Contributory Negligience

TOMAS BERNAL v. J. V. HOUSE

[ GR No. 30741, Jan 30, 1930 ]
DECISION

54 Phil. 327

MALCOLM, J.:
The parents of the five-year old child, Puriflcacion Bernal, appeal from a judgment
of the Court of First Instance of Leyte, which denied them P15,000 damages from
J. V. House and the Tacloban Electric & Ice Plant, Ltd. for the death of the child as a
consequence of burns alleged to have been caused by the fault and negligence of
the defendants.

The salient facts as found by the trial judge are the following:

On the evening of April 10, 1925, the procession of Holy Friday was held in
Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal came
from another municipality to attend the religious celebration. After the procession
was over, the woman and her daughter, accompanied by two other persons by the
names of Fausto and Elias, passed along a public street named Gran Capitan. The
little girl was allowed to get a short distance in advance of her mother and her
friends. When in front of the offices of the Tacloban Electric & Ice Plant, Ltd., an
automobile appeared from the opposite direction which so frightened the child
that she turned to run, with the result that she fell into the street gutter. At that
time there was hot water in this gutter or ditch coming from the Electric & Ice
Plant of J. V. House. When the mother and her companions reached the child, they
found her face downward in the hot water. Her clothes were immediately
removed and, then covered with a garment, the girl was taken to the provincial
hospital. There she was attended by the resident physician, Dr. Victoriano A.
Benitez. Despite his efforts, the child died that same night at 11.40o'clock.
Dr. Benitez, who, of course, was in a better position than any one to know the
cause of the death, and who had no reason to depart from the true facts, certified
that the cause of death was "Burns, 3rd Degree, Whole Body," and that the
contributory causes were "Congestion of the Brain and visceras of the chest &
abdomen." The same physician in his general record in the Leyte Hospital for this
patient, under diagnosis in full, stated: "Burned, 3rd Degree, of whole body." The
treatment record of the attending nurse was much to the same effect.

The defense was that the hot water was permitted to flow down the side of the
street Gran Capitan with the knowledge and consent of the authorities ; that the
cause of death was other than the hot water; and that in the death the plaintiffs
contributed by their own fault and negligence. The trial judge, however, after
examination of the evidence presented by the defendants, failed to sustain their
theory of the case, except as to the last mentioned special defense. We are shown
no good reason for departing from the conclusion of the trial judge to the effect
that the sudden death of the child Purification Bernal was due principally to the
nervous shock and organic calefaction produced by the extensive burns from the
hot water. "The danger from burns is proportional rather to the extent of surface
involved than to the depth of the burn." (Wharton & Stille's Medical Jurisprudence,
vol. 3, p. 263.) The same authority continues. "Burns of the first degree, covering
two-thirds of the body surface, are rarely recovered from. * * * Children seem
especially susceptible to the effect of burns" (Pp; 263, 264.)

Although the trial judge made the findings of fact herein before outlined, he
nevertheless was led to order the dismissal of the action because of the
contributory negligence of the plaintiffs. It is from this point that a majority of the
court depart from the stand taken by the trial judge. The mother and her child had
a perfect right to be on the principal street of Tacloban, Leyte, on the evening
when the religions procession was held. There was nothing abnormal in allowing
the child to run along a few paces in advance of the mother. No one could foresee
the coincidence of an automobile appearing and of a frightened child running and
falling into a ditch filled with hot water. The doctrines announced in the much
debated case of Bakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil, 859), still
rule. Article 1902 of the Civil Code must again be enforced. The contributory
negligence of the child and her mother, if any, does not operate as a bar to
recovery, but in its strictest sense could only result in reduction of the damages.
Having reached the conclusion that liability exists, we next turn to discover who
can recover damages for the obligation, and against whom the action will lie. The
plaintiffs are Tomas Bernal and Fortunata Enverso. The latter was the mother of
Purification Bernal and the former was the natural father, who had never legally
recognized his child. The daughter lived with the mother, and presumably was
supported by her. Under these facts, recovery should be permitted the mother but
not the father. As to the defendants, they are J. V. House and the Tacloban Electric
& Ice Plant, Ltd. J. V. House was granted a franchise by Act No. 2700 of the
Philippine Legislature approved on March 9, 1917. He only transferred this
franchise formally to the Tacloban Electric & Ice Plant, Ltd. on March 30, 1926, that
is, nearly a year after the death of the child Purificacion Bernal. Under these facts,
J. V. House is solely responsible.

