Dissenting Opinion by
Mr. Justice Cohen :I disagree with the majority’s conclusion that §25 of the Interstate Commerce Act, 49 U.S.C. §26 (1958), has pre-empted all state regulation in the area of flagmen protection in order to promote the local safety of railroad operation.
In support of federal pre-emption, the railroads and the majority opinion rely most heavily on Napier v. *361Atlantic Coast Line R.R. Co., 272 U.S. 605, 71 L. Ed. 432 (1926), where the United States Supreme Court struck down state requirements for cab curtains and automatic doors to fire boxes on the ground that Congressional enactment manifested an intention to occupy the entire field of locomotive equipment. The inapplicability of Napier to the instant situation has recently been decided by the Supreme Court of New Jersey in In Re Complaint of Brotherhood of R.R. Trainmen, Pennsylvania Railroad v. Public Utility Commissioners of New Jersey, 49 N.J. 174, 229 A. 2d 505 (1967). In deciding the identical issue presently before our Court, Justice Jacobs, writing for a unanimous New Jersey Court commented: “Napier has never been applied as broadly as the Railroads contend (cf. Terminal R. Asso. of St. Louis v. Brotherhood of R. Trainmen, 318 U.S. 1, 4, 63 S. Ct. 420, 87 L. Ed. 571, 576 (1943); Southern Pacific Co. v. State of Arizona, 325 U.S. 761, 766, 65 S. Ct. 1515, 89 L. Ed. 1915, 1922 (1945)); in any event it dealt, not with supplemental local emergency safety device, such as flagging, but with equipment attached to the locomotive which passes through from state to state and with respect to which the national interest in uniformity is vital and paramount. Similarly, the very Congressional language (49 U.S.C.A. §26(b)) points to the block signal systems themselves and to similar appliances where national uniformity is the concern rather than to local safety requirements which do not impair the design or sweep of the federal regulations.
“In Florida Line & Avocado Growers v. Paul, supra, the Supreme Court pointed out that federal regulation of a field in commerce should not be deemed preemptive of state power in the absence of persuasive reason—‘either that the nature of the regulated subject matter permits no other conclusion, or that the *362Congress has unmistakably so ordained.’ [Citations omitted.] And in Brotherhood of Locomotive Engineers v. Chicago, Bock Island & Pacific Railroad Co., supra, the Supreme Court, in upholding a state full crew law as against a claim of preemption, noted that in the absence of Congressional legislation as to what number of crew members, ‘the States have extensive power of their own to regulate in this field, particularly to protect the safety of railroad employees and the public.’ 382 U.S., at p. 429, 85 S. Ct., at p. 597, 15 L. Ed. 2d, at p. 505. Indeed it may be said that state regulatory provisions having local safety as their objective are the least likely to be held preempted. [Citations omitted.]; see also Pennsylvania Railroad Co. v. Dept, of Public Utilities, supra, where we stated that we were not convinced that there is merit to the Pennsylvania’s contention ‘that Congress has occupied the field of automatic block signals to the total exclusion of any state safety requirements bearing thereon.’ ” 14 N.J., at p. 434, 102 A. 2d, at p. 630.
While I recognize the supremacy of federal legislation in areas partially occupied by Congressional enactment, it is not always clear and at times most perplexing to determine whether it was the Congressional intent to occupy the entire area. In Rice v. Santa Fe Elevator Corporation, 331 U.S. 218, 91 L. ed. 1447, the Supreme Court of the United States enunciated the conflicting values and guidelines which must be assessed before determining questions of federal preemption. Justice Douglas, speaking for the majority of the Court remarked: “So we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress. Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 611, 71 L. ed. 432, 438, 47 S. Ct. 207; Allen-Bradley Local, *363U.E.R.M.W. v. Wisconsin Employment Bd., 315 U.S. 740, 749, 86 L. ed. 1154, 1164, 62 S. Ct. 820. Such a purpose may be evidenced in several ways. The scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. [Citations omitted.] Or the Act of Congress may touch a field in which the' federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject. Hines v. Davidowitz, 312 U.S. 52, 85 L. ed. 581, 61 S. Ct. 399. Likewise, the object sought to be obtained by the federal law and the character of obligations imposed by it may. reveal the same purpose. [Citations omitted.] Or the state policy may produce a result inconsistent with the objective of the federal statute. Hill v. Florida, 325 U.S. 538, 89 L. ed. 1782, 65 S. Ct. 1373. It is often a perplexing question whether Congress has precluded state action or by the choice of selective regulatory measures has left the police power of the States undisturbed except as the state and federal regulations collide.” [Citations omitted.]
After carefully analyzing and evaluating the relevant considerations outlined in Rice, I am drawn to the conclusion that §25 of the Interstate Commerce Act does not preclude state regulation in the nature of flagmen protection.
Moreover, the majority opinion, in my view, misconstrues the language of §25 by concluding that the language used therein is broad enough to indicate that Congress has chosen to regulate the entire field of rear end collision prevention. Section 25 provides in pertinent part as follows: “(b) The Commission may, after investigation, if found necessary in the public interest, order any carrier within a time specified in the order, to install the block signal system, interlocking, automatic train stop, train control, and/or cab-signal de*364vices, and/or other similar appliances, methods, and systems intended to promote the safety of railroad operation, which comply with specifications and requirements prescribed by the Commission upon the whole or any part of its railroad . . . Provided further, That a carrier shall not be held to be negligent because of its failure to install such systems, devices, appliances, or methods upon a portion of its railroad not included in the order, and any action arising because of an accident occurring upon such portion of its railroad shall be determined without consideration of the use of such systems, devices, appliances, or methods upon another •portion of its railroad.” (Emphasis supplied.)
The use of the language “upon the whole or any part of its railroad” indicates that Congress only intended to empower the Interstate Commerce Commission to regulate the installation of safety appliances, methods, and systems which have some physical connection with the actual railroad cars or its appurtenances. Section 25 in no way confers authority on the Commission to promulgate rules and regulations with respect to safety devices which are not affixed “upon the whole or any part of its (referring to the carrier) railroad.” The result achieved by the majority today for all practical purposes renders the meaning and purpose of that language nugatory inasmuch as its interpretation of §25 ignores what I think was the obvious intent of Congress, i.e., to preclude state regulation with respect to equipment attached to the railroad where the need for national uniformity is most vital to the national interest.1
What else could Congress have intended by its inclusion of the language “upon the whole or any part *365of its railroad” since it could have arrived at tbe same result reached by the majority of this Court by the simple method of excluding that language from the Act? For these reasons I would affirm the judgment of the Superior Court.
I dissent.
Mr. Justice Eagen joins in this dissenting opinion.This construction of §25 is further substantiated by a reading of paragraph (e) under the Act which provides as follows: “It shaU be unlawful for any carrier to use or permit to be used on *365its line any system, device or appliance covered by this section unless such apparatus, with its controlling and operating appurtenances, is in proper condition and safe to operate in the service to which it is put, so that the same may be used without unnecessary peril to life and limb, and unless such apparatus, with its controlling and operating appurtenances, has been inspected from time to time in accordance with the provisions of this section and is able to meet the requirements of such test or tests as may be prescribed in the rules and regulations provided for in this section.”
Based upon the foregoing, it is extremely difficult to understand how the majority of our Court could arrive at its conclusion. It seems so obvious that Congress only intended to permit the Interstate Commerce Commission to regulate certain equipment and/or mechanical devices and their appurtenances and never intended to include under this Act regulatory power with respect to flagmen protection. Every word used in paragraph (e) refers to some sort of mechanical device and not one word therein relates to or encompasses the manual waving of flags to prevent rear end collisions.