TORTS – 1. Rakes v. Atlantic Gulf and Pacific Co.

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VOL. 7, JANUARY 23, 1907

359 360

Rakes vs. Atlantic, Gulf and Pacific Co. PHILIPPINE REPORTS ANNOTATED

[No. 1719. January 23, 1907.] Rakes vs. Atlantic, Gulf and Pacific Co.

TRACEY, J.:

M. H. RAKES, plaintiff and appellee, vs. THE ATLANTIC, GULF AND PACIFIC
COMPANY, defendant and appellant.
This is an action for damages. The plaintiff, one of a gang of eight negro
1.CIVIL LIABILITY FOR DAMAGES.—In order to enforce the liability of an laborers in the employment of the defendant, was at work transporting iron
employer for injuries to his employee, it is not necessary that a criminal action rails from a barge in the harbor to the company's yard near the Malecon in
be first prosecuted against the employer or his representative primarily Manila. Plaintiff claims that but one hand car was used in this work. The
chargeable with the accident. No criminal proceeding having been taken, the defendant has proved that there were two immediately following one another,
civil action may proceed to judgment. upon which were piled lengthwise seven rails, each weighing 560 pounds, so
that the ends of the rails projected beyond the cars both in front and behind.
2.LIABILITY OF EMPLOYER TO WORKMEN.—The responsibility of an The rails lay ujMm two crosspieces or sills secured to the cars, but without side
employer to his employee arises out of the contractual relations between them pieces or guards to prevent them from slippingoff. According to the testimony
and is regulated by article 1101 and the following articles of the Civil Code. of the plaintiff, the men were worc either in the rear of the car or at its sides.
3.FELLOW-SERVANT RULE.—The doctrine known as the "Fellow-servant According to that of the defendant, some of them were also in front, hauling by
rule," exonerating the employer where the injury was incurred through the a rope. At a certain spot at or near the water's edge the track sagged, the tie
negligence of a fellow-servant of the employee injured, is not adopted in broke, the car either canted or upset, the rails slid off and caught the plaintiff,
Philippine jurisprudence. breaking his leg, which was afterwards amputated at about the knee.

4.CONTRIBUTORY NEGLIGENCE.—The negligence of the injured person The first point for the plaintiff to establish was that the accident happened
contributing to his injury but not being one of the determining causes of the through the negligence of the defendant. The detailed description by the
principal accident, does not operate as a bar to recovery, but only in reduction defendant's witnesses of the construction and quality of the track proves that
of his damages. Each party is chargeable with damages in proportion to his it was up to the general standard of trainways of that character, the foundation
fault. consisting on land of blocks or cross-pieces of wood, 6 by 8 inches thick and
from 8 to 10 feet long, laid on the surface of the ground, upon which at a right
angle ivstnl stringers of the same thickness, but from 24 to 30 feet in length.
On and across the stringers and parallel with the blocks were the ties to which
APPEAL from a judgment of the Court of First Instance of Manila.
the tracks were fastened. After the road reached the water's edge, the blocks
The facts are stated in the opinion of the court. or crosspieces were replaced with piling, capped by timbers extending from
one side to the other. The tracks were each about 2 feet wide and the two
A. D. Gibbs, for appellant. inside rails of the parallel tracks about 18 inches apart, It was admitted that
there were 110 side pieces or guards on the car; that where the ends of the
F. G. Waite and Thomas Kepner, for appellee.
rails of the track met each other and also where the stringers joined, there
360 were no fish plates. The defendant has not effectually overcome
 TORTS – 1. Rakes v. Atlantic Gulf and Pacific Co.|2

361 The lack or the harshness of legal rules on this subject has led many countries
to enact laws designed to put these relations on a fair basis in the form of
compensation or
VOL. 7, JANUARY 23, 1907 362
361

