TRIEBER, District Judge
(after stating the facts as above). The contention of the defendant is that the act of Congress does not apply to an employé on a work train, operated wholly within one state, although the train was brought from another state and the material transported was intended for use on the roadbed of the defendant beyond the point where the offense was committed, the road being a through highway of interstate commerce.
*352[1] In our opinion this is too narrow a view to take of this act, which was intended, as has been repeatedly held by the Supreme Court, as well as the inferior' courts of the United States, as have the other Safety Appliance Acts, to be a remedial statute, intended to promote the safety of employés and travelers on trains moving in interstate commerce, and should be liberally construed to effect its purpose. Johnson v. Southern P. Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363; Schlemmer v. Buffalo Railroad Co., 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681; Southern Railway Co. v. United States, 222 U. S. 20, 32 Sup. Ct. 2, 56 L. Ed. 72; San Pedro, etc., R. Co. v. United States, 213 Fed. 326, 130 C. C. A. 28; Great Northern Ry. Co. v. United States, 218 Fed. 302, 134 C. C. A. 98, L. R. A. 1915D, 408.
[2] That the fireman on an interstate train is within the meaning of the act is not questioned, and cannot well be, but it is claimed that the interstate movement had ceased, as the material in the cars was to be used on the tracks of the defendant in the state of Kansas only, the train was no longer in interstate commerce. This contention is untenable, as the train had not yet reached its destination, and was to be carried further. McNeill v. Southern Ry. Co., 202 U. S. 543, 26 Sup. Ct. 722, 50 L. Ed. 1142.
[3] Nor can the contention of the defendant that, as the material was to be used on its tracks, although it is an interstate highway, the employé was not engaged in interstate commerce, be sustained. In Pedersen v. Delaware, etc., Ry. Co., 229 U. S. 156, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, it was held that one carrying material to be used in repairing tracks, bridges, engines or cars, after they have become and during their use as instrumentalities of interstate commerce, is engaged in interstate commerce within the meaning of tire act. In North Carolina Ry. Co. v. Zachary, 232 U. S. 248, 34 Sup. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159, it was held that when a freight train from an intrastate point is being made up of cars, some from a train which started in another state, an employé preparing an engine to move such a train is engaged in interstate commerce, even if the interstate cars had not yet been coupled up.
In Johnson v. Great Northern Ry. Co., 178 Fed, 643, 102 C. C. A. 89, this court held that one engaged in examining the air couplings of cars of a train while on a switch track, some of the cars containing interstate freight shipments, is employed in interstate commerce. In Lamphere v. Oregon Ry. & Nav. Co., 196 Fed. 336, 116 C. C. A. 156, 47 L. R. A. (N. S.) 1, it was held that a locomotive fireman, struck and killed by a train while crossing a track on his way to the station, to be transported to another place in the same state, to relieve there a fireman engaged on an interstate train, was employed in interstate commerce at the time. This case was cited with approval by the Supreme Court in the Pedersen Case.
In Illinois Central R. Co. v. Porter, 207 Fed. 311, 125 C. C. A. 55, one engaged in carrying interstate freight from the freight house to the cars with a hand truck was held to be engaged in interstate commerce. A track walker repairing a switch in a terminal yard, used for interstate as well as intrastate traffic, was held, in Central Railroad v. Colasurdo, 192 Fed. 901, 113 C. C. A. 379, to be employed in inter*353state commerce. One engaged in making repairs on an engine used for interstate commerce, alter it had reached the end of the run, and placed on the fire track to await the time for the return trip to another state, was held in Baltimore & Ohio R. R. Co. v. Darr, 204 Fed. 751, 124 C. C. A. 565, 47 L. R. A. (N. S.) 4, to be engaged in interstate commerce. Telegraph operators, receiving or transmitting dispatches affecting the movement of interstate trains have been held to be engaged in interstate commerce. Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31 Sup. Ct. 621, 55 L. Ed. 878.
[4] That the fireman, in this instance, had been detailed to watch the locomotive engine during the excess hours, does not affect the result. This was expressly decided by this court in San Pedro, etc., Ry. Co. v. United States, supra, and Great Northern Ry. Co. v. United States, supra, where the facts were identical with those in this case.
[5] The fact that this fireman was employed on a work train was wholly immaterial, if it was in fact an interstate train. The act of Congress makes no such exception, and the courts certainly are powerless to do so. The gist of the offense is that the carrier is engaged in the transportation of passengers or property by railroad from one state to another, and that the employe is actually engaged in or connected with the movement of any train. “Any train” is certainly broad enough to include a work train.
As the agreed statement of facts shows that the employé was required to remain on duty over 20 hours, that the train on which he was employed had been brought from another state, and had not yet reached its final destination, as the material was intended to be carried further, that the material was to be used in repairing the track, which was an interstate highway, the employe was, at the time, engaged in interstate commerce, in connection with the movement of an interstate train. The judgment of the court below was right, and is affirmed.