Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-59096 October 11, 1985 PACITA F.

REFORMINA !" #EIRS OF FRANCISCO REFORMINA, petitioners, vs. T#E #ONORA$LE %ALERIANO P. TOMOL, &R., ' &(")e o* t+e Co(rt o* F,r't I!'t !ce, $r !c+ -I, CE$U CIT., S#ELL REFINING COMPAN. /P#ILS.0, INC., !" MIC#AEL, INCORPORATE1, respondents. Mateo Canonoy for petitioners. Reynaldo A. Pineda, Reyes, Santayana, Tayao and Picaso Law Office for respondent Shell. Marcelo Fernan & Associates for respondent Michael, Inc.

CUE%AS, J.: How much, b wa of le!al interest, should a "ud!ment debtor pa the "ud!ment creditor# is the issue raised b the RE$%RM&NA' (herein petitioners) in this Petition for Review on certiorari of the Resolution of the Hon. respondent *ud!e +aleriano P. ,omol, *r. of the then Court of $irst &nstance of Cebu#Branch -&, issued in Civil Case No. R#../01, an action for Recover of 2ama!es for in"ur to Person and 3oss of Propert . ,he dispositive portion of the assailed Resolution reads as follows4 &n li!ht (sic) of the fore!oin!, the considered view here that b le!al interest is meant si5 (67) percent as provided for b Article //81 of the Civil Code. 3et a writ of e5ecution be issued. '% %R2ERE2. 1 Petitioners9 motion for the reconsideration of the :uestioned Resolution havin! been denied, the now come before ;s throu!h the instant petition pra in! for the settin! aside of the said Resolution and for a declaration that the "ud!ment in their favor should bear le!al interest at the rate of twelve (./7) percent per annum pursuant to Central Ban< Circular No. =.6 dated *ul /1, .10=. Hereunder are the pertinent antecedents>

%n *une 0, .10/, "ud!ment was rendered b the Court of $irst instance of Cebu in Civil Case No. R#../01, 2 the dispositive portion of which reads4 ?HERE$%RE, "ud!ment is hereb rendered in favor of the plaintiffs and third part defendants and a!ainst the defendants and third part plaintiffs as follows> %rderin! defendants and third part plaintiffs 'hell and Michael, &ncorporated to pa "ointl and severall the followin! persons> (a) ... 555 555 555 (!) Plaintiffs Pacita $. Reformina and $rancisco Reformina the sum of P.@.,8A=.88 which is the value of the boat $ B Pacita &ll to!ether with its accessories, fishin! !ear and e:uipment minus PA8,888.88 which is the value of the insurance recovered and the amount of P.8,888.88 a month as the estimated monthl loss suffered b them as a result of the fire of Ma 6, .161 up to the time the are actuall paid or alread the total sum of P@08,888.88 as of *une =, .10/ with le al interest from the filin! of the complaint until paid and to pa attorne 9s fees of PB,888.88 with costs a!ainst defendants and third part plaintiffs. %n appeal to the then Court of Appeals, the trial court9s "ud!ment was modified to reads as follows4 ?HERE$%RE. the "ud!ment appealed from is modified such that defendants#appellants 'hell Refinin! Co. (Phils.), &nc. and Michael, &ncorporated are hereb ordered to pa ... ,he two (/) defendants# appellants are also directed to pa P.88,888.88 with le!al interests from the filin! of the complaint until paid as compensator and moral dama!es and P=.,888.88 compensation for the value of the lost boat with le!al interest from the filin! of the complaint until full paid to Pacita $. Reformina and the heirs of $rancisco Reformina. ,he liabilit of the two defendants for an the awards is solidar . 555 555 555 E5cept as modified above, the rest of the "ud!ment appealed from is affirmed. ,he defendants#appellants shall pa costs in favor of the plaintiffs. Appellants 'hell and Michael and third part defendant Anita 3. Abellanosa shall shoulder their respective costs. '% %R2ERE2. 3 ,he said decision havin! become final on %ctober /=, .1A8, the case was remanded to the lower court for e5ecution and this is where the controvers started. &n the computation of the Cle!al interestC decreed in the "ud!ment sou!ht to be e5ecuted, petitioners claim that the Cle!al interestC should be at the rate of twelve (./7) percent per annum, invo<in! in support

of their aforesaid submission, Central Ban< of the Philippines Circular No. =.6. ;pon the other hand, private respondents insist that said le!al interest should be at the rate of si5 (67) percent per annum onl , pursuant to and b authorit of Article //81 of the New Civil Code in relation to Articles //.8 and //.. thereof. &n support of their stand, petitioners contend that Central Ban< Circular No. =.6 which provides 4 B virtue of the authorit !ranted to it under 'ection . of Act /6BB, as amended, otherwise <nown as the C;sur 3awC the Monetar Board in its Resolution No. .6// dated *ul /1, .10=, has prescribed that the rate of interest for the loan or for!earance of an mone , !oods, or credits and the rate allowed in "#d $ents, in the absence of e5press contract as to such rate of interest, shall be twelve (./7) per cent per annum. ,his Circular shall ta<e effect immediatel . (&talics supplied) includes the "ud!ment sou!ht to be e5ecuted in this case, because it is covered b the phrase /nd the rate allowed in "ud!ments in the absence of e5press contract as to such rate of interest ... C in the afore:uoted circular. ,he petition is devoid of merit. Conse:uentl , its dismissal is in order. Central Ban< Circular No. =.6 which too< effect on *ul /1, .10= was issued and promul!ated b the Monetar Board pursuant to the authorit !ranted to the Central Ban< b P.2. No. ..6, which amended Act No. /6BB, otherwise <nown as the ;sur 3aw. ,he amendment from which said authorit emanated reads as follows4 'ection .#a. ,he Monetar Board is hereb authoriDed to prescribe the ma5imum rate or rates of interest for the loan or renewal thereof or the for!earance of any $oney, oods or credits , and to chan!e such rate or rates whenever warranted b prevailin! economic and social conditions> Provided, ,hat such chan!es shall not be made oftener than once ever twelve months. &n the e5ercise of the authorit herein !ranted, the Monetar Board ma prescribe hi!her ma5imum rates for consumer loans or renewals thereof as well as such loans made b pawnshops, finance companies and other similar credit institutions althou!h the rates prescribed for these institutions need not necessaril be uniform. (&talics supplied) Actin! pursuant to this !rant of authorit , the Monetar Board increased the rate of le!al interest from that of si5 (67) percent per annum ori!inall allowed under 'ection & of Act No. /6BB to twelve (./7) percent per annum. &t will be noted that Act No. /6BB deals with interest on (.) loansE (/) forbearances of an mone , !oods, or creditsE and (@) rate allowed in "ud!ments. ,he issue now is4what <ind of "ud!ment is referred to under the said law. Petitioners maintain that it covers all <inds of monetar "ud!ment.

