The Toledo v. Eddy

• Decision Date: 31 January 1874
• Citation: 1874 WL 8776,72 Ill. 138
• Parties: THE TOLEDO, WABASH AND WESTERN RAILWAY CO.v.DAVID EDDY.
• Court: Illinois Supreme Court

72 Ill. 138

1874 WL 8776 (Ill.)

THE TOLEDO, WABASH AND WESTERN RAILWAY CO.

v.DAVID EDDY.

Supreme Court of Illinois.

January Term, 1874.

APPEAL from the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

This was an action, brought by David Eddy, an employee of the Toledo, Wabash and Western Railway Company, against the company, to recover for injuries sustained by reason of a fall from a ladder furnished by the company and used by him in the course of his employment.

Mr. A. E. HARMON, for the appellant.

Mr. J. S. WOLFE, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

It is first urged, that the court below erred in refusing to grant a change of venue in this case. The eleventh section of the law providing for changes of venue declares, that a change shall not be granted after the first term of the court at which the party applying might have been heard, unless he show that the cause has arisen or come to his knowledge subsequent to the term at which the application could have been made, and shall also give to the opposite party ten days' notice, except where the causes have arisen or come to his knowledge within less than ten days of making the application. The notice in this case states, that information of the cause came to his knowledge on Friday, the 12th of September, 1873, but the affidavit fails to state that the knowledge of the prejudice was received for the first time less than ten days before the term; and the affidavit states, the agent fears that the defendant can not have a fair trial, on account of the prejudice of the judge, by reason of his election, and prays a change of the venue to another county than Vermilion or Ford.

This affidavit is insufficient, as it fails to state necessary facts: it fails to state against whom the judge is prejudiced. It seems to assign the election of the judge as the cause of the prejudice. It also fails to state that the knowledge of the prejudice had been received within ten days of the commencement of the term, or the time of giving the notice. If the election of the judge was for any reason connected with the prejudice, the affidavit fails to state what it was, or that affiant did not know of such election ten days prior to the time of making the application. There was no error in refusing to change the venue of the case.

It is insisted, that the court below erred in giving instructions for appellee. The third of his instructions states, that it is an implied contract by the company, with their servants, that they will keep their road and apparatus in safe repair, and in such condition that all of their...