text:
    John Vieceli, Appellant, v. Walter J. Cummings and Daniel C. Green, Receivers, etc., et al., Trading as Chicago Surface Lines, Appellees.
    Gen. No. 42,746.

      Heard in the third division- of this court for the first district at the October term, 1943.
    Opinion filed April 26, 1944.
    George L. Reilly and Frank E. Auster, both of Chicago, for appellant.
    Frank L. Kriete, W. F. McLaughlin and Arthur J. Donovan, all of Chicago, for appellees; William J. Flaherty, of Chicago, of counsel. '
   Mr. Justice Burke

delivered the opinion of the court.

In a complaint filed in the superior court of Cook county by John Vieeeli against the receivers of the corporations doing business as Chicago Surface Lines, plaintiff asked damages for personal injuries suffered because of negligence in the operation of a bus and also because of the wiful, wanton and malicious conduct in the operation of the bus. Issue was joined and the cause tried before the court and a jury. Motions were made by defendant at the close of plaintiff’s case and at the close of all the evidence to find the defendants not guilty. These motions were denied. Plaintiff’s counsel tendered instructions to the court, but the court refused to give them to the jury. The court, over the objection of counsel for plaintiff, refused to allow arguments, or to give instructions to the jury, and a verdict of not guilty was returned by the jury without any instructions given to them by the court or argument by respective counsel. A motion for a new trial was denied and judgment entered on the verdict against plaintiff for costs, to reverse which this appeal is prosecuted.

In assailing the judgment plaintiff states' that the right of a party litigant to address the jury by his counsel is absolute, and that it is the duty of the court to give instructions stating the law applicable to the evidence on the issues raised. To sustain the judgment, defendants maintain that the verdict was the only verdict warranted by the evidence, and that the court should have directed such verdict when requested at the close of all the evidence. The law is well settled that argument of counsel is a matter of right. Argument of a case is as much a part of the trial as the hearing of the evidence. A party to a civil suit has a right- to be heard, either by himself or by counsel, not only in the testimony, but in the argument of his case. No matter how weak or inconclusive the case may be, if it is enough to present a disputed question of fact, the counsel of the party has a right to present his client’s case to the jury. Carpenter v. First Nat. Bank, 19 Ill. App. 549; Thompson v. People of State of Illinois, 144 Ill. 378; Lanan v. Hibbard, Spencer, Bartlett & Co., 63 Ill. App. 54. The office of instructions is to give information to the jury concerning the law of the case for application to the subject matter before them. It is a well-settled rule of law that each side in any litigation is entitled to have the jury instructed relative to the theory of the law upon which the case is tried. Each side has a right to have the court give instructions stating the law applicable to the facts presented by such party, so that if the jury finds the facts in accordance with such evidence, they may correctly apply the law thereto. Reivits v. Chicago Rapid Transit Co., 327 Ill. 207; Rentkoxvski v. Rryan, 299 Ill. App. 217; Sampsell v. Rybcynski, 229 Ill. 75. By a motion to direct a verdict at the close of plaintiff’s case, the sole question presented to the court is whether, admitting the evidence in favor of the plaintiff to be true, that evidence, together witjh all legitimate conclusions and inferences, fairly tends to sustain plaintiff’s cause of action. If, at the close of plaintiff’s case, the court was convinced that plaintiff had failed to sustain his cause of action, in accordance with the familiar rule here repeated, it was his duty to direct a verdict for the defendants. The court denied defendants’ motion to direct a verdict at the close of plaintiff’s case. By introducing evidence after a motion to direct a verdict at the close of plaintiff’s case had been overruled, defendants waived the right to assign error on that ruling. By a motion to direct a verdict at the close of all the evidence, the same question is presented and the same test applied as on a motion to direct a verdict at the close 'of plaintiff’s evidence, but the plaintiff has the added right of the benefit of all favorable inferences, deductions and conclusions that may be drawn in his favor, not only from the testimony in his own case, but also in the testimony produced by the defendants. At the close of all the testimony the court denied defendants’ motion for a directed verdict. By a motion for judgment notwithstanding the verdict, the same question is again presented and the same test applied as in deciding a motion for a directed verdict at the close of all the evidence. In deciding these three motions, the court had no right to pass upon the credibility of the witnesses, to consider any purported impeachments, the weight thereof, or the weight of the testimony, since the motions admit the evidence in favor of plaintiff to be true, together with all legitimate conclusions and inferences. If the court were convinced, at the close of all the evidence, that the plaintiff, under these tests, had failed to present evidence to sustain his cause of action, it was the duty of the court to direct a verdict for the defendants. The court submitted the case to the jury, but refused to instruct the jury as to the law applicable to the case, and refused to permit counsel to argue the case to the jury.

Defendants do not oppose the argument of plaintiff that where a case is submitted to a jury the respective parties have the right to argue the case before the jury, and that the parties have the right to have the jury instructed as to the law applicable to the case. They assert that the verdict returned by the jury is the verdict which they requested the court to direct; that the judgment entered is the judgment sought by them; and that haying eventually obtained the judgment which they sought, they have no cause to appeal either directly or by cross-appeal. On this appeal defendants are entitled to urge every ground presented by the record which supports the judgment in their favor. In People v. Bradford, 372 Ill. 63, our Supreme Court said (65, 66):

“The judgment appealed from was for appellees, and no part of it was adverse to them. They were, therefore, in no position to prosecute a cross-appeal. Having obtained all the relief they deemed themselves entitled to, they may sustain the judgment upon any ground warranted by the record, though they may wish to show the court below erred in not giving it to them on different or additional grounds.”

See also McNulty v. Hotel Sherman Co., 280 ILl. App. 325, 331; Hillmer v. Chicago Bank of Commerce, 375 Ill. 266, 272. In Leman v. Hibbard, Spencer, Bartlett & Co., 63 Ill. App. 54, in reversing the judgment and remanding the cause because appellant’s counsel was not permitted to argue the case to the jury, the court said:

“We regret that we are unable to say that the evidence in this case was so clear that the court might properly have instructed the jury to find for the plain-tiff the amount recovered by him, in which case appellant would have had no right to address the jury.”

Defendants analyze the evidence in furtherance of their argument and state that, admitting the evidence in favor of plaintiff to be true, together with all legitimate inferences, such evidence does not sustain plaintiff’s cause of action, and that it was the duty of the court to direct a verdict. We have read the transcript of the testimony in order to determine whether under the rules we have announced, plaintiff made out a case which should have been submitted to the jury. In doing so, we consider the point urged by defendants as though the court had directed a verdict for the defendants.

The collision out of which this case arose, occurred at Belmont and Pacific avenues, Chicago, on Wednesday, August 6, 1941 at about 7:00 p. m.- Belmont avenue runs in an easterly and westerly direction and Pacific avenue in a northerly and southerly direction. Belmont avenue is 53 feet 6 inches wide from curb to curb, and Pacific avenue is 33 feet 5 inches wide from curb to curb. Defendants controlled and operated buses on Belmont avenue as far west as Pacific avenue. The power for the buses came from overhead trolley wires. The trolley wires for westbound buses iyere strung in an easterly and westerly direction 12 feet south of the north curb, and the wires for the eastbound buses were strung in an easterly and westerly direction about 13 feet north of the south curb. A drawing in evidence portrays the scene of the accident. Buses moving in a westerly direction make a wide circle to the left from Pacific avenue in a space south of Belmont avenue and west of Pacific avenue in order to turn around and proceed in an easterly direction in Belmont avenue. This movement and space may be described as a turn-around. The trolley wires for westbound buses start turning toward the southwest 42 feet east of the east curb of Pacific avenue, and continue on that slant up to the west curb line on Pacific avenue, where they make a complete arc with a 35-foot radius. The trolley wires start making the turn about 12 feet south of the north curb of Belmont avenue and 42 feet east of the east curb of Pacific avenue, and when these wires are opposite the west curb of Pacific avenue they are 22 feet south of the north curb of Belmont avenue.

Plaintiff testified that he was driving his 1936 Plymouth automobile west on Belmont avenue; that he got onto Belmont avenue from Orange street, which is one block east of Pacific avenue; that the weather was clear and dry; that he saw the bus down the street; that it was about 300 feet west of him; that the bus was going west in the north lane of Belmont avenue about three feet from the curb; that he was driving about 20 or 25 miles an hour; that when he reached Pacific avenue the bus made a sharp turn and struck the rear fender of his automobile; that he became unconscious and lost control of his automobile; that he regained consciousness in the West Suburban hospital; that he felt pain all over his head, side, shoulder, back and leg; that a bandage was put on his head; that he had bruises all over his shoulder, head and legs; that there were 12 stitches in his head; that it took three weeks before he was able to walk around; that his head still pains him; that at the time of the accident he was employed and was earning $39.75, plus a bonus each week; that he went back to work after three weeks; that before the occurrence he was running a machine at work; that after the accident he got a lighter job for seven months; that then he went back to his regular position; that immediately before the accident his automobile was in “No. la condition”; that at the time of the occurrence he lived three and one half blocks from Pacific and Belmont avenues; that he had driven on Belmont avenue quite often before the accident; that he had no intoxicants to drink before the accident; that he had also ridden on the bus; that a few feet west of Pacific avenue the trolley wires cross the street and make a circle off of the side of Belmont avenue; that on the day of the occurrence he had seen those buses make that turn a couple of times; that he knew the buses turned there on Belmont avenue; and that he knew the buses were in the habit of making that turn.