Rakes vs. Atlantic, Gulf and Pacific Co. 362

the plaintiff's proof that the joints between the rails were immediately above PHILIPPINE REPORTS ANNOTATED
the joints between the underlying stringers.
Rakes vs. Atlantic, Gulf and Pacific Co.
The cause of the sagging of the track and the breaking of the tie, which was
the immediate occasion of the accident, is not clear in the evidence, but is liability laws or the institution of industrial insurance. In the absence of special
found by the trial court and is admitted in the briefs and in the argument to legislation we find no difficulty in so applying the general principles of our law
have been the dislodging of the crosspiece or piling under the stringer by the as to work out a just result.
water of the bay raised by a recent typhoon. The superintendent of the
company attributed it to the giving way of the block laid in the sand. No effort Article 1092 of the Civil Code provides:
was made to repair the injury at the time of the occurrence. According to "Civil obligations, arising from crimes or misdemeanors, shall be governed by
plaintiff's witnesses, a depression of the track, varying from one-half inch to the provisions of the Penal Code."
one inch and a half, was thereafter apparent to the eye, and a fellow-workman
of the plaintiff swears that the day before the accident he called the attention And article 568 of the latter code provides:
of McKenna, the foreman, to it and asked him to have it repaired. After the
"He who shall execute through reckless negligence an act that if done with
accident it was mended by simply straightening out the crosspiece, resetting
malice would constitute a grave crime, shall be punished."
the block under the stringer and renewing the tie, but otherwise leaving the
very same timbers as before. It has not been proved that the company And article 590 provides that the following shall be punished:
inspected the track after the typhoon or had any proper system of inspection.
"4. Those who by simple imprudence or negligence, without committing any
In order to charge the defendant with negligence, it was necessary to show a infraction of regulations, shall cause an injury which, had malice intervened,
breach of duty on its part in failing either to properly secure the load of iron to would have constituted a crime or misdemeanor."
the vehicles transporting it, or to skillfully build the trainway or to maintain it in
proper condition, or to vigilantly inspect and repair the roadway as soon as the And finally by articles 19 and 20, the liability of owners and employers for the
depression in it became visible. It is upon the failure of the defendant to repair faults of their servants and representatives is declared to be civil and
the weakened track, after notice of its condition, that the judge below based subsidiary in its character.
his judgment.
It is contended by the defendant, as its first defense to the action, that the
This case presents many important matters for our decision, and first among necessary conclusion from these collated laws is that the remedy for injuries
them is the standard of duty which we shall establish in our jurisprudence on through negligence lies only in a criminal action in which the official criminally
the part of employers toward employees. responsible must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff should have procured
the arrest of the representative of the company accountable for not repairing
 TORTS – 1. Rakes v. Atlantic Gulf and Pacific Co.|3

the track, and on his prosecution a suitable fine should have been imposed, As an answer to the argument urged in this particular action it may be sufficient
payable primarily by him and secondarily by his employer. to point out that nowhere in our general statutes is the employer penalized for
failure to provide or maintain safe appliances for his workmen. His obligation
This reasoning misconceived the plan of the Spanish codes upon this subject. therefore is one "not punished by the law" and falls under civil rather than
Article 1093 of the Civil Code makes obligations arising from faults or criminal jurisprudence. But the answer may be a broader one. We should be
negligence not punished by the law, subject to the provisions of Chapter II of reluctant, under any conditions, to adopt a forced construction of these
Title XVI. Section 1902 of that chapter reads: scientific codes, such as is proposed by the defendant, that would rob some
"A person who by an act or omission causes damage to another when there is of these articles of effect, would shut out litigants against their will from the civil
fault or negligence shall be obliged to repair the damage so done. courts, would make the assertion of their rights dependent upon the selection
for prosecution of the proper criminal offender, and render recovery doubtful
363 by reason of the strict rules of proof prevailing in criminal actions. Even if these
articles had always stood alone, such a construction would be unnecessary,
but clear light is thrown upon their meaning by the provisions of the Law of
VOL. 7, JANUARY 23, 1907 Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though
never in actual force in these Islands, was formerly given a suppletory or
363 explanatory effect. Under article 111 of this law, both classes of action, civil
and criminal, might be
Rakes vs. Atlantic, Gulf and Pacific Co.
364
"SEC. 1903. The obligation imposed by the preceding article is demandable,
not only for personal acts and omissions, but also for those of the persons for
whom they should be responsible.
364
"The father, and on his death or incapacity, the mother, is liable for the
damages caused by the minors who live with them. PHILIPPINE REPORTS ANNOTATED

