Opinion by
The statement of the questions involved (beyond which We do not go in considering an appeal: Duncan v. Duncan (No. 2), 285 Pa. 471), raises but three issues: (1) Whether the injury resulted “from an unforeseen cause, not discoverable in advance of the occurrence”? or (2) was “one of the ordinary risks of the employment which the employee took upon himself”? or (3) “whether plaintiff was guilty of contributory negligence?” These questions do not affect the evidence in the case; nor the charge to the jury, save in so far as the court below refused to give binding instructions in defendant’s favor; and hence we are called upon to decide only whether or not he was entitled thereto on any one of these grounds.
Defendant, who is a carpenter and builder, sent a foreman and several other employees, including plaintiff, to tear the shingles off an old steep roof, and substitute therefor sheathing hoards covered with tar paper. The shingles were safely removed; and the workmen proceeded, beginning at the eaves, to cover the rafters with sheathing and then fasten the tar paper on top of it. The work was done in sections, that is, sufficient sheathing would be nailed on to take one width of tar paper, which would then be fastened on it, then additional sheathing to take another width of the paper, and so on until the roof was completed. In the beginning the men could and did stand on the floor of the attic, but when this was no longer available for the purpose, they had to go on the roof itself in order to continue the work; and some device had to be used to enable them to safely retain their places while working thereon. Many kinds of appliances have been employed for this purpose; but in the present instance defendant’s foreman selected what are known as jacks, consisting of pieces of board, across either end of which, but on opposite sides, was nailed a cleat. When in use the board was intended to lie flat against the roof, one cleat being hooked over the upper part of the sheathing as then laid, and the
Plaintiff testified he had never before used jacks like these or seen them used, and did not know the danger involved therein; and there was evidence that, in order to be a reasonably safe appliance, they ought to have been made so much longer that the workmen did not need to lean over and downwards in order to fasten on the tar paper. One witness testified a jack two feet long was not fit to use on so steep a roof; others that it was not “in ordinary and customary and common use in putting on that kind of roof,” but in order to be safe should be four feet long; and defendant himself, though disputing the first of these statements, admitted that “ordinarily and customarily” the jacks are made “between three and four feet long.”
In Swartz v. Bergendahl-Knight Co., 259 Pa. 421, 427, we said: “An employee must know the circumstances and appreciate the risk before he will be held to assume it: Schall v. Cole, 107 Pa. 1. He is not equally bound with his employer to know whether appliances are rea
What has been said disposes of the claim that the court below should have decided, as a matter of law, that the injury arose from a risk which plaintiff assumed ; and as to the other two questions said to be involved, we need only add that no evidence has been pointed out to us, and we have found none, from which the jury could properly have decided, much less that thereby it was conclusively determined, the injury resulted from an unforeseen cause not discoverable in advance of the occurrence, or that plaintiff was guilty of contributory negligence.
The judgment of the court below is affirmed.