Tilghman v. N.Y., P. N.R.R. Co.

The controlling facts of this case, are the same as those just decided on the 9th day of February, 1916, of State Use of Cullen, v. The New York, Philadelphia and Norfolk Railroad Company, same appellee as in this case. ( Ante, page 651.) In Cullen's case, the deceased came to his death while attempting to cross on a bicycle, one of the streets of the town of Crisfield, Somerset County, and was struck and killed by one of the moving trains of the appellee. In this case, the husband and father of the equitable plaintiffs, was killed on the morning of the 4th of June, 1913, while attempting to cross the track of the appellee on a bicycle, at a public crossing, at Railroad Avenue and Anne Street, in the town of Salisbury, Wicomico County, Maryland. The appellee corporation owns and operates a railroad running between the City of Norfolk, in the State of Virginia, and Delmar, Maryland, by and through the town of Salisbury, Maryland.

The place at which the accident occurred, is known as Anne Street crossing and is a public and much used crossing over the defendant's tracks in the town of Salisbury. The *Page 677 locomotive which struck the deceased was running backward pushing its tender on the north-bound track of the appellee, without any cars attached and was approaching the crossing, from the south, at the rate of about five or six miles an hour. The undisputed evidence shows that the deceased had an unobstructed view of the approaching engine for a distance of forty or fifty feet from the place where he turned into Anne Street, before he reached the point where he was struck, and if he had stopped and looked before attempting to cross the track, he could have seen or heard the approach of the car, in time to have avoided the accident. He was familiar with the crossing and the surroundings, the bell of the locomotive was ringing and the view unobstructed for a distance of forty or fifty feet before he reached the crossing.

The principles of law controlling a case of this character are too well settled to admit of controversy. In State, Use of Dyrenfurth, v. B. O.R.R., 73 Md. 374 , it was held that, an adult in full possession of his faculties, without stopping to look, who voluntary attempted to cross a railroad track in full view of a moving engine, which was running backward and was struck by the tender of the engine and killed, was guilty of contributory negligence, as a matter of law. United Rys. and Electric Co . v. Durham, 117 Md. 192 , and cases there cited; Westerman v. United Rys. and Electric Co., 127 Md. 225 ; State Use of Cullen, v. N.Y., P. N.R.R., ante, *page 651. In Cullen's case, supra, we held, under a similar state of facts, that Cullen was guilty of contributory negligence, and said, he was riding upon a bicycle, and at the point where he reached the track, he could easily have stopped and dismounted and there looked and listened for an approaching train, but this he failed to do, and met his death as described by the testimony.

Robertson v. Pa. R.R. Co., 180 Pa. 43 ; Passman v. West. J. S. Shore R.R. Co., 68 N.J.L. 719 In Sparr v. United Rys. Co., 114 Md. 320 , it is said: It is apparent that if he had looked before entering upon the *Page 678 track of the railway he would have seen the car approaching, and if he did look and did see the car; he was guilty of negligence in attempting to cross in front of it.

If on the other hand he did not see the car, it must have been because he did not look and it was negligence on his part to venture to cross the track without observing the precaution of looking to see if a car was coming. Even if those in charge of the car saw the appellant before he got on the track they had a right to assume that he would stop in a place of safety and not attempt to cross in front of the car. It is, however, urged upon the part of the plaintiff, that the liability of the defendant, in this case, consists in its failure to use all reasonable care and effort, after the engineer discovered the danger of Tilghman, to avoid and prevent the accident, notwithstanding the negligence and carelessness of the deceased, in placing himself in the position that he did. In State v. B. O.R.R. Co., 69 Md. 339 , it is said, "The law is too well established to need the citation of authorities to show that although a person may unlawfully and recklessly be upon a railroad, and by his own voluntary action be placed in a position of peril, still it is the imperative duty of the engineer, or the person in charge, as soon as the dangerous position is discovered, to use all