* * * * * Rakes vs. Atlantic, Gulf and Pacific Co.

prosecuted jointly or separately, but while the penal action was pending the
civil was suspended. According to article 112, the penal action once started,
"Owners or directors of an establishment or enterprise are equally liable for the civil remedy should be sought therewith, unless it had been waived by the
the damages caused by their employees in the service of the branches in party injured or been expressly reserved by him for civil proceedings for the
which the latter may be employed or in the performance of their duties. future. If the civil action alone was prosecuted, arising out of a crime that could
be enforced only on private complaint, the penal action thereunder should be
* * * * *
extinguished. These provisions are in harmony with those of articles 23 and
133 of our Penal Code on the same subject

"The liability referred to in this article shall cease when the persons mentioned An examination of this topic might be carried much further, but the citation of
therein prove that they employed all the diligence of a good father of a family these articles suffices to show that the civil liability was not intended to be
to avoid the damage." merged in the criminal nor even to be suspended thereby, except as expressly
provided in the law. Where an individual is civilly liable for a negligent act or
omission, it is not required that the injured party should seek out a third person
 TORTS – 1. Rakes v. Atlantic Gulf and Pacific Co.|4

criminally liable whose prosecution must be a condition precedent to the consequences of a railway accident due to defective machinery supplied by
enforcement of the civil right. the employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage, while that
Under article 20 of the Penal Code the responsibility of an employer may be to the injured bystander would originate in the negligent act itself. This
regarded as subsidiary in respect of criminal actions against his employees distinction is thus clearly set forth by Manresa in his commentary on article
only while they are in process of prosecution, or in so far as they determine 1093:
the existence of the criminal act from which liability arises, and his obligation
under the civil law and its enforcement in the civil courts is not barred thereby "We see with reference to such obligations, that culpa, or negligence, may be
unless by the election of the injured person. Inasmuch as no criminal understood in two different senses; either as culpa, substantive and
proceeding had been instituted, growing out of the accident in question, the independent, which 011 account of its origin arises in an obligation between
provisions of the Penal Code can not affect this action. This construction two persons not formerly bound by any other obligation; or as an incident in
renders it unnecessary to finally determine here whether this subsidiary civil the performance of an obligation which already existed, which can not be
liability in penal actions has survived the laws that fully regulated it or has been presumed to exist without the other, and which increases the liability arising
abrogated by the American civil and criminal procedure now in force in the from the already existing obligation.
Philippines.
"Of these two species of CII?/MI the first one mentioned, existing by itself, may
The difficulty in construing the articles of the code above cited in this case be also considered as a real source of an independent obligation, and, as
appears from the briefs before us to have arisen from the interpretation of the chapter 2, title 16 of this book of the code is devoted to it, it is logical to
words of article 1093, "fault or negligence not punished by law," as applied to presume that the reference contained in article 1093 is limited thereto and that
the comprehensive definition of offenses in articles it does not extend to those provisions relating to the other species of culpa
(negligence), the nature of which we will discuss later." (Vol. 8, p. 29.)
365
And in his commentary on articles 1102 and 1104 he says

366
VOL 7, JANUARY 23, 1907

365
366
Rakes vs. Atlantic, Gulf and Pacific Co.
PHILIPPINE REPORTS ANNOTATED
568 and 590 of the Penal Code. It has been shown that the liability of an
employer arising out of his relation to his employee who is the offender is not Rakes vs. Atlantic, Gulf and Pacific Co.
to be regarded as derived from negligence punished by the law, within the
meaning of articles 1092 and 1093. More than this, however, it can not be said that these two species of negligence may be somewhat inexactly described as
to fall within the class of acts unpunished by the law, the consequences of contractual and extra-contractual, the latter being the culpa aquiliana of the
which are regulated by articles 1902 and 1903 of the Civil Code. The acts to Roman law and not entailing so strict an obligation as the former. This
which these articles are applicable are understood to be those not growing out terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil,
of preexisting duties of the parties to one another. But where relations already fourth section, Chapter XI, Article II, No. 12), and the principle stated is
formed give rise to duties, whether springing from contract or quasi contract, supported by decisions of the supreme court of Spain, among them those of
then breaches of those duties are subject to articles 1101, 1103, and 1104 of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
the same code. A typical application of this distinction may be found in the Jurisprudencia Civil, No. 182). The contract is one for hire and not one of
mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
 TORTS – 1. Rakes v. Atlantic Gulf and Pacific Co.|5

