Rakes vs. AGP

3/12/2021 PHILIPPINE REPORTS ANNOTATED VOLUME 007
VOL. 7, JANUARY 23, 1907 359

Rakes vs. Atlantic, Gulf and Pacific Co.
[No. 1719. January 23, 1907.]
M. H. RAKES, plaintiff and appellee, vs. THE ATLANTIC, GULF

AND PACIFIC COMPANY, defendant and appellant.
1. CIVIL LIABILITY FOR DAMAGES.—In order to enforce the

liability of an employer for injuries to his employee, it is not
necessary that a criminal action be first prosecuted against the
employer or his representative primarily chargeable with the
accident. No criminal proceeding having been taken, the civil
action may proceed to judgment.
2. LIABILITY OF EMPLOYER TO WORKMEN.—The

responsibility of an employer to his employee arises out of the
contractual relations between them and is regulated by article 1101
and the following articles of the Civil Code.
3. FELLOW-SERVANT RULE.—The doctrine known as the

"Fellow-servant rule," exonerating the employer where the injury
was incurred through the negligence of a fellow-servant of the
employee injured, is not adopted in Philippine jurisprudence.
4. CONTRIBUTORY NEGLIGENCE.—The negligence of the

injured person contributing to his injury but not being one of the
determining causes of the principal accident, does not operate as a
bar to recovery, but only in reduction of his damages. Each party is
chargeable with damages in proportion to his fault.
APPEAL from a judgment of the Court of First Instance of Manila.

The facts are stated in the opinion of the court.
A. D. Gibbs, for appellant.
F. G. Waite and Thomas Kepner, for appellee.
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360 PHILIPPINE REPORTS ANNOTATED

central.com.ph/sfsreader/session/0000017826c20f214708f0f2003600fb002c009e/t/?o=False 1/20
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight

negro laborers in the employment of the defendant, was at work
transporting iron rails from a barge in the harbor to the company's
yard near the Malecon in Manila. Plaintiff claims that but one hand
car was used in this work. The defendant has proved that there were
two immediately following one another, upon which were piled
lengthwise seven rails, each weighing 560 pounds, so that the ends
of the rails projected beyond the cars both in front and behind. The
rails lay ujMm two crosspieces or sills secured to the cars, but
without side pieces or guards to prevent them from slippingoff.
According to the testimony of the plaintiff, the men were worc either
in the rear of the car or at its sides. According to that of the
defendant, some of them were also in front, hauling by a rope. At a
certain spot at or near the water's edge the track sagged, the tie
broke, the car either canted or upset, the rails slid off and caught the
plaintiff, breaking his leg, which was afterwards amputated at about
the knee.
The first point for the plaintiff to establish was that the accident
happened through the negligence of the defendant. The detailed
description by the defendant's witnesses of the construction and
quality of the track proves that it was up to the general standard of
trainways of that character, the foundation consisting on land of
blocks or cross-pieces of wood, 6 by 8 inches thick and from 8 to 10
feet long, laid on the surface of the ground, upon which at a right
angle ivstnl stringers of the same thickness, but from 24 to 30 feet in
length. On and across the stringers and parallel with the blocks were
the ties to which the tracks were fastened. After the road reached the
water's edge, the blocks or crosspieces were replaced with piling,
capped by timbers extending from one side to the other. The tracks
were each about 2 feet wide and the two inside rails of the parallel
tracks about 18 inches apart, It was admitted that there were 110 side
pieces or guards on the car; that where the ends of the rails of the
track met each other and also where the stringers joined, there were
no fish plates. The defendant has not effectually overcome
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VOL. 7, JANUARY 23, 1907 361

the plaintiff's proof that the joints between the rails were
immediately above the joints between the underlying stringers.
The cause of the sagging of the track and the breaking of the tie,
which was the immediate occasion of the accident, is not clear in the
evidence, but is found by the trial court and is admitted in the briefs
and in the argument to have been the dislodging of the crosspiece or
piling under the stringer by the water of the bay raised by a recent
typhoon. The superintendent of the company attributed it to the
giving way of the block laid in the sand. No effort was made to
repair the injury at the time of the occurrence. According to
plaintiff's witnesses, a depression of the track, varying from one-half
inch to one inch and a half, was thereafter apparent to the eye, and a
fellow-workman of the plaintiff swears that the day before the
accident he called the attention of McKenna, the foreman, to it and
asked him to have it repaired. After the accident it was mended by
simply straightening out the crosspiece, resetting the block under the
stringer and renewing the tie, but otherwise leaving the very same
timbers as before. It has not been proved that the company inspected
the track after the typhoon or had any proper system of inspection.
In order to charge the defendant with negligence, it was
necessary to show a breach of duty on its part in failing either to
properly secure the load of iron to the vehicles transporting it, or to
skillfully build the trainway or to maintain it in proper condition, or
to vigilantly inspect and repair the roadway as soon as the
depression in it became visible. It is upon the failure of the
defendant to repair the weakened track, after notice of its condition,
that the judge below based his judgment.
This case presents many important matters for our decision, and
first among them is the standard of duty which we shall establish in
our jurisprudence on the part of employers toward employees.
The lack or the harshness of legal rules on this subject has led
many countries to enact laws designed to put these relations on a fair
basis in the form of compensation or
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liability laws or the institution of industrial insurance. In the absence

