9, 1898, the judge of that court, on his own motion, set aside the order denying a change of venue, made in the cause in vacation, and ordered the parties to take such steps as they saw fit. Appellant objected to the setting aside of such order, contending that the court had then no power to do so, and took exception to the ruling of the court. On December 12, 1898, appellee, plaintiff below, asked leave to file counter-affidavits, which the court granted, and to which appellant objected and excepted. After the counter-affidavits were filed, the court examined and considered all the affidavits on both sides, and again denied the petition for a change of venue; and appellant presented its bill of exceptions, which was signed and approved on December 19, 1898.

On August 28, 1899, appellant made a second application for a change of venue; and this second application was based upon the alleged prejudice of the judge of the city court of East St. Louis. The petition therefor stated, that appellant did not waive the alleged error of the