The plaintiff sued for injuries alleged to be the result of negligence on the part of the defendant in the preparation and sale of pork sausages which she alleged were unwholesome and unfit for human consumption. A second cause of action. was pleaded charging a breach of the implied warranty that such food was fit for consumption. Judgment for $1630 went for the plaintiff on both causes of action after a trial by the court sitting without a jury. On appeal to the District Court of Appeal this judgment was reversed. The opinion of Doran, J., is a fair and complete statement of the facts which correctly disposes of the issue of negligence and we quote and adopt that part of the opinion reading as follows:

It should be added that the undisputed evidence showed that defendant’s place of business was clean and sanitary and that the food was prepared and sold under proper local sanitary regulations and inspection. There is not a word of evidence to support the finding of negligence on the part of the defendant.

Upon the second cause of action appellant’s attack rests upon the claim that the evidence is insufficient to prove a breach of the implied warranty that the food when sold was reasonably fit for consumption. The trial court found that respondent’s illness was caused by her consumption of the sausages, “said food being a filthy, decomposed and putrid animal substance and unwholesome and unfit for human consumption”. This finding is based solely upon the testimony of respondent’s physician, who testified that he reached the conclusion that the food was unwholesome because of the presence of the maggots—that maggots feed on putrid material only and never feed upon wholesome, clean flesh. It is a matter of common knowledge that flies will attack and lay their eggs upon fresh clean meat and that maggots will hatch and develop in a very short time thereafter. It is entirely upon this false premise that the physician based his testimony—that the meat was putrid because maggots were on it, that maggots were on it because it was putrid, that because it was putrid the maggots were toxic, and that because they were toxic they caused respondent’s illness. The only credible evidence as to the condition of the meat was that it was pure and wholesome when chemically analyzed on the day following the sale. Yet this was the only portion of the meat sold upon which any maggots had been seen. This is the “fact” upon which the physician drew his inference that the meat was decomposed on the previous evening. But reason compels the opposite inference and reason is the requisite of all inferences. It was said in Mix v. Ingersoll Candy Co., 6 Cal. (2d) 674, 681 [ 59 Pac. (2d) 144 ] : “Although it may frequently be a question for a jury as the trier of facts to de termine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain eases present facts from which the court itself may say as a matter of law that the alleged defect does not fall, within the terms of the statute. It is insisted that the court may so determine herein only if it is empowered to take judicial notice of the alleged fact that chicken pies usually contain chicken bones. It is not necessary to go so far as to hold that chicken pies usually contain chicken bones. It is sufficient if it may be said that as a matter of common knowledge chicken pies occasionally contain chicken bones.”

Hence, since the proven facts are that maggots were attached to this particular meat which was found to be pure and wholesome the following day, the only reasonable inference to be drawn from these facts is that maggots will be found on meat which is not putrid and decomposed. For these reasons the testimony of this witness in which he dreiv the conclusions above noted does not create a conflict in the evidence and does not meet respondent’s burden to prove that the food was not reasonably fit for human consumption as required by section 1735 of the Civil Code.

The judgment is reversed.

Edmonds, J., Shenk, J., Sturtevant, J., pro tem., and Seawell, J., concurred.

Langdon, J., and Curtis, J., dissented.