Appeal from judgment of Court of Common Pleas of Allegheny County, July T., 1963, No. 3136, in case of Eresby A. Gilkes v. Rose Levinson.
Marshall J. Conn, with him Kalman A. Goldring and Tice F. Ryan, Jr., for appellant.
Charles Kirshner, with him Rosenberg & Kirshner, for appellee.
Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen.
In the trial of this personal injury action, the jury awarded plaintiff a substantial verdict. Subsequently, the court en banc entered judgment for the defendant non obstante veredicto. The plaintiff appeals.
Viewed in the light most favorable to plaintiff's cause, the record discloses the following:
Plaintiff, an unskilled worker, was employed by the defendant and her late husband to serve as a handy man around their home. His duties included gardening and attending to the grounds and lawn. On the day in question, he was seriously injured when he slipped and fell about twenty-five feet from an unattended extension ladder placed against a tree on the property. At the time he was using a power saw, two feet long and twelve pounds in weight, to cut a dead limb from the tree. Plaintiff himself describes the occurrence in the following words: "I leaned against the ladder. I put my weight against the ladder and pulled the trigger and the saw started going through the limb, and it got through the limb and was getting close to all the way through the limb, I changed the position of the saw and pulled the trigger and the saw made a jerk forward and pulled the ladder forward, and the ladder snapped back and slipped off the tree, and I came down."
The tree pruning was done at the instance of the defendant, and the ladder and saw were supplied by her with repeated assurances that they were safe for use in the work intended. It is admitted that both were free from any mechanical or structural defects. It also appears that the method used in arranging and fortifying the ladder against the tree was of plaintiff's own choosing. Likewise, it was his own decision to ascend the ladder without the use of ropes or other safeguarding device.
It is the contention of the plaintiff that the use of a heavy power saw at such a height on the unattended ladder was dangerous, and that the defendant was negligent in directing that the work be pursued with such equipment and without giving notice of the danger involved or providing manual assistance to protect his safety, particularly in view of plaintiff's known lack of experience in tree pruning.
We agree with the ruling of the court below and will affirm the judgment.
As noted before, the equipment involved was admittedly faultless. There was no evidence that its use for the purpose concerned was improper or wrong in itself. Absent also was any proof or contention that the saw or ladder acted improperly or even in an unusual manner. Under such facts, the mere supplying of the equipment for the use intended did not constitute negligence. The situation is not governed by § 392 of the Restatement 2d, Torts (1965)*fn1 as plaintiff contends. Further the case of Labick v. ...