of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
"Civil obligations, arising from crimes or misdemeanors, shall be governed

by the provisions of the Penal Code."
And article 568 of the latter code provides:
"He who shall execute through reckless negligence an act that if done with
malice would constitute a grave crime, shall be punished."
And article 590 provides that the following shall be punished:
"4. Those who by simple imprudence or negligence, without committing

any infraction of regulations, shall cause an injury which, had malice
intervened, would have constituted a crime or misdemeanor."
And finally by articles 19 and 20, the liability of owners and

employers for the faults of their servants and representatives is
declared to be civil and subsidiary in its character.
It is contended by the defendant, as its first defense to the action,
that the necessary conclusion from these collated laws is that the
remedy for injuries through negligence lies only in a criminal action
in which the official criminally responsible must be made primarily
liable and his employer held only subsidiarily to him. According to
this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the
track, and on his prosecution a suitable fine should have been
imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon
this subject. Article 1093 of the Civil Code makes obligations
arising from faults or negligence not punished by the law, subject to
the provisions of Chapter II of Title XVI. Section 1902 of that
chapter reads:
"A person who by an act or omission causes damage to another when there
is fault or negligence shall be obliged to repair the damage so done.
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"SEC. 1903. The obligation imposed by the preceding article is demandable,

not only for personal acts and omissions, but also for those of the persons
for whom they should be responsible.
"The father, and on his death or incapacity, the mother, is liable for the
damages caused by the minors who live with them.
* * * * *
"Owners or directors of an establishment or enterprise are equally liable

for the damages caused by their employees in the service of the branches in
which the latter may be employed or in the performance of their duties.
* * * * *
"The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may

be sufficient to point out that nowhere in our general statutes is the
employer penalized for failure to provide or maintain safe

appliances for his workmen. His obligation therefore is one "not
punished by the law" and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of
these scientific codes, such as is proposed by the defendant, that
would rob some of these articles of effect, would shut out litigants
against their will from the civil courts, would make the assertion of
their rights dependent upon the selection for prosecution of the
proper criminal offender, and render recovery doubtful by reason of
the strict rules of proof prevailing in criminal actions. Even if these
articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de
Enjuiciamiento Criminal), which, though never in actual force in
these Islands, was formerly given a suppletory or explanatory effect.
Under article 111 of this law, both classes of action, civil and
criminal, might be
364

prosecuted jointly or separately, but while the penal action was

pending the civil was suspended. According to article 112, the penal
action once started, the civil remedy should be sought therewith,
unless it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil
action alone was prosecuted, arising out of a crime that could be
enforced only on private complaint, the penal action thereunder
should be extinguished. These provisions are in harmony with those
of articles 23 and 133 of our Penal Code on the same subject
An examination of this topic might be carried much further, but
the citation of these articles suffices to show that the civil liability
was not intended to be merged in the criminal nor even to be
suspended thereby, except as expressly provided in the law. Where
an individual is civilly liable for a negligent act or omission, it is not
required that the injured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to
the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidiary in respect of criminal
actions against his employees only while they are in process of
prosecution, or in so far as they determine the existence of the
criminal act from which liability arises, and his obligation under the
civil law and its enforcement in the civil courts is not barred thereby
unless by the election of the injured person. Inasmuch as no criminal
proceeding had been instituted, growing out of the accident in

question, the provisions of the Penal Code can not affect this action.
This construction renders it unnecessary to finally determine here
whether this subsidiary civil liability in penal actions has survived
the laws that fully regulated it or has been abrogated by the
American civil and criminal procedure now in force in the
Philippines.
The difficulty in construing the articles of the code above cited in
this case appears from the briefs before us to have arisen from the
interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of
offenses in articles
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VOL 7, JANUARY 23, 1907 365

