The plaintiffs’ intestate was killed at a street corner in the city of Baltimore when struck by a bus owned by the defendant Transit Company and driven by the individual defendant. Judgment was entered for the defendants upon a general verdict. Plaintiffs allege that the coui't erred in charging the jury as follows:
“I instruct you that ordinarily, a decedent is presumed to have exer*739cised ordinary care for his own safety in accordance with the natural instinct of human beings to guard against danger, but where as here, evidence has been offered to show that the decedent failed to exercise ordinary care in a number of respects, you shall consider the proof which has been offered and determine whether you are persuaded by a preponderance of the evidence that he failed to exercise ordinary care, and you are not to rely upon the presumption.”
Both 'parties to this appeal concede, and we agree, that the federal courts are bound in diversity cases by the applicable state rules with respect to the effect to be given to presumptions, “since the effect accorded these presumptions may substantially affect the rights of the parties and there is nothing in the Federal Rules to the contrary.” 5 Moore’s Federal Practice § 43.08. The plaintiffs had submitted a written request for an instruction to the jury that they might consider the presumption of due care in connection with the other evidence. The court rejected the request and instructed the jury as above set out. In this we find fatal error.
The principal Maryland case on this point is Grier v. Rosenberg, 213 Md. 248, 131 A.2d 737 (1957). In that case the plaintiff, a passenger, was injured by the sudden stopping of the bus. She sued the bus company, the bus driver, and one Rosenberg, who was the owner of an automobile which, the bus driver testified, cut sharply across his path and caused him to come to a sudden stop. The jury rendered a verdict for all three defendants. The plaintiff appealed from a judgment for the car owner, Rosenberg. The Court of Appeals of Maryland reversed the judgment and remanded the case for a new trial. In doing so the court pointed out that the plaintiff had offered evidence from which the jury could find ownership of the car in the defendant Rosenberg. She had asked for an instruction that from this evidence, if believed, a presumption arose that the car was being driven by the owner or by the owner’s agent about the owner’s business. The trial court refused to give the instruction because the defendant had offered evidence which conflicted with the presumption. The appellate court held failure to give the instruction was fatal. In a careful review of the Maryland decisions and authorities in the field of Evidence, Judge Prescott said that the presumption prevails and the jury should have been so instructed despite the fact that countervailing evidence was adduced upon the disputed presumption. The court said:
“In cases of this nature, after the plaintiff has offered proof of the ownership of the automobile in the defendant, if the defendant does not offer any evidence on the issue of agency, the Court should instruct the jury that if they find as a fact that the defendant owned the car, they must find that he is responsible for the negligence (if any) of the driver. If the defendant does present evidence to show that the alleged driver was engaged on business or a purpose of his own, it may be so slight that the Court will rule it is insufficient to be considered by the jury in rebuttal of the presumption, in which case the Court should grant the same instruction it would have granted if the defendant had offered no evidence on the issue. The evidence may be so conclusive that it shifts the burden or duty of going forward with the evidence back to the plaintiff, in which event the defendant would be entitled to a directed verdict, if the plaintiff does not produce evidence in reply, unless there is already evidence in the case tending to contradict defendant’s evidence. Erdman v. Horkheimer & Co., supra, 169 Md. [204] 207, 181 A. 221; Fowser Fast Freight v. Si-mont, supra, 196 Md. [584] 588, 78 A.2d 178. The evidence, however, may fall between the two categories mentioned above, in which event the issue of agency should be submit*740ted to the jury. Cf. 3 Md.Law Rev. 287, 288. It would be difficult, if not impossible, to lay down a rule, that would apply in all cases, as to when the evidence is so slight that it is insufficient to be considered by the jury in rebuttal of the presumption of agency, or so conclusive as to require a directed verdict for the defendant. These matters must depend upon, and be decided by, the facts developed in each individual case.”
The defendant in this appeal argues that Grier v. Rosenberg is not applicable because the evidence there offered in rebuttal of the presumption was so slight that the trial court would have been justified in holding that it was insufficient to be submitted to the jury in the face of the presumption, but such was not the holding of the court. Indeed, the appellant in the Grier case made the point in an effort to secure a reversal instead of a remand for a new trial, but the argument was rejected. The court expressly held that the conflicting evidence was enough to take the case to the jury.
The defendant here also argues that the presumption in Grier v. Rosenberg is different from the presumption of due care here considered and thus that ease may not be taken as a precedent. With this argument we must also disagree, because first, we can find no case in Maryland which makes any such distinction and second, in reaching its decision the court reviewed and cited cases involving the presumption of due care in negligence cases in support of its opinion.
Our dissenting Brother similarly misinterprets Grier v. Rosenberg and would unduly restrict its rule. We perceive no basis in law or in logic for the suggested distinction; but, more importantly, Judge Prescott, speaking for the Maryland Court, explicitly pointed out that the precedents in that State recognize no basis for any distinction between the presumption that the decedent exercised due care for his self-preservation and the presumption of agency arising from the fact of ownership. And this observation of Judge Prescott is immediately followed by the very sensible question, “[Ijndeed, if the instruction be not granted, how is the jury to know of the presumption ?”