Bichard Boerstal, called by plaintiff, testified that he was in a store on the northeast corner of Pacific and Belmont avenues; that the bus came to the corner going west on Belmont avenue, traveling 10 miles an hour; that it continued going, making* a left hand turn; that he saw the automobile traveling west on Belmont avenue; that the automobile was going approximately 25 to 30 miles an hour, but it started to slow down after he first saw it about 50 feet east of the intersection; that the bus was traveling west until it started to make a left hand turn going south; that before the bus made this turn it was traveling in the north lane of Belmont avenue next to the curb; that the rear end of the automobile collided with the side of the bus; that the automobile tried to avoid the bus before the collision took place; that the front side of the bus came in contact with the right rear of the automobile; that the bus did not stop until it came in contact with the automobile; that there were no passengers on the bus at the time of the accident; that there is a 35 mile an hour speed limit; that the automobile was knocked into a tree on the south side of Belmont avenue about 50 or 75 feet west of Pacific avenue; that the driver of the automobile was bleeding about the head and seemed to be in a dazed condition; that after the bus passed the store in which witness was standing the automobile came along; that the bus ran 40 or 50 feet past the store when the witness saw the automobile; that the bus “runs on a trolley”; that it cannot run unless it has “a wheel on the trolley”; that he “was caused” to observe the automobile coming out at that particular moment because he believed he sensed something was going to happen; that he thought something would happen because before it came to the corner the automobile slowed up a little but kept on going; that he believed the automobile was going about 25 to 30 miles an hour; that it started to slow down when the driver saw the bus moving; that he did' not believe anyone could judge the speed of an automobile coming toward or passing him with any degree of accuracy, and that when he said 25 or 30 miles an hour, that is what he would guess; that he felt something was going to happen because the bus did not stop, kept on going; that he knew the bus was’ going to make a turn there; that he was familiar with the neighborhood and knew the trolleys go around there; that the automobile and bus collided about the middle of Belmont avenue; that at that time the bus was west of the store in which witness was standing; that he couldn’t exactly see through the bus, but that he could see which part of the bus came in contact with the automobile by looking at the markings on the bus after the accident; that he saw the ñiarks on the left side of the bus towards the front center; that the front tire of the bus was flat; that the bus stopped at the time of the collision; that the automobile ran into a tree which may have been about 50 or 190 feet from the bus, and that the bark of the tree was knocked off. Mrs. Anthony Hoy, called by plaintiff, testified that she was sitting in her automobile which was parked on the northwest corner of Belmont and Pacific avenues, facing south; that she was waiting for her children to come from a Belmont avenue feeder bus; that the automobile was traveling west on Belmont avenue in the westbound lane towards the center of Belmont avenue; that the bus was traveling in the right hand lane westbound, next to the north curb of Belmont avenue; that the automobile was traveling approximately 25 miles an hour and the bus was traveling 10 to 15 miles an hour; that there were no passengers on the bus; that the bus made a left turn at or about the 'intersection; that the bus did not come to a stop before it made the turn; that the automobile went 50 or 60 feet before it came to a stop; that the driver of the automobile was dazed, with blood on his face and forehead; that before the accident the driver of the bus did nothing prior to making a turn; that she heard no horn blown by the driver of the bus; that the bus stopped immediately after the crash; that the automobile careened down the street 50 or 60 feet and came to a stop after it hit a tree, and that the collision took place a half block away across Pacific avenue. Cecelia Steck, called by plaintiff, testified that she was walking through a prairie and had reached the north sidewalk of Belmont avenue, just west of Pacific avenue; that she saw the bus going west; that when it approached Pacific avenue it made a left turn without making any stop; that the automobile was traveling 25 miles an hour, and that a statement exhibited to her which was introduced in evidence bore her signature. .In this statement she said: “I was walking across prairie and had reached the north sidewalk of Belmont avenue just west of Pacific. I saw this auto coming fast, heard screeching brakes — the westbound bus had started to make turn to left to go back east. I heard screeching of auto brakes — then shortly after the bump — the auto hit the left rear side of the bus, tore off the fender of the bus — then auto scraped along left side of bus — blew out the left front tire of bus— auto ran on came to a stop in about 190 feet at the southwest corner (or near there) of Page & Belmont. Man driver only one in auto. Had a bad cut on his forehead. Bus was in center of street. Auto could have passed to right side of bus but driver of auto cut over into eastbound lane.” Carl S. Petersen, called by defendants, testified that he arrived at the scene shortly after the occurrence; that he saw a bus standing in the middle of Pacific and Belmont avenues on a southwest angle and that the distance between the place where the bus was standing and the tree that was struck by the automobile was approximately 125 feet to the best of his guess. Martin Michael, called by defendants, testified that he was driving his automobile west on Belmont avenue; that there was a trolley bus stopped and discharging passengers at Pacific and Belmont avenues; that the bus made a left turn to go into the lot to head east; that at the time the bus first started to make this left turn to go into the lot there was no automobile between the witness and the bus; that the witness was about 100 feet behind the bus when the automobile passed on the left side of the street going at a good rate of speed and hit the side of the bus; that witness was traveling about 25 miles an hour and in his opinion the automobile that passed him was traveling about 45 to 50 miles an hour; that at the time the automobile passed the witness, the bus was about the center of the street and the witness was about 100 feet behind thé bus; that the front of the automobile collided with the center of the bus, glanced over and blew out the front tire of the bus and continued on Belmont avenue for about 150 feet and collided with a tree; that the bus came to a stop after the accident on the left hand side of Belmont avenue with its front over the middle of the street and its rear about 15 feet from the right hand curb. John Moczynski, called by defendants, testified that he was on the northeast corner of the intersection; that the bus slackened down almost to a stop and started to creep along about three to five miles an hour to the center of the street to make the turn; that he first saw the automobile about one half block back of the bus, at which time the bus was making the center of the' street, creeping for the turn; that the automobile was going 45 to 50 miles an hour and collided with the center of the bus on the south side of the bus and that he hit the front end, swerved out and kept going for 190 feet down the street, skidding with skid marks and hit a tree head on; that the next morning witness took a rule and measured the distance from the place of the collision to the tree and that it was 190 feet; and that the automobile tore the bark off the tree. Oscar Ludman, called by defendants, testified that he was an engineer employed by defendants and that he prepared the drawing of the scene of the occurrence. Another witness called by defendants testified that Charles J. Svoboda, the driver of the bus, was then a seaman in the United States Navy overseas. ■ Oscar W. Hoos, called ‘by defendants, testified that he was the driver of a mail truck; that he was eating dinner in his home about 250 feet from the intersection; that he heard a loud crash and went over to the scene of the accident; that he saw a bus partly turned around just west of the corner of Belmont and Pacific avenues; that he saw marks on the bus where it was hit; that the marks were at the rear wheel and on the side of the bus; that the front tires were down and there were skid marks on the pavement which ran along the side of the bus and headed toward the tree; that witness stepped off the distance between the bus and the tree and it was 150 feet and 30 feet beyond the curb, a total of 180 feet. Robert L. Manville, an engineer employed by defendants, testified that in his opinion an automobile traveling at 20 miles an hour on a dry concrete pavement in good condition and equipped with four wheel brakes in good condition and working order, could be stopped in just under 20 feet. At 25 miles an hour it could be stopped in less than 30 feet. At 50 miles an hour it would be stopped in about 115 feet. Arthur C. Hansen, called by defendants, testified that he was a repairman employed by defendants; that he investigated the bus the morning following the accident and found that at the rear end on the left hand side the rubber fender lock was torn loose; that toward the center the side of the body was scraped and the paint rubbed off; that on the left front wheel the rubber fender was also torn and the body was pushed in and scratched about the length of two windows, or four or five feet. George Duncan, a 15-year-old school boy called by defendants, testified that he was sitting on the northeast corner of the intersection; that he saw the trolley bus coming west pretty slow, just barely going; that the witness could walk faster than it was going; that it started to make the corner; that the" automobile started to come pretty fast; that he couldn’t say how fast and it struck the bus; that as to where it struck the bus, the witness said that he thought there was a piece of rubber missing off the back of the wheel and it hit the front of the bus; that he could not see the car hit the front of the bus, it was on the left side, but he heard the crash; that the automobile was knocked off balance, swerved and made a lot of dust; that the left side of the automobile hit the tree and bounced back; that witness did not see anyone get off the bus, which crawled along pretty slow but did not stop; and that it slowed up real slow and started to make the corner.