Spanish jurisprudence, prior to the adoption of the Working Men's Accident Another contention of the defense is that the injury resulted to the plaintiff as
Law of January 30, 1900, throws uncertain light on the relation between master a risk incident to his employment and, as such, one assumed by hiiu. It is
and workman. Moved by the quick industrial development of their people, the evident that this can not be the case if the occurrence was due to the failure to
courts of France early applied to the subject the principles common to the law repair the track or to duly inspect it, for the employee is not presumed to have
of both countries, which are lucidly discussed by the leading French stipulated that the employer might neglect his legal duty. Nor may it be
commentators. excused upon the ground that the negligence leading to the accident was that
of a fellow-servant of the injured man. It is not apparent to us that the
The original French theory, resting the responsibility of owners of industrial intervention of a third person can relieve the defendant from the performance
enterprises upon articles 1382, 1383, and 1384 of the Code Napoleon, of its duty nor impose upon the plaintiff the consequences of an act or omission
corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-
yielded to the principle that the true basis is the contractual obligation of the servant rule," we are not disposed to introduce into our jurisprudence. Adopted
employer and employee. (See 18 Dalloz, 1896, Title Travail, 331.) in England by Lord Abinger in the case of Prescott vs. Fowler (3 Meeson &
Later the hardships resulting from special exemptions inserted in contracts for Welsby, 1) in 1837, it has since been effectually abrogated by "the Employers'
employment led to the discovery of a third basis for liability in an article of the Liability Acts" and the "Compensation Compensation Law." The American
French Code making the possessor of any object answerable for damage States which applied it appear to be gradually getting rid of it; for instance, the
done by it while in his charge. Our law having no counterpart of this article, New York State legislature of 1906 did away with it in respect to railroad
applicable to every kind of object, we need consider neither the theory growing companies, and had in hand a scheme for its total abolition. It has never found
out of it nor that of "professional risk" more recently imposed by express place in the civil law of continental Europe. (Dalloz, vol. 30, 1858, Title
legislation, but rather adopting the interpretation of our Civil Code above given, Responsibilité, 630, and vol. 15, 1895, same title, 804. Also more recent
find a rule for this case in the contractual obligation. This contractual obligation, instances in Fuzier-Herman, Title Responsibilité Civile, 710.)
implied from the relation and perhaps so inherent in its nature to be invariable The French Cour de Cassation clearly laid down the contrary trary principle in
by the parties, binds the employer to provide safe appliances for the use of the its judgment of June 28,1841, in the case of Reygasse, and has since adhered
employee, thus closely to it.
367 The most controverted question in the case is that of the negligence of the
plaintiff, contributing to the accident, to what extent it existed in fact and what
legal effect is to be
VOL. 7, JANUARY 23, 1907
368
367

Rakes vs. Atlantic, Gulf and Pacific Co.