,he contention is devoid of merit. ,he "ud!ments spo<en of and referred to are *ud!ments in liti!ations involvin! loans or forbearance of an 9mone , !oods or credits. An other <ind of monetar "ud!ment which has nothin! to do with, nor involvin! loans or forbearance of an mone , !oods or credits does not fall within the covera!e of the said law for it is not within the ambit of the authorit !ranted to the Central Ban<. ,he Monetar Board ma not tread on forbidden !rounds. &t cannot rewrite other laws. ,hat function is vested solel with the le!islative authorit . &t is a5iomatic in le!al hermeneutics that statutes should be construed as a whole and not as a series of disconnected articles and phrases. &n the absence of a clear contrar intention, words and phrases in statutes should not be interpreted in isolation from one another. 4 A
word or phrase in a statute is alwa s used in association with other words or phrases and its meanin! ma thus be modified or restricted b the latter. 5

Another formidable ar!ument a!ainst the tenabilit of petitioners9 stand are the whereases of P2 No. ..6 which brou!ht about the !rant of authorit to the Central Ban< and which reads thus4 ?HEREA', the interest rate, to!ether with other monetar and credit polic instruments, performs a vital role in mobiliDin! domestic savin!s and attractin! capital resources into preferred areas of investmentsE ?HEREA', the monetar authorities have reco!niDed the need to amend the present ;sur . 3aw to allow for more fle5ible interest rate ceilin!s that would be more responsive to the re:uirements of chan!in! economic conditionsE ?HEREA', the availabilit of ade:uate capital resources is, amon! other factors, a decisive element in the achievement of the declared ob"ective of acceleratin! the !rowth of the national econom . Comin! to the case at bar, the decision herein sou!ht to be e5ecuted is one rendered in an Action for 2ama!es for in"ur to persons and loss of propert and does not involve an loan, much less forbearances of an mone , !oods or credits. As correctl ar!ued b the private respondents, the law applicable to the said case is Article //81 of the New Civil Code which reads4 Art. //81. &f the obli!ation consists in the pa ment of a sum of mone , and the debtor incurs in dela , the indemnit for dama!es, there bein! no stipulation to the contrar , shall be the pa ment of interest a!reed upon, and in the absence of stipulation, the le!al interest which is si5 percent per annum. ,he above provision remains untouched despite the !rant of authorit to the Central Ban< b Act No. /6BB, as amended. ,o ma<e Central Ban< Circular No. =.6 applicable to an case other than those specificall provided for b the ;sur 3aw will ma<e the same of doubtful constitutionalit since the Monetar Board will be e5ercisin! le!islative functions which was be ond the intendment of P.2. No. ..6.

&N +&E? %$ ,HE $%REF%&NF C%N'&2ERA,&%N', and findin! the instant petition to be without merit, the same is hereb 2&'M&''E2 with costs a!ainst petitioners. '% %R2ERE2. Concepcion, %r., A!ad Santos, Melencio&'errera, (scolin, Relo)a, *#tierre+, %r., ,e la F#ente, Ala$pay and Pata"o, %%., conc#r. Ma-asiar, C%., with separate opinion of %#stice Plana. A.#ino, %., conc#rs in the res#lt.

Se5 r te O5,!,o!'

PLANA, J., concurrin! and dissentin!> .. Central Ban< Circular =.6 dated *ul /1, .10= increased the rate of interest allowed in "ud!ments from 67 to ./7 per annum. ,o m a<nowled!e,before the instant case, tha validit of CB Circular =.6 had not been challen!ed in this Court. &n +iloria vs. Court of Appeals, ./@ 'CRA /B1, it was assumed that the Central Ban< w as lle!all authoriDed to issue the said Circular. ,he onl issue there raisedwas whether the increase in interest rate could be !iven retrospective operation. /. . do not believe the Central Ban< authorit here in :uestion is premised on 'ection .#a of Act No. /6BB (;sur 3aw), as inserted b Presidential 2ecree ..6. ,he cited section reads> 'ec. .#a. ,he Monetar Board is hereb authoriDed to prescribe the $a/i$#$ rate or rates of interest for the loan or renewal thereof or the forbearance of an mone , !oods or credits, and to chan!e such rate or rates whenever warranted b prevailin! economic and social conditions> Provided, ,hat such chan!es shall not be made oftener than once ever twelve months. &n the e5ercise of the authorit herein !ranted, the Monetar Board ma prescribe hi!her $a/i$#$rates for consumer loans or renewals thereof as well as such loans made b pawnshops, finance companies and other similar credit institutions althou!h the rates prescribed for these institutions need not necessaril be uniform. ,he above law does not empower the Central Ban< to fi5 the specific rate of interest to be char!ed for loans. &t merel !rants the power to prescribe the $a/i$#$ interest rate, leavin! it to the contractin! parties to determine within the allowable limit what precisel the interest rate will be. &n other

?ords, the provision presupposes that the parties to the loan a!reement are free to fi5 the interest rate, the ceilin! prescribed b the Central Ban< operatin! merel to restrict the parties9 freedom to stipulate. 'o viewed, 'ec. .#a cannot include a provision on interest to !e allowed in "#d $ents, which is not the sub"ect of contractual stipulations and therefore cannot lo!icall be made sub"ect to interest (ceilin!), which is all that 'ec. .#a covers. Note that Central Ban< Circular =.6 itself invo<es as the basis for its issuance 'ec. ., rather than 'ec. .#a, of the ;sur 3aw. @. B purpose and operative effect, 'ec. . of the ;sur 3aw is different from 'ec. .#a. 'ection .. ,he rate of interest for the loan or for!earance of an mone , !oods, or credits and therate allowed in "#d $ents, in the absence of e5press contract as to such rate of interest, shall be si5 per centum per annum or such rate as ma be prescribed b the Monetar Board of the Central Ban< of the Philippines for that purpose in accordance with the authorit hereb !ranted. 0Italics s#pplied ,his section envisa!es two situations> (a) a loan or forbearance of mone , !oods or credit, where the parties a!reed on the pa ment of interest but failed to fi5 the rate thereofE and (b) a liti!ation that has ended in a final "ud!ment for the pa ment of mone . &n either case, the role of 'ection . is to fi5 the specific rate of interest or le!al interest (67) to be char!ed. &t also impliedl dele!ates to the Central Ban< the power to modif the said interest rate. ,hus, the interest rate shall be 67 per annum or Csuch rate as ma be prescribed b the Monetar Board of the Central Ban< ...C =. ,he authorit to chan!e the le!al interest that has been dele!ated to the Central Ban< under the :uoted 'ection . is absolute and un:ualified. &t is true that 'ection . sa s that the rate of interest shall be 6 7 per annum or Csuch rate as ma be prescribed b the Monetar Board of the Central Ban< ... in accordance with the authorit hereb !ranted.C But neither in the said section nor in an other section of the law is there a !uideline or limitation imposed on the Central Ban<. ,he determination of what the applicable interest rate shall be, as distin!uished from interest rate ceilin , is completel left to the "ud!ment of the Central Ban<. &n short, there is a total abdication of le!islative power, which renders the dele!ation void. B. ;nder the view ta<en above, it is unnecessar to ma<e a distinction between "ud!ments in liti!ations involvin! loans and "ud!ments in liti!ations that have nothin! to do with loans. 6. & conclude that the Central Ban< authorit to chan!e the le!al rate of interest allowed in "ud!ments is constitutionall defectiveE and incidentall , this vice also affects its authorit to chan!e the le!al interest of 67 per annum as to loans and forbearance of mone , !oods or credits, as envisa!ed in 'ection . of the ;sur 3aw. &f this conclusion be correct, it is imperative to enact a law either increasin! the le!al interest to a realistic level or suppl in! the deficiencies of the ;sur 3aw which render the dele!ation of power therein constitutionall defective.

