(dissenting). I •do not concur in the view of the majority of the court that the employee in this ease was, at the time of his death, engaged in interstate commerce. I do not think, therefore, that the rights of the parties are to be determined by the provisions of the federal Employers’ Liability Act (Comp. St. §§ 8657-8665).
That act can, under the Constitution and by its own terms, apply only to cases where both the employer and the employee, at the time of the injury, were engaged in interstate commerce. Employers’ Liability Cases, 207 U. S. 501, 28 S. Ct. 141, 52 L. Ed. 297; 8 Fed. Stat. Ann. 1208. Of course, in the great variety of circumstances and conditions that continually arise, its application sometimes becomes a difficult problem. But it is quite manifest that, in order to come within its provisions, the work being done both by the employer and the employed, when the injury occurs, must have such imminent or immediate connection with the interstate commerce work of the road as to be, in a very real sense, a part of such commerce. Shanks v. Delaware Railroad, 239 U. S. 556, 36 S. Ct. 188, 60 L. Ed. 436, L. R. A. 1916C, 797; Pederson v. Delaware Railroad, 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. The fact that the work was in the nature of preparation for work that has to do with interstate commerce, the general character or scope of an employee’s duties, what he may have done before he was injured, or what he intended to do afterward, are relatively unimportant. The nature of the work being done at the immediate time of the injury — the task at hand — is the determining faetor. Chicago Railway v. Harrington, 241 U. S. 177, 36 S. Ct. 517, 60 L. Ed. 941; Minneapolis Railway v. Winters, 242 U. S. 354, 37 S. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; Shanks v. Railroad, supra.
In every case where the application of the act has been considered by the Supreme Court, this test, in so far as I have been able to ascertain, has been applied. Pederson v. Delaware Railroad, supra; North Carolina Railway v. Zachary, 232 U. S. 260, 34 S. Ct. 305, 58 L. Ed. 591, Ann. Cas. 1914C, 159; Illinois Railroad v. Behrens, 233 U. S. 473, 34 S. Ct. 646, 58 L. Ed. 1051, Ann: Cas. 1914C, 163; Delaware Railroad v. Yurkonis, 238 U. S. 439, 35 S. Ct. 902, 59 L. Ed. 1397; Shanks v. Delaware Railroad, supra; Chicago Railway v. Harrington, supra; Minneapolis Railway v. Winters, supra; Erie Railroad v. Winnfield, 244 U. S. 171, 37 S. Ct. 556, 61 L. Ed. 1057, Ann. Cas. 1918E, 662; Lehigh Railway v. Barlow, 244 U. S. 183, 37 S. Ct. 515, 61 L. Ed. 1070.
The evidence in this case shows without dispute that the day’s work of the injured employee had been concluded. His tools had been put in plaee and his reports had been made. He had left the company’s premises, and was shot when en route home on a street ear. As I view it, neither the employer nor the employee were engaged in interstate commerce at the time of the tragedy, or, indeed, in commerce at all.
Every employee of a railroad must, in order to report for work, leave his home iii the morning and return at the close of the day. Such a trip may be said to be “a necessary incident of his work as a whole.” If that were the decisive thing- — that is, that the trip was necessary to his work as a whole - then any employee whose work on the railroad is of an interstate character may be said to be engaged or employed in interstate commerce when making such trips. The re*886lation to interstate commerce in that instance would be the same as in this case.
If there was a duty on the part of the employer to furnish protection to an employee at such time, it was a duty occasioned by a special obligation or contract to do so. It might be, as the trial court said in his charge, that “a violation of that duty would be a violation of the employer’s duty to an interstate employee,” ■ but the point is that in order to make the statute applicable, the employee must, at the time of his injury, have been more than an interstate employee. He must, at such time, have been himself engaged in interstate commerce. This is true, even though it may be said that under the conditions “the deceased was an employee of the company, and the protection was a part of the consideration which induced him to enter upon and continue in the employment.” That fact would not mean that he was engaged in interstate commerce at the time of his injury.
The negligence proven in this ease was, in my opinion,- the failure to adequately protect this employe, when going to and returning from his work. . The basis of liability for such is the failure to perform a duty incident to the special engagement or undertaking. Schaff v. Stripling (Tex. Civ. App.) 265 S. W. 265; Kansas Kailway v. Pike (Tex. Civ. App.) 264 S. W. 593. In that state of affairs, it would be immaterial whether the employé was engaged in intrastate or interstate commerce, or whether he was engaged in commerce at all.
In view of the relative rights of the state and federal governments, it is important, I think, for distinctions of this character td be preserved, and for the application of federal legislation to be limited to spheres within which such legislation is permitted, under the Constitution, to operate.