I dissent. The only question is whether plaintiff at the time of his injury was engaged in interstate commerce. The test, so far as plaintiff’s occupation is concerned, has been stated thus: “Was that work being done independently of the interstate commerce in which the defendant was engaged, or was it so closely connected therewith as to be a part of it ? Was its performance a matter of indifference so far as that commerce was concerned, or was it in the nature of a duty resting upon the carrier ? ” (Pedersen v. Del., Lack. & West. R. R., 229 U. S. 146.)
Plaintiff was a machinist, employed by the defendant at its shops at Kingsland. He testified: “ The work I was engaged in was rush work. These engines would be pulled into Hoboken, and if anything would be wrong they would send the parts to Hoboken, and I would have to get those parts — they would be pulled into the roundhouse and the parts would be sent up to Kingsland to be repaired right away and sent back.” He also testified with regard to “ rush work ” that it “ would be generally on the ones [engines] going out of the State, the others they have got extra engines there to pull them out.” He further testified that he “was the only man on this bench for this class of work.” Among the machines upon which he worked was a shaping machine. “ This machine is used for shaping keys and cotters and brasses for connecting rods.” These keys and cotters were articles used to keep the piston rod in the crosshead of the locomotives.
The facts in immediate connection with the injury are stated in the prevailing opinion. It seems to me .that, within the authorities, if plaintiff had been working upon the shaping machine and had been injured through a defect in it, he could be said to be engaged in interstate commerce. (Pedersen v. Del., Lack. & West. R. R., supra; St. Louis & San Francisco Ry. v. Seale, 229 U. S. 156; Mondou v. New York, New Haven *570& Hartford Railroad Co., 223 id. 1; Seaboard Air Line v. Moore, 228 id. 433; North Carolina R. R. Co. v. Zachary, 232 id. 248; Law v. Rlinois Cent. R. Co., 208 Fed. Rep. 869; Lamphere v. Oregon R. & Nav. Co., 196 id. 336; Darr v. Baltimore & O. R. Co., 197 id. 666; affd., 204 id. 751; Northern Pac. Ry. Co. v. Maerkl, 198 id. 1; Thomson v. Columbia & P. S. R. Co., 205 id. 203; Eng v. Southern Pac. Co., 210 id. 92.)
The fact that this machine was sometimes employed in aid of interstate commerce and sometimes in aid of intrastate com merce would make no difference provided that the act in which plaintiff was engaged was a part of interstate commerce. (Illinois Cent. R. R. v. Behrens, 233 U. S. 473.)
In the Pedersen Case (supra) the plaintiff, acting under direction of his foreman, was carrying from a tool car to a bridge some bolts or rivets which were to be used in repairing the bridge, the repair consisting in taking out an existing girder and inserting a new one. This bridge was used both for interstate and intrastate commerce. It was held that plaintiff was engaged in interstate commerce.
In St. Louis & San Francisco Ry. v. Seale (supra), which was a death case, deceased was employed by defendant as a yard clerk in its yard at North Sherman, and his principal duties were those of examining incoming and outgoing trains making a record of the numbers and initials on the cars and making a record of the seals on car doors, checking the cars with the conductors’ lists, and putting cards or labels on the cars to guide switching crews in breaking up incoming and making up outgoing trains. While so engaged he was struck and fatally injured by a switch engine, which was being negligently operated by a fellow-employee. It was held that plaintiff was engaged in interstate commerce.
Seaboard Air Line v. Moore (supra) was a case of a fireman of a switch engine which apparently never went out of defendant’s yard at Tampa, who was injured by a defective footboard. It appeared that lumber on freight cars was shipped to the terminal of the Tampa Northern road at Tampa, and there unloaded and afterwards shipped by schooner to a point in New Jersey. It was held that he was engaged in interstate commerce.
*571In North Carolina R. R. Co. v. Zachary (supra), also a death case, the deceased was a fireman on engine No. 862, which ran entirely within the State of North Carolina from Selma to Spencer. He had prepared- his engine for the trip and was crossing the tracks in the railroad yard when he was struck by engine No. 1551, a shifting engine used only in the yard, and was killed. It appeared that engine No. 862 was to haul two freight cars which had been brought in from Pinners Point, Va., and to carry them to Spencer, and that just before the accident he had been oiling his engine and preparing it for the trip. Although the cars had not yet been attached to the train, it was held that his employment in interstate commerce was not “in futuro,” but that the acts of inspecting, oiling and preparing his engine to haul these cars were acts performed as a part of interstate commerce. It was also claimed at the time of his death that he was injured while crossing the yard to go to his boarding house. The court said he had not gone beyond the limits of the yard, and that there was nothing to indicate that his visit to the boarding house was out of the ordinary, or inconsistent with his duty to his employer, and the court held that it was a question for the jury whether deceased while so doing was engaged in interstate commerce.
