A preliminary question is raised in this case, growing out of the ruling of the court, on the motion and application of the plaintiffs in error for a change of venue in the cause, on account of prejudice of the minds of the inhabitants of the county in which the suit was pending, against them.
The record shows that the action originated in Peoria county, and the venue changed to Tazewell, on the motion and affidavit of the plaintiff, of prejudice in the judge of the Peoria Circuit Court.
The cause being removed to Tazewell, the defendants- made their application for a change of venue, on the eighth day of April, being the third day of the term, having given the notice on the seventh, the day previous. The affidavit stated that the cause of the application, was only known to them within ten days, without stating where they obtained the knowledge. As such applications can be made in vacation as well as in term time, it behooves the party, if the cause is ascertained in vacation, to give the notice at once to the opposite party, and make ' application to the judge at chambers or elsewhere, wherever he may be, for a change of venue, and thus prevent accumulation of costs and the exercise of diligence by the opposite party to be prepared for trial, which is always attended with expense. We know too well, when such applications are made at the term, they are made, for the most part, for a sinister purpose, and it should be the endeavor of the courts to frustrate their accomplishment. The plaintiffs in error by their own showing, did know of the cause, as we infer from the language of the affidavit, some days before the sitting of the court. They were negligent in not giving the earliest and speediest notice of their intended application, and the court did not err in refusing the motion.
The merits of the case are, however, with the plaintiffs in error.
It is a rule in pleading, subject to no exception, that a party must recover, if at all, on, and according to, the case he has made for himself in his declaration. He is not permitted to make one case by his allegations, and recover on a different case made by the proof.
There are two counts in the declaration.
The first count states in substance, that the defendants were lessees and proprietors of the Peoria and Oquawka Railroad,- and cars used thereon for carrying passengers for hire, from Peoria to Edwards Station. That on the 19th November, 1856,' the plaintiff, at the special instance and request of the defendants, became a passenger on said road, to be safely carried from Peoria to Edwards Station for a certain fee or reward: That defendants received the plaintiff as such passenger : That it was defendants’ duty to see that plaintiff was carried on his journey in safety, which they did not do; by reason whereof, the cars ran off the track, and the plaintiff’s legs were broken, and he was otherwise seriously injured and damaged, and was prevented from attending to business, and compelled to expend large sums of money in curing his wounds, etc.
The second count is substantially the same as the first, with this additional' averment, “ That the defendants, not regarding their duty in that behalf, so carelessly, negligently, unskillfully and improperly managed and conducted said cars, that, whilst said cars were proceeding on said railroad, (with the plaintiff as a passenger,) the said cars, by and through the carelessness, negligence, and improper conduct of the said defendants and their servants, ran off the track,” etc., whereby the plaintiff was injured, as stated in first count.
The allegations of neither count are proved. In the first place he was not a passenger, nor received as such, nor in any sense under the care of the plaintiffs in error. He voluntarily placed himself on a car, to go to his work on the road, and not at the request of plaintiff, in dangerous proximity to the engine, in a train with the heavy burden cars loaded with iron rails and wooden ties behind the car which he chose to get into. This distinguishes the case from that of Gillenwater v. Madison and Indiana Railroad Co., 5 Ind. 339, and also from the case of Fitzpatrick v. The New Albany and Salem Railroad Company, 7 Ind. 436. His position was of his own choosing, without any request by the plaintiffs, or direction by them, or contract by them of any kind, to carry him to and from his work on the road, nothing of that kind being alleged or shown. The act of placing himself on this car was his own voluntary act, and in the absence of negligence and want of care on the part of the plaintiffs, such as is alleged in the declaration, he is not, on any principle of law we know of, entitled to recover.
We admit, being on the cars with the plaintiffs’ consent, they were bound to use due diligence to carry him safely.
The allegation in the first count is that they did not use due and proper care, safely and securely to carry and convey him, and in the second count, it is alleged that the cars were so carelessly managed and conducted, that they ran off the track, whereby his leg was broken. Now as to the proof. His own witnesses, Barr, Richardson and Wheaton, prove nothing of the kind, but a different case altogether.
