66 A.2d 287 | Pa. | 1949
William R. Cool, appellant, instituted this action in trespass against Curtis-Wright, Inc., appellee, to recover damages for an alleged impairment of hearing. Preliminary objections in the nature of a demurrer were sustained by the court below, after argument, and judgment was entered in favor of appellee. This appeal followed. *62
The amended complaint averred that appellant suffers a "nerve deafness" as a result of exposure to noises while employed as a laborer in airplane propeller factories of appellee at Beaver, Pennsylvania, and Neville Island, Pennsylvania, from May 29, 1940, to August 14, 1945. The negligence alleged is failure of appellee to reduce and minimize metallic noises incident to its business of manufacturing airplane propellers. Specifically, it was averred that appellee was negligent in failing to provide sound-absorbing walls or ceilings or floors; in failing to provide ear protectors; in failing to warn appellant that the noises were detrimental and in informing him that continued exposure would not produce impairment of hearing; in overcrowding the rooms in which appellant worked with machinery and men producing noises; in locating men and machinery too close to appellant's place of work; and in failing to provide partitions between the men and machines engaged in noise-making activities.
The court below held that the complaint failed to state a cause of action for the following reasons: (1) the complaint shows on its face that even if appellant proved all of the so-called allegations of negligence he would not be entitled to recover; (2) the complaint shows on its face that appellant can not make out a case clear of contributory negligence; and (3) the complaint shows on its face that appellant can not make out a case clear of assumption of risk. Appellant contends that this was error — that appellee's failure to reduce and minimize the noise, as averred, amounted to a violation of its duty to provide him with a safe place to work imposed by sections 2 (a) and 2 (b) of the Act of May 18, 1937, P. L. 654,
Since appellant's impairment of hearing does not come within the statutory definition of occupational disease and since it is neither total nor the result of an accident, it is admittedly not compensable under the provisions of either the Workmen's Compensation Act of 1915, as amended,
Section 2 (a) of the Act of 1937 is merely declaratory of the common law duty to furnish a reasonably safe place to work. The rule and the reasons on which it is based were well stated by Justice (later Chief Justice) MITCHELL in the case of Titus v.Railroad Company,
The decisions in Price v. New Castle Refractories Company,
Since no breach of duty has been sufficiently averred, we need not consider appellant's contention that the defenses of contributory negligence and assumption of risk are not available by reason of the provisions of Article II, section 201,2 of the Workmen's Compensation Act, supra. There may have been some basis for such contention prior to amendment of Article III, section 301, of the Act by the Act of June 21, 1939, P. L. 520, section 1. Section 301, as amended by the Act of 1937, P. L. 1552, provided that "The terms 'injury' and 'personal injury', as used in this act, except as used inarticle *66 two, shall be construed to mean only violence to the physical structure of the body, and such disease or infection as naturally results therefrom." By the amendment of 1939, however, the words "except as used in article two" were eliminated, and the section now provides that "The terms 'injury' and 'personal injury', as used in this act, shall be construed to mean only violence to the physical structure of the body, and such disease or infection as naturally results therefrom." The legislative intent is thus clearly indicated that section 201, abolishing the defenses of negligence of a fellow servant, contributory negligence and assumption of risk, shall apply only in actions brought to recover damages for injuries of the type covered by the Workmen's Compensation Act, namely, injuries sustained as a result of an accident in the course of the employment, and not to all actions for injury to employes, as contended by appellant.
Judgment affirmed.
(a) That the injury was caused in whole or in part by the negligence of a fellow employe; or
(b) That the employe had assumed the risk of the injury; or
(c) That the injury was caused in any degree by the negligence of such employe, unless it be established that the injury was caused by such employe's intoxication or by his reckless indifference to danger. . . ."