Pacific avenue is at the end of the Belmont avenue bus line. At that place westbound buses proceed around a loop and turn back to the east. The buses get their power from the trolley wires overhead. They cannot operate unless the trolley wheel is on this trolley wire. The trolley wire was over the street in plain view, and it turned around a loop there. If the bus moved at all it could go nowhere else except around this loop. Plaintiff lived only three and one half blocks from this loop, had ridden on Belmont avenue quite often and had ridden on the bus. He knew that just a few feet west of Pacific avenue the trolley wires cross the street and make a circle off of the side of Belmont avenue. He knew that on the day in question and had seen buses make that turn. Plaintiff knew that the bus was in motion, that it would necessarily turn left at the loop and that it would go nowhere else. Notwithstanding this, he undertook to drive past the moving bus at an admitted speed of 20 to 25 miles an hour, not on the right or north side, but on the left side, which was the side toward which the bus would necessarily turn. He saw the bus from the time it was 300 feet ahead of him. Consequently, he had an abundance of time to regulate his driving so as not to collide with the bus while it was making the turn which he knew it would make at that place. It was a clear dry day and plaintiff’s automobile was in A-l condition. At 20 to 25 miles an hour he could have stopped in 20 to 30 feet. The bus had traveled across Pacific avenue, angling to the south, before it reached the beginning of the sharp curve. Pacific avenue is 33 feet wide from curb to curb. If the bus was moving 10 miles an hour and the automobile was traveling 20 to 25 miles an hour, the automobile must have traveled at least 66 to 82 feet after the bus passed the Pacific avenue curb line, and after the plaintiff must have known, if he was paying any attention to the situation, that it was proceeding into Pacific avenue for no other purpose than to make the turn. From the east building line of Pacific avenue to the place where the sharp curve begins is more than 55 feet. While the bus was traveling that distance, the automobile traveled from 110 to 137 feet. Since the bus stopped immediately after the collision, it stands to reason that the momentum which caused the automobile, skidding on the pavement, to run 190 feet and then hit a tree with sufficient force to tear off two feet or more of bark and to wreck the front end of the automobile, was furnished by the speed with which the automobile was being driven past the bus which plaintiff knew would necessarily turn left at that place. We are satisfied that the evidence, viewed in the most favorable light in support of plaintiff’s action, does not prove that plaintiff was in the exercise of due care for his own safety. As has frequently been held, the law will not tolerate the absurdity of permitting one to testify that he looked and did not see the danger when the view was unobstructed, and where, if he had properly exercised his sight, he would have seen it. Dee v. City of Peru, 343 Ill. 36; Qreenwald v. Baltimore & O. R. Co., 332 Ill. 627.

There is much force in the argument of defendants that there is no evidence to warrant a verdict finding the defendants guilty of negligence, which was the proximate cause of the injuries. However, in view of our finding that under the principles of law discussed it was the duty of the court to direct a verdict for the defendants on plaintiff’s failure to prove his allegation that he was in the exercise of due care and caution for his own safety, it is unnecessary for us to decide whether there was any evidence to sustain the charge of negligence. It will be observed that there was also a charge of wilful and wanton conduct. No attempt was made to prove this charge, and no instructions were requested by plaintiff dealing with that charge. On the contrary, plaintiff’s requested instructions were‘based upon the exercise of due care, and although they were not given to the jury, they may be considered in determining whether the plaintiff intended to submit the wilful and wanton charge to the jury. It is well established that an appellant is bound on appeal by the theory upon which he tried the case in the trial court. We find that the charge of wilful and wanton conduct was abandoned by the plaintiff. Our view is that it was the duty of the court at the close of all the evidence to direct a verdict for the defendants. Therefore, the judgment of the superior court of Cook county is affirmed.

Judgment affirmed.

Hebel, P. J., and Kilby, J., concur.


source: Caselaw Access Project

author: Mr. Justice Burke

license: Public Domain

text:
    Henry Nielsen, Appellee, v. Clarence Pyles, Appellant.
    Gen. No. 42,784.

      Heard in the third division of this court for the first district at the October term, 1943.
    Opinion filed April 26, 1944.
    Rehearing denied May 12, 1944.
    C. Helmer Johnson, of Chicago, for appellant.
    J. Theodore Kiggins and Lloyd T. Bailey, both of Chicago, for appellee.
   Mr. Justice Burke

delivered the opinion of the court.

The first count of a complaint filed in the circuit court of Cook county by Henry Nielsen against Clarence Pyles charged that on December 5, 1941, while he was seated in his automobile, which was standing on North avenue at the intersection of Austin boulevard waiting for the signal lights to change, it was struck in the rear by an automobile owned and operated by defendant; that as a proximate result thereof plaintiff’s automobile was bunted, knocked and propelled forward on the street for a distance of 10 feet; that on account of the bumpers of the automobiles becoming fastenéd, the automobile in which plaintiff was riding was caused to and did come to a sudden and violent stop; that thereby plaintiff was thrown violently forward and his body was caused to be doubled up and “jack-knifed”; and that he thereby sustained serious injuries for which he asked damages of $35,000. This count alleged the following acts of negligence; failure of defendant to bring his automobile to a stop in time to prevent the collision; failure to keep a proper lookout, to keep his automobile in a reasonable state of repair and to keep the brakes in such a state of repair as to have reasonably brought the automobile to a stop; driving at a high and unreasonable rate of speed and failing to turn opportunely and change the course of his automobile and avoid the collision. Count 2 of the complaint contained substantially the same allegations as Count 1, except that it charges that defendant’s violations of his duty were in a manner which exhibited a conscious indifference as to consequences and in a wilful and wanton manner. The answer of defendant admits ownership and operation; denies the allegation of lack of due care; denies the collision as alleged, and on the contrary alleges that it was a minor bump or injury to either party; denies the acts of negligence and affirmatively pleads: that after the slight collision neither automobiles or persons were damaged or injured, and that the plaintiff alighted and tried to lift one of the automobiles to disengage the bumpers; that the strain of lifting the weight caused the injury to plaintiff’s back, and not the previous collision; that plaintiff immediately admitted that the lifting and not the collision caused the injuries; and that plaintiff admitted this on other occasions, and that the plaintiff’s injuries, if any, were due to his own negligence. Plaintiff did not reply. The case was tried before the court and a jury. A special interrogatory was submitted to the jury as to whether defendant was guilty of wilful and wanton conduct and this was answered in the negative. The jury returned a verdict finding defendant guilty and assessing plaintiff’s damages at $5,000. Motions for a directed verdict, for a judgment notwithstanding the verdict and for a new trial were denied and judgment was entered on the verdict, to reverse which this appeal is prosecuted.

At about 7:15 on the morning of December 5, 1941, plaintiff, a man approximately 50 years of age, residing in Elmwood Park, a suburb of Chicago, drove his 1936 Nash automobile to the Oak Park high school. His daughter accompanied him and he left her off there. He was a butcher and owned and operated a meat market at 2833 Armitage avenue, Chicago. Austin boulevard is a north and south highway and North avenue is an east and west highway. After leaving his daughter at the high school he drove to North avenue and then east to Austin boulevard. His automobile was in good mechanical condition. When he arrived at Austin boulevard he stopped his car for a “stop and go” traffic light, which was red to indicate that eastbound traffic was not to move over the intersection. He sat in his car about one minute, waiting for the light to change to green, when his automobile was struck in the rear by defendant’s automobile. This was about 8:00 a. m. His car was knocked forward about 5 feet and then brought to a stop as plaintiff’s rear bumper was entangled with defendant’s front bumper. Plaintiff testified that he flew back and then forward again; that he “got a snap in the back”; that he felt a slight pain; that he got out of his car, walked to the rear, saw the bumpers hooked together, bent over and may have started to lift a little when he suffered a sharp pain in his back, could not straighten up and was carried to and placed on the curb; that when he got to the bumper he bent over and couldn’t get up; that he bent over to see how the bumpers were hooked; and that he did not remember taking hold of the bumper and lifting. Plaintiff further testified that the car which bumped his car was driven and owned by defendant. Plaintiff stated that he “sat around there about 2 or 3 minutes but nothing was done”; that he told defendant that he gave him “quite a little bump,” and that defendant said: “I guess I did.” Ernest R. Schwartz of Melrose Park was a passenger in defendant’s car. Defendant and Mr. Schwartz carried plaintiff to the curbstone and placed plaintiff in defendant’s car and defendant drove to plaintiff’s home. Schwartz drove plaintiff’s car home. Plaintiff received medical attention. He sustained a fracture of the second lumbar vertebra. At the time of the trial he weighed 182 pounds, was 5 feet 7 or 8 inches tall and “chunky.” Plaintiff has suffered continuous pain and trouble with his back since the time of the accident. He testified that he suffered loss on account of inability to take care of his business and to do his buying and that it was necessary for him to wear a brace for at least 15 months.

