that they would have directed their payment through their agents, the trustees, in a manner that would have occasioned no unnecessary delay, while at the same time the rights of all parties interested would have been properly protected."

If the collector in the case before us, or the state and city, had, in 1907, upon the refusal of the receivers to pay these penalties, then filed the petition which they waited to file until December 17, 1910, not only would this question of penalties have been then decided, but the state and city would have received whatever amount was determined to be due three years earlier than they did receive the taxes and interest which have been paid. The receivers recognized the duty imposed upon them by law when they offered to pay the amount they were advised by counsel to be due; but the state and city failed to discharge, through their agent, the collector, the duty which the court said, in 36 Md. 219, supra, rested upon him to apply to the court for the payment of the penalties claimed, as well as the principal and interest offered, and they should abide by the consequences of their own conduct.

ducted from the proceeds of the sale of the real estate and be distributed among the general creditors. But it was held that the order ratifying the first account, from which no appeal was taken, constituted an adjudication of all the questions that might have been raised thereunder; and that the general creditors could not claim that the taxes were not properly payable from the fund distributed in that account.

The court cited in support of that conclusion Beloit v. Morgan, 7 Wall. 619, 19 L. Ed. 205, State v. Brown, 64 Md. 199, 1 Atl. 54, 6 Atl. 172, Trayhern v. Colburn, 66 Md. 278, 7 Atl. 459, Albert v. Hamilton, 76 Md. 309, 25 Atl. 341, Barrick v. Horner, 78 Md. 258, 27 Atl. 1111, 44 Am. St. Rep. 283, and Rogers, Brown & Co. v. Citizens' Nat. Bank, 93 Md. 613, 49 Atl. 843, and said: "It was certainly within the power of the appellees to file objections to the allowance of these taxes in account A upon the grounds now urged. If they had done so, and the decision had been in their favor, it would have protected them, unless reversed on appeal. If adverse to them, they could have brought it here for review. They have had their day in court." We think that principle is conclusive in this case, and requires the reversal of the order appealed from.

Order reversed, and petition dismissed; the appellees to pay the costs above and below.

(117 Md. 192)

[3, 4] But there is another ground which supports this conclusion. This case being heard on petition and answer, the allegations of fact contained in the answer must be taken as admitted, and among these allegations are the following: That on December 24, 1907, two accounts were filed by the auditor, one in the receivership case, and one in the foreclosure proceedings by the Union Trust Company, in which two accounts these UNITED RYS. & ELECTRIC CO. OF BALtaxes for 1907, without including these penalties now claimed, were apportioned between the receivers and the purchasers of the property under the foreclosure proceedings, as of the day of sale, July 2, 1907, both of which accounts have been ratified in due course, without exception being filed thereto by either the state or the city; and that complete distribution has been made thereunder, without objection on the part of any party whatever.

TIMORE v. DURHAM. (Court of Appeals of Maryland. Jan. 11, 1912.)

1. STREET RAILROADS (§ 90*)-INJURIES TO PERSON ON TRACK-EXCESSIVE SPEED.

Though a car of a street railway company which caused an injury to one crossing its track was going at an excessive speed, there can be no recovery on that ground, unless it was the proximate cause of the injury.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. 88 190-193; Dec. Dig. 90.*]

2. STREET RAILROADS (§ 99*)-INJURIES TO PERSONS ON TRACK-CONTRIBUTORY NEGLI

GENCE.

Where plaintiff stopped his wagon about 25 or 30 feet from the crossing of a street railway to let a north-bound car pass, but neglected, as he approached the second track, to look and listen for a south-bound car, the curtains on his wagon being up, he was guilty of contributory negligence as a matter of law, and could not recover for injuries resulting from a collision, even though the south-bound car was going at an excessive rate of speed; his view being clear for over 300 feet.

In Marine Bank v. Heller, 94 Md. 213, 50 Atl. 521, under an auditor's account distributing certain funds derived from various sources, and in the hands of receivers of an insolvent corporation, a certain sum was allowed for taxes upon the real estate of said corporation, which account was ratified, without exception being taken to the allowance of these taxes from that fund. Subsequently the real estate of the corporation was sold, and an account was stated, distributing the proceeds thereof among the preferred stockholders of the company; that stock being a statutory lien on the real estate § 99.*] and certain other property. The general 3. STREET RAILROADS (§ 90*)-INJURIES TO creditors excepted to this account, alleging PERSONS ON TRACK. Where those in charge of a street car that the taxes had been erroneously allowed saw plaintiff before he got on the track and in the first account, and should now be de- the car, which was going swiftly, was visible

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 209-216; Dec. Dig.

for 300 feet, they had the right to assume | didn't see any cars coming, and then I startthat he would stop in a place of safety, and ed across. When I pulled up on the first not attempt to cross in front of a car. track I looked up the track again. I saw

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 190-193; Dec. Dig. no car, and I didn't look any more until I § 90.*]

Appeal from Circuit Court, Baltimore County; Frank I. Duncan, Judge.

