Petitioner in this case was employed to perform police duty for a carrier engaged in both interstate and intrastate commerce, and was assigned to watch a certain interstate train of the carrier at a certain place where it was due to stop and to wait for the line to open for its passage, and where the cars had been previously burglarized. He performed that duty, and, while watching the train, saw one break into a car and return, and as he sought to arrest him was shot from ambush and lost his left eye.
He was not concerned with making up or operating the train in the sense of aiding its formation or movements, or giving signals, or furnishing or aiding in furnishing anything useful for its movements, or in mending machinery for it or the track over which it moved. This court has held that under such circumstances one was not then employed in interstate commerce, but that both he and his employer were governed by the Workmen's Compensation Law of Alabama (Code 1923, § 7534 et seq.). Southern Ry. Co. v. Varnell, 222 Ala. 237, 131 So. 803. Petition to the United States Supreme Court for review by certiorari was denied by that court (283 U.S. 852,51 S.Ct. 561, 75 L.Ed. 1460).
In taking that position it was shown that the United States Supreme Court had not in that particular interpreted the Federal Employers' Liability Act (45 USCA §§ 51-59). It observed that, while some state courts had asserted a contrary position, it was thought that the tendency of the federal courts supported this construction of the act as manifested in Delaware, L. W. R. R. Co. v. Scales (C.C.A.) 18 F.(2d) 73, and Feaster v. Southern Ry. Co. (C.C.A.) 15 F.(2d) 540.
There are other authorities which take a different view. 2 Roberts Fed. Liabilities of Carriers (2d. Ed.) § 754; Atchison, etc., Ry. Co. v. Industrial Commission, 192 Cal. 765,220 P. 342; Smith v. Industrial Commission, 26 Cal.App. 560,147 P. 600; Ft. Worth D.C. Ry. Co. v. Goodfellow (Tex.Civ.App.)280 S.W. 619.
While there are differences between the instant case and the Varnell Case, supra, which are probably sufficient to exempt it from the force of the second principle which was there applied, we do not think it can be differentiated from that which we have stated, to the effect that petitioner was not then engaged in interstate commerce. Since this *Page 595 court has deliberately taken that position, we think it should be maintained until a different rule is made applicable by the United States Supreme Court, especially since that court declined to review it.
Upon its authority, we think the judgment of the circuit court should be reversed, and the cause remanded so that compensation may be awarded pursuant to our statute.