Defendant testified that he resides in Melrose Park; that on the morning of the occurrence he was driving his 1938 Dodge car; that it was in good condition as far as he knew; that every 1,000 miles he had his car checked for greasing; that he had it checked about two weeks before the occurrence; that he drove his car an average of 1,000 miles a month; that he drove about 30 miles a day; that he never had any difficulty with his brakes;, that on the day of the occurrence he drove from his home, which was about 10 miles from North avenue and Austin boulevard; that he made about 10 stops; that he had no difficulty in making stops; that he was traveling in an easterly direction on North avenue on his way to the place where he then worked at Kilbourne avenue; that as he approached Austin boulevard he observed that the red light was “against him”; that he was then about one half a block away; that he put his foot on the brake and slowed up slightly “to get down”; that he slowed up without thoroughly stopping; that up to the time he saw the red light he was traveling at a speed of 25 miles an hour; that as he approached plaintiff’s car he did not notice any difficulty with the brakes; that when he applied the brakes within “say 20 feet of Nielsen’s car” the brakes did not hold and he struck that car; that he estimated he was going about 5 miles an hour at the time he struck plaintiff’s car; that it was a slight collision; that his car moved plaintiff’s car about 5 feet before the cars came to a stop; that it was a slow stop; that then plaintiff got out of his car and defendant and Mr. Schwartz got out of defendant’s car; and that they looked at the fenders and bumpers to see if there was any damage. Defendant testified further that there was no damage and they proceeded to disengage the bumpers; that defendant sat on the bumper of his car, lifting the bumper; that Schwartz was on the left side and plaintiff on the right side; that all three were lifting on the bumper; that plaintiff cried he had a sprained back or that he sprained his back; that at that.time plaintiff was leaning against the rear of his (plaintiff’s) car; that defendant and Mr. Schwartz ceased in endeavoring to disengage the bumpers and went over and talked to plaintiff; that plaintiff was in great pain; that defendant sat plaintiff down on the car alongside of defendant’s car and Schwartz and defendant then disengaged' the bumpers. Defendant then took plaintiff home in defendant’s car and Mr. Schwartz drove plaintiff’s car. Defendant then drove his car to a service station at Harlem and North avenues, where an attendant put in 35^ worth of brake fluid; that after the brake fluid was put in the car he drove to work and that he drove the car as usual from then until the time of the trial in March 1943, or approximately 15 months; that he did not have any further trouble with the brakes; that at the time of the occurrence plaintiff told witness that he strained his back while lifting the bumper, and that there was no damage to either car. Mr. Schwartz testified in corroboration of the testimony of defendant.

Frank Miller, called by plaintiff, testified that he was service manager for the automobile distributor handling Dodge and Plymouth cars; that his work for the past 15 or 20 months had been to diagnose and sell service; that he was familiar with the mechanical makeup of 1938 Dodge cars and the mechanical workings of brakes and brake drums; that the 1938 Dodge has four wheel brakes; that the system must be absolutely tight at each of the four wheel cylinders and also at the master cylinder; that they must be tight so that when the brake pedal is pushed down there is a “tremendous pressure there”; that all the brakes are connected through a supply line from the master cylinder. In response to a question as to whether the lack of fluid in a 1938 Dodge car with hydraulic brakes would suddenly cause the brakes to fail to operate, witness said it was possible with one exception. Asked what the exception was, he answered: “Before this happened that brake pedal was very low.” Asked as to whether there would be any trouble previous to stopping the car, or whether it would come on all at once, he answered: “That would happen all at once; but previous to that the pedal was still low, for this reason: the liquid in the master cylinder was low or almost empty, to the point where it leaves the master cylinder to the wheel cylinder. Once the liquid gets beyond the gasket of the master cylinder, you wouldn’t have any brakes at all.” Asked as to what would cause the liquid to become low in the master cylinder, he answered: “Leakage somewhere, only; positively leakage only.” He further testified that the liquid in the cylinders is a combination of castor oil and alcohol; that it would take not quite a pint to refill the master cylinder; that on December 5, 1941 the liquid cost from 25 f to 50<¡: a pint; and that it is possible for the brakes to become loose suddenly from leakage.

The first point made by the defendant is that plaintiff failed to prove that the accident and injury resulted from any act of negligence of the defendant, and that the doctrine of res ■ipsa loquitur is not applicable. The doctrine of res ipsa loquitur is that whenever a thing which produced an injury is shown to have been under the control and management of the defendant and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant, tending to show that the injury was not due to his want of care. The presumption of negligence raised by the application of this doctrine is not absolute or conclusive, but is rebuttable. A presumption is not evidence and cannot be treated as evidence. Presumptions are never indulged in against established facts. They are indulged in only to supply the places of facts. As soon as evidence is produced which is contrary to the presumption which arose before the contrary proof was offered, the presumption vanishes entirely. Bollenbach v. Bloomenthal, 341 Ill. 539. Under the facts in this case, defendant’s automobile was under the exclusive control of defendant and the collision was such as in the ordinary course of events would not have happened under proper care; hence, the accident itself affords reasonable evidence, in the absence of an explanation, that it arose from the want of proper care. In our opinion the doctrine of res ipsa loquitur is applicable. Defendant saw plaintiff’s automobile standing at the traffic light when he was one half bio ‘k away. His car was then traveling at 25 miles an hour. On observing plaintiff’s car he slowed up and at the time of the collision he was traveling about 5 miles an hour. He had ample time in which to bring his car to a stop either by applying his foot brake or by using his emergency brake. We agree with plaintiff that it is logical to assume that had defendant’s foot brake failed to work, the first thing he should have done would be to apply the emergency brake. Defendant had ample opportunity to avoid the collision. It will be observed that although plaintiff’s car was available, defendant drove plaintiff to the latter’s home in his (defendant’s) car and then drove to a service station to have the brake fluid poured into the master cylinder. Defendant, in driving a car containing an injured man, must have felt that if necessary he would be able to stop his car either by using the foot pedal or the hand brake. In our opinion the jury was fully justified in finding that the defendant was guilty of negligence.

The second point argued by defendant is that the proximate cause of plaintiff’s injury was not the negligence of the defendant, and asserts that the evidence shows that plaintiff’s injury was sustained after the accident had occurred and after he had alighted from the car and was lifting on the bumper; that the lifting of the bumper was an independent act of plaintiff, not related to the occurrence of the accident; and that the alleged negligence of defendant did nothing more than furnish a condition by which the injury was made possible by the subsequent independent action of plaintiff. The evidence introduced by plaintiff sought to show that the injury to his spine occurred while he was seated in his car, as a direct result of the defendant’s car striking his car. However, plaintiff maintains that under the authorities it makes no difference whether plaintiff sustained his injuries at the time of the impact, or when trying to disengage the bumpers, and that if he did any lifting in trying to disengage his automobile, the jury had a right to award him damages for the injury so sustained. As there was competent evidence from which the jury could find that the injury to his spine was suffered by plaintiff while he was seated in his car, and as there was also competent evidence to support defendant’s contention that the injury occurred when plaintiff helped in disengaging the bumpers, a question of fact for the jury was presented. The law in respect to the damages will be considered in connection with our discussion of the instructions.

The third point advanced by defendant is that, plaintiff failed to prove his cause of action as alleged in his complaint. There is no merit in this contention. Defendant’s fourth point maintains that the injury to plaintiff resulted in his own independent voluntary act. As hereinbefore stated, there was competent evidence that the injury plaintiff suffered occurred while he was seated in his car waiting for the stop lights to, change. Defendant asserts that his answer, to which no reply was filed, alleges by way of special defense, among other things, that after the collision in which neither automobile nor the persons were damaged or injured, plaintiff alighted and tried to lift one of the automobiles to disengage the bumpers; that this strain caused plaintiff’s injury to his back and not the previous collision; and that plaintiff’s injury was due to his own negligence. Defendant states that by failing to deny these allegations of special defense, plaintiff admitted them, and that therefore they were not questions of fact for the jury. It will be observed that the complaint alleges that by reason of the collision his body was caused to be doubled up and “jack-knifed” and that thereby he sustained serious and permanent injuries. From, this it would appear that plaintiff was not claiming damages because of any injury due to the disengaging of the bumpers. The claim of plaintiff, as stated in his complaint, is inconsistent with his contention in this court that he may recover whether the injury occurred while he was seated in the car or while endeavoring to disengage the bumpers. By failing to deny the allegations of special defense it would appear that plaintiff had determined to rely on his allegation and testimony that his injury occurred while he was seated in the car. Plaintiff’s evidence was presented on the theory that the injuries were caused by the collision. Defendant urges that the court erred in refusing to direct a verdict in his favor at the close of all the evidence. There is no merit in this contention.