Counsel for appellees point out that there is no satisfactory proof to establish the
pecuniary loss. That is true. But in cases of this character the law presumes a loss
because of the impossibility of exact computation. There is not enough money in
the entire world to compensate a mother for the death of her child. In criminal
cases, the rule has been to allow as a matter of course P1,000 as indemnity to the
heirs of the deceased. In the case of Manzanares vs. Moreta ([1918], 38 Phil., 821),
which in many respects is on all fours with the case at bar, the same amount of
P1,000 was allowed the mother of the dead boy eight or nine years of age. The
same criterion will have to be followed in this instance.

The result will, therefore, be to accept the findings of fact made by the trial judge;
to set aside the legal deductions flowing from those facts; to hold that the death of
the child Purificacion Bernal was the result of fault and negligence in permitting
hot water to flow through the public streets, there to endanger the lives of
passers-by who were unfortunate enough to fall into it; to rule that the proper
plaintiff is the mother Fortunata Enverso and not the natural father Tomas Bernal;
to likewise rule that the person responsible to the plaintiff is J. V, House and not
the entity the Tacloban Electric & Ice Plant, Ltd.; and finally to adjudge that the
amount of recovery, without the tendering of special proof, should be fixed, as in
other cases, at P1,000.

Concordant with the pronouncements just made, the judgment appealed from
shall in part be reversed and in the court of origin another judgment shall issue in
favor of Fortunata Enverso and against J. V. House for the amount of P1,000, and
for the costs of both instances.

Street, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.

Johnson, J., dissents.

DISSENTING
Romualdez, J.:
Even taking the finding that the defendant by its negligence helped to bring about
the accident which resulted in the death of the child Purificacion Bernal, as not
subject to question now, not being a matter discussed in this instance, I
nevertheless deem the trial court's other finding sufficiently proved in the record,
to the effect that the plaintiff, by negligence, contributed to that most regrettable
result.

With due respect to the majority opinion, I believe the judgment appealed from
should be affirmed.

Doctrine for Proximate Cause

Proximate Cause – that cause which, in the natural and continuous sequence,
unbroken by an efficient supervening cause, produces the injury and without
which the injury would not have occurred.

MANILA ELECTRIC CO. vs. REMOQUILLO, et als.

Facts:
Efren Magno went to repair a ¨media agua¨ of the house pf his brother-in-law.
While making the repair, a galvanized iron roofing which was holding came into
contact with the electric wire of the petitioner Manila Electric Co. strung parallel to
the edge of the ¨media agua¨ and 2 1/2 feet from it. He was electrocuted and died
as a result thereof. In an action for damages brought by the heirs of Magno against
manila Electric Co. the CA awarded damages to the heirs of Magno and that the
company was at fault and guilty of negligence because although the electric wire
had been installed long before the construction of the house the electric company
did not exercise due diligence. Hence, this petition.

Issue: WON Manila Electric Co., is guilty of negligence.

Ruling : Decision of the CA reversed.

Ratio: A prior and remote cause cannot be made the basis of an action if such
remote cause did nothing more than furnish the condition or give rise to the
occasion by which the injury was made possible, if there intervened between such
prior or remote cause and the injury a distinct, successive, unrelated, and efficient
cause of the injury, even though such injury would not have happened but for such
condition or occasion.

NPC v. CA

Facts:
At the height of the typhoon “Kading”, a flash flood covered the towns near the
Angat Dam, causing deaths and destructions to residents and their properties.
Respondents blamed the tragedy to the reckless and imprudent opening of the 3
floodgates by petitioner, without prior warning to the residents within the vicinity
of the dam. Petitioners denied the allegations and contended that they have kept
the water at a safe level, that the opening of floodgates was done gradually, that it
exercises diligence in the selection of its employees, and that written warnings
were sent to the residents. It further contended that there was no direct causal
relationship between the damage and the alleged negligence on their part, that
the residents assumed the risk by living near the dam, and that what happened
was a fortuitous event and are of the nature of damnum absque injuria.
Issues:

(1) Whether the petitioner can be held liable even though the coming of the
typhoon is a fortuitous event