Teehan-ee, %., conc#r.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 1619 & !( r7 23, 1906

M. #., RA8ES, plaintiff#appellee, vs. T#E ATLANTIC, GULF AN1 PACIFIC COMPAN., defendant#appellant. A. ,. *i!!s for appellant. F. *. 1aite, & Thi$as 2epner for appellee. TRACE., J.: ,his is an action for dama!es. ,he plaintiff, one of a !an! of ei!ht ne!ro laborers in the emplo ment of the defendant, was at wor< transportin! iron rails from a bar!e in the harbor to the compan 9s ard near the malecon in Manila. Plaintiff claims that but one hand car was used in this wor<. ,he defendant has proved that there were two immediatel followin! one another, upon which were piled len!thwise seven rails, each wei!hin! B68 pounds, so that the ends of the rails la upon two crosspieces or sills secured to the cars, but without side pieces or !uards to prevent them from slippin! off. Accordin! to the testimon of the plaintiff, the men were either in the rear of the car or at its sides. Accordin! to that defendant, some of them were also in front, haulin! b a rope. At a certain spot at or near the water9s ed!e the trac< sa!!ed, the tie bro<e, the car either canted or upset, the rails slid off and cau!ht the plaintiff, brea<in! his le!, which was afterwards amputated at about the <nee. ,his first point for the plaintiff to establish was that the accident happened throu!h the ne!li!ence of the defendant. ,he detailed description b the defendant9s witnesses of the construction and :ualit of the trac< proves that if was up to the !eneral stranded of tramwa s of that character, the foundation consistin! on land of bloc<s or crosspieces of wood, b A inches thic< and from A to .8 feet lon! laid, on the surface of the !round, upon which at a ri!ht an!le rested strin!ers of the same thic<ness, but from /= to @8 feet in len!th. %n the across the strin!ers the parallel with the bloc<s were the ties to which the trac<s were fastened. After the road reached the water9s ed!e, the bloc<s or crosspieces were replaced with pillin!, capped b timbers e5tendin! from one side to the other. ,he trac<s were each about / feet wide and the two inside rails of the parallel trac<s about .A inches apart. &t was admitted that there were no side pieces or !uards on the carE that where no ends of the rails of the trac< met each other and also where the strin!ers "oined, there were no fish plates. the defendant has not effectuall overcome the plaintiff9s proof

that the "oints between the rails were immediatel above the "oints between the underl in! strin!ers. ,he cause of the sa!!in! of the trac<s and the brea<in! of the tie, which was the immediate occasion of the accident, is not clear in the evidence, but is found b the trial court and is admitted in the briefs and in the ar!ument to have been the dislod!in! of the crosspiece or pilin! under the strin!er b the water of the ba raised b a recent t phoon. ,he superintendent of the compan attributed it to the !ivin! wa of the bloc< laid in the sand. No effort was made to repair the in"ur at the time of the occurrence. Accordin! to plaintiffs witnesses, a depression of the trac<, var in! from one half inch to one inch and a half, was therafter apparent to the e e, and a fellow wor<man of the plaintiff swears that the da before the accident he called the attention of McGenna, the foreman, to it and as<ed b simpl strai!htenin! out the crosspiece, resettin! the bloc< under the strin!er and renewin! the tie, but otherwise leavin! the ver same timbers as before. &t has not proven that the compan inspected the trac< after the t phoon or had an proper s stem of inspection. &n order to char!e the defendant with ne!li!ence, it was necessar to show a breach of dut on its part in failin! either to properl secure the load on iron to vehicles transportin! it, or to s<illfull build the tramwa or to maintain it in proper condition, or to vi!ilantl inspect and repair the roadwa as soon as the depression in it became visible. &t is upon the failure of the defendant to repair the wea<ened trac<, after notice of its condition, that the "ud!e below based his "ud!ment. ,his case presents man important matters for our decision, and first amon! them is the standard of dut which we shall establish in our "urisprudence on the part of emplo ees toward emplo ees. ,he lac< or the harshness of le!al rules on this sub"ect has led man countries to enact desi!ned to put these relations on a fair basis in the form of compensation or liabilit laws or the institution of insurance. &n the absence of special le!islation we find no difficult in so appl in! the !eneral principles of our law as to wor< out a "ust result. Article .81/ of the Civil Code provides> Civil obli!ations, arisin! from crimes or misdemeanors, shall be !overned b the provisions of the Penal Code. And article B6A of the latter code provides> He who shall e5ecute throu!h rec<less ne!li!ence an act that if done with malice would constitute a !rave crime, shall be punished. And article B18 provides that the followin! shall be punished> =. ,hose who b simple imprudence or ne!li!ence, without committin! an infraction of re!ulations, shall cause an in"ur which, had malice intervened, would have constituted a crime or misdemeanor.

And finall b articles .1 and /8, the liabilit of owners and emplo ers for the faults of their servants and representatives is declared to be civil and subsidiar in its character. &t is contented b the defendant, as its first defense to the action, that the necessar conclusion from these collated laws is that the remed for in"uries throu!h ne!li!ence lies onl in a criminal action in which the official criminall responsible must be made primaril liable and his emplo er held onl subsidiaril to him. Accordin! to this theor the plaintiff should have procured the arrest of the representative of the compan accountable for not repairin! the tract, and on his prosecution a suitable fine should have been imposed, pa able primaril b him and secondaril b his emplo er. ,his reasonin! misconceived the plan of the 'panish codes upon this sub"ect. Article .81@ of the Civil Code ma<es obli!ations arisin! from faults or ne!li!ence not p#nished !y the law, sub"ect to the provisions of Chapter .. of ,itle -+&. 'ection .18/ of that chapter reads> A person who b an act or omission causes dama!e to another when there is fault or ne!li!ence shall be obli!ed to repair the dama!e so done. 'EC. .18@. ,he obli!ation imposed b the precedin! article is demandable, not onl for personal acts and omissions, but also for those of the persons for whom the should be responsible. ,he father, and on his death or incapacit , the mother, is liable for the dama!es caused b the minors who live with them. 555 555 555

%wners or directors of an establishment or enterprise are e:uall liable for the dama!es caused b their emplo ees in the service of the branches in which the latter ma be emplo ed or in the performance of their duties. 555 555 555

