Heretofore one of the departments of this court filed an opinion affirming the judgment in this case. 139 Wash. 379,247 P. 457.
[1] Upon a rehearing being granted and a reargument *Page 482 of the case, we desire to add somewhat to the views expressed in the opinion of the department. The burden of the argument on behalf of the appellant is, and at all times has been, that the verdict and judgment in the case defeat the legislative declaration that the decision of the department of labor and industries is prima facie correct, and also that they defeat the rule of law that verdicts shall rest upon testimony and not upon conjecture and speculation. In the trial of this case before a jury, Mrs. Kendall did assume the burden, and the court instructed the jury that the decision of the department of labor and industries in rejecting the claim "is prima facie correct, and the burden is upon the plaintiff to overcome this presumption by a clear preponderance of the proof".
[2] As to the other point, the argument is that the evidence is insufficient to support the verdict. That is, that the verdict was arrived at by conjecture and speculation, there being only a possibility that the injury occurred in the course of the employment, which employment was conceded to be extra hazardous.
In behalf of her case, Mrs. Kendall testified that at the close of the plant of the employer at which Mr. Kendall worked at noon for the day her husband came home and complained during the afternoon of pain in his thumb. After dinner, she visited her daughter for a while and, upon returning home that night, she found Mr. Kendall bathing his thumb in hot water; that she examined his thumb at that time and saw "a small mark like as if he had been picking out some sliver or something", and that at that time she talked with him as to the cause of the injury. Then in cross-examination, on behalf of the department of labor and industries, she testified as follows:
"Q. Now, you do not know the place where he sustained the injury, not on his hand, but the place where *Page 483 his hand was injured, was hurt? A. You mean where he worked at the time? Q. You do not know the place where he got hurt, do you? A. Yes, sir, Wheeler-Osgood's. Q. Wheeler-Osgood's? A. Yes, sir. Q. How do you know that it was there? A. I cannot answer that question. Q. How is that? A. I am not allowed to answer that question, am I.Q. I am asking you how you knew it was there? A. Because he told me so."
This testimony was brought out by the appellant who in no way objected to the last answer that was not taken from the jury. The evidence altogether rather conclusively showed that blood poisoning set in from the injured thumb, from which Mr. Kendall died about eleven days later. The weight of the testimony was for the jury, concerning which the jury was correctly instructed.
Affirmed.
All concur.