points in Missouri on defendant's line. To enable the railroad, bringing freight from Kansas to such points, to continue that commerce, certainly the cars, after they have been received and emptied of their goods, must be returned to that road. However, there is more in the facts of this case than simply the return of the car to Dodson, and we need not go so far as to hold that its mere return to Dodson was a part of its incoming trip, and therefore a part of the interstate commerce of that trip. In this case the Missouri Pacific Road had directed that all box cars returned to Dodson should be sent to its distribution point at Osawatomie, Kan., for use in the transportation of wheat. The car in question was not one belonging to the Missouri Pacific, but belonged to the Delaware, Lackawanna & Western Railway (an eastern railroad). When the car was unloaded at the Coen Building Material Company's plant and started by defendant to Dodson, the defendant was in fact participating in its return to Kansas, where it was to again enter the stream of incoming cars used in further transportation. This westward movement was merely a completion of the circuit it was making in the transportation of the country commerce. On its return empty from the switch of its consignee, its passage through 'Dodson to the west was accomplished in the same way it went through Dodson east to its consignee. Dodson was no more its final destination in the one case than in the other. The fact that the defendant took no interest in where the car was going the moment it reached Dodson, nor made any inquiry in regard thereto, ought not to make any difference in the real nature of the service then being rendered. It was then performing a service in the interstate commerce of the country. And in view of the fact that Dodson was so near the Kansas line with only one small station between it and that state, it is difficult to believe that defendant was wholly ignorant of the fact that it was helping in the interstate movement of such cars, even though its officers were careful to avoid ascertaining to what particular point in Kansas the cars were being sent. It is not the intent with which the carrier performs its work that affects the nature of the carriage; it is the service that is actually rendered. This is what determines whether it is inter or intra state. The empty car, having brought its load from Kansas into Missouri had entered upon its return to that state, there to be again loaded. It was an instrumentality of interstate commerce, made so by the federal statute, which defines transportation to in clude "cars and other vehicles and all instrumentalities and facilities of shipment or carriage irrespective of ownership or of any contract express or implied for the use thereof and all services in connection with the receipt, delivery, elevation, and transfer in transit and han The hauling of empty cars from one state to another is interstate commerce within the meaning of the act. North Carolina R. Co. v. Zachary, Adm'r, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159. In Pennsylvania R. Co. v. Knox, 218 Fed. 748, 134 C. C. A. 426, empty cars belonging to the Pennsylvania Railroad were delivered to it in New York. In railroad parlance whenever cars belonging to a road were delivered to it at any point on its line, the cars were "at home." These cars were transported from New York into Pennsylvania. The court said the movement of empty cars was an operation of commervce, and that, where the movement was interstate, the act of Congress now in question would apply. The court also held that if the cars had been sent from New York to any particular point in Pennsylvania, their interstate journey would not cease until that point was reached, and had the injury there complained of (which occurred in switching the cars after they had reached points in Pennsylvania, where they had waited and were available for use by their owner) occurred before that particular point had been reached, the switching would have been a part of interstate commerce. The cars were not billed at all, and therefore the court looked into their actual movement and ascertained what was in fact done with them to determine the nature of that movement. The court said, if the end of the journey is not in fact expressly determined, "the law must determine it in accordance with what is reasonable and just," and, in commenting on the Zachary Case, said that the court in that case "found it to be a reasonable inference that the cars then in question were in the process of being 'carried forward as a part of a through movement of interstate commerce."" The same method is applicable to the case at bar. The car in question came in from Kansas loaded with brick billed to Dodson, but in fact went on through to its consignee at a point on defendant's line near Westport avenue, the defendant participating in that carriage by taking the car from Dodson to the consignee and returning it empty to Dodson, where the Missouri Pacific again took it back to its point of distribution in Kansas. There was no billing of the car either way. actually done shows that the car was making a complete circuit between the two states in the carrying of commerce, and that defendant's part of the carriage was in transporting and handling of that car at the eastern end of that loop. In the case of Baer Bros. v. Denver & Rio Grande R. Co., 233 U. S. 479, 34 Sup. Ct. 641, 58 L. Ed. 1055, shipments of beer were made from St. Louis Mo., to the plaintiff in Leadville, Colo., but the shipments were billed from St. Louis to Pueblo, where they were there taken by the But an