,he liabilit referred to in this article shall cease when the persons mentioned therein prove that the emplo ed all the dili!ence of a !ood father of a famil to avoid the dama!es. As an answer to the ar!ument ur!ed in this particular action it ma be sufficient to point out that nowhere in our !eneral statutes is the emplo er penaliDed for failure to provide or maintain safe appliances for his wor<men. His obli!ation therefore is one Cnot punished b the law C and falls under civil rather than criminal "urisprudence. But the answer ma be a broader one. ?e should be reluctant, under an conditions, to adopt a forced construction of these scientific codes, such as is proposed b the defendant, that would rob some of these articles of effect, would shut out liti!ants their will from the civil courts, would ma<e the assertion of their ri!hts dependent upon the selection for prosecution of the proper criminal offender, and render recover doubtful b reason of the strict rules of proof prevailin! in criminal actions. Even if these articles had alwa s stood alone, such a construction would be unnecessar , but clear li!ht is thrown upon their meanin! b the

provisions of the 3aw of Criminal Procedure of 'pain ( Ley de (n"#icia$iento Cri$inal), which, thou!h n ever in actual force in these &slands, was formerl !iven a suppletor or e5planator effect. ;nder article ... of this law, both classes of action, civil and criminal, mi!ht be prosecuted "ointl or separatel , but while the penal action was pendin! the civil was suspended. Accordin! to article ../, the penal action once started, the civil remed should be sou!ht therewith, unless it had been waived b the part in"ured or been e5pressl reserved b him for civil proceedin!s for the future. &f the civil action alone was prosecuted, arisin! out of a crime that could be enforced b onl on private complaint, the penal action thereunder should be e5tin!uished. ,hese provisions are in harmon with those of articles /@ and .@@ of our Penal Code on the same sub"ect. An e5amination of this topic mi!ht be carried much further, but the citations of these articles suffices to show that the civil liabilit was not intended to be mer!ed in the criminal nor even to be suspended thereb , e5cept as e5pressl provided b law. ?here an individual is civill liable for a ne!li!ent act or omission, it is not re:uired that the inured part should see< out a third person criminall liable whose prosecution must be a condition precedent to the enforcement of the civil ri!ht. ;nder article /8 of the Penal Code the responsibilit of an emplo er ma be re!arded as subsidiar in respect of criminal actions a!ainst his emplo ees onl while the are process of prosecution, or in so far as the determinate the e5istence of the criminal act from which liabilit arises, and his obli!ation under the civil law and its enforcement in the civil courts is not barred thereb unless b election of the in"ured person. &nasmuch as no criminal in :uestion, the provisions of the Penal Code can not affect this action. ,his construction renders it unnecessar to finall determine here whether this subsidiar civil liabilit in penal actions survived the laws that full re!ulated it or has been abro!ated b the American civil and criminal procedure now in force in the Philippines. ,he difficult in construin! 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 .81@, Cfault or ne!li!ence not punished b law,C as applied to the comprehensive definition of offenses in articles B6A and B18 of the Penal Code. &t has been shown that the liabilit of an emplo er arisin! out of his relation to his emplo ee who is the offender is not to be re!arded as derived from ne!li!ence punished b the law, within the meanin! of articles .81/ and .81@. More than this, however, it can not be said to fall within the class of acts unpunished b the law, the conse:uences of which are re!ulated b articles .18/ and .18@ of the Civil Code. ,he acts to which these articles are applicable are understood to be those and !rowin! out of pree5istin! duties of the parties to one another. But were relations alread formed !ive rise to duties, whether sprin!in! from contract or :uasi contract, then breaches of those duties are sub"ect to articles ..8., ..8@, and ..8=, of the same code. A t pical application of the distinction ma be found in the conse:uences of a railwa accident due to defective machiner supplied b the emplo er. His liabilit to his emplo ee would arise out of the contract of emplo ment, that to the passen!ers out of the contract for passa!e. while that to that in"ured b stander would ori!inate in the ne!li!ent act itself. ,his distinction is thus clearl set forth b Manresa in his commentar on article .81@. ?e are with reference to such obli!ations, that c#lpa, or ne!li!ence, ma be understood in two difference sensesE either as c#lpa, s#!stanti)e and independent,

which on account of its ori!in arises in an obli!ation between two persons not formerl bound b an other obli!ationE or as an incident in the performance of an obli!ationE or as alread e5isted, which can not be presumed to e5ist without the other, and which increases the liabilit arisin! from the alread e5itin! obli!ation. %f these two species of c#lpa the first one mentioned, e5istin! b itself, ma be also considered as a real source of an independent obli!ation, and, as chapter /, title .6 of this boo< of the code is devoted to it, it is lo!ical to presume that the reference contained in article .81@ is limited thereto and that it does not e5tend to those provisions relatin! to the other species of c#lpa (ne!li!ence), the nature of which we will discuss later. (+ol. A, p. /1.) And in his commentar on articles ..8/ and ..8= he sa s that these two species of ne!li!ence ma be somewhat ine5actl described as contractual and e5tra#contractual, the letter bein! the c#lpa a.#iliana of the Roman law and not entailin! so strict an obli!ation as the former. ,his terminolo! is unreservedl accepted b 'ancheD#Roman (2erecho Civil, fourth section, Chapter -&, Article &&, No. ./), and the principle stated is supported be decisions of the supreme court of 'pain, amon! them those of November /8, .A16 (A8 *urisprudencia Civil, No. .B.), and *une /0, .A1= (0B *urisprudencia Civil, No. .A/). ,he contract is one for hire and not one of mandate. (March .8, .A10, A. *urisprudencia Civil, No. .80.) 'panish *urisprudencia prior to the adoption of the ?or<in! Men9s Accident 3aw of *anuar @8, .188, throws uncertain li!ht on the relation between master and wor<man. Moved b the :uic< industrial development of their people, the courts of $rance earl applied to the sub"ect the principles common to the law of both countries, which are lucidl discussed b the leadin! $rench commentators. ,he ori!inal $rench theor , restin! the responsibilit of owners of industrial enterprises upon articles .@A/, .@A@, and .@A= of the Code Napoleon, correspondin! in scope to articles .18/ and .18@ of the 'panish Code, soon ielded to the principle that the true basis is the contractual obli!ation of the emplo er and emplo ee. ('ee .A 2alloD, .16, ,itle Tra)ail, @@..) 3ater the hardships resultin! from special e5emptions inserted in contracts for emplo ment led to the discover of a third basis for liabilit in an article of he $rench Code ma<in! the possessor of an ob"ect answerable for dama!e done b it while in his char!e. %ur law havin! no counterpart of this article, applicable to ever <ind of ob"ect, we need consider neither the theor !rowin! out of it nor that of Cprofessional ris<C more recentl imposed b e5press le!islation, but rather adoptin! the interpretation of our Civil Code above !iven, find a rule for this case in the contractual obli!ation. ,his contractual obli!ation, implied from the relation and perhaps so inherent in its nature to be invariable b the parties, binds the emplo er to provide safe appliances for the use of the emplo ee, thus closel correspondin! to En!lish and American 3aw. %n these principles it was the dut of the defendant to build and to maintain its trac< in reasonabl sound condition, so as to protect its wor<in!men from unnecessar dan!er. &t is plain that in one respect or the other it failed in its dut , otherwise the accident could not have occurredE conse:uentl the ne!li!ence of the defendant is established.

