I have no difficulty in accepting the Nevada compensation act as giving weight to the presumption. In other words, the facts presumed do not disappear upon the presentation of facts negativing them. Instead they are considered the same as if they were introduced by testimony, and are placed in one pan of the scales of justice that they may be balanced against the facts introduced by testimony negativing them, in the other pan, to see which weighs the more. Naturally the burden falls upon him who must produce *Page 285 the testimony. The law gives the presumed facts to his opponent.
But I am not so convinced that in this case the presumed facts so outweigh the negative testimony, that we need not resort to the fine balance of the scales to so hold. The reader should not get the impression that because the affirmative facts are presumed by statute, they have become so sacrosanct that they may not be rebutted as easily as if they were the product of testimony of witnesses whom we believe to be telling the truth so far as they know the facts. I do not think the question of whether or not the case should have gone to the jury is as easily decided as the prevailing opinion would have us believe.
I am impressed with the thought that such evidence as dryness of storage place, dryness of fuse, dryness of temporary storage shelf, no complaints from Buhler, and examination before delivery to the employee — the thoroughness of the examination being for the jury to determine — may raise sufficient reasonable inferences to divide reasonable men as to the condition of the fuse at the time of its use. This of course takes Mr. Grant's testimony as true for the sake of the argument. However, nothing will be accomplished by discussing this more, for, if adopted, obviously it is a minority view.
I agree that the facts presumed are limited by the pleadings in this case.