examination into what was shipment originating at Pueblo, and for- I could be adjusted, but this was not obeyed. warded by it on a local waybill. The Den- Plaintiff continued to signal, but as the enver & Rio Grande, therefore, claimed that its part of the transaction was intrastate. The court refused to recognize this view, and looked into what was the actual nature of the transaction in order to determine whether defendant's part of the carriage was intrastate or interstate, and held that: gine continued on its way unchecked, plaintiff, fearing that the drawheads would pass each other and he would be crushed, kicked the drawhead on the engine to the west to enable it to meet the one on the car. In doing so his foot slipped, and the fleshy part of the ball of his foot was crushed. Plain"While there was no through rate and no tiff's kick succeeded in getting the two couthrough route, there was in fact a through ship- plers so they would not pass, but they did ment from St. Louis, Mo., to Leadville, Colo. Its interstate character could not be destroyed not couple, whether because of the interposiby ignoring the points of origin and destina- tion of plaintiff's foot or because they were tion, separating the rate into its component not sufficiently in line does not appear. The parts, and by charging local rates and issuing engine was moving at the rate of three or local waybills, attempting to convert an interstate shipment into intrastate transportation." four miles per hour, and, according to the In view of all the circumstances under evidence, could have been stopped in from which the car in the case at bar was moved, 2 to 5 feet. The engineer admits he got a therefore we are of the opinion that plain- signal to stop, but says it was when the entiff was engaged in interstate commerce at gine was within 2 feet of the car, while plaintiff says it was 12 feet away. the very moment of his injury. tiff says he did not get off the engine because of the presence of cars on a side track east of and next to the main track, which made it dangerous for him to do so. This brings us to the facts concerning the happening of the injury itself. The switching was done with an electric engine both ends of which were alike, the engineer's cab being in the middle, so that either end could be used as the front of the engine as occasion required. Across each end of said engine was a footboard about 10 inches in width, and above this footboard at the proper height was a rod for a handhold for the person standing on said footboard. The car in question was on a side track west of and next to defendant's main line, and access to this track was by means of a switch at the north end. North of the car in question and about 15 feet from it were three loaded cars on this side track. The plaintiff opened the switch and let the engine in onto the side track, and walked down to the loaded cars and coupled the engine to them, and then these loaded cars were pushed down and coupled to the empty car sought to be obtained. This coupling was made by another employé, and plaintiff says there was some difficulty in making it. The empty and the loaded cars were then taken north over the switch to the main line, where the empty car in question was run down the main line past the switch, and the loaded cars were again placed on the side track. Plaintiff then opened the switch to let the engine onto the main line and, as it came south thereon, got on the front footboard and rode down to the car. In this position he was in front of the engine, and of course when it and the car would come together he would be between the two. Both the engine and the car were equipped with automatic couplers which the federal Safety Appliance Act requires shall couple automatically by impact. When the engine was about 12 feet from the car plaintiff noticed that the drawbar and coupler on the car was over to one side, so much so that it would not meet the one on the engine. Thereupon he gave the engineer the signal to stop in order that the car coupler Plain [3] According to plaintiff's evidence the bolt on the side of the coupler on the car was broken and the sill bursted, so that the coupler was pushed to one side and would not articulate with the one on the engine. However, the negligence alleged in the petition, as the basic cause of the injury, was not the maintenance of a defective coupler, that is, a coupler defective in itself, but the negligence of the engineer in failing to observe that the couplers would not meet and in failing to observe and obey the plaintiff's signal to stop, although there was time enough for him to have stopped the engine had he been observant and in the exercise of ordinary care. While the petition refers to the "condition of the couplers" and to the fact that they would not meet unless the engine was stopped and the couplers properly adjusted, yet no allegation is made that the couplers, or either of them, were inherently defective. The fact that they would not meet might perhaps have shown that they were defective, but for the peculiar language of the petition, which seems to place the cause of their failure to meet upon the fact that the roadbed was not ballasted, the rails were not level, and the rail joints were uneven and would sink when the engine passed over them, giving to the engine a rolling motion, thus allowing the couplers to pass each other. Hence the cause of action stated in the petition does not seem to be one based upon a violation of the Safety Appliance Act. If it were, then, since clearly the car was used "on a railroad engaged in interstate commerce" as provided in the amendment