Another contention of the defense is that the in"ur resulted to the plaintiff as a ris< incident to his emplo ment and, as such, one assumed b him. &t is evident that this can not be the case if the occurrence was due to the failure to repair the trac< or to dul inspect, it for the emplo ee is not presumed to have stipulated that the emplo er mi!ht ne!lect his le!al dut . Nor ma it be e5cused upon the !round that the ne!li!ence leadin! to the accident was that of a fellow#servant of the in"ured man. &t is not apparent to us that the intervention of a third person can relieve the defendant from the performance of its dut nor impose upon the plaintiff the conse:uences of an act or omission not his own. S#a c#i.#e c#lpa nocet. ,his doctrine, <nown as Cthe fellow#servant, rule,C we are not disposed to introduce into our "urisprudence. Adopted in En!land b 3ord Abin!er in the case of Prescott )s. $owler (@ Meeson H ?elsb , .) in .A@0, it has since been effectuall abro!ated b Cthe Emplo ers9 3iabilit ActsC and the CCompensation 3aw.C ,he American 'tates which applied it appear to be !raduall !ettin! rid of itE for instance, the New Ior< 'tate le!islature of .186 did awa with it in respect to railroad companies, and had in hand a scheme for its total abolition. &t has never found place in the civil law of continental Europe. (2alloD, vol. @1, .ABA, ,itle Responsibilite, 6@8, and vol. .B, .A1B, same title, A8=. Also more recent instances in $uDier#Herman, ,itle Responsibilite Civile, 0.8.) ,he $rench Co#r de Cassation clearl laid down the contrar principle in its "ud!ment of *une /A, .A=., in the case of Re !asse, and has since adhered to it. ,he most controverted :uestion in the case is that of the ne!li!ence of the plaintiff, contributin! to the accident, to what e5tent it e5isted in fact and what le!al effect is to be !iven it. &n two particulars is he char!ed with carelessness> $irst. ,hat havin! noticed the depression in the trac< he continued his wor<E and 'econd. ,hat he wal<ed on the ends of the ties at the side of the car instead of alon! the boards, either before or behind it. As to the first point, the depression in the trac< ni!ht indicate either a serious or a rival difficult . ,here is nothin! in the evidence to show that the plaintiff did or could see the displaced timber underneath the sleeper. ,he claim that he must have done so is a conclusion drawn from what is assumed to have been a probable condition of thin!s not before us, rather than a fair inference from the testimon . ?hile the method of construction ma have been <nown to the men who had helped build the road, it was otherwise with the plaintiff who had wor<ed at this "ob less than two da s. A man ma easil wal< alon! a railwa without perceivin! a displacement of the underl in! timbers. ,he foreman testified that he <new the state of the trac< on the da of the accident and that it was then in !ood condition, and one 2anrid!e, a witness for the defendant, wor<in! on the same "ob, swore that he never noticed the depression in the trac< and never saw an bad place in it. ,he sa!!in! of the trac< this plaintiff did perceive, but that was reported in his hearin! to the foreman who neither promised nor refused to repair it. His lac< of caution in continuin! at his wor< after noticin! the sli!ht depression of the rail was not of so !ross a nature as to constitute ne!li!ence, barrin! his recover under the severe American rule. %n this point we accept the conclusion of the trial "ud!e who found as facts that Cthe plaintiff did not <now the cause of the one rail bein! lower than then otherC and Cit does not appear in this case that

the plaintiff <new before the accident occurred that the strin!ers and rails "oined in the same place.C ?ere we not disposed to a!ree with these findin!s the would, nevertheless, be bindin! upon us, because not Cplainl and manifestl a!ainst the wei!ht of evidence,C as those words of section =10, para!raph @ of the Code of Civil Procedure were interpreted b the 'upreme Court of the ;nited 'tates in the 2e la Rama case (/8. ;. '., @8@). &n respect of the second char!e of ne!li!ence a!ainst the plaintiff, the "ud!ment below is not so specific. ?hile the "ud!e remar<s that the evidence does not "ustif the findin! that the car was pulled b means of a rope attached to the front end or to the rails upon it, and further that the circumstances in evidence ma<e it clear that the persons necessar to operate the car could not wal< upon the plan< between the rails and that, therefore, it was necessar for the emplo ees movin! it to !et hold upon it as best the could, there is no specific findin! upon the instruction !iven b the defendant to its emplo ees to wal< onl upon the plan<s, nor upon the necessit of the plaintiff puttin! himself upon the ties at the side in order to !et hold upon the car. ,herefore the findin!s of the "ud!e below leave the conduct of the plaintiff in wal<in! alon! the side of the loaded car, upon the open ties, over the depressed trac<, free to our in:uir . ?hile the plaintiff and his witnesses swear that not onl were the not forbidden to proceed in this wa , but were e5pressl directed b the foreman to do so, both the officers of the compan and three of the wor<men testif that there was a !eneral prohibition fre:uentl made <nown to all the !an! a!ainst wal<in! b the side of the car, and the foreman swears that he repeated the prohibition before the startin! of this particular load. %n this contradiction of proof we thin< that the preponderance is in favor of the defendant9s contention to the e5tent of the !eneral order bein! made <nown to the wor<men. &f so, the disobedience of the plaintiff in placin! himself in dan!er contributed in some de!ree to the in"ur as a pro5imate, althou!h not as its primar cause. ,his conclusion presents sharpl the :uestion, ?hat effect is to be !iven such an act of contributor ne!li!enceJ 2oes it defeat a recover , accordin! to the American rule, or is it to be ta<en onl in reduction of dama!esJ ?hile a few of the American 'tates have adopted to a !reater or less e5tent the doctrine of comparative ne!li!ence, allowin! a recover b a plaintiff whose own act contributed to his in"ur , provided his ne!li!ence was sli!ht as compared with that of the defendant, and some others have accepted the theor of proportional dama!es, reducin! the award to a plaintiff in proportion to his responsibilit for the accident, et the overwhelmin! wei!ht of ad"udication establishes the principle in American "urisprudence that an ne!li!ence, however sli!ht, on the part of the person in"ured which is one of the causes pro5imatel contributin! to his in"ur , bars his recover . (En!lish and American Enc clopedia of law, ,itles CComparative Ne!li!enceC and Contributor Ne!li!ence.C) &n Frant ,run< Railwa Compan )s. &ves (.== ;. '., =8A, at pa!e =/1) the 'upreme Court of the ;nited 'tates thus authoritativel states the present rule of law> Althou!h the defendant9s9 ne!li!ence ma have been the primar cause of the in"ur complained of, et an action for such in"ur can not be maintained if the pro5imate