368
corresponding to English and American law. On these principles it was the
duty of the defendant to build and to maintain its track in reasonably sound PHILIPPINE REPORTS ANNOTATED
condition, so as to protect its workingmen from unnecessary danger. It is plain Rakes vs. Atlantic, Gulf and Pacific Co.
that in one respect or the other it failed in its duty, otherwise the accident could
not have occurred; cousequently the negligence of the defendant is given it. In two particulars is he charged with carelessness:
established.
First. That having noticed the depression in the track he continued his work;
and
 TORTS – 1. Rakes v. Atlantic Gulf and Pacific Co.|6

Second. That he walked on the ends of the ties at the side of the car instead those words of section 497, paragraph 3 of the Code of Civil Procedure were
of along the boards, either before or behind it. interpreted by the Supreme Court of the United States in the De la Rama case
(201 U. S., 303).
As to the first point, the depression in the track might indicate either a serious
or a trivial difficulty. There is nothing in the evidence to show that the plaintiff In respect of the second charge of m'gligeiur against the plaintiff, the judgment
did or could see the displaced timber underneath the sleeper. The claim that below is not so specific. While the judge remarks that the evidence does not
he must have done so is a conclusion drawn from what is assumed to have justify the finding that the car was pulled by means of a rope attached to the
been a probable condition of things not before us, rather than a fair inference front end or to the rails upon it, and further that the circumstances in evidence
from the testimony. While the method of construction may have been known make it clear that the persons necessary to operate the car could not walk
to the men who had helped build the road, it was otherwise with the plaintiff upon the plank between the rails and that, therefore, it was necessary for the
who had worked at this job less than two days. A man may easily walk along employees moving it to get hold upon it as best they could, there is no specific
a railway without perceiving a displacement of the underlying timbers. The finding upon the instruction given by the defendant to its employees to walk
foreman testified that he knew the state of the track on the day of the accident only upon the planks, nor upon the necessity of the plaintiff putting himself
and that it was then in good condition, and one Danridge, a witness for the upon the ties at the side in order to get hold upon the car. Therefore the
defendant, Working on the same job, swore that he never noticed the findings of the judge below leave the conduct of the plaintiff in walking along
depression in the track and never saw any bad place in it. The sagging of the the side of the loaded car, upon the open ties, over the depressed track, free
track this plaintiff did perceive, but that was reported in his hearing to the to our inquiry.
foreman who neither promised nor refused to repair it. His lack of caution in
continuing at his work after noticing the slight depression of the rail was not of While the plaintiff and his witnesses swear that not only were they not
so gross a nature as to constitute negligence, barring his recovery under the forbidden to proceed in this way, but were expressly directed by the foreman
severe American rule. On this point we accept the conclusion of the trial judge to do so, both the officers of the company and three of the workmen testify that
who found as facts that "the plaintiff did not know the cause of the one rail there was a general prohibition frequently made known to all the gang against
being lower than the other" and "it does not appear in this case that the plaintiff walking by the side of the car, and the foreman swears that he repeated the
knew before the accident occurred that the stringers and rails joined in the prohibition before the starting of this particular load. On this contradiction of
same place." proof we think that the preponderance is in favor of the defendant's contention
to the extent of the general order being made known to the workmen. If so, the
Were we not disposed to agree with these findings they would, nevertheless, disobedience of the plaintiff in placing himself in danger contributed in some
be binding upon us, because not "plainly and manifestly against the weight of degree to the injury as a proximate, although not as its primary cause. This
evidence," as conclusion presents sharply the question, What effect is to be given such an
act of contributory negligence? Does it defeat a recovery, according to the
369 American rule, or is it to be taken only in reduction of damages?

370
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369 370
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Rakes vs. Atlantic, Gulf and Pacific Co.