Defendant maintains that the court erred in refusing to give to. the jury defendant’s instructions Nos. 1 to 10 inclusive. Plaintiff does not discuss this point. In our opinion, instruction No. 1 was not applicable to the facts and the refusal to give it was not error. Instruction No. 3 reads:

“Plaintiff has alleged in his complaint that he had been driving in an easterly direction on North Avenue, and had brought his automobile to a stop at Austin Boulevard, that while his automobile was so standing, the defendant’s automobile bunted, knocked and propelled plaintiff’s automobile along and forward upon said street a great distance, to wit, a distance of ten feet, and then on account of being fastened and attached to said defendant’s automobile was caused to and did come to a sudden and violent stop all of which caused plaintiff to be thrown violently forward, and plaintiff’s body was caused to be doubled up and jackknifed, and thereby sustained serious and permanent injury. You are instructed that this is a material allegation, and you are further instructed that unless you believe from a preponderance or greater weight of the evidence, that plaintiff’s injuries were caused by reason of defendant’s automobile coming in contact with the plaintiff’s automobile, and that plaintiff sustained injuries by reason of plaintiff’s body being doubled up and jack-knifed as the result of said collision, then the plaintiff cannot recover in this case, and your verdict should be ‘not guilty’.”

As we have seen, plaintiff’s complaint sought damages for the injury to his back, sustained while he was seated in his car. Defendant offered evidence that the injury occurred when plaintiff endeavored to disengage the bumpers. This presented an issue of fact. Plaintiff did not try his case on the theory that he was entitled to recover even though the injury was caused by his effort to disengage the bumpers. Instruction No. 19 was a general instruction as to damages. It does not, however, cover defendant’s theory that the injury to plaintiff occurred while he was seated in the car. Defendant was entitled to have the jury instructed on his theory of the case. In view of the pleadings, we are of the opinion that the court erred in not giving an instruction embodying the principle of instruction No. 3. Instructions Nos. 2, 4, 5, 7, 8 and 10 embody the same principle as instruction No. 3. It will be necessary to give only one instruction on the subject. Instruction No. 6 need not be considered, as it relates to the second count charging wilful and wanton conduct. As the jury found for the defendant on the second count, that count is eliminated from the case. Instruction No. 9 is not applicable and the court did not err in refusing to give it.

Defendant finally urges that the verdict is excessive and the result of prejudice. It is unnecessary to consider this point. Because of these views, the judgment of the circuit court of Cook county is reversed and the cause remanded fo.r further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded with directions.

Hebel, P. J., and Kilby, J., concur.


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    Gertrude Paolinelli, Administratrix of Estate of Leo Jerry Paolinelli, Deceased, Appellee, v. Dainty Foods Manufacturers, Inc., Appellant.
    Gen. No. 42,808.

      Heard in the third division of this court for the first district at the October term, 1943.
    Opinion filed April 26, 1944.
    Lord, B issell & Kadyk, of Chicago, for appellant; Leonard F. Martin, Guy C. Baltz and Jambs J. Lewis, all of Chicago, of counsel.
    Sher & Karlin and M. M. Wasserman, all of Chicago, for appellee; Leo S. Karlin,' of Chicago, of counsel.
   Mr. Justice Burke

delivered the opinion of the court.

Gertrude Paolinelli, administratrix of the estate of Leo Jerry Paolinelli, deceased, filed a complaint in the superior court of Cook county against Dainty Foods Manufacturers, Inc., for damages under the Wrongful Death Act. A trial before the court and a jury resulted in a verdict against defendant for $3,000. Motions for judgment notwithstanding the verdict, for a new trial and in arrest of judgment were denied, and judgment was entered on the verdict. This appeal followed. Plaintiff’s theory of the case is that she purchased in a neighborhood store Dainty Soup Noodle Mix, manufactured by defendant; prepared soup from the mix and fed some to her young son, Leo Jerry Paolinelli; that due to the negligence of the defendant a bone or foreign object was in the Dainty Soup Noodle "Mix and was fed by her to Leo causing injury to his respiratory system and resulting in his death. Defendant’s theory is that there is no evidence showing that the bone or foreign object was present in defendant’s product at the time plaintiff purchased it; that no negligence on the part of the defendant was proved or can be presumed from the proof; and that the verdict was the result of mere speculation and conjecture on the part of the jury.

On Saturday, December 7, 1940 Leo Paolinelli and Gertrude Paolinelli resided at 1901 West Eace street, Chicago, with their daughter Carol, 4% years of age, and their son Leo Jerry, 13 months of age. The baby was recovering from an attack of chickenpox. He had reached the age where he could walk with help if he held onto somebody. During most of the week of December 7th, plaintiff kept the baby in a walker because it was very cold and the flat downstairs was not heated. With the aid of the walker he would go from one part of the house to the other. Plaintiff testified that on December 7th, in preparing supper for her family, she warmed up some soup from the day before. The soup was beef broth which plaintiff had prepared herself from chuck meat bought in the neighborhood. She discovered that she needed food for the baby and went to a neighborhood grocery store and purchased a glass jar containing Dainty Soup Noodle Mix, manufactured by the defendant. On direct examination plaintiff testified that she took a clean pan from the pantry, boiled some water in it, and prepared the noodle mix soup by putting the contents of the jar in the boiling water and letting it boil five to ten minutes, and that when prepared she poured a little soup and most of the noodles from the jar into a dish that she had “specially for the baby.” At the time she bought the jar it was sealed with a lid on it. While in her home, she pried the lid off with a can opener and poured the contents into the pan. She watched the soup mix while it was cooking, stating that “otherwise the noodles would stick to the bottom.” She stirred the soup mix while it was boiling. As a consequence of the boiling of the mix the noodles increased to about three times their size. The noodles were shell shaped. She testified that they were from one half to three quarters of an inch long and about one quarter inch wide, and that she combined the meat broth from the day before with the noodle mix soup remaining after filling the baby’s dish. This combination she intended to serve to her husband, her daughter and herself. She also fried meat for supper. The broth from the day before was made from tomatoes as well as some vegetables and the beef chuck which she had put in solid without cutting it. The meat was taken out the day before. For the reason that her husband did not like vegetables or tomatoes, she strained this left over soup through a tea strainer before serving. The water used to prepare the noodle mix soup was taken from the sink. The sink faucet was provided with a filter strainer. She did not know how big the openings were in the strainer on the faucet, but said a noodle could not pass, and doubted whether anything one quarter or one third of an inch could pass through the strainer. Plaintiff’s husband then started to eat and plaintiff started to feed the infant. She testified that she took a teaspoon and fed him two or three teaspoonfuls; that about the second or third teaspoonful he gagged; that he started coughing and began turning blue; that her husband took the baby, turned him upside down, patted him on the back, and that the baby “threw up some of the noodles and some of the soup”; that then he 'lost his bluish color and stopped gagging. She took the baby from her husband and held him in her arms. He started to cry and his cry was “quite a bit different from his ordinary cry. It was sort of like his voice came from way down deep inside of him.” Plaintiff immediately called a physician named Dr. Block. This call was made at 6:30 or 7:00 p. m. The feeding of the baby was around 6:00 or 6:30 p. m. Dr. Block did not arrive until about 7:00 p. m. He undressed the baby, laid him on the table and examined him with a stethoscope. He told the parents to wait until Sunday or Monday. After the doctor left plaintiff held the baby in her arms because he was restless. He would not take his bottle. Finally he fell asleep in her arms and she laid him down. All night long he was dozing off and on. In the morning when the mother tried to give him orange juice, water and milk he would not take it. She testified that Sunday afternoon she noticed that the baby’s breathing was becoming heavier and that his cry was becoming harsh. On Sunday the mother held him in her arms until 2:00 p. m. and he fell asleep until 5:0() p. m. When he woke up his breathing was much worse and when he breathed “his whole chest would cave in so you could see his ribs and his cry — he couldn’t even cry any more.” She called up the doctor and was told to take the baby to the County hospital. She arrived there about 7:30 p. m. on Sunday. The mother next saw the baby at 12 o’clock noon on Monday. He seemed to be dozing and was restless. She saw him again at 7 -.30 Monday evening while he was getting a blood transfusion. The baby died about 10:20 that evening.

Dr. Willard Kerman testified that he was a licensed physician and at the time of the occurrence was a resident physician in the children’s department of the Cook County hospital. He looked at the child shortly before midnight on Sunday and observed that the child was in acute respiratory distress and was having difficulty in breathing. The child had chickenpox at the time. The baby was bronchoscoped by another doctor at 3:00 o’clock Monday morning, and by this means a grayish mass was removed from the right main bronchus. Dr. Kerman said the grayish mass was flat like a disc and measured about a half inch in length, one third of an inch in width and that it was maybe one quarter of an inch thick, with irregular borders; that it seemed hard and brittle and was porous in character; that it was shaped roughly like a pill — like an aspirin tablet. In his opinion it was bone. He thought Dr. Freedburg took it. He observed during the bronchoscopy that the lining of the respiratory tract was redder than normal and described it as angry, inflamed and edematous and swollen. After the bronchoscopy the baby was returned to his bed and a steam tent was arranged over it so as to sooth the inflamed respiratory tract. Though apparently improving, following the bronchoscopy, the child grew worse, and about noon Monday it was decided that a tracheotomy, that is, a mechanical opening in the trachea or windpipe, would have to be made, and it was done at once. Around supper time a transfusion was started and ran a couple of hours until its completion. The child seemed quite “bad” but got progressively worse and suddenly “went bad” about 10:15 and died in five minutes. The witness’s opinion as to the medical condition of the child immediately before his death was that he had an acute laryngotracheobronchitis. That means an inflammation of the entire respiratory tract, starting with the larynx or voice box through the trachea or windpipe, down into the bronchi. The witness “thought” there was a causal connection between the death and the obstruction found in the bronchi. He “felt” that the inflammation and swelling was due to the foreign object and “felt’.’ positive that death was due to the progressive inflammation. The final diagnosis was made on the basis of witness’s observation, plus the autopsy findings.