(2) Whether a notice was sent to the residents

(3) Whether the damage suffered by respondents is one of damnum absque injuria

Held:
(1) The obligor cannot escape liability, if upon the happening of a fortuitous event
or an act of God, a corresponding fraud, negligence, delay or violation or
contravention in any manner of the tenor of the obligation as provided in Article
1170 of the Civil Code which results in loss or damage. Even if there was no
contractual relation between themselves and private respondents, they are still
liable under the law on quasi-delict. Article 2176 of the Civil Code explicitly
provides "whoever by act or omission causes damage to another there being fault
or negligence is obliged to pay for the damage done." Act of God or force
majeure, by definition, are extraordinary events not foreseeable or avoidable,
events that could not be foreseen, or which, though foreseen, are inevitable. It is
therefore not enough that the event should not have been foreseen or anticipated,
as is commonly believed, but it must be one impossible to foresee or to avoid. The
principle embodied in the act of God doctrine strictly requires that the act must be
occasioned solely by the violence of nature. Human intervention is to be excluded
from creating or entering into the cause of the mischief. When the effect is found
to be in part the result of the participation of man, whether due to his active
intervention or neglect or failure to act, the whole occurrence is then humanized
and removed from the rules applicable to the acts of God. In the case at bar,
although the typhoon "Kading" was an act of God, petitioners cannot escape
liability because their negligence was the proximate cause of the loss and damage.

(2) The letter itself, addressed merely "TO ALL CONCERNED", would not strike one
to be of serious importance, sufficient enough to set alarm and cause people to
take precautions for their safety's sake. The notices were not delivered, or even
addressed to responsible officials of the municipalities concerned who could have
disseminated the warning properly. They were delivered to ordinary employees
and policemen. As it happened, the said notices do not appear to have reached the
people concerned, which are the residents beside the Angat River. The plaintiffs in
this case definitely did not receive any such warning. Indeed, the methods by
which the defendants allegedly sent the notice or warning was so ineffectual that
they cannot claim, as they do in their second assignment of error, that the sending
of said notice has absolved them from liability.

(3) We cannot give credence to petitioners' third assignment of error that the
damage caused by the opening of the dam was in the nature of damnum absque
injuria, which presupposes that although there was physical damage, there was no
legal injury in view of the fortuitous events. There is no question that petitioners
have the right, duty and obligation to operate, maintain and preserve the facilities
of Angat Dam, but their negligence cannot be countenanced, however noble their
intention may be. The end does not justify the means, particularly because they
could have done otherwise than simultaneously opening the spillways to such
extent. Needless to say, petitioners are not entitled to counterclaim.

Doctrine of Ipsa Loquitor

Statement of the rule: “Where the thing which caused the injury complained of is
shown to be under the management of defendant or his servants and the accident
is such as in the ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in absence
of explanation by defendant, that the accident arose from want of care.”

Spouses Africa et al vs Caltex Philippines, Boquiren and the Court of Appeals

16 SCRA 448 – Civil Law – Torts and Damages – Res Ipsa Loquitur
In March 1948, in Rizal Avenue, Manila, a tank truck was hosing gasoline into the
underground storage of Caltex. Apparently, a fire broke out from the gasoline
station and the fire spread and burned several houses including the house of
Spouses Bernabe and Soledad Africa. Allegedly, someone (a passerby) threw a
cigarette while gasoline was being transferred which caused the fire. But there was
no evidence presented to prove this theory and no other explanation can be had as
to the real reason for the fire. Apparently also, Caltex and the branch owner (Mateo
Boquiren) failed to install a concrete firewall to contain fire if in case one happens.
ISSUE: Whether or not Caltex and Boquiren are liable to pay for damages.
HELD: Yes. This is pursuant to the application on the principle of res ipsa loquitur
(“the transaction speaks for itself”) which states: “where the thing which caused
injury, without fault of the injured person, is under the exclusive control of the
defendant and the injury is such as in the ordinary course of things does not occur
if he having such control use proper care, it affords reasonable evidence, in the
absence of the explanation, that the injury arose from defendant’s want of care.”
The gasoline station, with all its appliances, equipment and employees, was under
the control of Caltex and Boquiren. A fire occurred therein and spread to and burned
the neighboring houses. The persons who knew or could have known how the fire
started were Boquiren, Caltex and their employees, but they gave no explanation
thereof whatsoever. It is a fair and reasonable inference that the incident happened
because of want of care.
Note that ordinarily, he who charges negligence shall prove it. However, res ipsa
loquitur is the exception because the burden of proof is shifted to the party charged
of negligence as the latter is the one who had exclusive control of the thing that
caused the injury complained of.
UNITED STATES vs MARIANO CRAME
30 Phil. 2 (March 2, 1915)

FACTS:
In the Court of First Instance of Manila, accused-appellant Mariano Crame was
convicted for the crime of Serious Physical injuries through Reckless Negligence.
The learned trial court convicted the accused of the crime of producing serious
physical injuries by imprudenciatemeraria, setting forth as the grounds of the
conviction several points indicating negligence (i.e.)