 TORTS – 1. Rakes v. Atlantic Gulf and Pacific Co.|7

While a few of the American States have adopted to a greater or less extent Rakes vs. Atlantic, Gulf and Pacific Co.
the doctrine of comparative negligence, allowing a recovery by a plaintiff
whose own act contributed to his injury, provided his negligence 'Was slight as agement of the train and engine being in conformity with proper rules of the
compared with that of the defendant, and some others have accepted the company, showed no fault on its part.
theory of proportional damages, reducing the award to a plaintiff in proportion Of the second class are the decisions of the 15th of January, the 19th of
to his responsibility for the accident, yet the overwhelming weight of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year;
adjudication establishes the principle in American jurisprudence that any and of the third class the decision of the 4th of June, 1888 (64 Jurisprudencia
negligence, however slight, on the part of the person injured which is one of Civil, No. 1), in which the breaking down of plaintiff's dam by the logs of the
the causes proximately contributing to his injury, bars his recovery. (English defendant impelled against it by the Tajo River, was held due to a freshet as a
and American Encyclopedia of law, Titles "Comparative Negligence" and fortuitous cause.
"Contributory Negligence.")
The decision of the 7th of March, 1902, 011 which stress has been laid, rested
In Grand Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the on two bases, one, that the defendant was not negligent, because expressly
Supreme Court of the United States thus authoritatively states the present rule relieved by royal order from the common obligation imposed by the police law
of law: of maintaining a guard at the road crossing; the other, because the act of the
"Although the defendant's negligence may have been the primary cause of the deceased in driving over level ground with unobstructed view in front of a train
injury complained of, yet an action for such injury can not be maintained if the running at speed, with the engine whistle blowing was the determining cause
proximate and immediate cause of the injury can be traced to the want of of the accident. It is plain that the train was doing nothing but what it had a
ordinary care and caution in the person injured; subject to this qualification, right to do and that the only fault lay with the injured man. His negligence was
which has grown up in recent years (having been first enunciated in Davies vs. not contributory, it was sole, and was of such an efficient nature that without it
Mann, 10 M. & W., 546) that the contributory negligence of the party injured no catastrophe could have happened.
will not defeat the action if it be shown that the defendant might, by the exercise On the other hand, there are many cases reported in which it seems plain that
of reasonable care and prudence, have avoided the consequences of the the plaintiff sustaining damages was not free from contributory negligence; for
injured party's negligence." instance, the decision of the 14th of December, 1894 (76 Jurisprudencia Civil,
There are many cases in the supreme court of Spain in which the defendant No. 134), in which the owner of a building was held liable for not furnishing
was exonerated, but when analyzed they prove to have been decided either protection to workmen engaged in hanging out flags, when the latter must have
upon the point that he was not negligent or that the negligence of the plaintiff perceived beforehand the danger attending the work.
was the immediate cause of the casualty or that the accident was due to casus None of those cases define the effect to be given the negligence of a plaintiff
fortuitus. Of the first class is the decision of January 26, 1887 (38 which contributed to his injury as one of its causes, though not the principal
Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a one, and we are left to seek the theory of the civil law in the practice of other
car, was thrown therefrom and killed by the shock following the backing up of countries.
the engine. It was held that the man-
In France in the case of Marquant, August 20, 1879, the cour de cassation
371 held that the carelessness of the victim did not civilly relieve the person without
whose fault the

VOL. 7, JANUARY 23, 1907 372

371
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372 VOL. 7, JANUARY 23, 1907

PHILIPPINE REPORTS ANNOTATED 373

Rakes vs. Atlantic, Gulf and Pacific Co. Rakes vs. Atlantic, Gulf and Pacific Co.

accident could not have happened, but that the contributory negligence of the share the liability equally with the person principally responsible. The principle
injured man had the effect only of reducing the damages. The same principle of proportional damages appears to be also adopted in article 51 of the S wiss
was applied in the case of Recullet, November 10, 1888, and that of Laugier Code. Even in the United States in admiralty jurisdictions, whose principles are
of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilité Civile, derived from the civil law, common fault in cases of collision have been
411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1896, Title Travail, 363, disposed of not on the ground of contributory negligence, but on that of equal
364, and vol. 15, 1895, Title Responsibilité, 193, 198). loss, the fault of the one party being offset against that of the other. (Ralli vs.
Troop, 157 U. S., 386, p. 406.)
In the Canadian Province of Quebec, which has retained for the most part the
French Civil Law, now embodied in a code following the Code Napoleon, a The damage of both being added together and the sum equally divided, a
practice in accord with that of France is laid down in many cases collected in decree is entered in favor of the vessel sustaining the greater loss against the
the annotations to article 1053 of the code edited by Beauchamps, 1904. One other for the excess of her damages over one-half of the aggregate sum. (The
of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume Manitoba, 122 U. S., 97.)
6, page 90, in which the court of King's bench, otherwise known as the court
of appeals, the highest authority in the Dominion of Canada on points of Exceptional practice appears to prevail in maritime law in other jurisdictions.
French law, held that contributory negligence did not exonerate the defendants The Spanish Code of Commerce, article 827, makes each vessel liable for its
whose fault had been the immediate cause of the accident, but entitled him to own damage when both are at fault; this provision restricted to a single class
a reduction of damages. Other similar cases in the provincial courts have been of maritime accidents, falls far short of a recognition of the principle of
overruled by appellate tribunals made up of common law judges drawn from contributory negligence as understood in American law, with which, indeed, it
other provinces, who have preferred to impose uniformly throughout the has little in common. This is plain from other articles of the same code; for
Dominion the English theory of contributory negligence. Such decisions throw instance, article 829, referring to articles 826, 827, and 828, which provides:
no light upon the doctrines of the civil law. Elsewhere we find this practice "In the cases above mentioned the civil action of the owner against the person
embodied in legislation; for instance, section 2 of article 2398 of the Code of liable for the damage is reserved, as well as the criminal liability which may
Portugal reads as follows: appear.?

