It is settled beyond controversy by tbe decisions of tbe Supreme Court of tbe United States, that tbe acceptance of benefits from a relief department does not prevent a recovery of damages for negligence under tbe Employer’s Liability Act of 1908 (Chicago R. R. v. McGuire, 219 U. S., 549; R. R. v. Schoubert, 224 U. S., 603), and as it is admitted that tbe act is applicable in tbis case, tbe only question presented by tbe appeal is tbe construction of section 6 thereof, which reads as follows : “That no action shall be maintained under tbis act unless commenced within two years from tbe day tbe cause of action accrued.”
If tbis is a statute of limitation, tbe defendant cannot avail itself of its protection, because of its failure to plead tbe statute, which is required both under our Revisal, sec. 360, and under tbe general law (Wood on Limitations, vol. 1, sec. Y), and, on the' other band, if it is a condition inherent in and annexed to tbe right of .action, tbe defendant was not required to plead it, and it would operate to defeat tbe plaintiff’s action, which was commenced more than two years after the cause of action accrued.
Tbe ’last principle is illustrated by the decisions in tbis State and elsewhere, under Lord Campbell’s Act creating a right of action for wrongful death, and is tbe one invoked by tbe defendant.
It is true, it has been generally held by the, courts that where a statute creates a right not known to tbe common law, and pro*191vides a remedy for its enforcement, and limits tlie time witbin wbieb tbe remedy must be pursued, tbe remedy in sucb cases forms a part of tbe right, and if not invoked witbin tbe time botb tbe remedy and tbe right are lost (Bear Lake Co. v. Garland, 164 U. S., 1; Negaubauer v. R. R., 104 Am. St. Rep., 674; Rodman v. R. R., 59 L. R. A., 706); but this view is not universally entertained, as it was held otherwise in Kaiser v. Kaiser, 16 Hun., 602, and tbe rule is at most a rule of construction adopted by tbe courts to aid in ascertaining tbe intent of tbe legislative body.
We must then examine tbe act of Congress, and after considering its purpose, tbe subject with which it deals, tbe language used, and its effect, determine tbe legal operation of section 6. ,
Again, we turn to tbe decisions of tbe Supreme Court of the United States, and find that one purpose of Congress was to adopt a'uniform rule operating alike on all employees of railroad companies engaged in interstate commerce, and that one of tbe effects of tbe statute is to supersede tbe laws of tbe States in so far as they cover tbe same field. Mondou v. R. R., 223 U. S., 51 and 53.
Tbe act includes witbin its terms all employees of railroad companies injured by negligence while employed in interstate commerce, and these may be divided into three or four classes for tbe purposes of this discussion.
In tbe first are those employees injured by tbe negligence of tbe company, when there is no assumption of risk, no contributory negligence, and no negligence of a fellow-servant; and that there are such employees is exemplified by this record, from which it appears that tbe -only fact in issue, or debated in this case, is tbe amount of damages. .
Tbe act of Congress creates no right in this class of employees that did not exist at common law, as they bad tbe right before tbe act of Congress to maintain an action in the State courts to recover damages for injuries caused by tbe negligence, and tbe usual limitation upon tbe exercise of this right was three years.
*192In the next class are those employees injured by the negligence of the company, who are guilty of contributory negligence. These are permitted to recover damages, which they could not do at common law, the act introducing the doctrine of comparative negligence, instead of that of contributory negligence.
The change in the law as to contributory negligence confers no right, and is operative only to withdraw from the company a defense theretofore existing, and the same may be said as to changes in the doctrine as to the negligence of a fellow-servant, and of assumption of risk.
This seems to be the construction of the act adopted by the Circuit Court of Appeals in Garrett v. R. R., 197 Fed. Rep., in which the Court says: “The damages allowed to the injured employee are but declaratory of rights existing at conunon law,” and if correct, it may well be questioned whether the rule of construction relied on by the defendant has any application; but, however this may be, the considerations suggested furnish reasons bearing upon the legal effect of section 6.
•The act supersedes the State law and thereby deprives employees of a right of action existing at common law. It is entitled “The Employer’s Liability Act,” and was enacted for the benefit and protection of employees. It was designed to make it easier for employees to recover damages for injuries caused by negligence, and not to impose conditions destructive, not of the remedy, but of the right.
If so, it seems to us more reasonable to conclude that in an act of this character, having in view the establishment and maintenance of the rights of the employee, under just restrictions, and considering the different classes of employees affected, it was the intent of Congress .to limit the time within which an action could be commenced, and not to destroy the right.
The physical separation of the provision as to time from the section defining the right of action is also significant, and when considered in connection with the verbiage of section 6, which is peculiarly adapted to a statute of limitations, becomes, without other considerations, almost controlling.
The language of the section is strictly within the definition of a statute of limitation. Mr. Wood says in his work on limi*193tations (vol. 1, sec. 1) : “Statutes of limitation are sucb legislative enactments as prescribe the periods witbin which actions may be brought upon certain claims, or within which certain rights may be enforced. Statutes which provide that no action shall be brought, or right enforced, unless brought or enforced within a certain time, are statutes of limitations,” and in Upton v. McLaughlin, 105 U. S., 640, a statute in the following words was held to be a statute of limitations: “No suit, either at law or in equity, shall be maintainable in any court, between an assignee in bankruptcy and a person claiming an adverse interest, touching any property or rights of property transferable to or vested in such assigns, unless brought within two years from the time when the cause of action accrued for or against such assignee.”
The decisions of our Court upon the provision as to time in the act conferring a right of action for wrongful death (Ee-visal, sec. 59) in no wise conflicts with the position that section 6 of the Employer’s Liability Act is a statute of limitation, because the act first referred to clearly confers a new right of action not existing at common law, the language used is not that ordinarily found in statutes of limitations, and the limitation as to time is a part of the section defining the right of action, and is made a part of it. •
The statute reads: “Whenever the death of a person is caused by a wrongful act . . . the person or corporation shall be liable to an action for damage, to be brought within one year after such death.”
The case of Dockery v. Hamlet, 162 N. C., 118, is also called to our attention, in which it was held that the limitation of the time within which a claim against a county, city or town could be presented was not a statute of limitation. The decision in that ease was made upon the authority of Wharton v. Commissioners, 82 N. C., 14, and the Court was not advertent to the fact that when the Wharton case was decided the statute in question was a part of the chapter regulating county revenue, and that since then it has been made a part of the statute of limitations by express legislative act, and is now section 396, subsec. 1, of the Eevisal.
*194. The ease of King v. R. R., 157 N. C., 44, has no application, because it was decided under the principles of the common l'aw, and this case is governed by the Federal statute.
After full consideration, we are' of opinion that the sixth section of the Employer’s Liability Act is a statute of limitations, and that there is error.
The plaintiff is entitled to judgment upon the verdict for the amount of damages awarded, less $97 received by him from the Relief Department, which the statute says must be deducted.-
Error.
RrówN, J., was not present and took no part in the decision of this case.