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-а 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 plаintiff on the head. The plaintiff now is suffering from tuberculosis of the spine, in сonsequence, 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 рlaintiff’s present disease of the spine was too remote from the blow to be attributed to it as a result. *582 The case was left to thе jury with instructions that if the injury was due to negligence of the defendant in sending mеn to work above the plaintiff, as a contributing cause, the defеndant was hable, but not if it was due only to the negligence of fellow-sеrvants 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 tо 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 furthеr than to inquire whether plain error is made out.
Chicago Junction Railway Co.
v.
King,
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.
*583
But it is argued that if such a disease is due tо the presence of tubercular germs in a man’s system before the accident the defendant ought not to be required to pay mоre 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 rеsult 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.
Judgment affirmed.