Where the basis for review by this Court has no bearing on the
questions raised, but is simply plaintiff in error's charter from
the United States, this Court goes no further than to inquire
whether plain error is made out.
In this case,
held that there was no assumption of risk
on the part of an employee working under a coal chute who was
struck by a piece of timber falling from above him where other men
had been put to work; even if the employee had knowledge of such
overhead work, the duty of the employer to provide a reasonably
safe place to work remained.
Where the injury actually caused the disease, the injured party
may recover even if the disease does not immediately develop, and
in this case
held that the jury were warranted in finding
that Potts disease with which defendant in error was afflicted was
the direct cause of the injury, although it did not develop for
over a year.
The facts, which involve the liability of an employer for injury
to an employee, are stated in the opinion.
Page 224 U. S. 581
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 appeals. 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, 12 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 were 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.
Page 224 U. S. 582
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 liable, 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.
Page 224 U. S. 583
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 F. 942;
Spade v.
Lynn & Boston R. Co., 172 Mass. 488, 491;
Smith v.
London & South Western Ry. Co., L.R. 6 C.P. 14, 21.
Judgment affirmed.