ON REHEARING, JANUARY 20, 1927.
Burks, J.,delivered tbe opinion of the court.
A rehearing was granted in this case June 29, 1926. Tbe case bad been fully argued on tbe original bearing and carefully considered, but tbe case is on tbe border line, and it is conceded in tbe original opinion that tbe evidence was such that a verdict in favor of either party could not be set aside. Under these circumstances, some of tbe judges entertained some doubts as to our conclusion on tbe subject of proximate cause, and hence tbe rehearing was granted.
Tbe rehearing has been had, and tbe ease has been very fully argued again, both orally and on briefs, and, after a careful consideration, we adhere to the conclusions reached on tbe original bearing.
Tbe petition for rehearing not only discussed tbe question of proximate cause, but argues at great length tbe question of tbe primary liability of tbe defendant. Tbe petition, in effect, ignores tbe fact that tbe petitioner stands in tbis court as a demurrant to tbe evidence, and vigorously assails tbe facts which are set forth in tbe opinion as to “tending to establish tbe primary negligence of tbe defendant.” Some of tbe arguments of tbe petition are immaterial. In other instances, testimony for tbe plaintiff is sought to be overcome by conflicting evidence offered by tbe de*17fendant. In others, it is said that there is no évidenee in the record to sustain the statement in the opinion. This is a serious charge, not warranted by the record, but a detailed discussion of it would not be edifying or instructive. Upon a careful re-examination and reconsideration of the evidence, we find that the statement in the opinion on this subject is sustained by the record in every essential particular, and we adhere to it.
The other ground upon which a reversal is spught in the petition for rehearing is that defendant’s negligence was not the proximate cause of the plaintiff’s blindness; that his blindness was not the result of lead poisoning but of glaucoma, which is a disease of the eye, which is not the result of toxic, or poisonous, influence.
Before discussing the evidence, it is necessary to advert briefly to the position occupied by the petitioner in this court. The petitioner’s ease is not within the exception referred to in Norfolk & W. Ry. Co. v. Thayer, 137 Va. 294, 119 S. E. 107, and he stands here practically as a demurrant to the evidence.
A demurrant to the evidence is considered as admitting the truth of all his adversary’s evidence unless inherently incredible, or judicially known to be untrue, and all just inferences that can properly be drawn therefrom by a jury, and as waiving all of his own evidence which conflicts with that of his adversary, or which has been impeached, and all inferences from his own evidence, although not in conflict with his adversary, which do not necessarily result therefrom; and if several inferences may be drawn from the evidence differing ih degree of probability, those most favorable to the demurree must be adopted unless forced, strained or manifestly repugnant to reason. Johnson v. Ches. & O. Ry. Co., 91 Va. 171, 21 S. E. *18238; Ches. & O. Ry. Co. v. Anderson, 93 Va. 650, 25 S. E. 947; Wolonter v. U. S. Casualty Co., 126 Va. 156, 101 S. E. 58.
This rule has not been observed in the petition for rehearing. Nearly every witness introduced by the defendant was for the purpose of contradicting-some testimony offered by the plaintiff, either as to facts or expert opinions, and free use has been made of" such conflicting testimony in the petition to rehear. The real question which the defendant (petitioner for-rehearing) has to consider was this: If after the plaintiff had introduced all of his evidence, and the defendant had been permitted to show consistent but omitted facts, the ease had been submitted to the jury and they had found the present verdict, could the trial court have-set it aside under section 6251 of the Code, or can this court, under section 6363, set aside a judgment of the-trial court in accordance with the verdict, because.' plainly contrary to the evidence, or without evidence - to support it? ’
We had occasion to examine this subject carefully in Forbes & Co. v. Southern Cotton Oil Co., 130 Va. 245, 108 S. E. 15, and it is there said: “It is not-sufficient that the judge, if on the jury, would have-rendered a different verdict. It is not sufficient that-there is a great preponderance of evidence against it. If there is conflict of testimony on a material point, or • if reasonably fair-minded men may differ as to the conclusion of facts to be drawn from the evidence, or if the-conclusion is dependent upon the weight to be given to the testimony, in all such cases the verdict of the-jury is final and conclusive and cannot be disturbed, either by the trial court or by this court, or if improp- ■ erly set aside by the trial court, it will be reinstated by this court. But with all the respect that is justly due-*19to the verdict of a jury, and -which is freely accorded to it, if there has been a plain deviation from right and justice even a court of law will not make itself a party to such a wrong by entering up judgment on it.”