The accused did not see the soldier whom he ran down until it was too late,
although the street at that point was brilliantly lighted; he did not sound his horn
or give notice of his approach in any other manner; he did not apply the brake
or make any effort whatever to stop; he was traveling on the wrong side of the
street at the time of the collision). In the defense of the accused-appellant, his
counsel pointed out that neither the chauffeur nor his companion saw the soldier
at a sufficient distance, and that the soldier appeared suddenly in front of the
machine, among others.

ISSUE:

Whether or not the decision of the trial court is in accordance with the evidence
and the law?

HELD:
YES.

RATIO:

While it is true that the law does not draw an inference of negligence from the
mere showing that there was a collision between a man and an automobile on a
public street but that negligence must be proved, nevertheless, the Court believes
it to be the rule that plaintiff, while driving on the right-hand side of a wide road,
was overtaken by an automobile which struck the hind wheel of his wagon,
establishes a case of negligence. Further, there is no evidence in the case which
shows negligence on the part of the injured soldier. The mere fact that he was run
down by an automobile does not signify that he was negligent. At the time he was
struck he was, speaking from the direction in which the accused was driving the
automobile at the time, on the right-hand side of the street where he had a right
to be and where the law fully protected him from vehicles traveling in the direction
in which the accused was driving at the time of the injury. The Court regards it as
Layugan vs. IAC; Torts- vicarious liability of owner of a truck
7/15/2013
0 Comments

G.R. No. 73998 November 14, 1988

Facts:

• Pedro T. Layugan filed an action for damages against Godofredo Isidro,

alleging that while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a
companion were repairing the tire of their cargo truck which was parked
along the right side of the National Highway;

• That defendant’s truck, driven recklessly by Daniel Serrano bumped the

plaintiff, that as a result, plaintiff was injured and hospitalized where he
incurred and will incur more expenses as he recuperates from said injuries;

• Plaintiff's right leg was amputated and that because of said injuries he
would be deprived of a lifetime income.

• To free themselves from liability, defendants Isidro [owner] and Serrano

[driver] averred that he knows his responsibilities as a driver and further
contends that it was the negligence of plaintiff that was the proximate cause
of the accident.

• They alleged that plaintiff parked his truck in a manner which occupied a
part of the highway and he did not even put a warning sign.

Subsequently, a third-party complaint was filed by the defendant against his

insurer, the Travellers Multi Indemnity Corporation; that the third-party
plaintiff [Isidro], without admitting his liability to the plaintiff, claimed that
the third-party defendant [Travellers] is liable to the former for contribution,
indemnity and subrogation by virtue of their insurance contract which
covers the insurer's liability for damages arising from death, bodily injuries
and damage to property.
• The Insurance company argued that it is only liable for the amount agreed in
the policy and the complaint was premature since no claim was made to it.

• The RTC ruled in favor of the Petitioners. The CA reversed the decision,
stating that it is the petitioners who were negligent since they did
not exercise caution by putting warning signs that their truck is park on the
shoulder of the highway.

Issue:
Whether or not Isidro is liable as employer of Serrano.

Ruling:
Yes!

The SC held that the CA erroneously appreciated the evidence. It was proven
that the petitioner placed a warning sign within 3 to 4 meters from their
truck in the form of a lighted kerosene lamp. The existence of this warning
sings was corroborated by Serrano, respondent's driver, and further stated
that when he saw a parked truck, he kept on stepping on the brake pedal
but it did not function. Thus despite this warning signs, the truck recklessly
driven by Serrano and owned by Respondent Isidro bumped the truck of
petitioner.

