It is argued that it conclusively appears that the deceased knew of and appreciated the danger. Is this the only conclusion reasonably to be arrived at upon a fair consideration of the evidence? It is to be borne in mind that the danger was an obscure one. It was not something which the ordinary man would see and understand upon an inspection of the work-place. The danger was a transient one, occurring at varying intervals and from causes not readily apparent to an ordinary laborer. The defendants' theory is, that because the application of the law of chances shows a preponderance in favor of the proposition that Rousseau had seen the belt wind up on the driving shaft, therefore it must be held as matter of law that he knew and appreciated the danger of being caught in and drawn along with the belt. If it is the law that in a case like this the rule of average is the only one that can be applied, and that a conclusion not based thereon would be mere conjecture, it would follow that Rousseau must have at some time seen the belt wind up when it snapped back. Must it be found from this fact that he understood and appreciated the danger? So far as the case shows, he was absolutely without experience on this subject. He is to be charged with knowledge of what he saw and of the conclusions reasonable men must draw from what he observed. Beyond this, the question must be left to be determined by the triers of the facts. It cannot be held that the likelihood of a person being caught and dragged by a belt in this way is one that men in general understand. There is nothing in the evidence to show that Rousseau had acquired such an understanding, but on the contrary, much that points to the conclusion that he had not. He had been employed in the mill as a laborer a year and a half. On occasions of varying frequence, he had been called upon to put this belt onto the pulleys. The knowledge he acquired was not that of a trained mechanic, but only that of a common laborer who sometimes did this particular piece of work. The danger he finally encountered was not frequently met with and apparently was not a subject of comment among his fellow-workmen. If it conclusively appears that Rousseau knew the belt might wind up on the driving shaft, it does not so appear that he understood and appreciated the danger in which this situation involved him.
The plaintiff's expert testified on cross-examination that in his opinion the only danger was that of being caught by the moving belt, and that any many ought to understand this was hazardous. *Page 585 From this the defendant argues that there is nothing in the case for the plaintiff upon the issue of appreciating the danger. But on the question of what the average man would appreciate, the millwright of long experience is not an expert who can inform a jury so as to preclude them from using their own knowledge on the subject. On the contrary, they are the true experts on this subject; while he, because of his familiarity therewith, is not qualified as they are to accurately gauge the average capacity to comprehend strange appliances and unknown forces. But if the expert's testimony is to be taken at its face value, it is not fatal to the plaintiff's case. In answer to an inquiry by the court as to whether he meant a man ought to understand he might be caught and dragged, or merely caught, he answered, "might be caught." Again, when asked if all that was needed was that the men be careful, he said they "must be using care and on their guard." This is the crux of the matter. Something beyond the care of the ordinary man was needed — something the ordinary man would not know was needed. Plainly enough, he was seeking to describe a situation which might well be found to call for warning or instruction to the men set at the work in question.
Rehearing denied.
All concurred.