ST. LOUIS SOUTHWESTERN RY. CO. v. PURCELL, 135 F. 499

PARDEE, Circuit Judge (after stating the facts). The motion to strike out the evidence in the record cannot prevail, because it is all found in bills of exception duly certified by the trial judge. Whether it was taken from the notes of a private or official stenographer or from the judge’s own notes seems to be immaterial. On the undisputed facts in the case, the railroad company was not in fault in regard to the injuries to Mrs. Purcell. When first seen by the engineer and fireman, Mrs.

Purcell was approaching the railroad right of way,' afterwards walking along the side of the track in “a pleasant, comfortable path,” as described by herself. The engineer had given the usual and customary signals for stopping the train at Bolinger, near by, and the fireman was ringing the bell. Up to the time Mrs.

Purcell went on the track to cross the cattle guard, the engineer and fireman had every reason to believe that, so far as the train was concerned, she would remain in a place of safety, and not venture on the track in front of the approaching train, and were therefore not required to either stop the train or give signals to prevent such trespass. See Matthews v. Atlantic & N. C. R. Co. (N. C.) 23 S. E. 117. As soon as she entered on the track to cross the cattle guard, both engineer and fireman resorted to all means in their power to stop the train and prevent injury. On the evidence of Mrs.

Purcell herself, it is difficult to acquit her of contributing to her own injury. She testified as follows: “Q. You were hurt by one of the trains of the St. Louis Southwestern Railroad near Bolinger? A. Yes, sir. Q. When was that, do you remember? A. It was on the 21st day of March two years ago—the 21st of this month. Q. Mrs. Purcell, where were you going that morning? A. I was going to Bolinger. Q. What time of day was it? A. I do not know exactly. Q. Just estimate the time of day. About what time was it? A. It was somewhere between 9 and 11 o’clock. Q.

In going down to Bolinger, which way were you in the habit of going? A. I always went just as I went that morning. Q. How were you going down—through the field? A. Yes, sir. Q. What other way was there to go to Bolinger? A. Not any other way except around the public road. Q. In going on the public road, you would have had to have gone through a considerable skirt of woods? A. Yes, sir; and it was further from our house to the public road than it was to the track. Q. Then it was a good deal further to go the public road than it was this way? A. Yes, sir; never went around the public road only in a vehicle. Q.

Went the way you were going that morning? A. Yes, sir. Q. Your daughters were at Bolinger? A. Yes, sir; husband and daughters. I was not on the way to the boarding house; I was going to the commissary to buy some things, but I expected to stop at the boarding house. Q. In going from your house you come down the pathway? A. Yes, sir. Q. You know where that strikes the road. About how far from the cattle guard did you strike the railroad in this path? A. Yes, sir; but I did not take the railroad immediately. Q. The railway embankment was how far from the cattle guard when you came to the embankment? 'A.

Forty or fifty yards. Q. Did you— When you came to that track, what did you do ? A. I looked, and saw no one near; then I walked on down, as it was my custom. Q. You say that you saw no one near. Did you look out for the trains? A. Yes, sir; and there was no train; I heard none. Q. You looked up and down the track? A. Yes, sir. Q. What did you do then? A. I went on to the cattle gap, I reckon, in 10 or 15 feet. Of course, I did not notice the distance. Then I took the track and crossed the gap. Q. Then I understand you walked along the path? ■ How close was that to the end of the ties? A.

I do not know, sir; I reckon the path was four or five. , I do not know, sir; it was a good wide path—a pleasant pathway. Q. Then how far from the cattle gap when you got on the railway track? A. I do not know; do not think it was more than eight or ten feet. Q. Eight or ten feet before you got there you stepped on the railway track? A. Yes, sir. Q. State to the jury, when you struck the railway track, whether you looked for any train? A. Yes, sir; of course, naturally I should do that, because I had the cattle gap to pass. Q. Did you see or hear any train? A. No, sir. Q. How far down the track could you see?

Could you see the whistling post? A. Yes, sir. Q. You could see or hear no train? A. No, sir, nothing in view, because I noticed for that. Then after I took the track I felt perfectly safe, because I knew I had the whistling post between me and any danger. Q. When you stepped on the track, was the wind blowing? A. Yes, sir, blowing from the north. Q. How were you dressed that morning—have on a hat or bonnet? A. Bonnet. Q. Ordinary sunbonnet? A. Yes, sir. Q. Then the wind was blowing in your face? A. Yes, sir. Q. Do you remember where you were when the car struck you? A.

