(dissenting). — As I understand the record, the deceased, at the time he was injured, was not engaged in repairing an old block or signal system, but was employed to, and was, in fact, engaged in putting on new cross-arms upon the telegraph poles, for the purpose of installing an entirely new and independent automatic system, to replace the old hand system — a system which required new arms, wires, and new construction throughout. True, the old poles were being used, and it was contemplated that some of the old wires might be used; but, until the new system was completed, the old was in use, and was the only one which was engaged in, or had anything to do with, interstate commerce. The new arms had not been placed, nor had any new wires been strung, nor had there been any use made of the proposed new system, in any kind of commerce. It may be that plaintiff was a regular lineman; but he was not then engaged-in anything connected with interstate commerce, or with anything essential to interstate commerce. He was in no better position, as I view it, and in no worse, than if lie had been engaged in constructing a new line of track, for the purpose *627of making a double track system across the state, instead of a single track one, and had been injured before the new track had been used in interstate commerce.
The record does not indicate that the old hand system needed any repairs. As a hand system, it was answering its purpose, and was, in fact, doing all the work of a block system for both intra- and interstate commerce, at the. time plaintiff was injured. It was not the betterment, even, of an old system, but the construction of a new and independent one; and it does not matter, I think, that part of the old was to be used with the new, when the new one was . constructed. Surely, if the plaintiff had been engaged in the construction of another track to make a double-tracked road, which new track had never been used in commerce of any kind, the use of old rails which had once been used in interstate commerce, even as a part of a railway engaged in interstate commerce, would not affect the matter, in any way. Notwithstanding the intimation in the majority opinion, that' the defendant was making this change in compliance with its duty under the Federal law, I do not think there was any defect in its old hand system, or anything disclosed by this record which would justify the Interstate Commerce Commission, or any other court or tribunal, in ordering the defendant to put in the automatic system. Surely, there is no law, either Federal or state, which would require it to do so. Indeed, I doubt if there is any law requiring railways to put in any signal system, either hand or automatic. If they do so, it is an economic measure, insuring safety, and guarding against loss. The automatic is doubtless less expensive in the long run than the hand system, but I can find no law which requires of railways that they substitute one for the other.
The ease does not differ, I think, from one where a railway, in the furtherance of its business, concludes- to install, in addition to its telegraphic system of controlling trains, a telephonic system, to act either in conjunction with the telegraph or independently of it; and, while in the construction *628of the telephonic system, and before it is used at all, an employee, engaged in its construction, is injured.
In the Pedersen case, relied upon by the majority, it was distinctly held that the work in which the employee was engaged, was repairing a bridge, which had theretofore been, and was then, an instrumentality in interstate commerce; and the court expressly said that it was not deciding a case involving the construction of tracks, bridges, etc., which had not, as yet, become the instrumentalities of interstate commerce, “but only with the work of maintaining them in proper condition after they have become such, instrumentalities, and during their use as such. ’ ’
It was found, in the cited case, that the injured party was engaged in repair work, and in keeping the instrumentality in suitable condition for use. To my mind, that case is really an authority against the conclusion reached by the majority.
Three things must appear, to bring a case within the Federal Employers’ Liability Act: (1) The carriér must be engaged in interstate commerce; (2) it must, at the time of the injury in question, be engaging in commerce of that character, as contradistinguished from such purely local matters as it may engage in; (3) the injured servant must also, at the time of receiving his injury, be engaged in interstate commerce. See the Federal Act passed April 22, 1908 (ch. 149, 35 Stat. L. 65); Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 (33 Sup. Ct. R. 648); Mondou v. New York, N. H. & H. R. R. Co. 223 U. S. 1 (32 Sup. Ct. R. 169); Sea Board Air Line Ry. v. Moore, 228 U. S. 433 (33 Sup. Ct. R. 580); St. Louis, S. F. & T. R. Co. v. Seale, 229 U. S. 156 (33 Sup. Ct. R. 651); North Carolina R. Co. v. Zachary, 232 U. S. 248 (34 Sup. Ct. R. 305); Grand Trunk W. R. Co. v. Lindsay, 233 U. S. 42 (34 Sup. Ct. R. 581); Illinois Cent. R. Co. v. Behrens, 34 Sup. Ct. R. 646.
In the latter case it is said:
“The controlling provision in the act of April 22, 1908. reads as follows: ‘That every common carrier by railroad *629while engaging in commerce between any of the several states . . . shall be liable in damages to any person, suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to' its negligence, in its cars, engines, appliances, machinery, track, roadbed, works,' boats, wharves, or other equipment.’ Giving to the words ‘suffering injury while he is employed by such carrier in such commerce’ their natural meaning, as we think must be done, it is clear that Congress intended to confine its action to injuries occurring when the particular service in which the employee is engaged is a part of interstate commerce. The act was so construed in Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146 (57 L. Ed. 1125, 33 Sup. Ct. Rep. 648, 3 N. C. C. A. 779). It was there said (p. 150): ‘There can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employee is employed by the carrier in such commerce.’ Again (p. 152): ‘The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged 1 ’ . . . Ilere, at the time of the fatal injury the intestate was engaged in’ moving several cars, all loaded with intrastate freight, from one part of the city to another. That was not a service in interstate commerce, and so the injury and resulting death, were not within the statute. That he was expected, upon the completion of that task, to engage in another which would have been a part of interstate commerce, is immaterial under the statute, for by its terms, the true test is the nature of the work being done at the time of the injury.”
In the instant case, the deceased was not engaged in the repair of an instrumentality which had theretofore been used in both intra- and interstate commerce; but in the *630construction of a new system of signals, which had never been used for either. The purpose of the statute, as said in Mandón’s case, supra, is “to secure the safety of interstate transportation and of those who are employed therein.” It is clear to my mind that deceased did not come to his death or receive his injuries while employed by defendants in interstate commerce, but that what he was doing was in the preparation for engaging therein in the future. In support of these views, see Jackson v. Chicago, M. & St. P. R. Co., 210 Fed. 495; Tsmura v. Great Northern R. Co. (Wash.), 108 Pac. 774; Pierson v. New York, S. & W. R. Co. (N. J.), 85 Atl. 233; Charleston & W. C. R. Co. v. Anchors (Ga.), 73 S. E. 551; Ruck v. Chicago, M. & St. P. R. Co. (Wis.), 140 N. W. 1074.
In any event, I think the case should have gone to the jury, upon the question as to the nature of deceased’s employment. I would, for these reasons, reverse the judgment.
Weaver, J., concurs in the foregoing dissent.