Action by William Durham against the United Railways & Electric Company of Baltimore. From a judgment for plaintiff, defendant appeals. Reversed.

got on this other track. I didn't drive fast. I had a right heavy wagon and in the neighborhood of 1,000 pounds in it. I saw the car about six or eight feet from me before it struck me. That is the last thing I remember. When the car struck me, I didn't even feel the shock of the car or anything of the kind." On cross-examination he tes

Argued before BOYD, C. J., and BRIS- tified that he had traveled on the same road

COE, PEARCE, BURKE, THOMAS, PAT-
TISON, URNER, and STOCKBRIDGE, JJ.

J. Pembroke Thom and Joseph C. France, for appellant. D. G. McIntosh, for appellee.

BRISCOE, J. It is not necessary to determine all of the questions raised by the record on this appeal, because, 'in the view we take of the case, we are of opinion that the court below committed an error in rejecting the defendant's third prayer, which is as follows: "The defendant prays the court to instruct the jury that, under the pleadings and evidence in this case, there is no evidence legally sufficient to entitle the plaintiff to recover and their verdict must be for the defendant.”

The suit was brought by the appellee against the United Railways & Electric Company of Baltimore City, a corporation, and the defendant, in the court below, to recover damages for personal injuries received by him while driving his market wagon with a team of mules along Willow avenue, a public road in Baltimore county, near the city limits. The plaintiff on the 15th of October, 1909, the night of the accident, was driving up Willow avenue to the York road, in a covered wagon drawn by two mules, and it was in attempting to cross the railroad tracks at the intersection of Willow avenue, the terminal of the York road, and the turnpike that the accident occurred. At this point the York road runs north and south, and Willow avenue enters it from the east, and the plaintiff at the time of the accident was coming west on Willow avenue.

as on the evening of the accident for about 20 years, and ever since he was 18 years old. and that the car was six or eight feet from him, when he first saw it. "Q. You kept looking to see whether the car was coming? A. No; I looked the first time, until I looked the second time. Then I saw the car was on me. Q. When you looked the second time, the car was on you? A. Yes, sir. Q. Then you looked before you got on the north-bound track and looked, did you? A. Yes, sir. Q. The next time you looked the car was on you? A. I was on the north-bound track when I looked up the track. I saw the car was not coming down. I didn't see it when I looked the first time, but, when I looked again, the car was right on me about six or eight feet from me." He further testified that the curtains of the wagon were down. that he was driving in a slow walk, and he supposed this obstructed the view, as it tore the curtain "right off when I went through." There was evidence that one could see a long distance up the track, but, if a car was coming up and one going down ahead of it, you could not see the car coming down. There was also evidence to the effect that the headlight and all the lights inside of the southbound car were burning, but there was no light upon the wagon driven by the plaintiff. The motorman testified that he did not see the wagon and team until within 30 or 40 feet of it, and used every effort to stop the car and prevent the accident, when he discovered the situation of the plaintiff.

[1] The evidence as to the excessive speed of the car at the time of the accident is not very definite, but unless the improper speed was the direct and proximate cause of the injury, and that the injury would not have occurred but for the excessive speed, there could be no recovery upon this ground. P. W. & B. R. R. v. Stebbing, 62 Md. 517; Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. 369, 28 L. Ed. 410; B. & O. R. R. Co. v. State, 62 Md. 479, 50. Am. Rep. 233.

The plaintiff's account of the accident, as stated in his testimony, is as follows: "The last stop I made that evening was at Mr. Long's on the York road, and, just about the time I left there, I asked him the time of the day, and he said it was 10 minutes past 7. It was a dark night; so I came up Willow avenue, around up Willow .avenue to the York road, to the railroad. When I first got to the railroad, there was a car coming, [2, 3] Upon the proof we think this is a going to Towson, ringing the bell. I stopped, clear case of contributory negligence upon so did the car stop, and let off some pas- the part of the plaintiff, and there is nothsengers, and, when it started, I looked down ing in the record to take it out of the opthe track. It was about the time of the eve- eration of the rules and principles establishning when the cars run a little thick. I looked by this court in Meidling's Case, 97 Md. ed down the track, and saw no cars coming 77, 54 Atl. 612, McNab's Case, 94 Md. 728, 51 down the track. I looked up the track, and Atl. 421, Manfuso's Case, 102 Md. 257, 62 Atl.