568 and 590 of the Penal Code. It has been shown that the liability
of an employer arising out of his relation to his employee who is the
offender is not to be regarded as derived from negligence punished
by the law, within the meaning of articles 1092 and 1093. More than
this, however, it can not be said to fall within the class of acts
unpunished by the law, the consequences of which are regulated by
articles 1902 and 1903 of the Civil Code. The acts to which these
articles are applicable are understood to be those not growing out of
preexisting duties of the parties to one another. But where relations
already formed give rise to duties, whether springing from contract
or quasi contract, then breaches of those duties are subject to articles
1101, 1103, and 1104 of the same code. A typical application of this
distinction may be found in the consequences of a railway accident
due to defective machinery supplied by the employer. His liability to
his employee would arise out of the contract of employment, that to
the passengers out of the contract for passage, while that to the
injured bystander would originate in the negligent act itself. This
distinction is thus clearly set forth by Manresa in his commentary on
article 1093:
"We see with reference to such obligations, that culpa, or negligence, may
be understood in two different senses; either as culpa, substantive and
independent, which 011 account of its origin arises in an obligation between
two persons not formerly bound by any other obligation; or as an incident in
the performance of an obligation which already existed, which can not be
presumed to exist without the other, and which increases the liability arising
from the already existing obligation.
"Of these two species of CII?/MI the first one mentioned, existing by
itself, may be also considered as a real source of an independent obligation,
and, as chapter 2, title 16 of this book of the code is devoted to it, it is
logical to presume that the reference contained in article 1093 is limited

thereto and that it does not extend to those provisions relating to the other
species of culpa (negligence), the nature of which we will discuss later."
(Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says
366

that these two species of negligence may be somewhat inexactly

described as contractual and extra-contractual, the latter being the
culpa aquiliana of the Roman law and not entailing so strict an
obligation as the former. This terminology is unreservedly accepted
by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI,
Article II, No. 12), and the principle stated is supported by decisions
of the supreme court of Spain, among them those of November 20,
1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not
one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish jurisprudence, prior to the adoption of the Working
Men's Accident Law of January 30, 1900, throws uncertain light on
the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early
applied to the subject the principles common to the law of both
countries, which are lucidly discussed by the leading French
commentators.
The original French theory, resting the responsibility of owners
of industrial enterprises upon articles 1382, 1383, and 1384 of the
Code Napoleon, corresponding in scope to articles 1902 and 1903 of
the Spanish Code, soon yielded to the principle that the true basis is
the contractual obligation of the employer and employee. (See 18
Dalloz, 1896, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in
contracts for employment led to the discovery of a third basis for
liability in an article of the French Code making the possessor of any
object answerable for damage done by it while in his charge. Our
law having no counterpart of this article, applicable to every kind of
object, we need consider neither the theory growing out of it nor that
of "professional risk" more recently imposed by express legislation,
but rather adopting the interpretation of our Civil Code above given,
find a rule for this case in the contractual obligation. This contractual
obligation, implied from the relation and perhaps so inherent in its
nature to be invariable by the parties, binds the employer to provide
safe appliances for the use of the employee, thus closely
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VOL. 7, JANUARY 23, 1907 367

corresponding to English and American law. On these principles it

was the duty of the defendant to build and to maintain its track in
reasonably sound condition, so as to protect its workingmen from
unnecessary danger. It is plain that in one respect or the other it
failed in its duty, otherwise the accident could not have occurred;
cousequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the
plaintiff as a risk incident to his employment and, as such, one
assumed by hiiu. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly
inspect it, for the employee is not presumed to have stipulated that
the employer might neglect his legal duty. Nor may it be excused
upon the ground that the negligence leading to the accident was that
of a fellow-servant of the injured man. It is not apparent to us that
the intervention of a third person can relieve the defendant from the
performance of its duty nor impose upon the plaintiff the
consequences of an act or omission not his own. Sua cuique culpa
nocet. This doctrine, known as "the fellow-servant rule," we are not
disposed to introduce into our jurisprudence. Adopted in England by
Lord Abinger in the case of Prescott vs. Fowler (3 Meeson &
Welsby, 1) in 1837, it has since been effectually abrogated by "the
Employers' Liability Acts" and the "Compensation Compensation
Law." The American States which applied it appear to be gradually
getting rid of it; for instance, the New York State legislature of 1906
did away with it in respect to railroad companies, and had in hand a
scheme for its total abolition. It has never found place in the civil
law of continental Europe. (Dalloz, vol. 30, 1858, Title
Responsibilité, 630, and vol. 15, 1895, same title, 804. Also more
recent instances in Fuzier-Herman, Title Responsibilité Civile, 710.)
The French Cour de Cassation clearly laid down the contrary
trary principle in its judgment of June 28,1841, in the case of
Reygasse, and has since adhered to it.
The most controverted question in the case is that of the
negligence of the plaintiff, contributing to the accident, to what
extent it existed in fact and what legal effect is to be
368

given it. In two particulars is he charged with carelessness:

First. That having noticed the depression in the track he

continued his work; and
Second. That he walked on the ends of the ties at the side of the
car instead of along the boards, either before or behind it.
As to the first point, the depression in the track might indicate
either a serious or a trivial difficulty. There is nothing in the
evidence to show that the plaintiff did or could see the displaced
timber underneath the sleeper. The claim that he must have done so
is a conclusion drawn from what is assumed to have been a probable
condition of things not before us, rather than a fair inference from
the testimony. While the method of construction may have been
known to the men who had helped build the road, it was otherwise
with the plaintiff who had worked at this job less than two days. A
man may easily walk along a railway without perceiving a
displacement of the underlying timbers. The foreman testified that
he knew the state of the track on the day of the accident and that it
was then in good condition, and one Danridge, a witness for the
defendant, Working on the same job, swore that he never noticed the
depression in the track and never saw any bad place in it. The
sagging of the track this plaintiff did perceive, but that was reported
in his hearing to the foreman who neither promised nor refused to
repair it. His lack of caution in continuing at his work after noticing
the slight depression of the rail was not of so gross a nature as to
constitute negligence, barring his recovery under the severe
American rule. On this point we accept the conclusion of the trial
judge who found as facts that "the plaintiff did not know the cause
of the one rail being lower than the other" and "it does not appear in
this case that the plaintiff knew before the accident occurred that the
stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would,
nevertheless, be binding upon us, because not "plainly and
manifestly against the weight of evidence," as
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VOL. 7, JANUARY 23, 1907 369

those words of section 497, paragraph 3 of the Code of Civil

Procedure were interpreted by the Supreme Court of the United
States in the De la Rama case (201 U. S., 303).
In respect of the second charge of m'gligeiur against the plaintiff,
the judgment below is not so specific. While the judge remarks that
the evidence does not justify the finding that the car was pulled by
means of a rope attached to the front end or to the rails upon it, and
further that the circumstances in evidence make it clear that the
persons necessary to operate the car could not walk upon the plank
between the rails and that, therefore, it was necessary for the
employees moving it to get hold upon it as best they could, there is

no specific finding upon the instruction given by the defendant to its
employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get
hold upon the car. Therefore the findings of the judge below leave
the conduct of the plaintiff in walking along the side of the loaded
car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were
they not forbidden to proceed in this way, but were expressly
directed by the foreman to do so, both the officers of the company
and three of the workmen testify that there was a general prohibition
frequently made known to all the gang against walking by the side
of the car, and the foreman swears that he repeated the prohibition
before the starting of this particular load. On this contradiction of
proof we think that the preponderance is in favor of the defendant's
contention to the extent of the general order being made known to
the workmen. If so, the disobedience of the plaintiff in placing
himself in danger contributed in some degree to the injury as a
proximate, although not as its primary cause. This conclusion
presents sharply the question, What effect is to be given such an act
of contributory negligence? Does it defeat a recovery, according to
the American rule, or is it to be taken only in reduction of damages?
370

While a few of the American States have adopted to a greater or less

extent the doctrine of comparative negligence, allowing a recovery
by a plaintiff whose own act contributed to his injury, provided his
negligence 'Was slight as compared with that of the defendant, and
some others have accepted the theory of proportional damages,
reducing the award to a plaintiff in proportion to his responsibility
for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any
negligence, however slight, on the part of the person injured which
is one of the causes proximately contributing to his injury, bars his
recovery. (English and American Encyclopedia of law, Titles
"Comparative Negligence" and "Contributory Negligence.")
In Grand Trunk Railway Company vs. Ives (144 U. S., 408, at
page 429) the Supreme Court of the United States thus
authoritatively states the present rule of law:
"Although the defendant's negligence may have been the primary cause of
the injury complained of, yet an action for such injury can not be maintained
if the proximate and immediate cause of the injury can be traced to the want
of ordinary care and caution in the person injured; subject to this
qualification, which has grown up in recent years (having been first

enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory
negligence of the party injured will not defeat the action if it be shown that
the defendant might, by the exercise of reasonable care and prudence, have
avoided the consequences of the injured party's negligence."
There are many cases in the supreme court of Spain in which the
defendant was exonerated, but when analyzed they prove to have
been decided either upon the point that he was not negligent or that
the negligence of the plaintiff was the immediate cause of the
casualty or that the accident was due to casus fortuitus. Of the first
class is the decision of January 26, 1887 (38 Jurisprudencia
Criminal, No. 70), in which a railway employee, standing on a car,
was thrown therefrom and killed by the shock following the backing
up of the engine. It was held that the man-
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agement of the train and engine being in conformity with proper

rules of the company, showed no fault on its part.
Of the second class are the decisions of the 15th of January, the
19th of February, and the 7th of March, 1902, stated in Alcubilla's
Index of that year; and of the third class the decision of the 4th of
June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking
down of plaintiff's dam by the logs of the defendant impelled against
it by the Tajo River, was held due to a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, 011 which stress has
been laid, rested on two bases, one, that the defendant was not
negligent, because expressly relieved by royal order from the
common obligation imposed by the police law of maintaining a
guard at the road crossing; the other, because the act of the deceased
in driving over level ground with unobstructed view in front of a
train running at speed, with the engine whistle blowing was the
determining cause of the accident. It is plain that the train was doing
nothing but what it had a right to do and that the only fault lay with
the injured man. His negligence was not contributory, it was sole,
and was of such an efficient nature that without it no catastrophe
could have happened.
On the other hand, there are many cases reported in which it
seems plain that the plaintiff sustaining damages was not free from
contributory negligence; for instance, the decision of the 14th of
December, 1894 (76 Jurisprudencia Civil, No. 134), in which the
owner of a building was held liable for not furnishing protection to
workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence

