Opinion
H. E. Foster, of Seattle, Wash., for plaintiff in error.
Grosscup & Morrow, of Tacoma, Wash., for defendant in error.
Before GILBERT, ROSS, and HUNT, Circuit Judges.
ROSS, Circuit Judge.
The death of the party, to recover damages for which this action was brought, occurred more than one year prior to its commencement. The deceased died as the result of injuries received while employed by the defendant in error as a sailor on the steamship Admiral Watson, at the time operated by the defendant in error as a common carrier of commerce within the territory of Alaska, and the question presented by the record is whether the Employers' Liability Act of June 11, 1906 (34 Stat. 232, c. 3073), controlled the liability of the defendant in the case. The first section of that act is as follows:
'That every common carrier engaged in trade or commerce in the District of Columbia, or in any territory of the United States, or between the several states, or between any territory and another, or between any territory or territories and any state or states, or the District of Columbia, or with foreign nations, or between the District of Columbia and any state or states or foreign nations, shall be liable to any of its employes, or, in the case of his death, to his personal representative for the benefit of his widow and children, if any, if none, then for his parents, if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents, or employes, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways, or works.'
We think the question is conclusively settled in the affirmative by the decisions of the Supreme Court in the cases of El Paso & N.E. Ry. v. Gutierrez, 215 U.S. 87, 30 Sup.Ct. 21, 54 L.Ed. 106, and
Page 662.
Washington, Alexandria, & Mt. Vernon Railway Co. v. Downey, 236 U.S. 190, 35 Sup.Ct. 406, 59 L.Ed. 533. That being so, and section 4 of the act of Congress referred to declaring 'that no action shall be maintained under this act unless commenced within one year from the time the cause of action accrued,' it necessarily results that the judgment must be, and hereby is, affirmed.