The injured employee was a laborer in the roundhouse at Canandaigua and was, at the time of his injury, dumping ■ ashes from an engine which had recently come in carrying interstate freight. The transportation of that train was finished. When the ashes were removed, the engine watered and prepared for a new trip, it was subject to orders by the yardmaster. It was not under orders for its next trip at the time of the accident, and it was not definitely known what it would next be called to do. It carried at times interstate trains and at times intrastate trains. It cannot be said, therefore, that the employee was, at the time of the injury, engaged in interstate commerce. (Illinois Central R. R. v. Behrens, 233 U. S. 473; Erie R. R. Co. v. Welsh, 242 id. 303.)
In Arkadelphia Co. v. St. Louis S. W. R. Co. (249 U. S. 134, 150, 151), ninety-five per cent of the product of the mill was interstate shipments, but no one at the mill knew where the particular lumber in question was to be shipped, and it was held that the mere expectation that it would be shipped out of the State was not sufficient to characterize it as interstate commerce.
The conclusion of the Commission that he was not engaged in interstate commerce is not without evidence and we cannot, therefore, review that question of fact. I favor affirmance.
All concur, except Kiley, J., dissenting, with an opinion.