of March 2, 1903, to the Safety Appliance Act, it would not matter whether plaintiff was or was not engaged in interstate commerce at the very moment of his injury. Roberts on Injuries to Interstate Employés, § 50, p. 119. Taken as a whole, and fairly construed, the petition shows that the cause of action really stated is under the federal Employers' Liability Act, and is based solely upon the engineer's negligence in the operation of his engine, with the fact of the coupler being over to one side alleged merely as a circumstance suddenly calling for the stopping of the engine and the consequent exercise of care on the part of the engineer. And this was the question submitted in the instructions. Nothing was said therein about the defendant being liable on account of the coupler failing to couple automatically. And the evidence of plaintiff as to the bolts on the side of the coupler being broken was not testified to as a ground of liability, but only in explanation of why the coupler was on one side. The petition clearly alleged that they would not meet, and it was not error, therefore, for plaintiff to give all the reasons why they would not, including the fact that it was broken, even if the petition did not state a violation of the Safety Appliance Act, because no allegation was made of any defect inherent in the coupler itself. [4] Upon the question whether there was sufficient evidence of the engineer's negligence to take the case to the jury, we think there was, and that there was not a failure of proof as claimed by defendant. The plaintiff did undoubtedly kick the coupler when he finally realized that the engineer was not going to obey the signal to stop. The engineer admits he got a signal, but says it was not until the engine was within 2 feet of the car, and therefore too late for him to stop. There is substantial evidence that the signal was given when the engine was far enough away to have enabled the engineer to stop had he been observing the signals; also that the couplers would not have met had not plaintiff kicked one of them, and that, even then they did not fully meet, but only partially so, and failed to couple. [5] We cannot agree with defendant that the plaintiff is conclusively shown to have been so guilty of contributory negligence as to bar his recovery as a matter of law. Neither assumption of risk nor contributory negligence were raised as a defense, the answer being a general denial, but upon the theory that plaintiff's own evidence discloses these matters, it may be that defendant can make use of them, if found available, regardless of the failure of the answer to raise them. However, under the third section of the federal act, contributory negligence is no longer a complete defense, but operates to reduce the damages. Said act also provides that neither contributory negligence nor assumption of risk shall be available where the injury was caused or contributed to by the violation by the carrier of any federal statute enacted for the safety of employés. It is not the failure to plead a defective coupler in this case forbids the operation of these provisions, notwithstanding the evidence shows the coupler was defective, because in plaintiff's instructions he did not seek the benefit thereof, but submitted the question of plaintiff's contributory negligence to the jury, directing them that if they found plaintiff guilty of contributory negligence, then such was not a bar to a recovery, but would reduce the damages, if any"in proportion to the rates his negligence bears to the combined negligence of plaintiff and defendant, if any." As plaintiff's injury arose from his kicking the coupler in an emergency rather than in taking some other precaution for his safety, it would seem that his act should be classed as contributory negligence rather than as assumption of risk, if either, since the former term, "involves the notion of some fault or breach of duty on the part of the employé," or is "a failure to use such care for his safety as ordinarily prudent employés in similar circumstances would use," while assumption of risk "may be free from any suggestion of fault or negligence on the part of the employé." Seaboard Air Line Railway v. Horton, 233 U. S. 492, loc. cit. 503, 504, 34 Sup. Ct. 635, 640 (58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475). The Supreme Court of the United States here says that this is the distinction between contributory negligence and assumption of risk, and that Congress evidently recognized that distinction in the wording of the act. It is only when the injury is due solely to the negligence of the employé that such fault on his part will preclude a recovery. Grand Trunk, etc., R. Co. v. Lindsay, 233 U. S. 42, 34 Sup. Ct. 581, 58 L. Ed. 838, Ann. Cas. 1914C, 168; Pankey v. Atchison, etc., R. Co., 180 Mo. App. 185, 168 S. W. 274. Clearly it cannot be said that plaintiff's act in kicking the coupler was the sole cause of the injury. The necessity for the kick arose through the failure of the engineer to stop after receiving a signal to do so when there was yet time for that to be done. It is urged that the petition did not sufficiently allege that the parties were engaged in interstate commerce, but this contention is without merit. [6] So also is the point that the court erred in admitting the records of the Missouri Pacific kept at Martin City to show that the empty car in question was not stopped there when it started west from Dodson on July 9th. This was to show that the car did not stop in Missouri, but continued on its return in the interstate circuit it was making. The records admitted were shown to