On cross-examination plaintiff testified that on December 7th she fed the baby cereal and a mashed banana. Asked: “Did he eat any bread?”, she answered: “No, he chewed on a graham cracker.” Defendant states that the evidence shows the infant was chewing on a graham cracker at the time or shortly prior to the time plaintiff started feeding him. We agree with plaintiff that a reading of the transcript leads to the conclusion that the mother, in stating that her child chewed on a graham cracker, was relating what he ate on December 7th. At the time the mother gave this answer, she was relating what she fed the baby on that day. Defendant also .states the evidence shows that at the time plaintiff was preparing the soup, she was preparing meat for supper. Plaintiff replies that it is clear from her testimony that the meat must have been prepared either before she went to the store or after she fed the baby, and that no where is there any evidence from which it'could be inferred that any meat was being prepared during the time she was preparing the soup mix. Our view is that the jury was in the best position to determine when she was frying the meat.

Plaintiff was cross-examined as to her testimony before the coroner’s jury the day following the baby’s death. She testified that the facts were all fresh in her mind at that time. One question asked her at the inquest was: “Were you feeding him these packaged noodles or something you had bought and broke up yourself?” She answered: “No, I put two things together. I had some soup left over from the day before and I had noodles in it and they got kind of thick and I went to the store and bought some chicken noodle soup in a jar. If it is a chicken bone I cannot understand how it got there because I didn’t have chicken. I had regular broth and soup meat and the doctor said it was a chicken bone.” Asked as to.whether she recalled the question and. answer, she-answered in the affirmative. Asked: “That was true wasn’t it?” she answered: “True what I said about it?” The interrogator said: “Yes,” and she • answered: “Yes.” Asked “And you had mixed both the chicken soup and the other soup together and fed him a part of that?” She answered: “I didn’t mean it that way.” Counsel for defendant then informed her that he was not asking her what she meant, that he was asking her whether the questions were put and the answers made. She started to answer: “I fed the baby only — ,” when defendant’s counsel asked her whether she knew what the coroner meant when he asked: “Were you feeding him these packaged noodles or something you bought and broke up yourself?”, and whether she understood that the coroner asked: “What were you feeding the baby?” She answered: “I must have.” Asked: “And did you still understand that when you said, ‘No, I put two things together?’” she answered: “Yes.” Asked whether the following question was asked and the following answer given before the coroner : ‘ ‘ The soup you had on the day before, you say it didn’t contain chicken?”, “No, it didn’t and I strained the soup from the day before because I didn’t want — my husband don’t like anything with tomatoes in it and I strained it. So I cannot understand how he could have swallowed a bone. That is why I never thought — I never told the doctor. He even asked me in the hospital if he swallowed a bone and I said, ‘Not that I know of.’ Since I did not have chicken in the house since Thanksgiving, so it could not have been that”, she answered: “That is right.” Asked: “You fed bim the mixture?”, she answered: “Yes.” Asked: “Had you fed the mixture of the two kinds of soup you put together?”, she answered: “Whatever I told the inquest.” She followed with the statement, “I did say that but I was all bewildered at the time, all mixed up.”

Defendant’s plant was located at 670 West Randolph street, Chicago, and it made two kinds of soup, chicken noodle soup and noodle soup without chicken. It also made a powdered drink concentrate. The noodle soup mix which defendant manufactures is composed of dehydrated vegetables, protein derivatives, chicken fat, flour Seminole and gelatin. The dehydrated vegetables look like dried apricots or dried figs and come in cans or boxes of 30 or 50 pounds, and are taken directly from the boxes and put into the first mixer. Defendants relied on the persons who sold the dehydrated vegetables to clean them. No inspection was made except to see if they were of proper cost. All the cans are sealed. The boxes are closed and the contents are wrapped in paper to prevent absorption of moisture. The particles of dehydrated vegetables are the size of corn meal. The noodles are delivered in paper containers weighing 50 pounds. The chicken fat, prepared by the Polo Products Company, is delivered in 25 or 30 pound cans and comes frozen. Bach can of chicken fat bears a government inspection mark for grade and purity. The gelatin and spices come in powdered form. The packages are opened on the second floor of defendant’s plant, where they are mixed. The plant was 125 feet deep and 50 feet wide and had a wooden floor. Marble tables were used. The walls were ordinary walls and were painted. Before adding the chicken fat certain amounts of the ingredients are weighed out of each package and put directly into a mixer, which is a closed bowl and contains 300 pounds. It is sort of an oversized Mixmaster, about 3 feet in diameter. In this mixer the ingredients are mixed to the right proportions. This mix is taken out of the first mixer and put in another mixer holding about 62 pounds. At this time a can of chicken fat is put in hot water to make it liquid, the whole can being put in and warmed like a baby’s bottle. One and one half pounds of this liquid fat or oil is then added to the vegetable mix with a tin scoop made like a spoon. After this mixer mixes the fat with the other ingredients the bowl is taken off the mixer and carried into another room. In this room the powder mix, so-called, is taken out of the mixer bowl with a scoop holding 2 or 3 pounds and put on big plates. It is then weighed out, either by hand or by means of a hopper and put in open glasses. One and one half ounces of the mix is put in each glass. The glasses were then carried on trays to the noodle department, where girls put the noodles in by hand. The glasses are then sealed by a machine with a vacuum pack cover and are sent out in that shape to the persons who handle the product. No inspection is made of the contents of the fat and no inspection is made to look for foreign objects. The second mixer, where the fat is added, was not a grinder and would not grind up something really hard. A little piece of wood or bone would not grind; it would go through the mixer and come out the same shape it was before. The mixed powder in its final form was not run through a strainer, but was put in the glasses without being strained. ' The only part of the Dainty Noodle Soup Mix which contains any animal or meat products is the chicken oil or fat, and the only portion of chicken defendant had at its factory was chicken fats. No other meat product was used by defendant in its two soup products and none was used in its drink concentrate product. It had no animal bones of any kind about the premises and none of its tools or any part of its establishment was made of animal bones. The defendant had never found a bone in the noodle mix. Neither the plaintiff nor anyone in her behalf ever showed the defendant a foreign object, such as was claimed to be in the noodle mix, the container or the contents. The Polo Products Company, which supplied the rendered chicken fat to the defendant, received live chickens, killed and dressed them, and removed the fat from the gizzards and entrails of the chickens. The fat is then heated to separate the oil from the flesh and the oil is drained from the receptacle. The oil is then strained or sieved and is poured into cans containing from 25 to 30 pounds of chicken oil. A United States government meat inspector is present during the process and inspects the chicken fat and approves and stamps all the chicken oils sold by the Polo Products Company. No part of the chicken is used by the Polo Products Company except the chicken fat. The balance of each chicken is disposed of without any further processing by them.

