The opinion
Dissenting Opinion by
Keller, J.,
I would agree with the opinion of the majority of the court, if it had been necessary to remove the empty lumber car (the intrastate car) from the siding in order to put the loaded steel car (the interstate car) on it, but it was not; there was room on the siding for both of them. Claimant’s orders were “to take out an empty car and place a loaded car on the siding,” but the order to move the empty car was not dependent on the placing of the loaded car, except that it could not be done after the loaded car was placed on the siding.
To prevent the incurring of delay charges it was in the line of claimant’s duty to remove cars from sidings after they were unloaded and put them back into the yard for use again. This duty was intrastate transportation. It was while he was engaged on this work that the claimant was hurt. No element of interstate transportation was involved in it. The fact that just before he began his work of taking out the empty car he had been engaged in shifting the loaded steel car, and would continue it after the empty car was out, did not make them parts of one movement in interstate transportation, nor render the taking out of the empty car merely incidental to the delivery of the loaded car on the siding, or so closely related to it as to be practically a part of it.
I think President Judge Finletter correctly applied the law to the facts in the case.