Petition for compensation under R. S., Chap. 50, as amended.
The petitioner alleges that her late husband Justin Kelley, a blacksmith axe maker, died.as the result- of an industrial accident. Quoting the petition: “While working at the anvil a die came out and fell on his foot.” ' ’
Mr. Kelley’s death occurred, about three months after" the alleged accidental injury. The cause as stated in the death certificate was “gangrene of toe,” the contributing cause “diabetes.”
The defendants deny that the deceased suffered any accidental injury and say that the gangrene was a not unusual manifestation of his diabetic condition. . '
At the hearing before the Chairman of the Commission the burden was upon the petitioner to prove her 'case. Westman’s Case, 118 Maine, 133.
She had the burden of proving.that the metal die fell on her husband’s foot, and that the injury thus occasioned caused or hastened his death. The Chairman found the burden sustained.
If supported by any legal evidence the finding must stand. If not it must be reversed inasmuch as a finding of a material fact without evidence is an error of law.
The evidence is of three classes.
- (1) Hearsay—Hearsay is entitled to no weight. ■ Its admission however, is harmless unless the decree is based upon it.
(2) Upon the question as to whether the condition of the man’s foot was caused or aggravated by trauma, the medical testimony is neutral. One doctor indeed gives as his opinion, “I think it was from trauma” but he admits that there was no possible way that he- could tell and frankly bases his opinion upon what the patient told him.
(3) Casings’ testimony—Warren Casings testified that a day or two before Kelley stopped work “As I was going by him (Kelly) I saw him step back and I saw this die on the ground.” He says that as Kelley stepped back he uttered an oath. Other testimony *263showed the weight-of the die to be about ten pounds. From this testimony the Chairman draws the conclusion that the die fell a distance of about three feet and struck on Kelley’s foot, producing an injury which caused or hastened his death.
Casings’ testimony is not disputed. Indeed there is no conflict of primary testimony in the case. The question that the court has to consider is whether the Chairman’s inference is a rational and natural inference from the proved facts. If so the decree must stand even though a different inference might with equal logic and reason be drawn by some other tribunal. Mailman’s Case, 118 Maine, 179.
If a ten-pound die had fallen a distance of three feet and struck on Kelley’s foot producing an injury so severe as to cause or accelerate his death, the probability is so strong as to be almost a certainty that his work would have been for a brief period at least, interrupted and that he would have, at the time made some complaint of injury to the foot, or at all events have mentioned the matter to his fellow workmen.
But there was no interruption. He worked all that day and the next. He did not at the time complain of injury to the foot, nor mention it to the man working with him at the same forge.
No issue is raised of the credibility of testimony. The question is whether under these circumstances it may reasonably be inferred that the die which the witness Casings saw lying on the floor had fallen upon Kelley’s foot producing an injury of such severity as to cause death. We think that the inference is strained and not reasonable.
In many cases accidental injury has been held inferrable from slight circumstances without direct testimony, but never we believe where as in this case all the facts and circumstances taken together are inconsistent with such inference.
Appeal sustained.
Decree reversed.