The private respondent is sued under Art. 2176 in relation to Art. 2180,
paragraph 5, of the Civil Code. In the latter, when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of
law that there was negligence on the part of the master or employer either
in the selection of the servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and not juris et de
jure and consequently, may be rebutted. If follows necessarily that if the
employer shows to the satisfaction of the court that in the selection and in
the supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved from liability. In
disclaiming liability for the incident, the private respondent stresses that the
negligence of his employee has already been adequately overcome by his
driver's statement that he knew his responsibilities as a driver and that the
truck owner used to instruct him to be careful in driving.
We do not agree with the private respondent in his submission. In the first
place, it is clear that the driver did not know his responsibilities because he
apparently did not check his vehicle before he took it on the road. If he did
he could have discovered earlier that the brake fluid pipe on the right was
cut, and could have repaired it and thus the accident could have been
avoided. Moreover, to our mind, the fact that the private respondent used
to instruct his driver to be careful in his driving, that the driver was licensed,
and the fact that he had no record of any accident, as found by the
respondent court, are not sufficient to destroy the finding of negligence of
the Regional Trial Court given the facts established at the trial. The private
respondent or his mechanic, who must be competent, should have
conducted a thorough inspection of his vehicle before allowing his driver to
drive it.

In the light of the circumstances obtaining in the case, we hold that Isidro
failed to prove that the diligence of a good father of a family in the
supervision of his employees which would exculpate him from solidary
liability with his driver to the petitioner. But even if we concede that the
diligence of a good father of a family was observed by Isidro in the
supervision of his driver, there is not an iota of evidence on record of the
observance by Isidro of the same quantum of diligence in the supervision of
his mechanic, if any, who would be directly in charge in maintaining the road
worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof
that Isidro exercised the diligence of a good father of a family in the
selection of his driver, Daniel Serrano, as well as in the selection of his
mechanic, if any, in order to insure the safe operation of his truck and thus
prevent damage to others. Accordingly, the responsibility of Isidro as
employer treated in Article 2180, paragraph 5, of the Civil Code has not
ceased.

Article 2180. The obligation imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons for whom one
is responsible
(5) Employers shall be liable for the damages caused by their employees
and household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
Doctrine of Presumed Negligence

TEAGUE VS. FERNANDEZ

FACTS:

• The Realistic Institute situated on the second floor of the Gil-Armi Building, a
two-storey, semi-concrete edifice located at the corner of Quezon Boulevard
and Soler Street, Quiapo, Manila was owned and operated by Teague.

• The said second floor was unpartitioned, had a total area of about 400
square meters, and although it had only one stairway, of about 1.50 meters
in width, it had eight windows, each of which was provided with two fire-
escape ladders and the presence of each of said fire-exits was indicated on
the wall.

• October 24, 1955, around 4pm, a fire broke out in a store for surplus
materials located about ten meters away from the institute (across the
street). Upon seeing the fire, some of the students in the Realistic Institute
shouted ‘Fire! Fire!’ and thereafter, a panic ensued. Four instructresses and
six assistant instructress of the Institute were present and they, together
with the registrar, tried to calm down the students, who numbered about
180 at the time.

• The panic, however, could not be subdued and the students, with the
exception of the few who made use of fire-escapes kept on rushing and
pushing their way through the stairs, thereby causing stampede therein.

• No part of the Gil-Armi Building caught fire. But, after the panic was over,
four students, including Lourdes Fernandez, a sister of plaintiffs-appellants,
were found dead and several others injured on account of the stampede.

• The deceased’s five brothers and sisters filed an action for damages against
Mercedes M. Teague as owner and operator of Realistic Institute.
 • CFI found for the defendant and dismissed the case. This was however,
reversed by the CA. The CA held that petitioner was negligent and that such
negligence was the proximate cause of the death of Lourdes Fernandez.

• This finding of negligence is based primarily on the fact that the provision of
Section 491 Of the Revised Ordinances of the City of Manila had not been
complied with in connection with the construction and use of the Gil-Armi
building.

• The alleged violation of the ordinance consisted in the fact that the second
storey of the Gil-Armi building had only one stairway, 1.5 meters wide,
instead of two of at least 1.2 meters each, although at the time of the fire
the owner of the building had a second stairway under construction.

• The petitioner relates the chain of events that resulted in the death of
Lourdes Fernandez as follows:

o (1) violation of ordinance;

o (2) fire at a neighboring place;

o (3) shouts of “Fire!, Fire!”;

o (4) panic in the Institute;

o (5) stampede; and

o (6) injuries and death.

As thus projected the violation of the ordinance, it is argued, was only a remote
cause, if at all, and cannot be the basis of liability since there intervened a number
of independent causes which produced the injury complained of. According to the
petitioner “the events of fire, panic and stampede were independent causes with
no causal connection at all with the violation of the ordinance.”