and immediate cause of the in"ur can be traced to the want of ordinar care and caution in the person in"uredE sub"ect to this :ualification, which has !rown up in recent ears (havin! been first enunciated in 2avies )s. Mann, .8 M. H ?., B=6) that the contributor ne!li!ence of the part in"ured will not defeat the action if it be shown that the defendant mi!ht, b the e5ercise of reasonable care and prudence, have avoided the conse:uences of the in"ured part 9s ne!li!ence. ,here are ma cases in the supreme court of 'pain in which the defendant was e5onerated, but when anal Ded the prove to have been decided either upon the point that he was not ne!li!ent or that the ne!li!ence of the plaintiff was the immediate cause of the casualt or that the accident was due to cas#s fort#it#s. %f the first class in the decision of *anuar /6, .AA0 (@A %#rispr#dencia Cri$inal, No. 08), in which a railwa emplo ee, standin! on a car, was thrown therefrom and <illed b the shoc< followin! the bac<in! up of the en!ine. &t was held that the mana!ement of the train and en!ine bein! in conformit with proper rules of the compan , showed no fault on its part. %f the second class are the decision of the .Bth of *anuar , the .1th of $ebruar , and the 0th of March, .18/, stated in Alcubilla9s &nde5 of that earE and of the third class the decision of the =th of *une, .AAA (6=%#rispr#dencia Ci)il, No. .), in which the brea<in! down of plaintiff9s dam b the lo!s of the defendant impelled a!ainst it b the ,a"o River, was held due to a freshet as a fortuitous cause. ,he decision of the 0th of March, .18/, on which stress has been laid, rested on two bases, one, that the defendant was not ne!li!ent, because e5pressl relieved b ro al order from the common obli!ation imposed b the police law of maintainin! a !uard at the road crossin!E the other, because the act of the deceased in drivin! over level !round with unobstructed view in front of a train runnin! at speed, with the en!ine whistle blowin! was the determinin! cause of the accident. &t is plain that the train was doin! nothin! but what it had a ri!ht to do and that the onl fault la with the in"ured man. His ne!li!ence was not contributor , it was sole, and was of such an efficient nature that without it no catastrophe could have happened. %n the other hand, there are man cases reported in which it seems plain that the plaintiff sustainin! dama!es was not free from contributor ne!li!enceE for instance, the decision of the .=th of 2ecember, .A1= (06%#rispr#dencia Ci)il, No. .@=), in which the owner of a buildin! was held liable for not furnishin! protection to wor<men en!a!ed in han!in! out fla!s, when the latter must have perceived beforehand the dan!er attendin! the wor<. None of those cases define the effect to be !iven the ne!li!ence of a plaintiff which contributed to his in"ur as one of its causes, thou!h not the principal one, and we are left to see< the theor of the civil law in the practice of other countries. &n $rance in the case of Mar:uant, Au!ust /8, .A01, the co#r de cassation held that the carelessness of the victim did not civill relieve the person without whose fault the accident could not have happened, but that the contributor ne!li!ence of the in"ured man had the effect onl of reducin! the dama!es. ,he same principle was applied in the case of Recullet, November .8, .AAA. and that of 3au!ier of the ..th of November, .A16. ($uDier#

Herman, ,itle Responsi!ilite Cirile, =.., =./.) %f li<e tenor are citations in 2alloD (vol. .A, .A86, ,itle ,rail, @6@, @6=, and vol. .B, .A1B, Title Responsi!ilite, .1@, .1A). &n the Canadian Province of Kuebee, which has retained for the most part the $rench Civil 3aw, now embodied in a code followin! the Code Napoleon, a practice in accord with that of $rance is laid down in man cases collected in the annotations to article .8B@ of the code edited b Beauchamps, .18=. %ne of these is 3uttrell )s. ,rottier, reported in La Re)#e de %#rispr#dence, volume 6, pa!e 18, in which the court of Gin!s bench, otherwise <nown as the court of appeals, the hi!hest authorit in the 2ominion of Canada on points of $rench law, held that contributor ne!li!ence did not e5onerate the defendants whose fault had been the immediate cause of the accident, but entitled him to a reduction of dama!es. %ther similar cases in the provincial courts have been overruled b appellate tribunals made up of common law "ud!es drawn from other provinces, who have preferred to impose uniformall throu!hout the 2ominion the En!lish theor of contributor ne!li!ence. 'uch decisions throw no li!ht upon the doctrines of the civil law. Elsewhere we find this practice embodied in le!islationE for instance, section / of article /@1A of the Code of Portu!al reads as follows> &f in the case of dama!e there was fault or ne!li!ence on the part of the person in"ured or in the part of some one else, the indemnification shall be reduced in the first case, and in the second case it shall be appropriated in proportion to such fault or ne!li!ence as provided in para!raphs . and / of section /@0/. And in article .@8= of the Austrian Code provides that the victim who is partl chan!eable with the accident shall stand his dama!es in proportion to his fault, but when that proportion is incapable of ascertainment, he shall share the liabilit e:uall with the person principall responsible. ,he principle of proportional dama!es appears to be also adopted in article B. of the 'wiss Code. Even in the ;nited 'tates in admiralit "urisdictions, whose principles are derived from the civil law, common fault in cases of collision have been disposed of not on the !round of contradictor ne!li!ence, but on that of e:ual loss, the fault of the one part bein! offset a!ainst that of the other. (Ralli )s. ,roop, .B0 ;. '. @A6E 10.) ,he dama!e of both bein! added to!ether and the sum e:uall divided, a decree is entered in favor of the vessel sustainin! the !reater loss a!ainst the other for the e5cess of her dama!es over one#half of the a!!re!ate sum. (,he Manitoba, .// ;. '., 10) E5ceptional practice appears to prevail in maritime law in other "urisdictions. ,he 'panish Code of Commerce, article A/0, ma<es each vessel for its own dama!e when both are the faultE this provision restricted to a sin!le class of the maritime accidents, falls for short of a reco!nition of the principle of contributor ne!li!ence as understood in American 3aw, with which, indeed, it has little in common. ,his is a plain from other articles of the same codeE for instance, article A/1, referrin! to articles A/6, A/0, and A/A, which provides> C&n the cases above mentioned the civil action of the owner a!ainst the person liable for the dama!e is reserved, as well as the criminal liabilit which ma appear.C ,he rule of the common law, a hard and fast one, not ad"ustable with respects of the faults of the parties, appears to have !rown out the ori!inal method of trial b "ur , which rendered difficult a nice balancin! of responsibilities and which demanded an infle5ible standard as a