Barr, who is a carpenter also, says, in my judgment there was no carelessness or negligence in the conducting or running' the train, and in his opinion the accident occurred by reason of a defect in the friction plate of the car—it was too tight to allow the car to turn easily. Richardson says he was in the car at the time of the accident—went back to see how it happened and thinks he knows—he says there were no chairs where the accident happened, and there is a slight curve in the track; the appearance was that the flange of the wheels had struck the square end of the rails which had got out of place for the want of chairs—the ends not coming square together; thinks the cause of the accident was this misjoinder of the rails ; he says distinctly, there was no mismanagement in running or conducting the train, and was not running as fast as usual on that day. Wheaton says he is an engineer by profession—meaning doubtless, an engine driver, and he speaks only as to the proper mode of making up trains and the safety and condition of the road; thinks it might be safe with proper attention without chairs. All the evidence given in relation to the manner of making up the train and to the condition of the road, was objected to by the plaintiffs, but admitted by the court, and it will be seen such proof makes out no such case as is stated in the declaration. All the witnesses speaking to the facts stated in the declaration, ignore them all. The facts proved, not being those alleged or of kin to them, the court should have refused the instructions given for the defendant in error, marked two and five, on this branch of the case, and should have given the fourth instruction asked by the plaintiffs in error.-
But the important question behind all these, is as to the liability at all of the plaintiffs in error, under the facts alleged in the declaration, if proved.
We have fully examined this question in another case, and all the authorities to which reference has been made in this case. Ill. Central R. R. Co. v. Cox, 21 Ill. R, 20. We have neither time nor inclination to go over the ground again.
The facts in this case abundantly show that the defendant in error was in a condition to know the condition of the road, passing over it as he did daily, in carrying out his contract with the company as one of its employees, and he must be presumed to have contracted in view of all the hazards to which he was exposed, by an insecure and imperfect road—making up trains upon it—as well as the negligence of his co-employees.
The cases decided in Indiana, 5 Ind. R. 339, and 7 ib. 436, as well as those decided by the Supreme Court of Ohio, 3 Ohio State R. 201, and 20 Ohio R. 415, are all based on the ruling of the Scotch courts, entirely ignoring the English decisions, and those of most of the courts of the United States. The Scotch case is Dixon v. Ranken, 1 Am. Railway Cases, 569. The case in 17 Ben. Monroe, 587, was the case of injury to a slave. The court there say, without questioning the propriety of the rule in Ill. Cent. R. R. Co. v. Cox: “ There is manifest propriety in distinguishing between the two classes of cases, involving free persons on the one hand and slaves on the other, and in applying a different rule of law when a slave is an employee. A slave may not with impunity remind and urge a free white person, who is a co-employee, to a discharge of his duties, or reprimand him for his carelessness or neglect; nor may he, with impunity, desert his post at discretion, when danger is impending; nor quit his employment on account of the unskillfulness, bad management, inattention or neglect of others of the crew. Whatever may be the danger, by reason of any of these causes, he must stand to his post, though destruction of life or limb may be never so imminent. He is fettered by the stern bonds of slavery—necessity is upon him, and he must hold on to his employment.”
The defendant in error was his own master, fettered by nothing but considerations of his own interests, and they prompted him to incur the hazards which have been so injurious to him. In law, he cannot complain. We have nothing to add to the case of Cox, supra, but a reference to two additional cases fortifying it. The first is the case of Tarrant v. Webb, decided at the Middlesex sittings at Trinity Term, 1857, and the other is Noyes v. Smith and Lee, 2 Williams’ Ver. R. 59.
On this branch of the case, the Circuit Court should have refused the other instructions given for the defendant in error, numbered one, three, four and six, and should have given the first three instructions asked by the defendant.
It may be well to observe here, that the special plea of plaintiffs in error amounted to the general issue, and was demurrable for that cause. All the facts stated in it, could be given in evidence under the general issue, and that is the proper door to pass them through.
The judgment of the court below, for the reasons given, is reversed.
Judgment reversed.