TEXAS & PACIFIC RAILWAY COMPANY

v.

HOWELL

Mr. Justice Holmes delivered the opinion of the court.

This is an action for personal injuries done to the plaintiff, the defendant in error, Howell, while in the employ of the Railway Company. The plaintiff had a verdict and judgment, subject to' exceptions, and the judgment-was affirmed without discussion by the Circuit Court of Appeal-!. The material facts can be stated in a few words. The plaintiff was set to digging-a hole for a post under a coal chute. While he was at work the defendant put other men to removing certain timbers and planks from the floor twelve feet or so above him, without his knowledge, as he contends, and a piece of timber fell and struck the plaintiff on the head. The plaintiff now is suffering from tuberculosis of the spine, in consequence, as he says, of the blow. The defendant asked the court to direct a verdict, and also to instruct the jury that if the plaintiff knew that other servants w.ere tearing up the floor above him he took the risk, that if no harm would have resulted but for the negligence of those other servants the defendant was not liable, and that the plaintiff’s present disease of the spine was too remote from the blow to be attributed to it as a result. The case was left to the jury with instructions that if the injury was due to negligence of the defendant in sending men to work above the plaintiff, as a contributing cause, the defendant was hable, but not if it was due only to the negligence of fellow-servants in their way of performing their work. The question also was left to the jury whether the disease was the direct consequence of the blow.

The case was begun in the state court and was removed to the Circuit Court, and is brought here, solely on the ground that the plaintiff in error has a charter from the United States. But for that accident, which has no bearing upon the questions raised, the case would stop with the Circuit Court of Appeals. Under such circumstances we go no further than to inquire whether plain error is made out. Chicago Junction Railway Co. v. King, 222 U. S. 222. We find nothing that requires us to reverse the judgment. It was open to the jury to find that the usual duty to take reasonable care to furnish a safe place to the plaintiff in his work remained. They well might be of opinion that the general nature of the things to be done gave no notice to the plaintiff that he was asked to take a necessary risk. At the same time they were warranted in saying that if the defendant saw fit to do the work above and below at the same time it did so with notice of the danger to those underneath and took chances that could not be attributed wholly to the hand through which the harm happened. Even if Howell knew that repairs were going on overhead that did not necessarily put him on an .equality with his employer, and require a ruling that he took the, risk. Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249.

The plaintiff , was injured on March 3, 1908. There was ample evidence that the blow occasioned the development of his disease, although it was not discovered to be the Potts disease, as it is called, for over a year. But it is argued that if such a disease is due to the presence of tubercular germs in a man’s system before the accident the defendant ought not to be required to pay more than it would to a normal man. On this point also we are. of opinion that the jury were warranted in finding that the disease was the direct result of the injury, as they were required to, by the very conservative instructions to them, before holding the defendant to answer for it. Crane Elevator Co. v. Lippert, 63 Fed. Rep. 942. 11 C. C. A. 521. Spade y. Lynn & Boston R. R. Co., 172 Massachusetts, 488, 491. Smith v. London & South Western Ry. Co., L. R. 6 C. P. 14, 21.

Judgment affirmed.