No, sir; not exactly, but I think I was at least 15 or 20 feet or yards beyond the gap; I know I was beyond the gap.- Q. What position were you in the last that you remember? A. We had to cross the cattle gap to get out of the field; then I took to the side until I could get a good steppihg-off place. Q. There was an embankment there coming out of the cattle gap; could you step right off of the cattle gap? A.

I walked out some distance after passing the cattle gap, because the wire fence was there, because it was. low marshy place where drift had gathered there, and as I walked off of the cattle gap I gradually went to one side of the track. Q. You think you were somewhere about what distance from the cattle gap when it struck you? A. I was 20 feet or more, I know. Of course, I do not know exactly; I know that I was a good distance from the cattle gap. Q. Do you know whether or not you had started off of the track, or were you in the middle of the track? A. No, sir; was not in the middle of the track. Q.

Did you hear any bells ringing or signals given? A. No, sir; there was not any. Q. There was none? A. No, sir. Q. If the bell had been rung or whistle blown, could you have gotten off? A. Yes, sir; the gap is not a very wide one. Q. You were in the habit of going along there? A. Yes, sir. Q. You had not been in the habit of trying to beat trains across there? A. No, sir. Q. In going along that path there, would any one be in danger of being struck by the train? A. I do not know; I never tried it; I would not try it. I súpose I could have made it along there, but not on the cattle guard. Q.

Would you have walked along there when a train was passing? A. No, sir; I have better sense than that. * * * Q. What was there to have prevented you seeing a train along there after it got around the curve? Was there anything? A. No, sir; nothing to prevent seeing it. Q. Nothing to prevent you from seeing them or from their seeing you? A. No, sir. Q. No trees on the embankment that would prevent them from seeing you or you from seeing them? A.

No, sir, no obstruction at all.” If, as she says, before entering on the track to cross the cattle guard, she “stopped and looked and listened,” she must have' seen the train imminently approaching, because, under her own and the other evidence, it is clear that for 300 yards or more the track was unobstructed. Her testimony under such circumstances ought not to be credited, or taken as raising a conflict in the evidence. See, on subject, Chicago & N. W. Ry. Co. v. Andrews (C. C. A.) 130 Fed. 71 et seq., and cases there cited. If Mrs.

Purcell is mistaken with regard to stopping and looking and listening before she entered on the track to cross the cattle guard, of course her negligence is apparent. For the lack of evidence showing negligence on the part of the agents of the defendant railway company, and for the negligence contributing to her own injury, as shown from the undisputed facts and Mrs. Purcell’s own testimony, the jury should have been directed to return a verdict for the defendant, and the refusal of the requested instruction to that effect requires a reversal of the judgment below.

In our opinion, Act No. 68, p. 95, of the Laws of Louisiana, entitled “An act to amend and re-enact

article 2402 of the Revised Civil Code of 1870,” approved June 30, 1902, and providing “that damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone,” was not intended to have any retroactive effect. The act contains no repealing nor saving clause, and, if given a retroactive effect, might affect rights and interests in communities of acquets and gains running back many years.

The right of Purcell to recover from the railroad company for injuries to his wife was fully vested when Act No. 68 was passed. We cannot presume, in the absence of plain language to that effect, that there was any intention to divest the rights so vested, and perhaps take away all right to recover. See

article 8, Rev. Civ. Code La., and

article 166, Const. La. 1898. If we give the effect claimed by plaintiff in error to Act No. 68, we should have to hold in this present case that the husband could not recover because his right had been divested, and that the wife could not recover because she came too late. This disposes of the several assignments of error based upon Act No. 68, to wit, the right of Purcell to sue, his right to testify, and the prescription of one year against the wife’s right to sue.

If Purcell was the proper plaintiff to recover, and if he signed the document produced by the witness John Crocker, it would seem that such document was admissible in evidence, although Purcell swore he signed it only as a witness, and did not know of its contents. The other assignments of error need not be considered. The judgment of the Circuit Court-is reversed, and the cause is remanded with instructions to set aside the verdict and otherwise proceed according to law and in accordance with the views herein expressed.