In Law v. Illinois Cent. R. Co. (supra) a boilermaker’s helper was engaged in assisting in the repair of an engine regularly used in interstate commerce, but which had been in the repair shop for twenty-one days. It was held that plaintiff was engaged in interstate commerce.
In Lamphere v. Oregon R. & Nav. Co. (supra) an engineer was going to relieve another engineer who had been constantly on duty on an interstate train for a period of sixteen hours. Although he had not yet reached the place of his employment, it was held that he was engaged in interstate commerce.
In Darr v. Baltimore & O. R. Co. (197 Fed. Rep. 665) an interstate train has reached the end of its run. Plaintiff, who was employed in making running repairs, was sent to replace a bolt which had been lost from a brake shoe of the tender, and while so employed was injured through the negligence of a fellow-servant. It was held that he was engaged in interstate *572commerce, and this judgment was affirmed. (204 Fed. Rep. 751.)
In Northern Pac. Ry. Co. v. Maerkl (supra) plaintiff was employed in repair shops connected with an interstate track. He was injured while repairing a car used indiscriminately in interstate and intrastate commerce. It was held, for the purposes of the act, that he was engaged in interstate commerce.
In Eng v. Southern Pac. Co. (supra) it appeared that defendant was engaged both in interstate and intrastate commerce. Plaintiff was injured while framing a new office in a freight shed, and in sawing boards and nailing them to the wall. It was held that he was engaged in interstate commerce, and the court said: “The principle seems to be that one employed at the time of his injury in the use of or maintaining in proper condition any instrumentality or appliance used by the carrier in interstate commerce comes within the statute, although such instrumentality or appliance may also be used for intrastate business,” and it was held that a freight shed was used in interstate commerce.
Again, even if plaintiff in this case had not been operating the machine, but if he had been engaged in repairing it so that it could be used, I think the same principle would apply. On the contrary, if he had heen engaged in the construction of a new machine which had not yet been employed in interstate commerce, probably he would not have been. As was said by the court in Law v. Illinois Cent. R. Co. (supra): “We have not here a case of original construction of an engine not yet become an instrumentality of interstate commerce. It had already been impressed with such use and with such character. Its preservation as such was not a matter of indifference to defendant, so far as its interstate commerce was concerned. ” In the case at bar, the machine by previous use had become an instrumentality of interstate commerce. The mere change of its position was really of the character of a repair to it, or at least of an alteration in it to make it a more effective instrumentality.
In the Lamphere Case (supra) the court, speaking of the injury to plaintiff, said: “What is its effect upon interstate commerce ? Does it have the effect to hinder, delay, or inter*573fere with such commerce ? As applied to the present case, it is this: Was the relation of the employment of the deceased to interstate commerce such that the personal injury to him tended to delay or hinder the movement of a train engaged in interstate commerce ? ” I have an impression that the last question does not entirely fairly state the test, because in the case of Illinois Cent. R. R. v. Behrens (233 U. S. 473) it was said that the application of the act should be confined to cases where “the particular service in which the employé is engaged is a part of interstate commerce,” and that is, perhaps, a more accurate test. But even this, it seems to me, here is fulfilled. As I have tried to point out, plaintiff was engaged in improving the condition of a machine engaged in interstate commerce. The effect of such improvement would he to facilitate the transaction of such commerce. Omitting to make such improvement would hinder, delay and interfere with it. I think, therefore, that plaintiff was thus engaged. I am quite confident that the framers of the United States Constitution when preparing the interstate commerce clause thereof (Art. 1, § 8, subd. 3), had not the remotest idea that this clause of the instrument was to be given the liberal construction that has been given to it. Such construction is very much like judicial legislation. Perhaps this would indicate to conservative thinkers that circumstances have arisen which necessitated a change in the language of that venerable instrument, and perhaps to progressive thinkers it might seem that the change could readily and properly be made by the courts without resorting to the slower method of constitutional amendment. If such construction does involve a change in that instrument we may only say that the highest court in the land has directed it to he made and judicial subordination requires that we should follow.
Judgment and orders reversed and final judgment directed dismissing plaintiff’s complaint, with costs, but without prejudice to plaintiff’s remedy under the Workmen’s Compensation Act of the State of New Jersey.