The conveyor pulley is on the end of the shaft. Consequently, if the belt sticks to the driving pulley hard enough *Page 583 to pull it away from the man who is attempting to put it on the conveyor pulley, there is nothing to prevent it from winding up on the driving pulley, and, if it happens to catch him, winding him up in it. It is the danger peculiar to this condition of the defendants' instrumentalities of which the plaintiff complains.
It was the defendants' duty to do what the ordinary man would do under the circumstances to enable Rousseau to do his work in safety; but as the law is usually administered, it cannot be found that they failed to perform that duty unless this condition was an abnormal one, and the risk incident thereto one of which they did and he did not know. It is conceded it can be found that this condition was abnormal and that they knew of the risk incident thereto; consequently it can be found that they were in fault, if there is any evidence tending to prove that Rousseau did not know of it. The only knowledge of belts and the dangers incident to using them which Rousseau possessed was what he had acquired while working in the defendants' mill. Although he had seen this belt pull away from him on one or two occasions, he had never seen it wind up on the driving pulley as it did on the day of the accident. Notwithstanding the defendants knew that that was liable to happen, they never told him of it, and it is not common knowledge that such is the fact. From these facts it can be found that Rousseau neither knew nor was in fault for not knowing that if the belt happened to stick to the driving pulley he was liable to be caught in it and killed.
Although no one saw Rousseau when he was caught in the belt, he was seen only an instant before and at that time was doing his work in the usual way; consequently it can be found that he was free from fault.
2. It can be found that it was customary for the spare hand — the man who usually started the conveyor — to call on any of the men who worked in the room to help him start it, and that this had been the custom so long that if the defendants did not they ought to have known of it.
3. The jury therefore could find that Rousseau was acting within the scope of his employment at the time he was killed, even if it also found that the foreman told the spare hand to get some one other than Rousseau to help him start the conveyor; for if that instruction was given it was not communicated to Rousseau.
Defendants' exception overruled.
All concurred.
After the foregoing opinion was filed, on June 7, 1910, the defendants moved for a rehearing, and argument was invited upon the question of assumption of risk. *Page 584