Crecelius v. Milwaukee Ry. Co. from the adverse side which supplemented, and in a sense contradicted, the stipulation as to the nature of the work which the gang of laborers was doing on the day deceased was killed. This contradiction goes to the fact whether this gang was on this day engaged solely in constructing the temporary track, or whether it was both engaged in constructing this temporary track and in putting in new ties and steel upon the old main-line interstate track of defendant. The testimony offered by plaintiff tended to show that this gang was engaged in performing labor upon both the old track and the new track, while that offered by defendant tended to show that the sole work on the day deceased was killed had been that of constructing the temporary track. This temporary track had never been used in interstate commerce. In fact, it had not been completed, and was not, except presumably at one end, joined or connected to the main interstate track at all. When completed it was intended to be used in both intrastate and interstate commerce, pending the lowering of the grade of the main line track, but at the time of deceased's death it was neither completed nor connected, nor had it ever been used in any sort of traffic or commerce. Such further facts as may become pertinent in the course of the discussion will be set forth in our opinion in connection with that discussion. I. The defendant's contentions in the last analysis are but three in number: (1) Do the facts in the case bring it within the purview of the Federal Employers' Liability Act of April 22, 1908 (35 U. S. Stat., p. 65, c. 149) as amended April 5, 1910 (36 U. S. Stat. p. 291, c. 143)? (2) does instruction five for plaintiff properly declare the correct rule for the diminution of damages under the Employers' Liability Act, when the person killed or injured has been guilty of contributory negligence? and (3) does instruction eleven for plaintiff set forth the correct measure of and the proper Crecelius v. Milwaukee Ry. Co. method of determining damages, in cases under said act? The first contention made is an exceedingly close and difficult one. It turns, as such questions always do, upon the facts. Much of the difficulty has been eliminated by a total disregard and conStipulation. sequential waiver of the stipulation made and offered, touching the nature of the work on which the gang for which plaintiff's decedent was timekeeper, was engaged on the day deceased was killed. Not only was there a total disregard of this stipulation, but much evidence was put in on both sides without any objection, both in corroboration and in contradiction of it. Moreover, both plaintiff and the trial court in express terms disregarded it by an instruction which is not now here urged as error, and defendant did the like in leaving the question of the nature of this work to the jury, instead of regarding it as a matter of law to be determined as such upon defendant's demurrer to the evidence. On cross-examination defendant asked a witness for plaintiff this question: "I believe you said these men were engaged in what kind of work at this time on this day?" To which the witness answered: "Building a temporary track and repairing the old Interstate track." This old track was conclusively shown to be the main-line track used by defendant in its interstate traffic. We conclude that the terms of the stipulation were waived, since upon the trial this stipulation was ignored without objection by the trial court and by counsel upon both sides. [People v. Holden, 28 Calif. 123; Hughes v. Jackson, 12 Md. 450; Givens v. Lawler, 9 Ala. 543; Gage v. Bank, 86 Ill. 371; Foster's Exrs. v. Dickerson, 64 Vt. 233.] Upon this phase of the question, it thus became through this evidence a question for the jury whether the gang for which deceased was acting as timekeeper was on the day he was killed repairing a railroad track used in interstate commerce. The jury found that this gang was so engaged, and as there was substantial Crecelius v. Milwaukee Ry. Co. evidence to support this finding we cannot interfere. But, since deceased was concededly killed some thirty minutes or more after the gang in question had quit work for the day, was deceased, when killed by reason of the custom of performance and necessity of his labors, still himself engaged in performing an act so directly and immediately connected with his previous acts as a timekeeper as to make of it a part thereof, or a necessary incident thereto? [Erie Railroad Co. v. Welsh, 242 U. S. 303; Shanks v. Delaware, etc., Co., 239 U. S. 556; New York, etc., Co. v. Carr, 238 U. S. 260.] We are constrained to say that this question must also be answered in the affirmative. The facts upon this phase of the case show that it was the duty of deceased as timekeeper of the gang in question to make out daily reports on the work-day just ended of the number of men at work, the nature of the work being done by them, the number of hours of labor done by each man, the amount of steel laid and the number of ties put in. These reports were sent by mail and by telegraph to the roadmaster of defendant at Marion, Iowa. The report which was mailed