of a plaintiff which contributed to his injury as one of its causes,
though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de
cassation held that the carelessness of the victim did not civilly
relieve the person without whose fault the
372

accident could not have happened, but that the contributory

negligence of the injured man had the effect only of reducing the
damages. The same principle was applied in the case of Recullet,
November 10, 1888, and that of Laugier of the 11th of November,
1896. (Fuzier-Herman, Title Responsibilité Civile, 411, 412.) Of like
tenor are citations in Dalloz (vol. 18, 1896, Title Travail, 363, 364,
and vol. 15, 1895, Title Responsibilité, 193, 198).
In the Canadian Province of Quebec, which has retained for the
most part the French Civil Law, now embodied in a code following
the Code Napoleon, a practice in accord with that of France is laid
down in many cases collected in the annotations to article 1053 of
the code edited by Beauchamps, 1904. One of these is Luttrell vs.
Trottier, reported in La Revue de Jurisprudence, volume 6, page 90,
in which the court of King's bench, otherwise known as the court of
appeals, the highest authority in the Dominion of Canada on points
of French law, held that contributory negligence did not exonerate
the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar
cases in the provincial courts have been overruled by appellate
tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformly throughout the
Dominion the English theory of contributory negligence. Such
decisions throw no light upon the doctrines of the civil law.
Elsewhere we find this practice embodied in legislation; for instance,
section 2 of article 2398 of the Code of Portugal reads as follows:
"lf in the case of damage there was fault or negligence on the part of the
person injured or on the part of some one else, the indemnification shall be
reduced in the first case, and in the second case it shall be apportioned in
proportion to such fault or negligence as provided in paragraphs 1 and 2 of
section 2372."
And article 1304 of the Austrian Code provides that the victim who
is partly chargeable with the accident shall stand his damages in
proportion to his fault, but when that proportion is incapable of

ascertainment, he shall
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VOL. 7, JANUARY 23, 1907 373

share the liability equally with the person principally responsible.

The principle of proportional damages appears to be also adopted in
article 51 of the S wiss Code. Even in the United States in admiralty
jurisdictions, whose principles are derived from the civil law,
common fault in cases of collision have been disposed of not on the
ground of contributory negligence, but on that of equal loss, the fault
of the one party being offset against that of the other. (Ralli vs.
Troop, 157 U. S., 386, p. 406.)
The damage of both being added together and the sum equally
divided, a decree is entered in favor of the vessel sustaining the
greater loss against the other for the excess of her damages over one-
half of the aggregate sum. (The Manitoba, 122 U. S., 97.)
Exceptional practice appears to prevail in maritime law in other
jurisdictions. The Spanish Code of Commerce, article 827, makes
each vessel liable for its own damage when both are at fault; this
provision restricted to a single class of maritime accidents, falls far
short of a recognition of the principle of contributory negligence as
understood in American law, with which, indeed, it has little in
common. This is plain from other articles of the same code; for
instance, article 829, referring to articles 826, 827, and 828, which
provides: "In the cases above mentioned the civil action of the
owner against the person liable for the damage is reserved, as well
as the criminal liability which may appear.?
The rule of the common law, a hard and fast one, not adjustable
with respect of the faults of the parties, appears to have grown out of
the original method of trial by jury, which rendered difficult a nice
balancing of responsibilities and which demanded an inflexible
standard as a safeguard against too ready sympathy for the injured. It
was assumed that an exact measure of several concurring faults was
unattainable.
"The reason why, in cases of mutual concurring negligence,
neither party can maintain an action against the other, is, not that the
wrong of the one is set off against the wrong of the other; it is that
the law can not measure
374

Rakes vs, Atlantic, Gulf and Pacific Co.
how much of the damage suffered is attributable to the plaintiff s

own fault. If he were allowed to recover, it might be that he would
obtain from the other party compensation for his own misconduct."
(Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
"The parties being mutually in fault, there can be no
apportionment of damages. The law has no scales to determine in
such cases whose wrongdoing weighed most in the compound that
occasioned the mischief." Railroad vs. Norton, 24 Penn. St. Rep.,
465, 469.)
Experience with jury trials in negligence cases has brought
American courts of review to relax the vigor of the rule by freely
exercising the power of setting aside verdicts deemed excessive,
through the device of granting new trials, unless reduced damages
are stipulated for, amounting to a partial revision of damages by the
courts. It appears to us that the control by the court of the
subjectmatter may be secured on a more logical basis and its
judgment adjusted with greater nicety to the merits of the litigants
through the practice of offsetting their respective responsibilities. In
the civil-law system this desirable end is not deemed beyond the
capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain
or in other countries under the stress and counter stress of novel
schemes of legislation, we find the theory of damages laid down in
this judgment the most consistent with the history and the principles
of our law in these Islands and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the
injured party shall be considered immediate causes of the accident.
The test is simple. Distinction must be made between the accident
and the injury, between the event itself, without which there could
have been no accident, and those acts of the victim not entering into
it, independent of it, but contributing to his own proper hurt. For
instance, the cause of the accident under review was the
displacement of the crosspiece or the failure to replace it. This
produced the event giving occasion for
375
VOL. 7, JANUARY 23, 1907 375