be correct by the testimony of the agent who kept them, and it also was shown that they were made in the due course of business. The fact that the Missouri Pacific agent at Dodson was on duced made no difference. He was not iden- I ending with that year, and did not raise a new tifying the records, but was merely explain-implied contract; the rule being that a silent ing them. Their identity and correctness continuation of the employment after the expiration of the contract continues the original conhad been properly attested by the Martin tract in force by reason of the presumption of an City agent the day before. The judgment is affirmed. All concur. MORRIS v. Z. T. BRIGGS PHOTOGRAPH- 1. MASTER AND SERVANT 80-EMPLOYMENT CONTRACT COMMISSIONS - INSTRUCTION PROPRIETY. In an action to recover commissions due under a contract of employment, it appeared that defendant employed plaintiff as assistant photographer under a contract for a salary of $110 per month during the years 1906 and 1907, with certain commissions on the total volume of business for the year 1907, evidenced by the memorandum "$1.00 per month for each $1,000 over $60,000 added for year 1907, $110 per month for 1906"; that the salary and commission for 1907 were duly paid; that defendant voluntarily raised plaintiff's salary to $120 for the year 1908; that at the end of 1908 plaintiff demanded commissions for that year, which were refused by defendant on the ground that the raise in salary was a new contract abrogating the previous agreement, while plaintiff insisted upon the continued existence of the first contract so far as commissions were concerned; that according to plaintiff's testimony the dispute ended with defendant's silence upon plaintiff's unqualified assertion of the right to commissions for 1908 and subsequently, while defendant testified that upon plaintiff threatening to leave, if commissions were not paid him, defendant replied that plaintiff might leave if he wished; that thereafter plaintiff remained in the employment for three years with nothing further done or said about commissions; that after quitting the employment plaintiff requested payment of all due thereunder, to which defendant replied by giving plaintiff a salary check notated as being in full of salary due, which check plaintiff cashed without remonstrance and afterwards brought this suit for commissions covering the period from 1907 to 1913. Held, that it was error to instruct that, if there was no contract between the parties for the year 1908 or thereafter, the plaintiff could not recover, since plaintiff's right to commissions after 1908 depended on whether defendant silently suffered him to remain in the employment under an assertion of such right. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 107-127; Dec. Dig. 80.] intention so to do which arises from the conduct of the parties. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 11; Dec. Dig. 9.] 4. MASTER AND SERVANT 70-CONTRACT OF EMPLOYMENT-SEPARABLE COVENANT - INCREASED SALARY-EFFECT. The contract of employment for the year subsequent to 1907 being express, and the provisions for salary and commissions being divisible and in the nature of independent covenants, the voluntary increase of salary by defendant for the year 1908 did not affect plaintiff's right to commissions for that year. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 82-86; Dec. Dig. 70.1 5. MASTER AND SERVANT 79-EMPLOYMENT CONTRACT-SEPARABLE COVENANT-COMMIS A trial JOHNSON, J. [1] This is an action upon a contract of employment for the recovery of certain commissions plaintiff alleges he earned in the years 1908, 1909, 1910, and 1911, and which defendant agreed to pay in addition to the salary paid to plaintiff. The answer contains a general denial and affirmative defenses the nature of which will appear in our discussion of the case. of the issues resulted in a verdict and judgment for defendant, and plaintiff appealed. At the beginning of the year 1906, Z. T. Briggs, a dealer in photographic supplies at Atchison, Kan., removed his business to Kansas City and continued it under the tradename of Z. T. Briggs & Co., until April, 1908, when he organized the defendant corporation which succeeded him and assumed his business obligations. Shortly before his removal from Atchison, Briggs employed plaintiff, who had been for many years in the service of another dealer in Kansas City, to assist him in conducting the new business, and 9-EMPLOYMENT agreed to pay plaintiff a salary of $1,320 a year in monthly installments of $110 each, and further agreed that for the second year of the service he would allow plaintiff, in addition to such salary, a commission of $1 per month for each $1,000 the volume of ACTION FOR 2. MASTER AND SERVANT 80 tract. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 107-127; Dec. Dig. 80.] 