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Upon petition for a rehearing our attention is called to the fact that evidence spoken of by this court as having been introduced by the defendant, was offered by the plaintiff. We were misled by the fact that the numerous depositions taken on behalf of the defendant were read in evidence by the plaintiff.
The Supreme Court of this State has repeatedly sanctioned the giving of an instruction that if the jury believe from the evidence that the plaintiff has made out his case as charged in his declaration, then the jury shall find for him. Am. Cent. Ins. Co. v. Rothschild, 82 Ill. 166; O. & M. Ry. Co. v. Porter, 92 Ill. 437.
It is not within our province to reverse such holding.
It was not necessary in such instruction to limit the right to recover to the amended declaration; the cause was tried upon the entire declaration.
The counts first filed were sufficient to sustain the verdict, no objection thereto on account of variance having been made.
Evidence that the trunk became and was broken while in the possession of the defendant, was such evidence as, unexplained, would warrant an inference that articles lost from the trunk were lost therefrom at the time of such breakage.
It is the case that a party can not impeach the character of his own witnesses, or overcome their testimony by mere denial by counsel of its truthfulness. In the present case the plaintiff made no attempt to impeach the character of any of her witnesses; her counsel did criticise the testimony of one, by reference to what the witness did not say. Counsel carefully refrained from accusing the witness of speaking untruthfully.
The thirteenth instruction asked by defendant might properly have been given; if error to refuse it, it was not of so grave a nature as to require a reversal of the judgment in this case, in which the preponderance of the evidence is clearly with the plaintiff. Judgment affirmed.