In addition to the formal burden of proof of contributory negligence, above set forth, there is in Maryland the "presumption" that a decedent "exercised ordinary care for his own safety in accordance with the natural instinct of human beings to guard against danger." State to Use of Ridgway v. Capital Transit Co., 1950, 194 Md. 656, 663, 72 A.2d 245, 248; Baltimore Transit Co. v. State, Use of Castranda, 1950, 194 Md. 421, 434, 71 A.2d 422; Davidson Transfer Storage Co. v. Baltimore Transit Co., 1944, 183 Md. 263, 273, 37 A.2d 326; State for Use of Chenoweth v. Baltimore Contracting Co., 1939, 177 Md. 1, 20-21, 6 A.2d 625; Baltimore Ohio R. Co. v. Stumpf, 1903, 97 Md. 78, 90-91, 54 A. 978. But such a presumption is not "substantive evidence", and is "only to be indulged in the absence of proof to the contrary" Maryland Central R. Co. v. Neubeur, 1884, 62 Md. 391, 402; State for Use of Chenoweth v. Baltimore Contracting Co., 1939, 177 Md. 1, 20-21, 6 A.2d 625; and a deceased person may nevertheless be held guilty of contributory negligence as a matter of law.
A different rule is applicable, as pointed out in the Legum case, where traffic lights or stop signs impose a mandatory duty upon the unfavored driver. The appellant also relies upon Girton v. Baltimore Transit Co., supra, and Davidson Transfer Storage Co. v. Baltimore Transit Co., 183 Md. 263, 37 A.2d 326. In the former case, the plaintiff was held guilty of contributory negligence as a matter of law, and the suggestion that a driver who sees a street car approaching may, under circumstances not involving a miscalculation, be free from negligence in undertaking to cross, cannot help the plaintiff here.
In another statement, as herein recited, taken outside of court he had said that the distance was 69 feet and the speed between 30 and 35 miles per hour. Of course before a person killed in an accident can be declared to have been guilty of contributory negligence as a matter of law, we should consider the presumption that he exercised ordinary care for his own safety in accordance with the natural instinct of human beings to guard against danger. Davidson Transfer Storage Co. v. Baltimore Transit Co., 183 Md. 263, 273, 37 A.2d 326; Baltimore Transit Co. v. State, use of Castranda, 194 Md. 421, 71 A.2d 442. There is evidence in this case that it was possible to see from Stop 12 a long distance north. However for the purpose of the contributory negligence prayer we will assume without deciding that there is any sufficient evidence to that effect, that just before Butler saw the deceased the latter looked to the north and saw the lighted southbound streetcar coming at a speed of from 25 to 30 miles an hour at a distance of 69 feet. He then walked slowly, without looking up, one step to the east rail of the southbound track and on the tracks, 5 feet 2 inches apart, directly in front of the streetcar.
In addition, before a person killed in an accident can be declared to have been guilty of contributory negligence as matter of law, the trial court must give consideration to the presumption that he exercised ordinary care for his own safety in accordance with the natural instinct of human beings to guard against danger. State, to Use of Pachmayr v. Baltimore Ohio R. Co., 157 Md. 256, 262, 145 A. 611; Sheriff Motor Co. v. State, to Use of Parker, 169 Md. 79, 84, 179 A. 508; Davidson Transfer Storage Co. v. Baltimore Transit Co., 183 Md. 263, 273, 37 A.2d 326. In the case at bar it appeared that Castranda did not walk as rapidly as Elliott and stopped in the street after the light changed.
" National Hauling Contractors Co. v. Baltimore Transit Co., 185 Md. 158, 166, 44 A.2d 450, 453. The case of Davidson Transfer Storage Co. v. Baltimore Transit, 183 Md. 263, 37 A.2d 326 (a non-jury case) is distinguishable both because the accident happened at an ordinary intersection, and because of testimony that the truck was actually on the tracks when the street car was 245 feet away. Compare E.H. Koester Bakery Co. v. Poller, 187 Md. 324, 50 A.2d 234. What we said in the Campbell case, supra, 160 Md. at page 652, 154 A. at page 554, is apposite here: "Assuming that the motorman was negligent, his negligence must have concurred with that of the truck driver in causing the accident. Each was in plain sight of the other and each was proceeding on a course which, if continued, would probably result in a collision * * *, and ordinary care required each to proceed cautiously with the vehicle he was operating under control, until the intention of the other became apparent.
In other cases, different on the facts, the question of the driver's negligence was a question of fact for the jury. In Davidson Transfer Storage Co. v. Baltimore Transit Co., 183 Md. 253, 37 A.2d 326, a non-jury case, the trial court held the truck driver guilty of contributory negligence. This court took a different view of the facts and the credibility of testimony, and held the truck driver free from contributory negligence; it was not held that the evidence was legally insufficient to show negligence of the truck driver.
Even if the street car had been travelling at a speed of 25 miles per hour at that instant, it could not have been stopped in less than a distance of 75 feet. Thus, in any aspect of the case, the collision was inevitable. It is this fact that distinguishes the case at bar from such cases as Baltimore Transit Co. v. State, 184 Md. 250, 40 A.2d 678, where the street car was 160 feet away when the truck entered the tracks, and Davidson Transfer Storage Co. v. Baltimore Transit Co., 183 Md. 263, 37 A.2d 326, where the street car was 245 feet away. In Fillings v. Diehlman, 168 Md. 306, 177 A. 400, a case strikingly similar to the case at bar, it was held that there was no legally sufficient evidence of negligence on the part of the Transit Company. This Court said (168 Md. at page 311, 177 A. at page 402): "It could not be inferred from the evidence that the motorman could have averted a collision with the automobile after he became chargeable with knowledge that there was danger of such an accident.
A case recently decided by this Court, and one strongly relied on by the appellant, will serve to illustrate the distinction between those cases which should be allowed to go to the jury on the issue of contributory negligence and those which should be withdrawn, as a matter of law. We refer to Davidson Transfer Storage Co. v. Baltimore Transit Co., 183 Md. 263, 37 A.2d 326. The locale and the main facts of that case are strikingly similar to the case at bar. In the Davidson case, the tractor-trailer, 40 feet in length over-all, was being operated south bound on Bond Street toward Monument Street in the City of Baltimore about 7:30 o'clock on the morning of March 30, 1943.