Under the rule governing a demurrer to the evidence, very little if any of the testimony for the defendant can be considered.
In the original opinion it is said: “Plaintiff’s witness, Dr. J. W. Watkins, a duly licensed and experienced optometrist, examined the plaintiff’s eyes with an opthalmoscope in March, April and May, 1923, and found him suffering with optic neuritis, which was ' producing atrophy of the optic nerve and causing a loss of vision. He says optic neuritis is an inflammation of the optic nerve, which may be produced by many causes, including lead poisoning, and that lead poisoning caused plaintiff to have optic neuritis which atrophied the optic nerve, and in May, 1923, was causing complete blindness; and that in December, 1923, he had no vision in his right eye. He agrees with the other doctors who examined Wheeler that in 1924 plaintiff was suffering from simple glaucoma. He also testified that lead poison may result from paint which is taken into the system through the mouth or nose, or by absorption through the skin.
“It was not discovered until November 16, 1923, when he was examined by Dr. M. C. Edmunds, physician and eye specialist, who testified for the plaintiff, that Wheeler was suffering from simple glaucoma, or hardening of the eyeball. Dr. Edmunds says the opthalmoscope showed he had optic atrophy, and that both nerves were absolutely white; that the tonometer showed that his eye was a little bit hard. He diagnosed the trouble as optic atrophy, probably secondary *20to chronic glaucoma. Dr. Edmunds says: ‘No one knows the cause of glaucoma;’ that it is possible for-Wheeler to have had optic neuritis which cannot now be detected on account of the presence of glaucoma, which is characterized by tension within the eyeball;that the fact that Wheeler was suffering with glaucoma, does not mean that his trouble was not caused by lead poison; that the two troubles do not contradict each other; that lead poisoning results in blindness from its influence on the optic nerve by producing optic neuritis, and sometimes optic atrophy, which often follows lead poisoning.”
This statement of the evidence is as favorable to the-plaintiff in error as the record justifies. -It appears further from the record that Dr. Edmunds, a witness, for the plaintiff, testified in part as follows:
“Q. Does the fact that this man is suffering from glaucoma now mean in any way that his trouble was not caused by lead poisoning or other toxic infection?'
“A. No; it does not mean it was not caused by that..
“Q. The two things don’t contradict each other?
“A. No.
“Q. Suppose a patient comes to you and tells you that he has been suffering from lead poisoning, and you find the condition of his eyes to be the same as the condition of Mr. Wheeler’s eyes at the time you examined him, would you connect the previous lead poisoning with the present condition of his eyes in any way?
“A. Well, I would think about that as a possible-cause of it; I would not absolutely; I could not say it was absolutely, but I would consider it was a possible-cause, knowing that we do not know the cause of this condition.
“Q. If, in addition, the patient told you, that for a year prior to the time of the examination, he had been: *21engaged in painting railroad ears -without the use of gloves or a face mask, or any other protection, would that have inclined you towards the opinion that his present condition was connected with some toxic infection, due to poison taken from paint?
“A. Yes, sir. It would lead me to believe that he would possibly have had lead poisoning.
“Q. Now, Doctor, from what you found on your examination, was there anything in the physical examination of Mr. Wheeler which would cause you to conclude that this condition arose from lead poisoning rather than from something else?
“A. I found an optic atrophy, and optic atrophy often follows lead poisoning.
“Q. Does glaucoma follow lead poisoning?
“A. I don’t know the cause of glaucoma.”
The paint gun issued the paint in a kind of fog.
