(dissenting).
This case differs from Hudson & Manhattan R. Co. v. Iorio (C. C. A.) 239 F. 855, assuming that it may still be of assistance in determining what is or is not engagement in interstate commerce within the meaning of the Federal Employers’ Liability Act (45 USCA §§ 51-59). lorio, when injured, was carrying .rails not for immediate use, and they may never have been used in the railroad’s repair. Like moving coal to a coal shed (Chicago, B. & Q. R. R. v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941) where the coal may have been used for intrastate or interstate commerce, the rails were not then allocated or certain of use for construction work of an interstate railway. But in the instant ease, the rail rest was a permanent part of this interstate railroad system of trackage, to be used as such, as would the rails upon which interstate trains ran, and as much a part of the rail highway as the plates and bolts which hold the rails together. If the rule of Pederson v. D., L. & W. R. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, is still a guide, the work of relocating a permanent rail rest for the railway system was work of construction or repair of an interstate railway and employment in interstate commerce.
I dissent.