3. MASTER AND SERVANT CONTRACT-EXPIRATION-CONTINUATION EMPLOYMENT-PRESUMPTION. IN The continuation of plaintiff's employment after the year 1907 at an increased salary, but without any new agreement, extended the operation of the express contract covering the period The following instructions were given at the instance of defendant: "The jury is instructed that if you find and tiff and Z. T. Briggs mentioned in evidence, in believe from the evidence in this case that plainabout the year 1906, agreed that plaintiff should receive for services to be rendered by him $110 per month during the year 1906, and for the year 1907, in addition to the sum of $110 per month, made by defendant during said year, and that $1 per month for each $1,000 over $60,000 in sales plaintiff and Z. T. Briggs or the defendant had no contract for the year 1908,,or thereafter, then tion, and your verdict must be for the defendant. the plaintiff cannot recover therefor in this ac business for that year might exceed $60,000., each $1,000 of sales made by the defendant in It was agreed that a formal written contract that year in excess of $60,000." would be entered into, but this was not done. A written memorandum of some of the features of the oral agreement was drawn and signed by plaintiff. That memorandum was, as follows: "$1.00 per month for each $1,000 over $60,000.00 added for year 1907, $110 per month for 1906." Pursuant to this agreement, plaintiff entered the employment about January 1, 1906, and continued until April 23, 1912, and was paid the agreed salary, which defendant voluntarily increased to $120 per month some time in the year 1908. After the close of the year 1907, defendant paid commissions to plaintiff earned under the agreement during that year. No further agreement was made relating to the terms of the employment, and nothing was said about commissions until 1909, when plaintiff requested payment of commissions earned during the year 1908. According to the testimony of both parties, this request provoked an angry dispute. Plaintiff insisted, and defendant denied, that the contract provided for the payment of commissions after 1907. Defendant produced the written memorandum, but plaintiff was not convinced that defendant's position was right and, so he states, ended the dispute with the assertion, "Do not be alarmed, I will get my commissions as long as I am here." The next morning plaintiff reported for duty, was graciously received by defendant, and the subject of commissions was not mentioned again. Defendant agrees with plaintiff that the only reference to commissions was on the occasion of the controversy in 1909, but denies that plaintiff said he would have commissions as long as the employment continued, and states that, instead, plaintiff said, "If these commissions are not paid, I will quit," to which defendant replied, "That is up to you, Mr. Morris." When the employment was terminated in April, 1912, plaintiff requested defendant to mail him a check for all that defendant owed him. Aft erward defendant drew a check for the amount due on salary, wrote on the check that it was in full payment of salary, and mailed it to plaintiff, who received and cashed it. Plaintiff then brought this suit to recover the commissions he claims his contract entitled him to receive. for the years 1908, 1909, 1910, and 1911. At the request of plaintiff, the court instructed the jury that: If they believed from the evidence "that no change in plaintiff's compensation so far as it was affected by commissions was agreed upon between plaintiff and defendant at the time of the incorporation of defendant, or at any time thereafter, prior to January 1, 1912, and that during said period no notice was given by either party to the other that the compensation for services thereafter to be rendered so far as the same was affected by commissions would be changed, then plaintiff is entitled to recover in this action for "If the jury find and believe from the evidence that on or about April 23, 1912, defendant gave plaintiff a check in full payment of all salary to date, and that in accepting such check it was full compensation to plaintiff for all services understood by plaintiff and defendant to be in rendered defendant, your verdict must be for defendant." And on its own motion the court instructed the jury that: "If you find and believe from the evidence that in the year 1909 plaintiff made demand of dethat the defendant, acting through its president, fendant for commissions for the year 1908, and Z. T. Briggs, then denied owing any such commissions to plaintiff, and the plaintiff thereupon stated in substance that if his commissions were and the said Z. T. Briggs replied thereto in subnot paid he would quit the defendant's employ, stance that if plaintiff was so disposed he might quit, and if you find and believe from the evidence that from such conversation and all the understood that he was to receive no commisfacts and circumstances in evidence the plaintiff sions for the year 1909, and thereafter, but nevertheless continued in the employ of the defendant thereafter, then you are instructed that this contract, if any, theretofore existing between would constitute a change or modification of the the parties, and in such event there can, in this case, be no recovery by the plaintiff for commissions for the year 1909, or for any year thereafter." Counsel for plaintiff argue that the instructions given at the request of defendant express erroneous and prejudicial views of the law of the case. The second instruction precludes a recovery if the jury should find as a fact from the evidence that the parties "had no contract for the year 1908 or thereafter." [2] Plaintiff testified that when he signed the written memorandum it contained the words "and thereafter." The memorandum now fails to show those words, and the inference from plaintiff's testimony is that they were erased after he signed the paper. This, of course, is denied by defendant, who states that the memorandum is now as it was when signed, and expresses the oral agreement which contemplated, and applied only to, an employment for the years 1906 and 1907 and provided only for the payment of a commission on the business of the latter year. The cause of action pleaded is founded upon an express contract of hiring for the years subsequent to 1907, and plaintiff must recover, if at all, upon proof of an express |