Dr. J. W. Watkins, a witness for the plaintiff, much of whose testimony is set forth in the original opinion, testified that after getting the history of the case: “I determined in my own mind that he had toxic amblyopia,” that is, dimness or loss of vision from poison. “In the history of the case I judge that he had a boxic condition that produced it.” He further testified, in answer to questions, as follows:
“Q. You said this was, in your opinion, due to a toxic condition?
“A. Yes, sir.
“Q. That is a sort of technical word. What do you mean by toxic?
“A. Poisonous — some poison from some source.
“Q. After you knew about the history of the case and about the man being a painter, what was then your diagnosis, or opinion, of the cause of the optic neuritis?'
*22“A. I thought it was produced either by lead or some other substance in paint, and especially since he told me that he had been using a spray gun and that he could breathe this stuff in. It was all over his hands; nothing to see that he had been shielded in any way.
■“Q. In the course of your studies have you had occasion to consult authorities about how this thing is taken into the system?
“A. Yes, sir.
“Q. What do they say?
“A. They say it can be absorbed or taken in when you breathe.
“Q. Taken through the nose?
“A. Yes, sir.
“Q. And mouth?
“A. Yes, sir; absorbed also through the skin.”
“Q. Is glaucoma a more or less advanced condition than amblyopia?
“A. Well, a fellow could have glaucoma and amblyopia at the same time. Amblyopia is anything that would cause a dimness of vision, due to defective sensibility of the retina, and glaucoma, by pressure on the optic nerve, may cause amblyopia.
“Q. Then, in this case, when you first saw this man, you diagnosed him as having optic neuritis?
“A. I did.
“Q. At that time, he did not have, as I understand you, either amblyopia or glaucoma?
“A. Yes, sir; he had amblyopia.
“Q. At that time?
“A. Yes, sir.
“Q. Did he have glaucoma at that time?
“A. I couldn’t say whether he had it or not. It didn’t look like it.
*23“Q. Later on when you examined him, did you or not find that he then had the glaucoma?
“A. Yes, sir; later on he had glaucoma.
“Q. And that was apparent?
‘‘A. Yes, sir.
“Q. And it had not been apparent before?
“A. No, sir; had not been apparent before, and was-apparent two weeks ago when I examined him.”
There is nothing in the testimony of any witness for the plaintiff that the cupped condition of the eyeball indicated that glaucoma had existed for a year or more previously. This comes from witnesses for the defendant introduced to contradict the expert opinion for the plaintiff and hence cannot be considered. Dr. G. W. Watkins, a witness for the defendant, testified in part as follows:
“Q. What is the cause of glaucoma?
“A. I never had but six cases of glaucoma and all of those came from influenza or pneumonia, following infection.
“Q. Isn’t it a fact that all medical authorities agree that nobody knows what causes glaucoma?
“A. All agree they don’t know what causes it; but all I ever had followed those two diseases.”
From this the jury might have inferred that glaucoma might result from some precedent disease of recent origin.
Upon the testimony, and the inferences which a jury might fairly have drawn therefrom, the trial court refused to set aside the verdict, and we are unable to say that the verdict is plainly contrary to the evidence, or without evidence to support it. The question was one for the jury, and while the evidence presented a strong defense before the jury, it is not such a case as would warrant this court in setting aside-*24their verdict. The jury might have found that the plaintiff’s blindness was proximately caused by the paint poison and that the glaucoma was a supervenient result.
The damaging effect of the testimony of Dr. J. W. Watkins was sought to be overcome by a vigorous assault on his competency to testify as an expert on diseases of the eye. No such objection was raised in the trial court, and it cannot be raised here now for the first time. But aside from this, Dr. Watkins testified that he was an optometrist, and that “optometry is the practice on the eye exclusively and to do everything practically except surgery and treatment,” and that he “diagnosed cases,” and when he thought it necessary he referred patients to a medical practitioner. Furthermore, his testimony on the subject of the treatment of diseases of the eye displays such knowledge of the subject as satisfies us that he was competent to testify as he did.
We adhere to the conclusion formerly reached by us.
Affirmed.