ISSUE: Whether a violation of a statute constitutes negligence

HELD:
It is true that the petitioner’s non-compliance with the ordinance in question was
ahead of and prior to the other events in point of time, in the sense that it was
coetaneous with its occupancy of the building. But the violation was a continuing
one, since the ordinance was a measure of safety designed to prevent a specific
situation which would pose a danger to the occupants of the building. That
situation was undue overcrowding in case it should become necessary to evacuate
the building, which, it could be reasonably foreseen, was bound to happen under
emergency conditions if there was only one stairway available.

“The general principle is that the violation of a statute or ordinance is not rendered
remote as the cause of an injury by the intervention of another agency if the
occurrence of the accident, in the manner in which it happened, was the very thing
which the statute or ordinance was intended to prevent.” To consider the violation
of the ordinance as the proximate cause of the injury does not portray the
situation in its true perspective; it would be more accurate to say that the
overcrowding at the stairway was the proximate cause and that it was precisely
what the ordinance intended to prevent by requiring that there be two stairways
instead of only one. Under the doctrine of the cases cited by the respondents, the
principle of proximate cause applies to such violation.

The decision appealed from is affirmed, with costs.

Instances Wherein Injured Party’s Own Act Causes the Injury

Del Prado v. Meralco

Facts:

Teodorico Florenciano, Meralco’s motorman, was driving the company’s street car
along Hidalgo Street. Plaintiff Ignacio Del Prado ran across the street to catch the
car. The motorman eased up but did not put the car into complete stop. Plaintiff
was able to get hold of the rail and step his left foot when the car accelerated. As a
result, plaintiff slipped off and fell to the ground. His foot was crushed by the
wheel of the car. He filed a complaint for culpa contractual.

Issues:
(1) Whether the motorman was negligent
(2) Whether Meralco is liable for breach of contract of carriage
(3) Whether there was contributory negligence on the part of the plaintiff

Held:
(1) We may observe at the outset that there is no obligation on the part of a street
railway company to stop its cars to let on intending passengers at other points
than those appointed for stoppage. Nevertheless, although the motorman of this
car was not bound to stop to let the plaintiff on, it was his duty to do no act that
would have the effect of increasing the plaintiff's peril while he was attempting to
board the car. The premature acceleration of the car was, in our opinion, a breach
of this duty.

(2) The relation between a carrier of passengers for hire and its patrons is of a
contractual nature; and a failure on the part of the carrier to use due care in
carrying its passengers safely is a breach of duty (culpa contractual). Furthermore,
the duty that the carrier of passengers owes to its patrons extends to persons
boarding the cars as well as to those alighting therefrom.

Where liability arises from a mere tort (culpa aquiliana), not involving a breach of
positive obligation, an employer, or master, may exculpate himself by proving that
he had exercised due diligence to prevent the damage; whereas this defense is not
available if the liability of the master arises from a breach of contractual duty
(culpa contractual). In the case before us the company pleaded as a special
defense that it had used all the diligence of a good father of a family to prevent the
damage suffered by the plaintiff; and to establish this contention the company
introduced testimony showing that due care had been used in training and
instructing the motorman in charge of this car in his art. But this proof is irrelevant
in view of the fact that the liability involved was derived from a breach of
obligation.

(3) It is obvious that the plaintiff's negligence in attempting to board the moving
car was not the proximate cause of the injury. The direct and proximate cause of
the injury was the act of appellant's motorman in putting on the power
prematurely. Again, the situation before us is one where the negligent act of the
company's servant succeeded the negligent act of the plaintiff, and the negligence
of the company must be considered the proximate cause of the injury. The rule
here applicable seems to be analogous to, if not identical with that which is
sometimes referred to as the doctrine of "the last clear chance." In accordance
with this doctrine, 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 negligence of the
injured party. The negligence of the plaintiff was, however, contributory to the
accident and must be considered as a mitigating circumstance.
clear from the record that the accused was driving much faster than he claims he
was, or else he was negligent in not watching the street for foot passengers, or, in
the handling of his automobile. Furthermore, if he did not see the soldier until it
was too late to stop, the burden is on him to show why he did not. There is something
wrong when a chauffeur runs over a man who is in plain view of the automobile for
a long distance before the point of the accident is reached. No negligence on
the part of the injured person has been shown. Whichever way the case is looked at,
whether from the viewpoint of the failure to see the soldier in time to avoid the accident,
or failure to stop or give warning by horn or whistle, itis clear that the learned trial
court was right when it held that the accused was guilty of negligence. The
judgement appealed from is affirmed