Winfree v. Northern Pac. Ry. Co.

• Decision Date: 04 October 1909
• Docket Number: 1,663.
• Citation: 173 F. 65
• Parties: WINFREE v. NORTHERN PAC. RY. CO.
• Court: U.S. Court of Appeals — Ninth Circuit

173 F. 65

WINFREE v. NORTHERN PAC. RY. CO.

No. 1,663.

Circuit Court, of Appeals. Ninth Circuit.

October 4, 1909

B. C Mosby, for plaintiff in error.

Edward J. Cannon, for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and HUNT, District Judge.

GILBERT Circuit Judge.

The plaintiff in error, as administrator of the estate of Albert E. Phipps, deceased, brought an action to recover damages from defendant in error, and in his complaint alleged that the said Albert E. Phipps, a minor of the age of 18 years and 5 months, while acting as a fireman upon a freight locomotive of the defendant in error in the state of Washington, met his death through the negligence of his employer; that the defendant in error was engaged in interstate commerce; that the decedent had not been emancipated, nor had his parents any knowledge of his employment; that they lived in the state of Wyoming; and that the action was brought April 22, 1908 (35 Stat. 65, c. 149), an act relating to the liability of common carriers by railroad to their employes in certain cases. The complaint set forth the particulars in which it was alleged that the defendant in error was negligent, and alleged that the decedent had no previous experience as fireman, and, by reason of his youth and inexperience, did not appreciate, and hence did not assume, the risks, hazards, and perils of the work assigned to him, and that the accident occurred without fault on his part. The defendant in error demurred to the Complaint, and the demurrer was sustained on the ground that the act of Congress so referred to has no retroactive application. The plaintiff in error pleading no further judgment was entered against him.

The sufficiency of the complaint is the sole question which is presented for our determination. The plaintiff in error contends that the act of 1908, being a remedial measure should be construed as retroactive, unless such a construction is precluded by its terms. It is not necessary to cite authorities to the well-settled rule that a statute will not be given a retroactive effect by construction unless the Legislature has so explicitly expressed its intention to make it retroactive as to leave no reasonable doubt thereof. In the act in question (35 Stat. 65) it is provided that every common carrier engaged in interstate commerce shall be liable in damages for injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employes of the carrier. There is nothing in the terms of the act to show that it was the intention of Congress to affect rights of parties as to any injury or death that had occurred before it went into effect. It is not to be presumed that Congress intended to impose civil liability upon carriers founded upon transactions which at the time of their occurrence gave no rise to a legal demand against them. In Twenty Per Cent. Cases, 20 Wall. 179, 187, 22 L.Ed. 339, the court said:

'Courts of justice agree that no statute, however positive in its terms, is to be construed as designed to interfere with existing contracts, rights of action, or with vested rights, unless the intention that it shall so operate is expressly declared or is to be necessarily implied,

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