The opinion of the court was delivered by: MOSCOWITZ
MOSCOWITZ, District Judge.
There is one question presented to the Court for its consideration, that is, whether or not plaintiff at the time of the accident, in which he sustained injuries, was engaged in interstate commerce.
The parties have entered into a written stipulation of all the facts, as follows:
"1. The Pennsylvania Railroad Company is and was at the times complained of a common carrier by railroad, at least two-thirds of whose business is in interstate commerce.
"2. From November 1, 1939 to and including January 12, 1940, plaintiff was a brakeman in defendant's employ as a member of an extra shifting crew assigned each day to the movement of engines and cars, freight and merchandise, his wages being paid semi-monthly.
"3. Under orders given in the morning of January 12, 1940 for the entire day's work, plaintiff and his crew moved three dead engines from Altoona, Pa., to Hollidaysburg, Pa. to be held there until orders should be given for their repair, and after the accident they moved three dead engines from Hollidaysburg, Pa. to the shop tracks at Altoona, Pa., which had been ordered there for repairs under circumstances hereinafter set forth. Plaintiff was injured in the morning on the way to Hollidaysburg.
"4. Plaintiff was employed in interstate transportation or commerce, on the following dates:
"November -- 1, 2, 4, 5, 6, 7, 11, 12, 14, 15, 16, 17, 19, 21, 22, 23, 24, 25, 27, 29 and 30, 1939;
"December -- 1, 2, 4, 5, 6, 8, 9, 10, 12, 13, 15, 16, 18, 20, 22, 23, 24, 26, 27, 28, 29 and 31, 1939;
"January -- 1, 3, 5, 6, and 10, 1940.
"5. On November 3 and 9, 1939, plaintiff was engaged in moving defendant's own empty system cars, from its yards at Altoona, Pa. to its yard at Hollidaysburg, Pa. for storage, and from its yard at Hollidaysburg to its Altoona repair shops. All these cars were to be repaired at its car repair shops at Altoona. Those that were moved from the Altoona yard to the Hollidaysburg yard were to remain there until ordered to be taken back to the Altoona repair shop tracks to be repaired, those that were moved from Hollidaysburg to the car repair shops in Altoona were cars that had been ordered to be placed in repair and would be returned to service upon completion of repairs. When the repairs were completed, each car was to be used in both interstate and intrastate transportation and commerce, as from time to time assigned.
"6. On November 10, 1939, plaintiff and his crew were engaged in hauling engines between the same points and for the same purpose as on January 12, 1940, hereinafter more fully described in Paragraphs 8 to 14.
"7. On November 18, 1939, and on January 8 and 11, 1940, plaintiff was engaged in moving cars loaded with Company material from defendant's Altoona yard to its Hollidaysburg yard and from Hollidaysburg to its Altoona shop yard. The material had arrived at Altoona consigned to defendant's shops for use therein. Some of the cars had come from outside the State of Pennsylvania and some from within the State.On arrival of such loaded cars at Altoona, in accordance with usual custom, the storekeeper of defendant's shops was notified of their arrival and, as there was no space in the Altoona yards or shops in which to keep said cars until their contents could be unloaded or used, he directed them to be taken to Hollidaysburg to be kept in defendant's yards there, and they were accordingly moved to said Hollidaysburg yard and remained there until further orders were received from said storekeeper that they be brought from Hollidaysburg to Altoona for use or unloading at the shops.
"8. On January 12, 1940, the plaintiff was engaged as brakeman in moving defendant's engines, which had been out of service for repairs for several months, from its Altoona yard to its Hollidaysburg yard, where they were to be held until orders should be given to take them to Altoona to be repaired; after which repairs they would be returned to service. After the accident to plaintiff he and his crew also moved from Hollidaysburg to Altoona, by means of Engine No. 9912, defendant's dead engines numbered 1555, 3514 and 5436, the facts concerning which are stated in the following ...