The first point urged by defendant is that the trial court should have directed a verdict for it, or entered judgment for it notwithstanding the verdict because there was no evidence showing that the bone or foreign object alleged to have caused the injury was in the noodle mix product when its container was opened. Plaintiff insists that the trial court properly overruled the motions for a directed verdict and for judgment notwithstanding the verdict on the question of the presence of a bone or foreign object in the noodle mix product when its container was opened. By a motion to direct a verdict at the close of all the evidence, the sole question presented is whether, admitting the evidence in favor of the plaintiff to be true, that evidence, together with all legitimate conclusions and inferences, fairly tends to sustain plaintiff’s cause of action. If it does, then as a matter of law, plaintiff is entitled to have her case passed upon by the jury. By a motion for judgment notwithstanding the verdict, the same question is again presented and the same test applied as in deciding a motion for a directed verdict at the close of all the evidence. The evidence clearly shows that the baby’s death was caused by a bone which lodged in his respiratory system. Dr. Kerman testified that the bone was grayish in color, flat like a disc, and measured about one half inch in length, one third inch in width and about one quarter inch thick with irregular edges. In endeavoring to impeach the mother, she was asked about her testimony before the coroner’s jury. In that testimony she is quoted as saying that “the doctor said it was a chicken bone.” However, in his testimony Dr. Kerman did not say it was a chicken bone. It was the duty of the defendant to exercise at least reasonable care in the manufacture, preparation, inspection and packing of its food product, so that such product, knowingly to be distributed by it for human consumption should be free from any foreign objects not fit for human consumption. The evidence shows that the bone which eventually caused the baby’s death was first noticed by the parents at about 6:30 Saturday evening. At that time he gagged after having been fed two or three spoonsful from the contents of his dish. If the bone did not come from the jar of noodle soup mix, defendant cannot be held responsible. If the bone did come from the jar of noodle soup mix, the verdict of the jury should stand. If the bone came from the jar, that would be strong evidence that there was an omission on the part of defendant’s servants to observe some of the precautions about which they testified as to the preparation and filling of the jars. Defendant states that no inference that the bone was in its product can be drawn from the mere fact of feeding the soup. Plaintiff’s case rests largely on circumstantial evidence. However, a verdict may be founded on circumstantial evidence alone. Negligence is always a question of fact that must be alleged and proved as averred. It cannot be supported by mere conjecture or surmise. We agree with defendant that liability cannot rest upon imagination, speculation or conjecture, or upon a choice between two views equally compatible with the evidence, but must be based upon facts established by evidence fairly tending to prove them. Absolute, positive, ocular proof the law wisely does not require. A greater or less probability, leading, on the whole, to a satisfactory conclusion, is all that can reasonably be expected to establish controverted facts. Plaintiff testified that she looked at the contents of the jar as she poured it into the pan to prepare the soup and did not at any time see any bone in the mix, and that she saw no bone in the mix at any time after it had been prepared. Defendant argues that there was no bone in the two or three spoonfuls she fed the baby, or she would have seen it; that the testimony shows that the only portion of the noodle mix that contained any animal or meat product is the chicken fat or oil; that no bones of any kind were kept on defendant’s premises ; that no bone implements were used in the manufacture of its products and that it knew of no bone having ever been found in the noodle mix; that the chicken, oil was purchased by defendant in sealed cans and was government inspected; that plaintiff’s own testimony and that of the defendant negatived the existence of any bone in the product, and that the verdict was obviously the result of mere speculation and conjecture on their part that the product contained a bone. Defendant maintains that the bone found in the infant’s bronchus came from some outside source; that there is no evidence that it came from defendant’s product; and that on the other hand the evidence shows a number of other sources from which it may well have come. Defendant suggests that keeping in mind the well known propensity of young children to place objects in their mouths, the bone may well have been picked up by the boy in his perambulations around the house and kitchen and placed by him in his mouth before the time plaintiff started to feed him; that had ten or fifteen teaspoonfuls been fed to him before he gagged, it would be unlikely that the bone was in his mouth when she started feeding him; that the first or second teaspoonful could readily place the object already in his mouth in such a position that the next spoonful of soup would carry the object down into the throat. In this connection defendant calls attention to the testimony of plaintiff that she did not see any bone in the soup she fed to her son and comments that in view of the small capacity of a teaspoon and because the mother of necessity must have looked at the spoon and contents in order to insert it in the baby’s mouth, it is extremely unlikely that if the bone had been in a spoonful of soup she would not have seen it.

Defendant calls attention to the direct examination of plaintiff wherein she testified she prepared the noodle soup mix by pouring the contents of the jar into a pan of boiling water, stirring it for five or ten minutes, and then pouring a portion of the contents of the pan into a dish which she had specially for the baby, and which she then set aside while preparing soup for the rest of the family; that she had some left over meat broth from the day before to which she added the balance of the contents of the pan of noodle soup mix and then poured it in plates for the rest of the family, following which she commenced to feed the baby. Defendant, alluding to the testimony of plaintiff before the coroner’s jury, asserts that she admitted on the trial that she fed the baby a mixture of the broth left over from the day before and the chicken noodle soup mix, and that the conclusion seems irresistible that if the bone which later lodged in the baby’s throat was not in his mouth at the- time she started feeding him, it in all probability was in the meat broth which she mixed with defendant’s product. Referring to her testimony that she strained the meat broth which contained tomatoes and other vegetables, because her husband did not like anything with tomatoes in it, defendant states that she also testified that she saw no bone in the noodle mix, either as she was pouring it into the pan or in the soup which she fed to the baby, and that it can be as well inferred, if inferences are to be permitted, that the bone came from the meat broth which she combined with the noodle soup mix to feed the baby, as that it came from the noodle soup mix. Defendant asserts that there are other sources from which the jury could as well have speculated the bone came from as from defendant’s product ; that the baby chewed oh a graham cracker; that the bone my have been in the cracker; that according to plaintiff she put water in a pan and waited for it to boil and then added the noodle mix and stirred it for five or ten minutes while it was boiling; that she later poured some of the soup into the baby’s dish and set it aside; that the time she was preparing the soup she was frying meat for supper; that the pan in which she put the water was not covered; that it apparently was on the stove on which she was frying the meat; that the bone may have gotten into the soup while she was stirring it; that it may have come from the baby’s dish while She was stirring it, or it may haVe come from the ■meat she was frying. Defendant states that the verdict was the result of mere speculation; that the jury simply surmised that the bone entered the baby’s mouth at the time he was fed and that it came from defendant’s product; that there were no facts from which either inference could be drawn; that it was equally compatible with the evidence either that the bone was in the child’s mouth when the mother started to feed him, or that it came from one of the outside sources suggested; and that plaintiff has not sustained the burden of proof which was upon her throughout to show that the bone came from the defendant’s product.

The evidence shows that around supper time plaintiff started to prepare the meal. She had a clear broth soup made from chuck meat and vegetables the day before. She had bought the meat and made the soup the day before. She had examined the meat and it had no bones in it. The meat had been taken out of the soup the day before. On Saturday she took the little bit of soup she had left over from the day before and put it on the stove and saw she had nothing to feed the baby. She went to a neighborhood store and saw defendant’s product on the shelf and bought it. The product was in a glass jar containing dehydrated vegetables, some dried powder, and on top were • the shell noodles. When she bought the jar it was sealed. When she got the jar home she took a clean pan from the pantry and filled it with the required amount of water, which she obtained from the sink faucet. The faucet had a filter strainer on it, through the openings of which a noodle could not have passed. She did not know how big the openings in the strainer were, but doubted that anything one quarter or one third of an inch could pass through. Then she waited for the water to boil. When the water boiled she put in the entire contents of the jar and let it boil five or ten minutes. She had pried open the jar with a can opener. When she poured the contents of the jar into the pan of water, she just looked at it when she poured it in and did not see any bone either in the mix or in the soup. She did not put any lid over the pan and its contents. She had to stay and watch it while it was cooking, otherwise the noodles would stick to the bottom. She stirred it while it was boiling. When it was boiled the noodles increased to about three times their previous size and were one half to three quarters or seven eighths of an inch long and about one quarter inch wide. When the soup was done she took the baby’s dish, poured in a little soup and most of the noodles and set it on the side. Then she put the left over broth with the remainder of the chicken noodle soup. The left over broth had been strained through a strainer with very fine openings, through which an object one quarter inch could not go, to strain out the vegetables before serving it to her husband. This soup contained a combination of broth from the day before and the remainder of the soup mix, and was divided among the plates of plaintiff, her husband and the other child. Then plaintiff started to feed the baby and her husband started to eat. She took a teaspoon and fed him two or three spoonfuls, and then about the second or third spoonful he started to gag and turn blue. Her husband then took the baby and turned him upside down and patted him on the back and the baby threw up some of the noodles and some of the soup. She held the baby in her arms and when he cried the cry was different from the ordinary cry. Later that evening he was visited by Dr. Block and on Sunday evening was taken to the County hospital. He died Monday evening.