damages—that is, the sinking of the track and the sliding of the iron
rails. To this event, the act of the plaintiff in walking by the side of
the car did not contribute, although it was an element of the damage
which came to himself. Had the crosspiece been out of place wholly
or partly through his act or omission of duty, that would have been
one of the determining causes of the event or accident, for which he
would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover.
Where, in conjunction with the occurrence, he contributes only to

his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum
deemed a suitable equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial
court, fixing the damage incurred by the plaintiff at 5,000 pesos, the
equivalent of 2,500 dollars, United States money, we deduct
therefrom 2,500 pesos, the amount fairly attributable to his
negligence, and direct judgment to be entered in favor of the
plaintiff for the resulting sum of 2,500 pesos, with costs of both
instances, and ten days hereafter let the case be remanded to the
court below for proper action. 80 ordered.
Arellano, C. J., Torres, and Mapa, JJ., concur.
WILLARD, J., with whom concurs CARSON, J., dissenting:
The knowledge which the plaintiff had in regard to the condition of

the track is indicated by his own evidence. He testified, among other
things, as follows:
"Q. Now, describe the best you can the character of the track that ran from
the place where you loaded the irons from the barge up to the point where
you unloaded them on the ground.—A Well, it was pretty bad character.
* * * * *
"Q. And you were familiar with the track before that—its construction?
—A. Familiar with what?
"Q. Well, you have described it here to the court—A. Oh, yes; I knew the
condition of the track.
376

"Q. You knew its condition as you have described it here at the time you
were working around there?—A. Yes, sir.
* * * * *
"Q. And while operating it from the side it was necessary for you to step
from board to board on the cross-ties which extended out over the stringers?
—A. Yes, sir.
"Q. And these were of very irregular shape, were they not?—A. They
were in pretty bad condition.
* * * * *
"Q. And it was not safe to walk along on the outside of these
crosspieces?—A. It was safe if the car stayed on the track. We didn't try to
hold the load on. We tried to hold the car back, keep it from going too fast,
because we knew the track was in bad condition just here, and going down
too fast we would be liable to run off most any time.
"Q. You knew the track was in bad condition when you got hold?—A.
Sure, it was in bad condition.
* * * * *
"Q. And the accident took place at the point where you believed it to be
so dangerous?—A. Yes, sir.
"Q. But you knew it was dangerous?—A. Why certainly, anybody could
see it; but a workingman had to work in those days or get arrested for a vag
here in Manila."
The court below, while it found that the plaintiff knew in a general
way of the bad condition of the track, found that he was not
informed of the exact cause of the accident, namely, the washing
away of the large crosspiece laid upon the ground or placed upon the
posts as the foundation upon which the stringers rested. This finding
of fact to my mind is plainly and manifestly against the weight of
the evidence. Ellis, a witness for the plaintiff, testified that on the
morning of the accident he called the attention of McKenna, the
foreman, to the defective condition of the track at this precise point
where the accident happened. His testimony in part is as f ollows:
"A. I called Mr. McKenna. I showed him the track and told him I didn't
think it was safe working, and that if he
377
VOL. 7, JANUARY 23, 1907 377

didn't fix it he was liable to have an accident; I told him I thought if he put

fish plates on it it would hold it. He said, you keep on fishing around here
for fish plates and you will be fishing for another job the first thing you
know.' He says, 'You see too much.'
* * * * *
"Q. Who else was present at the time you had this conversation with Mr.
McKenna?—A. Well, at that conversation as far as I can remember, we were
all walking down the track and I know that McCoy and Mr. Rakes was
along at the time. I remember them two, but we were all walking down the
track in a bunch, but I disremember them.
* * * * *
"Q. Was that the exact language that you used, that you wanted. some
fish plates put on?—A. No, sir; I told him look at that track. I says get some
fish plates. I says if there was any fish plates we would fix that.
"Q. What did the fish plates have to do with that?—A. It would have
strengthened that joint.
"Q. Why didn't you put the 8 by 8 which was washed crossways in
place?—A. That would have taken the raising of the track and digging out
along this upright piece and then putting it up again."
The plaintiff himself testified that he was present with Ellis at the
time this conversation was had with McKenna. It thus appears that
on the morning in question the plaintiff and McKenna were standing
directly over the place where the accident happened later in the day.
The accident was caused, as the court below found, by the washing
away or displacement of the large 8 by 8 piece of timber. This track
was constructed as all other tracks are, all of it open work, with no
floor over the ties, and of course anyone standing on the track at a
particular place could see the ground and the entire construction of
the road, including these large 8 by 8 pieces, the long stringers
placed thereon, the ties placed on these stringers, and the rails placed
on the ties. The plaintiff himself must have seen that this 8 by 8
piece of timber was out of place.
378

