(dissenting).
I agree with the legal principles stated in the opinion of the majority of the court but not in their application of these principles to the proven facts. In my opinion, the record will not support a finding by the jury that plaintiff was engaged in interstate commerce at the time of his injury. Plaintiff worked under Foreman Bubb, who in turn received his orders from Track Supervisor Smith. The testimony is undisputed that Fire Warden Bichler instructed Smith to send up some men to patrol the fire line on the morning of the 19th, and that Smith passed the order on to Bubb. Smith testified to this at fols. 995 and 1126, and said he told the foremen of the two gangs to work under the supervision of the fire warden. Fol. 1128. Bichler testified to giving Smith the order. Fol. 1401. That Bichler did not appear at the burned over tract on the 19th, and that no men other than the two railroad gangs patrolled the fire line on that day are facts 'not at all contradictory to the testimony of Bichler and Smith. Bichler knew the railroad gangs to be experienced fire fighters and doubtless thought them competent to patrol the smouldering stumps on the fire line without his personal presence or the aid of other men. Hence these facts do not raise any question for the jury as to Biehler’s having given the order to which both he and Smith testified. Neither does the plaintiff’s testimony, even if given credence despite its absence at the former trial, to the effect that Bubb stated that the purpose of the gang’s work was to protect railroad property. Such a statement, even if made by Bubb, was entirely immaterial to the issue of whence the order emanated. Concededly the fire warden had called for the men to be sent out to patrol the fire line on the 19th, and this order Smith passed on to Bubb. Fol. 1237. Hence Smith and *369Bubb were both, acting' as agents of the warden in sending out the men. So it appears to me that there is nothing in the re<5ord to justify a finding by the jury that the railroad gave the orders on its own behalf to proteet its property and to keep open its track. Accordingly, in my opinion the District Court should have ruled that the plaintiff was not engaged in interstate commerce. I believe the judgment should be reversed.