He

754, Hatcher's Case, 103 Md. 78, 63 Atl. 214, the route for about 20 years. If he had Brehm's Case, 114 Md. 302, 79 Atl. 592, Hick-stopped, looked, and listened, before attemptox's Case, 104 Md. 659, 65 Atl. 434, and Win- ing to cross the second track, after the northter's Case, 115 Md. 69, 80 Atl. 651. While bound car had passed, he could not fail to the plaintiff in this case stopped his wagon have seen or heard the approach of the car about 25 or 30 feet from the crossing in or- in time to have avoided the accident. der to permit the north-bound car to pass, had an unobstructed view of over 300 feet he neglected as he approached the second up the south-bound track, to have seen the track to use that care and caution required approach of the car, with full headlight, and of him; that is, to continue to look until all the inside lights burning brightly, had he the south-bound track, the real point of dan- stopped and looked. In Sparr v. United Rys. ger, was reached. If, as the proof shows, he Co., 114 Md. 320, 79 Atl. 585, it is said: "It drove to the second track where his view is apparent that, if he had looked before enwas obstructed by the south-bound car which tering upon the track of the railway, he had just passed, and proceeded in the man- would have seen the car approaching, and, ner testified to by him to drive across the if he did look and did see the car, he was second track, on a dark night, with no light guilty of negligence in attempting to cross in on his wagon and with curtains down, he front of it. If, on the other hand, he did was guilty of negligence directly contribut- not see the car, it must have been because ing to the accident. 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." And to the same effect are the cases of McNab v. Rys. Co., 94 Md. 719, 51 Atl. 421, and Heying v. United Rys. Co., 100 Md. 281, 59 Atl. 667.

In Manfuso v. Western Md. R. Co., 102 Md. 257, 62 Atl. 754, it is said by the settled law of this state certain well-defined and imperative duties are imposed upon persons before they make the attempt to cross the tracks of a railroad company. They are bound under all circumstances to look and listen for approaching trains, and, if the crossing is one of more than ordinary danger and the view of the tracks is obstructed at or near the place of crossing, it is the duty of the traveler to stop, look, and listen before he attempts to cross, and if a person neglects these necessary precautions, and in consequence of such neglect is injured by the collision with a passing train, he will be held to have contributed by his own negligence to the occurrence of the accident, and will not be allowed to recover for any injury he may have sustained. In Winter v. United Rys. Co., 115 Md. 69, 80 Atl. 651, we said: "The driver, when he halted at the north-bound gutter, was in a place of safety, and, if he had then exercised such reasonable care as might be expected of an ordinarily prudent driver, and waited for a few seconds until the west-bound car had gone far enough on its way to uncover the view of the street for a reasonable distance west, he would have seen the east-coming Madison avenue car, and could easily have allowed it also to pass before attempting the crossing and thus have prevented the collision. In Hatcher v. McDermot, 103 Md. 78, 63 Atl. 214, we held that the plaintiff was guilty of contributory negligence for crossing an electric railway on a public crossing without having again stopped, looked, and listened for a car, after he left a point about one hundred and thirty feet distant from the crossing, where he did stop, look, and listen, but where his view was obstructed to some extent.

In the case at bar the plaintiff was familiar with the crossing and the surroundings because he stated that he had traveled

Assuming, then, in this case, there was some evidence of excessive speed or neg ligence on the part of the appellee, there is no evidence to show that it has any causal connection with the accident itself, or showing that the injury was the direct consequence of such excessive speed. As was said by this court in Heying v. Railways Co., 100 Md. 281, 59 Atl. 667, if the plaintiff was guilty of contributory negligence, the question of negligence vel non on the part of the defendant becomes immaterial; for if there was no negligence on its part there can be no recovery, and if there was, the same result would follow because of the plaintiff's contributory negligence. In the present case the evidence shows that the plaintiff's negligence was the last and final negligent act, and it becomes unnecessary to discuss further this branch of the case. Heying v. Railways Co., 100 Md. 281, 59 Atl. 667; P. W. & B. R. R. Co., v. Stebbing, 62 Md. 517; C. & P. R. R. Co. v. State, 73 Md. 77, 20 Atl. 785, 25 Am. St. Rep. 571; McNab V. Railways Co., 94 Md. 729, 51 Atl. 421; Philips v. W. & R. Ry. Co., 104 Md. 455, 65 Atl. 422, 10 Ann. Cas. 334.