was a full report of the day's work, while the short telegraphic report was merely a resume thereof. It was shown to be the custom of deceased to make out these reports between 6:30 and 7:30 o'clock p. m. each evening. The report intended by him to be mailed was written on a typewriter, while the telegraphic report was written out with a pencil in longhand. Just a few minutes before he was killed, deceased had made out his report. Shortly afterwards, about the hour he was in the custom of sending this report, he left the car in which he had his desk, and with the statement that he "was going to send his message," went to the car occupied by the interpreter for the gang, remained there a minute or two, and then started across the passing-track toward the telegraph office. As he came onto the passing track he stopped in the middle thereof, apparently looking at a way-freight train which had stopped at the station, the engine of which was only Crecelius v. Milwaukee Ry. Co. some ten feet away from him. While thus standing, and after he had stood in the middle of this track for some twenty-five seconds, he was run down and killed by the work-train then on its way to Marion, Iowa, the division point, apparently to "tie up" for the night. After the killing of deceased his daily telegraphic report was found on his desk; though on this point there is evidence that he sometimes prepared this report at the telegraph office. There is not in the record any countervailing proof whatever as to the object of deceased in crossing these tracks at the time he was killed, except that having relation to his having made out his report, the arrival of the customary time of sending same, and his own statement as to his intentions when he left his desk. We think upon this evidence, the question whether deceased was bound for the telegraph office to send a message in furtherance of his usual duties when he was killed, became a question of fact to be resolved by the triers of fact, and not a question of law to be determined as such by this court. [Knorpp v. Wagner, 195 Mo. 1. c. 662; State ex rel. v. Elliott, 157 Mo. 1. c. 618; Finnegan v. Railroad, 224 Mo. 1. c. 653; Linderman v. Carmin, 255 Mo. 62.] The ultimate facts of this case then, as the trial jury was warranted in finding them from the substantial evidence adduced, ran thus: Deceased, on the day he was killed was working as a timekeeper for a gang of men engaged in repairing the main track of an interstate railroad (and in constructing a temporary track to be used while the grade of the main-line track was being lowered); after work hours for the gang of laborers, but at a time when the duties of deceased required him to make out and send to the roadmaster of the defendant a daily telegraphic report of the number of men engaged and the nature of the work done by the gang of which deceased was timekeeper, and after he had prepared his report, he was killed by an intrastate work-train, while he was crossing the tracks of defendant on his way to the telegraph office to wire in said report. Crecelius v. Milwaukee Ry. Co. That deceased was guilty of contributory negligence as a matter of law, there can be no manner of doubt. For while, pursuant to the rule of law in such behalf, when the sufficiency of the evidence is brought in question by a demurrer thereto, we have recited the facts upon the view most favorable to plaintiff, the latter's own evidence conclusively shows that deceased came to his death through his own contributory negligence. If a cloud of witnesses are to be believed, defendant was itself free from negligence, but upon this point, there was a sharp conflict in the evidence, which was likewise to be resolved by the trial jury. We conclude, therefore, that at the time deceased met his death he was engaged in the performance of duties which were so closely connected with interstate commerce as to constitute a part thereof, within the purview of the Federal Employers' Liability Act. In the late case of Pederson v. Delaware, Lackawanna & Western Railroad Co., 229 U. S. 146, plaintiff, an iron-worker, was injured while carrying some iron bolts from a tool-car to a bridge which formed a part of an interstate railroad, which bolts were to be used that night or early the next morning in repairing this bridge. It was held, nevertheless, that plaintiff was, when injured, so far engaged in duties so closely connected with interstate commerce as to be a part thereof and so as to bring him within the provisions of the Employers' Liability Act. In the case of St. Louis Ry. Co. v. Seale, 229 U. S. 156, plaintiff's decedent, a yard clerk, in a divisionpoint yard, was killed while on his way through the railroad yards to one of the tracks therein, to meet an interstate train, in order to check from the conductor's lists and make a record of the number and initials of the cars and to inspect the condition of the doors and seals thereof. In this case it was held that deceased was when killed engaged in performing duties so far connected with commerce between the States, as to make applicable the Employers' Liability Act. Other cases wherein the act was held to apply, which are not quite |