On the other hand, the dissenter’s analysis of Western Maryland R. R. v. State, to Use of Shirk, 95 Md. 637, 53 A. 969 (1902), overlooks a significant distinction. There the Maryland Court refused to apply the presumption because “[T]here [was] no room for a rational doubt, upon the evidence as to the acts and conduct of deceased.” Here, on the contrary, as all of us recognize, “the evidence was sharply conflicting,” supplying the very basis for applying the presumption, which the court found lacking in Shirk.
The defendant cites us to State, for Use of Chenoweth v. Baltimore Contracting Co., 177 Md. 1, 6 A.2d 625 (1939), as authority to the contrary. Since there are passages in our record which seem to indicate that the trial court may have relied on that opinion, we have examined it at length. There the deceased was a car inspector, inspecting railroad cars and making minor repairs in a “Gravity yard” operated by the defendant company in transferring coal from railroad cars to ships. The cars, after being emptied, were released from a tipple to coast down an incline, where they accumulated until sufficient in number to make up a train of empties. While ears were being thus accumulated, the deceased was inspecting and making minor repairs. Yard rules required that deceased display a blue flag in front of the car when working on it. No flag was displayed. Deceased’s body was found under a car after it was “bumped” forward and off the track by a string of empties. The plaintiff appealed from a directed verdict, contending that the presumption of due care should have been considered along with the conflicting evidence and should have carried the case to the jury. But the appellate court sustained the directed verdict, saying that the presumption would not survive proof to the contrary. (Emphasis added.) The *741court pointed out that the undisputed evidence as to the position of the deceased’s body was such that it left no basis for a presumption of due care. The only logical inference to be drawn from the position of the deceased’s body was that he was standing between the cars or lying underneath them when the cars wer “bumped” forward. The inference was so compelling, the court held, that the jury could not reasonably infer from the naked presumption of due care that the deceased was otherwise engaged, i. e., as the plaintiff theorized, that he was standing beside the track and was struck when the car was knocked off the rail. We think the opinion places this case in Judge Prescott’s third category — one in which the evidence is such that the burden of proof has been carried to the extent that even after taking the presumption into account, plaintiff was shown to be guilty of negligence as a matter of law and, for this reason, the court sustained the directed verdict.
We are also aware that in many states the rule as to presumptions is to the contrary — that is, that the presumption survives only until conflicting evidence is offered. This is the rule suggested in the American Law Institute’s Model Code of Evidence, Rule 704. It is the rule attributed to Thayer and suggested by Wig-more. But we are bound by the law of Maryland, and we might add that the Maryland rule is strongly supported by such eminent authorities as McCormick, Evidence §§ 316, 317 (1954), and by the writings of Professor Morgan, who, contrary to his expressed opinions, finally acceded to the wishes of the committee in drafting the Model Code.
We are also supported in our view of the Maryland law by the opinion of Judge R. Dorsey Watkins in Jennings v. United States, 178 F.Supp. 516 (D.Md.1959). In that case the plaintiff’s decedent was killed in an automobile accident resulting from his car’s skidding on ice on a U. S. Government maintained parkway road in Maryland. The Government contended that the defendant was contributorily negligent in speeding and failing to observe the condition of the highway and to keep his car under control. After an exhaustive discussion of the applicable Maryland law, the judge carefully reviewed the conflicting evidence and concluded :
“On all the evidence and in view of the presumption of due care on the part of the deceased, the court is unable to find that the Government has met its burden of proving Stewart’s contributory negligence by a fair preponderance of the evidence.
“The court therefore finds as a fact that Stewart was not guilty of contributory negligence.”
In a footnote the conscientious trial judge said: “The question is a very close one, and the court’s mind is more nearly in a ‘state of equipoise or even doubt’ than in any other case in which it has participated.” Here the court, performing the function of the jury in our case, was carefully weighing the presumption against both corroborating and conflicting evidence in compliance with his view of the Maryland law on the subject.
We are unable to acquiesce in the final suggestion in our colleague’s dissenting opinion, that the presumption in Maryland that the decedent acted with due care stands on a parity with the presumption that the defendant was free from negligence and that therefore the district court should tell the jury at the retrial that the presumption as to the disposition to act in self-preservation applies equally to the defendant’s driver. The comment is then added that the result would be a radical distortion and perversion. This comment would indeed be true, if the trial judge were to permit such a confusing double instruction, linking and treating as equal two entirely disparate and unequal ideas. The presumption with which we are concerned in this case may be invoked only where the injured person is unavailable because of the injuries suffered or because of death. Such incapacity is the just reason for the presumption; the premise upon which *742the presumption rests is lacking in the situation of this defendant.
The plaintiff has raised other issues, none of which merit extended discussion. The introduction of evidence to discredit statements of plaintiff’s chief witness that he had an opportunity to observe the accident was within the court’s discretion, if indeed that issue could be said to be collateral. Cf. Atkinson v. Atchison, T. & S. F. R. R., 197 F.2d 244, 246 (10 Cir. 1952).
We refrain from comment upon the conduct of counsel, feeling certain that the trial judge, now forewarned, can handle the matter. Nor does this imply the slightest criticism of the judge below, who exhibited the patience of Job.
We find no error in the court’s failure to instruct the jury with reference to the doctrine of last clear chance, since the evidence furnished no basis for that issue.
Reversed and remanded.