Being of opinion that the plaintiff in this case was guilty of contributory negligence, and that the case should have been withdrawn from the jury on that ground, the judgment will be reversed, and, as there can be no recovery, a new trial will not be awarded.

Judgment reversed, without a new trial, with costs.

that he is positive he would have heard elther or both, if they were given.

Harry Albaugh testified for the defendant that he left Baltimore on the 14th of June, 1910, on the 11:35 p. m. car; that he occupied the front seat on the front car on the righthand side, the motorman being on the left; that the car had a bright headlight, and he

then, who lived at Shipley in May, 1910, said it rang "continuously most of the time" though sometimes it acted properly, that it was a nuisance and disturbed him so much at night that he wrote to the company about it, it might have been a week or as much as two weeks before the accident, but he could not tell just how long. Mr. Stockett said he lived close to Shipley Station up to October, | could see blades of grass in the track 200 1909, that he had known this bell to ring 24 to 48 hours on a stretch; that it became a nuisance and he complained to the company, and they gave him a key to the box so he could stop it, and he had stopped it as late as 10 o'clock at night. Mr. Kelley said he often heard it ringing when there was no car coming; that he had waited on that account as much as ten minutes before attempting to cross, and had become so hardened to it that he paid no attention to its ringing during the last year or so. He drove over that crossing the day of the accident, but could not say whether the bell then rang. Mr. Ford who lived about 200 yards distant said seven out of ten times when it would be ringing there would be no car coming; that he crossed there that day, but the bell was not ringing at that time. Richard Hall said he crossed there frequently, going to and coming from Baltimore, when the bell was ringing and there was no car coming. This was in the summer of 1910, but he could not say whether it was before or after this accident, and there was similar testimony from other witnesses.

feet ahead; that he had been keeping notice of the whistle being blown, and just before they got to the curve approaching Shipley a real sharp whistle was given; that just as they came around the curve he saw the head of one mule going very slowly across the track; that he jumped and then saw both mules and saw a man "sitting in the seat with his head down and the reins in his hands carelessly like this (indicating)." The man on the wagon never made a move to get out of the way, and when he saw the car was going to hit them he moved back in the car, but facing front all the time; that he felt the car tremble as the brakes were applied; that the whistle was blown before the team was in sight, and after it was in sight six or eight times; that the bell was ringing all the time when the car stopped until the car backed into the siding, and began again as the Annapolis car approached; that the motorman slowed up before he hit the curve, and he judged the car after that was going about half as fast as before.

Allan T. Hopkins was on the right-hand side about the middle of the front car, there Wesley Forrester, the driver of the team, being two on the train, with a bright headtestified that he left Mr. Beasley's about sev- light; the whistle was sounded as they apen miles from Shipley about 9:30, June 14, proached the curve, and again just as they 1910. The night was foggy. His mules walk- came around the curve. He did not see the ed most of the time and he could see their mules, but saw the motorman apply the heads as he drove along; that he had been brakes two or three seconds before the collidriving that road five or six years day and sion, and that the car was going at a modnight and he knew this bell, and knew iterate speed. often rang continuously whether cars were W. C. Kennedy was in the center of the coming or not; that as he approached that night he stopped 30 or 40 yards from the track, and heard the bell ringing faintly, but heard nothing else; then went up to the tracks, stopped, looked in both directions, listened but saw nothing, and heard nothing except the bell, and then went on; that the first notice he had that the car was coming was when he saw the headlight right on top of him.

first car with his window up. When the emergency brakes were applied he looked out and saw the heads of two mules on the track, and he judged the car was about 150 feet from the crossing; heard the whistle blow when the emergency brakes were applied and also before.

V. J. Vanous, the conductor in charge that night, said the regular crossing signal was blown just before they reached Shipley about On cross-examination he said he stopped at 150 yards from the crossing, and the danger the track two or three minutes before at- signal following from five to ten seconds lattempting to cross, and he had stopped at other as well as he could judge. er times when the bell was ringing, as much Wm. T. Scible, the motorman on the car as 10 or 15 minutes, and had waited until three or four other wagons came along and crossed before him. He said he was not asleep when he approached the crossing, and had not been asleep that night, but that he would not swear that as he came to the crossing he did not have his hands and his head down; that he did not hear either a station

testified that he stopped at Linthicum, the station just north of Shipley, and after leaving Linthicum blew for Shipley, and at a reasonable distance blew for that crossing; that as he eased up on the car and swung round the curve he saw the tail end of the wagon on the track about 100 feet away; that he grabbed the brake with one hand and the