safe!uard a!ainst too read s mphat for the in"ured. &t was assumed that an e5act measure of several concurrin! faults was unattainable. ,he reason wh , in cases of mutual concurrin! ne!li!ence, neither part can maintain an action a!ainst the other, is, not the wron! of the one is set off a!ainst the wron! of the otherE it that the law can not measure how much of the dama!e suffered is attributable to the plaintiff9s own fault. &f he were allowed to recover, it mi!ht be that he would obtain from the other part compensation for hiss own misconduct. (Heil )s.Flandin!, =/ Penn. 't. Rep., =1@, =11.) ,he parties bein! mutuall in fault, there can be no appointment of dama!es. ,he law has no scales to determine in such cases whose wron!doin! wei!hed most in the compound that occasioned the mischief. (Railroad )s. Norton, /= Penn. 't. B6B, =61.) E5perience with "ur trials in ne!li!ence cases has brou!ht American courts to review to rela5 the vi!or of the rule b freel e5ercisin! the power of settin! aside verdicts deemed e5cessive, throu!h the device of !rantin! new trials, unless reduced dama!es are stipulated for, amountin! to a partial revision of dama!es b the courts. &t appears to us that the control b the court of the sub"ect matter ma be secured on a moral lo!ical basis and its "ud!ment ad"usted with !reater nicet to the merits of the liti!ants throu!h the practice of offsettin! their respective responsibilities. &n the civil law s stem the desirable end is not deemed be ond the capacit of its tribunals. ?hatever ma prove to be the doctrine finall adopted in 'pain or in other countries under the stress and counter stress of novel schemers of le!islation, we find the theor of dama!es laid down in the "ud!ment the most consistent with the histor and the principals of our law in these &slands and with its lo!ical development. 2ifficult seems to be apprehended in decidin! which acts of the in"ured part shall be considered immediate causes of the accident. ,he test is simple. 2istinction must be between the accident and the in"ur , between the event itself, without which there could have been no accident, and those acts of the victim not enterin! into it, independent of it, but contributin! under review was the displacement of the crosspiece or the failure to replace it. this produced the event !ivin! occasion for dama!es 4 that is, the shin<in! of the trac< and the slidin! of the iron rails. ,o this event, the act of the plaintiff in wal<in! b the side of the car did not contribute, althou!h it was an element of the dama!e which came to himself. Had the crosspiece been out of place wholl or partl thorou!h his act of omission of dut , the last would have been one of the determinin! causes of the event or accident, for which he would have been responsible. ?here he contributes to the principal occurrence, as one of its determinin! factors, he can not recover. ?here, in con"unction with the occurrence, he contributes onl to his own in"ur , he ma recover the amount that the defendant responsible for the event should pa for such in"ur , less a sum deemed a suitable e:uivalent for his own imprudence. Acceptin!, thou!h with some hesitation, the "ud!ment of the trial court, fi5in! the dama!e incurred b the plaintiff at B,888 pesos, the e:uivalent of /,B88 dollars, ;nited 'tates mone , we deduct therefrom /,B88 pesos, the amount fairl attributable to his ne!li!ence,

and direct "ud!ment to be entered in favor of the plaintiff for the resultin! sum of /,B88 pesos, with cost of both instances, and ten da s hereafter let the case be remanded to the court below for proper action. 'o ordered. Arellano, C.%. Torres and Mapa, %%., concur.

Se5 r te O5,!,o!' 9ILLAR1, J., dissentin!> ,he <nowled!e which the plaintiff had in re!ard to the condition of the trac< is indicated b his own evidence. He testified, amon! other thin!s, as follows> K. Now, describe the best ou can the character of the trac< that ran from the place where ou loaded the irons from the bar!e up to the point where ou unloaded them on the !round. A. 4 ?ell, it was prett bad character. 555 K. A. K. A. 555 555

And ou were familiar with the trac< before that its constructionJ $amiliar with whatJ ?ell, ou have described it here to the court. %h, esE & <new the condition of the trac<.

K. Iou <new its conditions as ou have described it here at the time ou were wor<in! around thereJ A. Ies, sir. 555 555 555

K. And while operatin! it from the side it was necessar for ou to step from board to board on the cross#ties which e5tended out over the strin!ersJ A. K. A. Ies, sir. And these were ver of irre!ular shape, were the notJ ,he were in prett bad condition.

555 K.

555

555

And it was not safe to wal< alon! on the outside of these crosspiecesJ

A. &t was safe if the car sta ed on the trac<. ?e didn9t tr to hold the load on. ?e tried to hold the car bac<, <eep it from !oin! too fast, because we <new the trac< was in bad condition "ust here, and !oin! down too fast we could be liable to run off most an time. K. A. Iou <new the trac< was in bad condition when ou !ot holdJ 'ure, it was in bad condition. 555 555 555

K. And the accident too< place at that point where ou believed it to be so dan!erousJ A. K. Ies, sir. But ou <new it was dan!erousJ

A. ?h certainl , an bod could see itE but a wor<in!man had to wor< in those da s or !et arrested for a va! here in Manila. ,he court below, while it found that the plaintiff <new in a !eneral wa of the bad condition of the trac<, found that he was not informed of the e5act cause of the accident, namel , the washin! awa of the lar!e crosspiece laid upon the !round or placed upon the posts as the foundation upon which the stripers rested. ,his findin! of fact to m mind is plainl and manifestl a!ainst the wei!ht of the evidence. Ellis, a witness for the plaintiff, testified that on the mornin! of the accident he called the attention of McGenna, the foreman, to the defective condition of the trac< at his precise point where the accident happened. His testimon in part is as follows> A. & called Mr. McGenna. & showed him the trac< and told him & didn9t thin< it was safe wor<in!, and that if he didn9t fi5 it he was liable to have an accidentE & told him & thou!ht if he put fish plates on it would it. He said, ou <eep on fishin! around here for fish plates and ou will be fishin! for another "ob the first thin! ou <now.C He sa s, CIou see to much.C 555 555 555

K. ?ho else was present at the time ou had this conversation with Mr. McGennaJ A. ?ell, at that conversation as far as & can remember, we were all wal<in! down the trac< and & <now that McCo and Mr. Bla<es was alon! at the time. & remember

them two, but we were all wal<in! down the trac< in a bunch, but & disremember them. 555 555 555

K. ?as that the e5act lan!ua!e that ou used, that ou wanted some fish plates put onJ A. No, sir> & told him to loo< at that trac<. & sa s !et some fish plates. & sa s if there was an fish plates we would fi5 that. K. A. K. ?hat did the fish plates have to do with thatJ &t would have stren!thened that "oint. ?h didn9t ou put the A b A which was washed crosswa s in placeJ