With respect to the attempted impeachment of plaintiff, it is the position of the defendant that in the trial court she confirmed the testimony given by her at the inquest, which was to the effect that she had mixed the broth left from the day before with defendant’s product. Defendant asserts that this situation is not controlling and should not be confused with cases where a prior inconsistent statement made by a witness, which concededly would affect the credibility of the witness and pose a question for the jury, whereas, in the instant case plaintiff admitted the truth of her previous testimony. Plaintiff states that this testimony was not impeaching; that a clear analysis of the record shows that during the trial plaintiff explained that she actually did not feed the' baby a mixture of the beef broth and noodle soup mix. We have carefully read the transcript of the testimony. When the plaintiff was under cross-examination by defendant’s attorney she was asked as to whether she mixed any of the left over broth with the noodle soup mix, and she answered:' “No.” She was again asked substantially the same question and answered: “For my husband I had mixed it.” She was also asked: “Did you tell you mixed it for the baby and fed him some of the mixed soup?” She answered: “No, I didn’t say it was mixed for my baby.” She was then asked about questions propounded to her and her answers before the coroner’s jury. After answering that the answer she gave before the coroner’s jury was true, she was asked: “And you had mixed both the chicken soup and the other soup together and fed him a part of that?”, to which she answered: “I didn’t mean it that way.” She was then asked: “I am not asking you what you meant. I am asking you whether the questions and answers were made.” She answered: “I fed the baby only —,” and was interrupted by another question. However, it is a reasonable inference from her previous answers that she was about to say that she fed the baby only the chicken noodle mix. The attorney for the defendant was not satisfied as to -her testimony; otherwise, after she had admitted that her answer before the coroner’s jury was true, defendant’s attorney would not have asked her whether she had .mixed both the chicken soup and the other soup together and fed the baby a part of that. However, when he put this question to her, she stated that she did hot mean it that way. When he told her he did not want to know what she meant, she started to answer that she “fed the baby only —.” Her statement that if the bone which lodged in the child’s throat was a chicken bone she could not understand how it got there because she did not have chicken, was consistent with her theory of the case. She was also asked: “You fed him the mixture?”, and she answered: “Yes.” From a consideration of the transcript it is apparent that on the trial plaintiff testified that what she fed the child was defendant’s mixture and not a mixture of defendant’s product and the beef broth left over from the day before. It is our view that whether or not she was impeached and the weight to be given to her testimony, was within the province of the jury. The jury had the right and apparently did accept the mother’s version of the occurrence as true. It further appears from the hospital record, which was introduced in evidence, that when the baby was brought to the hospital on Sunday, December 8, 1940, plaintiff gave a history that on Saturday, December 7th, while being fed chicken noodle soup the child gagged and had to expectorate some of the soup. In the same statement the mother informed the hospital authorities that no bone was present in the soup. This statement was made when she had' every reason to hope that her child would recover, and tends to corroborate her testimony that she did not mix defendant’s product with the left over beef broth. It also shows that at that time the mother did not suspect that the baby had swallowed a bone. Plaintiff testified that she had no poultry in the house for two or three weeks before the occurrence, and that she had a duck bn Thanksgiving day, which was all eaten. Plaintiff points out that the fact that no one saw the bone does not negative its existence in defendant’s product; that every step in the handling of this product from the time the sealed jar was opened until it was fed to the baby is reasonably accounted for, and leads to only one conclusion, that it must have been in the original container. It could not come from the water, which was strained. The pan was clean. Plaintiff watched it boil. The soup mix was put in a special baby dish and then fed to the baby. The left over broth contained no meat, and the meat in it the day before contained no bones. If it had been a chicken bone, there had been no poultry in the house for two or three weeks, and then a duck which had been entirely consumed. As to defendant’s contention that the baby may have picked up a bone in his perambulations around the house, we agree with plaintiff that this contention is based on nothing in the evidence and is highly speculative. As to defendant’s contention that since the baby chewed on a graham cracker, the bone might have been in it, we agree with plaintiff that the jury had a right to conclude from the evidence that this contention is also speculative and improbable. As to the suggestion of defendant that the bone may have come from the meat which was being fried for supper, we agree with plaintiff that the record does not show that from the time the jar was brought home until the baby was fed, meat was being prepared at the same time. Plaintiff watched the soup mix while it was cooking. We agree with plaintiff that it is logical to conclude that if anything came into the mix from any outside source during 'the period while she was watching and stirring it, she in all likelihood would have seen it. As to the suggestion that the foreign object may have come from the baby’s dish, plaintiff states that she could not and would not have missed seeing it in the baby’s dish, if it could have been there. A glass jar similar to the one purchased is in evidence. It is approximately four inches high. Pasted around the jar and one and three quarters inches in width is a label giving the name of the product and instructions on its use. The lower part of this label is approximately five eighths of an inch from the bottom of the jar and the upper part of the label is approximately one and three quarters inches below the top. The label is opaque and plaintiff, in picking it up, could not see the contents from the side so far as covered by the label. A small object such as the bone taken from the baby’s bronchus, could have been poured into the pan without being observed by the mother. It would be less likely that an object such as a bone from the beef broth could fall or fly into the pan while the mother was watching it, without her seeing it. It is interesting to note that eleven of the jurors were women, and it would seem that the knowledge of women in the care of the home, the preparation of meals and the feeding of babies would give the jurors in this case a good understanding of the testimony and enable them to appraise it.

In answer to defendant’s argument that there was no bone in the two or three teaspoonfuls plaintiff fed the baby or she would have seen it, plaintiff calls attention to her testimony that she poured a little soup and most of the noodles into the baby’s dish and that she fed these noodles to the child, noticing that the noodles floated at the top, and declares that it would be a logical conclusion, the noodles being as large or larger than the bone and floating on top, that the bone could very well have been in the spoon without being seen by plaintiff. These observations by plaintiff have, merit and tend to support her case. It is significant that it was after the baby had swallowed some of the soup and noodles and was still being fed that he started to cough and gag. We are of the opinion that under the factual situation disclosed by the record that the court was right in declining to direct a verdict and in declining to enter a judgment for the defendant.

The second point leveled at the judgment is that assuming arguendo that there was a bone in the noodle mix product when purchased by plaintiff, there is no evidence whatever to show any negligence of defendant in its manufacture, and the doctrine of res ipsa loquitur cannot be invoked to sustain the verdict and judgment. Defendant urges that there is no evidence tending to show that its manufacturing process was conducted otherwise than in a sanitary, safe and efficient manner; that plaintiff’s cause of action is based upon negligence of the defendant; that the burden was upon plaintiff to prove negligence and that she failed so to do; and that in the absence of any affirmative proof of negligence plaintiff must necessarily invoke the doctrine of res ipsa loquitur. Plaintiff insists that disregarding, for the time being, the doctrine of res ipsa loquitur, there was ample evidence establishing the charge of negligence. • The evidence shows that the product was prepared and marketed by defendant in a sealed vacuum packed container, delivered in that condition to a retailer, who in turn sold it in that condition to plaintiff, so that when received by plaintiff it necessarily and apparently was in the same condition as when distributed by defendant. A reading of the testimony as to the method used by defendant to prepare and pack its product shows that there was opportunity for a bone to get into the jar. No inspection was made of the dehydrated vegetables, except to see that they were of the proper cost, neither was there any inspection as to the other ingredients used in the soup mix. It appears from the testimony that the defendant, engaging in the manufacture of food for human consumption, performed no inspection of its product, or of the composite product, while manufacturing the same, but relied upon its vendors. The second mixer where the chicken fat was added was a large open bowl. It was not a grinder and would not grind up something hard, such as a small bone, which could go through the mixer and come out in its original shape. The containers were open while in the process of being filled and carried from department to department on trays by hand until all of the ingredients had been added. These ingredients were handled in the open and the final mixture, including the chicken fat, mixed in an open mixer without any provision for grinding up or removing foreign objects which could have been contained' in any of the original containers or ingredients. There was no attempt made to strain the powdered product. The chicken fat when boiled was strained or sieved by the Polo Products Company. There is no evidence as to the type of strainer or sieve used by them, or the manner as to the handling of the chicken fat from the time it was poured into the cansí until it was received by defendant. Defendant states there was no possibility of any bone getting into the chicken fat or oil, that it was delivered in sealed cans, and inspected, approved and stamped by a government inspector. The fact that the oil was government inspected was proper evidence for the consideration of the jury on the question of negligence. However, it is well established that government inspection is not a substitute for due care. In our opinion there was sufficient evidence to warrant the jury in finding that plaintiff proved defendant was negligent in the manufacture, preparation and inspection of its product.

Defendant insists that the doctrine of res ipsa loquitur is not applicable. In Bollenbach v. Bloomenthal, 341 Ill. 539, our Supreme Court said (542):

“The doctrine of res ipsa loquitur is, that whenever a thing which produced an injury is shown to have been under the control and management of the defendant and the. occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of injury itself will be deemed to afford prima facie evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. The presumption or inference of negligence raised by the application of this doctrine is not absolute or conclusive but is rebuttable, and vanishes entirely when any evidence appears to the contrary. As is said by this court in Coal Creek Drainage District v. Sanitary District, 336 Ill. 11: ‘A presumption is not evidence and cannot be treated as evidence. It cannot be weighed in the scale against evidence. Presumptions are never' indulged in against established facts. They are indulged in only to supply the place of facts. As soon as evidence is produced which is contrary to the presumption which arose before the contrary proof was offered the presumption vanishes entirely’.”

Defendant states that the doctrine cannot be invoked because the instrumentality allegedly causing the injury had passed from its control to that of plaintiff, and because defendant’s evidence rebutted any presumption or inference of negligence in its manufacture. In support of its contention plaintiff cites Rost v. Kee & Chapell Dairy Co., 216 Ill. App. 497, 504; Welter v. Bowman Dairy Co., 318 Ill. App. 305, 359; Davis v. Van Camp Packing Co., 189 Iowa 775, 786. Defendant replies that in the Rost case plaintiff was injured1 by bits of broken glass when she poured milk out of a bottle into a cup and drank it; that the broken glass was found in the bottle and plaintiff did nothing to the milk except to pour it out of the bottle; that in the Welter case the evidence was undisputed that the bottle of milk contained paint; and that in the Davis case a can of pork and beans was emptied into a bowl, nothing being mixed with them, and the illness .was caused by ptomaine poisoning by eating the pork and' beans. We are satisfied that under the factual situation the doctrine of res ipsa loquitur is applicable. The court properly overruled the motions of defendant for a directed verdict and for judgment notwithstanding the verdict.

Finally, defendant urges that the verdict is against the manifest weight of the evidence. We are unable to agree with this contention. The evidence fully justifies the verdict. The judgment of the superior court of Cook county is affirmed.

Judgment Affirmed.

Hebel, P. J., and Kiley, J., concur.