If the testimony of the plaintiff's witnesses is to be believed, the

displacement was more markedly apparent even than it would
appear from the testimony of the defendant's witnesses. According
to the plaintiff's witnesses, the water at high tide reached the place in
question and these 8 by 8 pieces were therefore not laid upon the
ground but were placed upon posts driven into the ground, the height
of the posts at this particular place being, according to the testimony
of the plaintiff's witnesses, from a foot to two feet and a half As has
been said, Ellis testified that the reason why they did not put the 8 by
8 back in its place was because that would have required the raising
up of the track and digging out along this upright piece and then
putting it up again.
It conclusively appears from the evidence that the plaintiff,
before the accident happened, knew the exact condition of the track
and was informed and knew of the defect which caused -the
accident. There was no promise on the part of McKenna to repair the
track.
Under the circumstances the plaintiff was negligent in placing
himself on the side of the car where he knew that he would be
injured by the falling of the rails from the car when they reached this
point in the track where the two stringers were left without any
support at their ends. He either should have refused to work at all or
he should have placed himself behind the car, on the other side of it,
or in front of it, drawing it with a rope. He was guilty of contributory
negligence and is not entitled to recover.
It is said, however, that contributory negligence on the part of the
plaintiff in a case like this is no defense under the law in force in
these Islands. To this proposition I can not agree. The liability of the
defendant is based in the majority opinion upon articles 1101 and
1103 of the Civil Code.
In order to impose such liability upon the defendant, it must
appear that its negligence caused the accident. The reason why
contributory negligence on the part of the plaintiff is a defense in
this class of cases is that the negligence of the defendant did not
alone cause the accident, If nothing but that negligence had existed,
the
379
VOL. 7, JANUARY 23, 1907 379

accident would not have happened and, as I understand it, in every

case in which contributory negligence is a defense it is made so
because the negligence of the plaintiff is the cause of the accident, to
this extent, that if the plaintiff had not been negligent the accident
would not have happened, although the defendant was also
negligent. In other words, the negligence of the defendant is not
alone sufficient to cause the accident. It requires also the negligence
of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to
contributory negligence. The rule of the Roman law was: "Quod
quis ex culpa sua damnum sentit, non intelligitur damnum sentire."
(Digest, book 50, tit. 17, rule 203.)
The Partidas contain the following provisions:
"The just thing is that a man should suffer the damage which comes to him
through his own fault, and that he can not demand reparation therefor from
another." (Law 25, tit. 5, partida 3 3.)
"And they even said that when a man received an injury through his own
negligence, he should blame himself for it." (Rule 22, tit. 34, partida 7.)
"According to ancient sages, when a man received an injury through his
own acts, the grievance should be against himself and not against another." (
Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been
mentioned that the plaintiff was himself guilty of negligence, as in
the civil judgments of the 4th of June, 1888, and of the 20th of
February, 1897, and in the criminal judgments of the 20th of

February 1888, the 9th of March, 1876, and the 6th of October,
1882. These cases do not throw much light upon the subject. The
judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391),
is, however, directly in point. In that case the supreme court of Spain
said:
"According to the doctrine expressed in article 1902 of the Civil Code, fault
or negligence is a source of obligation when between such negligence and
the injury thereby caused there exists the relation of cause and effect; but
380

if the injury caused should not be the result of acts or omissions of a third
party, the latter has no obligation to repair the same, even though such acts
or omissions were imprudent or unlawful, and much less when it is shown
that the immediate cause of the injury was the negligence of the injured
party himself.
"For the reasons above stated, and the court below having found that the
death of the deceased was due to his own imprudence, and not therefore due
-to the absence of a guard at the grade crossing where the accident occurred,
it seems clear that that court in acquitting the railroad company of the
complaint filed by the widow did not violate the provisions of the aforesaid
article of the Civil Code.
"For the same reason, although the authority granted to the railroad
company to open the grade crossing without a special guard was nullified by
the subsequent promulgation of the railroad police law and the regulations
for the execution of the same, the result would be identieal, leaving one of
the grounds upon which the judgment of acquittal is based, to wit, that the
accident was caused by the imprudence of the injured party himself,
unaffected."
It appears that the accident in this case took place at a grade crossing
where, according to the claim of the plaintiff, it was the duty of the
railroad company to maintain a guard. It did not do so, and the
plaintiff's deceased husband was injured by a train at this crossing,
his negligence contributing to the injury according to the ruling of
the court below. This judgment, then, amounts to a holding that
contributory negligence is a defense according to the law of Spain.
(See also judgment of the 21st of October, 1903, vol. 96, p. 400,
Jurisprudencia Civil)
Although in the Civil Code there is no express provision upon the
subject, in the Code of Commerce there is found a distinct
declaration upon it in reference to damages caused by collisions at
sea. Article 827 of the Code of Commerce is as follows:
"If both vessels may be blamed for the collision, each one shall be liable for
his own damages, and both shall be jointly responsible for the loss and
damage suffered by their cargoes."
381
VOL. 7, JANUARY 23, 1907 381