A. ,hat would have been ta<en the raisin! of the trac< and di!!in! out alon! this upri!ht piece and then puttin! it up a!ain. ,he plaintiff himself testified that he was present with Ellis at the time this conversation was had with McGenna. &t thus appears that on the mornin! in :uestion the plaintiff and McGenna were standin! directl over the place where the accident happened later in the da . ,he accident was caused, as the court below found, b the washin! awa or displacement of the lar!e A b A piece of timber. ,his trac< was constructed as all other trac<s are, all of it open wor<, with no floor over the ties, and of course see the !round and the entire construction of the road, includin! these lar!e A b A pieces, the lon! strin!ers placed thereon, the ties placed on these strin!ers, and the rails placed on the ties. ,he plaintiff himself must have seen that the A b A piece of timber was out of place. &f the testimon of the plaintiff9s witnesses is to be believed, the displacement was more mar<edl apparent even than it would appear from the testimon of the defendant9s witnesses. Accordin! to the plaintiff9s witnesses, the water at hi!h tide reached the place in :uestion and these A b A pieces were therefore not laid upon the !round but were placed upon posts driven into the !round, the hei!ht of the posts at this particular place bein!, accordin! to the testimon of the plaintiff9s witnesses, from a foot to two feet and a half. As has been said, Ellis testified that the reason wh the did not put the A b A bac< in its place was because that would have re:uired the raisin! up of the trac< and di!!in! out alon! this upri!ht piece and then puttin! it up a!ain. &t conclusivel appears from the evidence that the plaintiff, before the accident happened, <new the e5act condition of the trac< and was informed and <new of the defect which caused the accident. ,here was no promise on the part of McGenna to repair the trac<. ;nder the circumstances the plaintiff was ne!li!ent in placin! himself on the side of the car where he <new that he would be in"ured b the fallin! of the rails from the car when the reached this point in the trac< where the two strin!ers were without an support of their ends. He either should have refused to wor< at all or he should have placed himself behind

the car, on the other side of it, or in front of it, drawin! it with a rope. He was !uilt of contributor ne!li!ence and is not entitled to recover. &t is, said however, that contributor ne!li!ence on the part of the plaintiff in a case li<e this is no defense under the law in force in these &slands. ,o this proposition & can not a!ree. ,he liabilit of the defendant is based in the ma"orit opinion upon articles ..8. and ..8@ of the Civil Code. &n order to impose such liabilit upon the defendant, it must appear that its ne!li!ence caused the accident. ,he reason wh contradictor ne!li!ence on the part of the plaintiff is a defense in this class of cases is that the ne!li!ence of the defendant did not alone cause the accident. &f nothin! but that ne!li!ence had e5isted, the accident would not have happened and, as & understand it, in ever case in which contradictor ne!li!ence is a defense it is made so because the ne!li!ence of the plaintiff is the cause of the accident, to this e5tent, that if the plaintiff had not been ne!li!ent the accident would not have happened, althou!h the defendant was also ne!li!ent. &n other words, the ne!li!ence of the defendant is not alone sufficient to cause the accident. &t re:uires also the ne!li!ence of the plaintiff. ,here is, so far as & <now, nothin! in the Civil Code relatin! to contributor ne!li!ence. ,he rule of the Roman law was> C3#od .#is e/ c#lap s#a da$n#$ sentit, no intelli it#r da$n#$ sentire.C (2i!est, boo<, B8, tit. .0, rule /8@.) ,he partidas contain the followin! provisions> ,he "ust thin! is that a man should suffer the dama!e which comes to him throu!h his own fault, and that he can not demand reparation therefor from another. (3aw /B, tit. B, partida @.) And the even said that when a man received an in"ur throu!h his own acts, the !rievance should be a!ainst himself and not a!ainst another. (3aw /, tit. 0, partida /.) &n several cases in the supreme court of 'pain the fact has been ne!li!ence that the plaintiff was himself !uilt of ne!li!ence, as in the civil "ud!ments of the =th of *une, .AAA, and of the /8th of $ebruar , .AA0, and in the criminal "ud!ments of the /8th of $ebruar .AAA, the 18th of March, .A06, and the 6th of %ctober, .AA/. ,hese cases do not throw much li!ht upon the sub"ect. ,he "ud!ment of the 0th of March, .18/ (1@ %#rispr#dencia Ci)il, @1.), is, however, directl in point. &n that case the supreme court of 'pain said> Accordin! to the doctrine e5pressed in article .18/ of the Civil Code, fault or ne!li!ence is a source of obli!ation when between such ne!li!ence and the in"ur thereb caused there e5ists the relation of cause and effectE but in the in"ur caused should not be the result of acts or omissions of a third part , the latter has no obli!ation to repair the same, even thou!h such acts or omissions were imprudent or unlawful, and much less when it is shown that the immediate cause of the in"ur was the ne!li!ence of the in"ured person part himself.

$ound the reasons above stated, and the court below havin! found that the death of the deceased was due to his own imprudence, and not therefore due to the absence of a !uard at the !rade crossin! where the accident occurred, it seems clear that court in ac:uittin! the railroad compan of the complaint filed b the widow did not violate the provisions of the aforesaid article of the Civil Code. $or the same reason, althou!h the authorit !ranted to the railroad compan to open the !rade crossin! without a special !uard was nullified b the subse:uent promul!ation of the railroad police law and the re!ulations for the e5ecution of the same, the result would be identical, leavin! one of the !rounds upon which the "ud!ment of ac:uittal is based, to wit, that the accident was caused b the imprudence of the in"ured part himself, unaffected. &t appears that the accident in this case too< place at a !rade crossin! where, accordin! to the claim of the plaintiff, it was the dut of the railroad compan to maintain husband was in"ured b a train at this crossin!, his ne!li!ence contributin! to the in"ur accordin! to the rulin! of the court below. ,his "ud!ment, then, amounts to a holdin! that a contributor ne!li!ence is a defense accordin! to the law of 'pain. ('ee also "ud!ment of the /.st of %ctober, .18@, vol. 16 p. =88, %#rispr#dencia Ci)il.) Althou!h in the Civil Code there is no e5press provision upon the sub"ect, in the Code of Commerce there is found a distinct declaration upon it in reference to dama!es caused b collission at sea. Article A/0 of the Code of Commerce is as follows> &f both vessels ma be blamed for the collission, each one shall for liable for his own dama!es, and both shall "ointl responsible for the loss and dama!es suffered to their car!oes. ,hat article is an e5press reco!nition of the fact that in collision cases contributor ne!li!ence is a defense, & do not thin< that this court is "ustified in view of the Roman law, of the provisions of the Partidas, of the "ud!ment of March 0, .18/, of article A/0 of the Code of Commerce, and in the absence of an declaration upon the sub"ect in the Civil Code, in sa in! that it was the intention rule announced in the ma"orit opinion, a rule dimetricall opposed to that put in force b the Code of Commerce. ,he chief, is not the onl , reason stated in the opinion for adoptin! the rule that contradictor ne!li!ence is not a defense seems to be that such is the holdin! of the later $rench decisions. As to whether, if an liabilit e5isted in this case, it would be necessar in accordance with the provisions of the Penal Code, or primar , in accordance with the provision of the Civil Code, & e5press no opinion. ,he "ud!ment should, & thin<, be reversed and the defendant ac:uitted of the complaint. Carson, %., conc#rs.