
    WINFREE v. NORTHERN PAC. RY. CO.
    (Circuit Court, E. D. Washington, E. D.
    September 5, 1908.)
    No. 1,344.
    Master and Servant (§ 87) — Employer’s Liability Act — Retroactive' Operation — “Action Hereafter Brousiit.”
    The provisions of Act April 22, 1908, c. 149, 35 Stat. pt. 1, p. 65, relating to the liability of common carriers by railroad to their employés, are prospective only in their operation, and the phrase “actions hereafter brought,” as used in section 3, does not apply to an action by an employé for an injury received before the statute was enacted.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 87.]
    At Raw. On demurrer to complaint.
    B. C. Mosby, for plaintiff.
    Edward J. Cannon, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   WHITSON, District Judge.

It is alleged that the plaintiff’s intestate met his death on the 3d day of July, 1906, through the wrongful acts of the defendant while engaged as one of its employés, for which damages are demanded. Plaintiff relies upon the act of Congress approved April 22, 1908, entitled “An act relating to the liability of common carriers by railroad to their employés in certain cases.” 35 Stat. pt. 1, p. 65, c. 149.

The point made by the defendant on demurrer to the complaint is that the grievance complained of antedates the passage of the statute. Passing over the familiar doctrine that the intention to give a statute retroactive effect must clearly appear before it will be so construed, we are confronted with a more serious phase of statutory construction, namely, whether the defendant would be deprived of rights which it enjoyed at the time of the accident by applying the statute subsequently passed to the occurrences set out in the complaint.

To sustain the action under the statute the decision of Judge Han-ford in Plummer v. Northern Pacific Railway Company (C. C.) 152 Fed. 206, has been cited; but the holding in that case was that the employer’s liability act of June 11, 1906 (34 Stat. 232, c. 3073), created “a new right and a new obligation,” by reason of which it could not be construed to operate retroactively. In this view I fully concur. Certainly the explicit and sweeping provisions of the later act are subject to no other construction. Section 1 creates a liability where none existed before, by providing for a recovery when injury results in whole or in part “from the negligence of any of the officers, agents or employés of such carrier. * * * ” Section 3 provides that contributory negligence shall not bar a recovery, while section 4 is at least a radical modification of the rule relating to the assumption of risk which existed prior to its adoption.

Here the plaintiff avowedly seeks to recover upon a state of facts which would not have entitled him to a judgment at the time the right accrued. This would deprive the defendant of something substantial, and confer upon the plaintiff a benefit which was not existent and could not have been jn contemplation of the parties when the relation of employer and employe was entered into. Since it cannot be supposed that Congress intended to disturb existing rights, it must be held that the statute was intended to be prospective in its operation, and that the language of section 3, “that in all actions hereafter brought,” was intended to refer to causes of action arising after the passage of the act.

Demurrer sustained.  