Badger vs. New York Life Insurance Co.
That article is an express recognition of the fact that in collision

cases contributory negligence is a defense.
I do not think that this court is justified in vu*\v of the Roman
law, of the provisions of the I'ttrtMnH, of the judgment of March 7,
1902, of article 827 of the Code of Commerce, and in the absemr of
any declaration upon the subject in the Civil Code, in saying that it
was the intention of the legislature of Spain to adopt for the Civil
Code the rule announced in the majority opinion, a rule
diametrically opposed to that put in force by the Code of Commerce.
The chief, if not the only, reason stated in the opinion for
adopting the rule that contributory negligence is not a defense seems
to be that such is the holding of the later French decisions.
As to whether, if any liability existed in this case, it would be
secondary in accordance with the provisions of the Penal Code, or
primary, in accordance with the provisions of the Civil Code, I
express no opinion.
The judgment should, I think, be reversed and the defendant
acquitted of the complaint.
Judgment modified.
___________
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3/12/2021 PHILIPPINE REPORTS ANNOTATED VOLUME 007

VOL. 7, JANUARY 23, 1907 359

[No. 1719. January 23, 1907.]

M. H. RAKES, plaintiff and appellee, vs. THE ATLANTIC, GULF

1. CIVIL LIABILITY FOR DAMAGES.—In order to enforce the

2. LIABILITY OF EMPLOYER TO WORKMEN.—The

3. FELLOW-SERVANT RULE.—The doctrine known as the

4. CONTRIBUTORY NEGLIGENCE.—The negligence of the

APPEAL from a judgment of the Court of First Instance of Manila.

360 PHILIPPINE REPORTS ANNOTATED

This is an action for damages. The plaintiff, one of a gang of eight

VOL. 7, JANUARY 23, 1907 361

362 PHILIPPINE REPORTS ANNOTATED

liability laws or the institution of industrial insurance. In the absence

"Civil obligations, arising from crimes or misdemeanors, shall be governed

And article 568 of the latter code provides:

And article 590 provides that the following shall be punished:

"4. Those who by simple imprudence or negligence, without committing

And ﬁnally by articles 19 and 20, the liability of owners and

VOL. 7, JANUARY 23, 1907 363

"SEC. 1903. The obligation imposed by the preceding article is demandable,

* * * * *

"Owners or directors of an establishment or enterprise are equally liable

* * * * *

As an answer to the argument urged in this particular action it may

employer penalized for failure to provide or maintain safe

364 PHILIPPINE REPORTS ANNOTATED

prosecuted jointly or separately, but while the penal action was

proceeding had been instituted, growing out of the accident in

VOL 7, JANUARY 23, 1907 365

logical to presume that the reference contained in article 1093 is limited

And in his commentary on articles 1102 and 1104 he says

366 PHILIPPINE REPORTS ANNOTATED

that these two species of negligence may be somewhat inexactly

VOL. 7, JANUARY 23, 1907 367

corresponding to English and American law. On these principles it

368 PHILIPPINE REPORTS ANNOTATED

given it. In two particulars is he charged with carelessness:

First. That having noticed the depression in the track he

VOL. 7, JANUARY 23, 1907 369

those words of section 497, paragraph 3 of the Code of Civil

employees moving it to get hold upon it as best they could, there is

370 PHILIPPINE REPORTS ANNOTATED

While a few of the American States have adopted to a greater or less

qualiﬁcation, which has grown up in recent years (having been ﬁrst

VOL. 7, JANUARY 23, 1907 371

agement of the train and engine being in conformity with proper

None of those cases deﬁne the effect to be given the negligence

372 PHILIPPINE REPORTS ANNOTATED

accident could not have happened, but that the contributory

proportion to his fault, but when that proportion is incapable of

VOL. 7, JANUARY 23, 1907 373

share the liability equally with the person principally responsible.

374 PHILIPPINE REPORTS ANNOTATED

how much of the damage suffered is attributable to the plaintiff s

VOL. 7, JANUARY 23, 1907 375

Where, in conjunction with the occurrence, he contributes only to

Arellano, C. J., Torres, and Mapa, JJ., concur.

WILLARD, J., with whom concurs CARSON, J., dissenting:

The knowledge which the plaintiff had in regard to the condition of