Opinion of the Court.

241 U.S.

Central R. R. v. Behrens, 233 U. S. 473, 478), it is not important whether he had previously been engaged in interstate commerce, or that it was contemplated that he would be so engaged after his immediate duty had been performed. That duty was solely in connection with the removal of the coal from the storage tracks to the coal shed, or chutes, and the only ground for invoking the Federal Act is that the coal thus placed was to be used by locomotives in interstate hauls.

As we have pointed out, the Federal Act speaks of interstate commerce in a practical sense suited to the occasion and "the true test of employment in such commerce in the sense intended is, was the employé at the time of the injury engaged in interstate transportation or in work so closely related to it as to be practically a part of it." Shanks v. Del., Lack. & West. R. R., 239 U. S. 556, 558, and cases there cited. Manifestly, there was no such close or direct relation to interstate transportation in the taking of the coal to the coal chutes. This was nothing more than the putting of the coal supply in a convenient place from which it could be taken as required for use. It has been held that an employee of the carrier while he is mining coal in the carrier's colliery intended to be used by its interstate locomotives is not engaged in interstate commerce within the meaning of the Federal Act (Del., Lack. & West. R. R. v. Yurkonis, 238 U. S. 439), and there is no distinction in principle between the two cases. In Great Northern Ry. v. Knapp, 240 U. S. 464, the question whether the employee was engaged in interstate commerce was not presented, as the application of the Federal statute was conceded in the state court.

Judgment affirmed.

241 U. S.

Opinion of the Court.

KANSAS CITY SOUTHERN RAILWAY COMPANY v. JONES, ADMINISTRATRIX.

ERROR TO THE SUPREME COURT OF THE STATE OF

LOUISIANA.

No. 492. Argued April 3, 4, 1916.-Decided May 1, 1916.

In the trial of an action under the Federal Employers' Liability Act defendant is denied a Federal right if he is denied a fair opportunity to show, in accordance with proper practice, negligence attributable to the employee in diminution of damages; nor, in the absence of a settled local rule of practice requiring counsel to announce in advance the purpose for which evidence is tendered, can evidence as to contributory negligence be excluded because tendered without notice that it is restricted to diminution of damages.

When evidence can be introduced for one purpose only it is unnecessary for counsel in offering it to go through the idle form of announcing its purpose.

137 Louisiana, 178, reversed.

THE facts, which involve the validity of a judgment for damages recovered by the representative of an employee of an interstate carrier in the state court and under the Federal Liability Act, are stated in the opinion.

Mr. S. W. Moore, with whom Mr. F. W. Moore and Mr. J. D. Wilkinson were on the brief, for plaintiff in error.

Mr. Leon R. Smith, with whom Mr. Newton C. Blanchard and Mr. Otis W. Bullock were on the brief, for defendant in error.

MR. JUSTICE MCREYNOLDS delivered the opinion of the court.

Claiming under the Federal Employers' Liability Act (April 22, 1908, c. 149, 35 Stat. 65; April 5, 1910, c. 143,

Opinion of the Court.

241 U. S.

36 Stat. 291), defendant in error brought this suit in a state court against the railroad company to recover damages resulting from her husband's death by accident while employed as engineer on a passenger train. A loaded car, having escaped from the switching crew, ran down a long grade, struck his engine with great violence as it was rounding a curve near the Shreveport yard, and killed him.

The company denied negligence on its part but interposed no plea setting up the defense of contributory negligence. A jury found for the administratrix and judgment thereon was affirmed by the Supreme Court of the State.

During cross-examination of the fireman, counsel attempted to show that the engineer was negligent in not having his train under proper control. The court sustained an objection "to any evidence as to contributory negligence as same is not pleaded." Proper.exception was taken and duly noted. Thereupon, the record recites, counsel for plaintiff asks that this objection and ruling and bill of exceptions be made general to apply to all such evidence and it is so ordered." Upon rehearing the Supreme Court held evidence of contributory negligence, though not pleaded and inadmissible to defeat a recovery, should have been received in mitigation of damages if offered for that specific purpose. But it said the evidence in question was properly excluded because tendered without restriction.

We have been cited to no authority showing a settled local rule requiring counsel, without inquiry by the court, to announce in advance the purpose for which evidence is tendered. Earlier cases in Louisiana lend support to the contrary and commonly approved practice. Thompson v. Chauveau, 6 Mart. N. S. 458, 461; Hitchcock v. North, 5 Robinson, 328, 329; Fortunich v. New Orleans, 14 La. Ann. 115; Caspar v. Prosdame, 46 La. Ann. 36. See McAfee v. Crofford, 13 How. 446, 456; Buckstaff v. Russell, 151 U. S. 626, 636; Farnsworth v. Nevada Co., 102

Fed. Rep. 578, 580; Hubbard v. Allyn, 200 Massachusetts, 166, 171; Mighell v. Stone, 175 Illinois, 261, 262.

It is declared by the act of Congress upon which the suit is based:

"Sec. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death; the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.

Manifestly, under this provision a defendant carrier has the Federal right to a fair opportunity to show in diminution of damages any negligence attributable to the employee.

The state Supreme Court upheld the railway company's claim of right to show contributory negligence under its general denial; but the trial court emphatically denied this and positively excluded all evidence to that end. As, under the Federal statute, contributory negligence is no bar to recovery, the plain purpose in offering the excluded evidence was to mitigate damages. In such circumstances it was unnecessary to go through the idle form of articulating the obvious. If timely objection upon the ground ultimately suggested by the Supreme Court had been sustained, it could have been easily obviated; but counsel had no reason to anticipate such a ruling and certainly, we think, were not required to do so at their peril.

Plaintiff in error has been improperly deprived of a Federal right. The judgment below is accordingly reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed.

Statement of the Case.

241 U. S.

MARYLAND DREDGING AND CONTRACTING COMPANY v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 310. Argued April 25, 1916.-Decided May 8, 1916.

A government contract for dredging a channel contained a provision that time was an essential feature, and provided for a specified amount per day as liquidated damages for delay and not as a penalty; it also provided that unless extraordinary and unforeseen conditions should supervene the time allowed was sufficient and extensions could only be granted on recommendation of engineer in charge affirmed by Chief of Engineers; a submerged forest which had not been discovered by the contractor prior to commencement of the work, although the contract placed the burden on him to do so, was encountered and so impeded progress as to cause delay for which the Government deducted as liquidated damages the amount specified in the contract. In a suit to recover that amount held:

The provision in the contract that the time was sufficient unless extraordinary conditions should supervene does not amount to a promise for extension if such conditions do supervene.

The extent of promise for an extension under the contract was confined to what the engineer in charge would grant with the sanction of the Chief Engineer; nor was the Chief Engineer bound, in the absence of fraud, to give his sanction to a recommendation of the engineer in charge for an extension.

For extraordinary conditions to supervene in such a case they must come into being after commencement of the work, and not merely be thereafter discovered to have existed and still to exist.

The provision in the contract for liquidation of damages at $20 per day contains no element of deception or exorbitance and the contractor cannot escape the terms agreed upon.

THE facts, which involve the construction of a contract with the United States for excavation of a channel, and the liability of the contractor for damages for delay in completion, are stated in the opinion.