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court in denying the previous application for a change of venue on account of the prejudice of the inhabitants of East St. Louis. The court denied this second petition, and signed and sealed a bill of exceptions.

When the case was called for trial, appellant filed written objections to going to trial, contending that the court had no jurisdiction to try the case, because, first, it should have granted the petition for a change of venue as asked in vacation; and because, second, it should have granted the change of venue based upon the alleged prejudice of the judge. These objections were overruled.

The first alleged error, complained of by the appellant, is the action of the trial court in refusing the applications for a change of venue at the times and under the circumstances above stated. It is said that, when the court refused to grant the change of venue petitioned for in vacation, the requirements of the statute had been complied with, and the status of the matter had been fixed, so that the court had no discretion thereafter to set aside the order, denying the petition for a change of

venue.

The second paragraph of section 1 of the "act to revise the law in relation to change of venue," provides that, "where either party shall fear that he shall not receive a fair trial in the court in which the suit or proceeding is pending, because the inhabitants of the county are or the judge is prejudiced against him," a change of venue may be had in any civil suit or proceeding in law or equity. (3 Starr & Curt. Ann. Stat. p. 3981).

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The fourth section of the Venue act provides that, “if the cause for the change is the prejudice of the inhabitants of the county, the petition shall set forth the facts upon which the petitioner founds his belief, and must be supported by the affidavits of at least two other reputable persons resident of the county. The adverse party may controvert the petition by counter-affidavits, and the judge may grant or deny the petition as shall

appear to be according to the right of the case." (3 Starr & Curt. Ann. Stat. p. 3983).

Section 4 thus makes it a matter of discretion with the judge, in cases provided for by said section and where counter-affidavits are filed, to determine whether the petition for change of venue shall be granted or denied. The exercise of this discretion is not a subject of review, unless it appears that the trial court has abused its discretion. (Hall v. Barnes, 82 Ill. 228). It is not shown here that there was any abuse by the court of such discretion; and we deem it unnecessary to discuss in detail the statements made in the affidavits.

It is claimed by the appellant that, when the court entered its first order in vacation denying the petition for a change of venue, it was thereafter without jurisdiction to take any steps in the case. This contention is without force. The order, denying the application entered in vacation, was a merely interlocutory order, and the court had power to set it aside. It is the duty of a trial court, and it is also a proper exercise of its jurisdiction, to set aside an order improvidently made. While a cause is pending, and the parties are before the court, the court has control over the record and the proceedings in the cause, and has jurisdiction over its judgments and final orders of a pending term, and may, during the term, or while the cause is pending and the parties are in court, for cause appearing, amend or set aside its orders. (Coughran v. Gutcheus, 18 Ill. 390). It is well settled that the court has the discretionary power, at any time during the term at which an order has been entered, whether it be interlocutory or final, to vacate or set it aside for such causes as may be necessary to promote justice. (Bolton v. McKinley, 22 111. 204; Edwards v. Irons,73 id. 583).

In Fort Dearborn Lodge v. Klein, 115 Ill. 177, we said "that, under the present liberal practice, the court has the power, and that it is its duty, at any time before trial, when it becomes satisfied that an erroneous ruling

has been made with respect to the sufficiency of a pleading or other similar matter, to promptly set aside the order and correct the error." Where the order entered is interlocutory, the court certainly has the power and jurisdiction to make such further order in the cause as justice may require. (Campbell v. Powers, 139 Ill. 128).

In the case at bar, when the judge in vacation refused to grant a change of venue, he did not lose, but retained jurisdiction of the cause, and, therefore, it cannot be said that further action in the matter could not be taken by the trial court. A few days after, when vacation ended and the term of court began, the court had full power to act by setting aside its former order, which refused a change of venue, and to give leave to both sides to take such steps as might be deemed advisable. Appellant was not, therefore, prejudiced in any manner, but declined to act, and cannot now be heard to complain. Upon the filing of counter-affidavits by appellee, the court had the right, upon further consideration, to deny the application.

As to the application for a change of venue subsequently made, and based upon the alleged prejudice of the judge, it is sufficient to say that another judge of a different circuit was called in to try the case at the request of the judge so charged with being prejudiced. This arrangement rendered a change of venue unnecessary, and took away the right of either party to make an application.

In Myers v. Walker, 31 Ill. 353, an application for a change of venue was based upon an affidavit, that the party feared that he could not obtain a fair trial before the judge then presiding; and, whilst the venue was not changed to another circuit, a trial was had before a different judge, against whom there was no complaint; we there said (p. 366): "This practically accomplished all that was sought by the application for a change of venue. When the reasons for a change of venue ceased to exist, the necessity and the right to a change of venue also

ceased. The party obtained a trial before another judge against whom he made no objection, and he has sustained no wrong by a failure to transfer the cause to a different circuit." (Chicago, Burlington and Quincy Railroad Co. v. Perkins, 125 Ill. 127).

For the reasons thus stated, we are of the opinion that there was no error in the action of the court below in refusing the applications for a change of venue.

Second-The appellant complains of the giving of certain instructions given by the trial court for the appellee, and of the refusal of certain instructions asked by the appellant. It would be impossible, within the compass of this opinion, to discuss, in detail, all the points and objections made by counsel for appellant upon this branch of the case. Only the general features and characteristics of the instructions will be noticed. In order to understand them, it will be necessary to refer to some of the facts developed by the testimony, and to the theories, upon which the case was tried by both parties in the court below.

The switching crew of the Clover Leaf road had left the freight yard of that road before midnight to take some cars to a point three or four miles distant, and was absent several hours. During their absence a switching crew of the appellant company had brought a train of some nine cars, containing perishable freight, said to be oranges and celery, and had placed these cars upon one of the side switches branching off from the main or lead track. Having done so, appellant's switching crew left the yard. Instead of closing the side switch, appellant's crew left the same open, and left the hindmost freight car projecting on the lead or main track. When the switching crew of the Clover Leaf road returned to the freight yard with a locomotive and two freight cars in front thereof, it passed along the main or lead track, and collided with the hindmost of appellant's freight cars, and caused the injury to the appellee.

The appellee charges negligence against the appellant company, because it left the side switch open, and left the hindmost of its freight cars projecting upon the lead track. Appellee contends that appellant's switching crew should have shoved its freight cars far enough along upon the side track to avoid the projection of either or any of the cars over the lead track, and should then have closed the switch. It is further contended by appellee that, if the side switch track was too short to accommodate all the cars, one or two cars should have been cut off and put upon another switch track.

Upon this branch of the case, and as bearing upon the question, whether or not appellant was guilty of negligence in the respect thus indicated, appellee introduced a large number of witnesses, testifying to the custom which existed in regard to this matter in freight yards. like the one in controversy, which are called "stub"-yards. It is said that, in a stub-yard, there is a lead track from which the side switch tracks branch off, and that, in yards which are not stub-yards, there is a main track along which both passenger and freight cars pass. It is not denied that, in the latter class of yards, it is customary to close the side switches, and not allow any projection of cars over the main track.

The testimony of the appellee tends to prove that, when a railroad company takes freight cars into the freight yard of a foreign company, and places them upon a side switch track, the custom is to shove the cars in the clear, that is, so that they will not project over the lead or main track, and either to close the switch, or leave it as the crew found it. Most of appellee's witnesses testified that the custom is to shove the cars upon the side track so as to be clear of the lead track, and then to leave the switch as the switching crew found it. In the present case, the appellee introduced the testimony of one Bennett, who was one of the switchmen employed by the appellant to take its cars into the yard in

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