"lf in the case of damage there was fault or negligence on the part of the person The rule of the common law, a hard and fast one, not adjustable with respect
injured or on the part of some one else, the indemnification shall be reduced of the faults of the parties, appears to have grown out of the original method
in the first case, and in the second case it shall be apportioned in proportion to of trial by jury, which rendered difficult a nice balancing of responsibilities and
such fault or negligence as provided in paragraphs 1 and 2 of section 2372." which demanded an inflexible standard as a safeguard against too ready
sympathy for the injured. It was assumed that an exact measure of several
And article 1304 of the Austrian Code provides that the victim who is partly concurring faults was unattainable.
chargeable with the accident shall stand his damages in proportion to his fault,
but when that proportion is incapable of ascertainment, he shall "The reason why, in cases of mutual concurring negligence, neither party can
maintain an action against the other, is, not that the wrong of the one is set off
373 against the wrong of the other; it is that the law can not measure

374
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374

PHILIPPINE REPORTS ANNOTATED VOL. 7, JANUARY 23, 1907

Rakes vs, Atlantic, Gulf and Pacific Co. 375

how much of the damage suffered is attributable to the plaintiff s own fault. If Rakes vs. Atlantic, Gulf and Pacific Co.
he were allowed to recover, it might be that he would obtain from the other
party compensation for his own misconduct." (Heil vs. Glanding, 42 Penn. St. damages—that is, the sinking of the track and the sliding of the iron rails. To
Rep., 493, 499.) this event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to himself.
"The parties being mutually in fault, there can be no apportionment of Had the crosspiece been out of place wholly or partly through his act or
damages. The law has no scales to determine in such cases whose omission of duty, that would have been one of the determining causes of the
wrongdoing weighed most in the compound that occasioned the mischief." event or accident, for which he would have been responsible. Where he
Railroad vs. Norton, 24 Penn. St. Rep., 465, 469.) contributes to the principal occurrence, as one of its determining factors, he
can not recover. Where, in conjunction with the occurrence, he contributes
Experience with jury trials in negligence cases has brought American courts of only to his own injury, he may recover the amount that the defendant
review to relax the vigor of the rule by freely exercising the power of setting responsible for the event should pay for such injury, less a sum deemed a
aside verdicts deemed excessive, through the device of granting new trials, suitable equivalent for his own imprudence.
unless reduced damages are stipulated for, amounting to a partial revision of
damages by the courts. It appears to us that the control by the court of the Accepting, though with some hesitation, the judgment of the trial court, fixing
subjectmatter may be secured on a more logical basis and its judgment the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500
adjusted with greater nicety to the merits of the litigants through the practice dollars, United States money, we deduct therefrom 2,500 pesos, the amount
of offsetting their respective responsibilities. In the civil-law system this fairly attributable to his negligence, and direct judgment to be entered in favor
desirable end is not deemed beyond the capacity of its tribunals. of the plaintiff for the resulting sum of 2,500 pesos, with costs of both
instances, and ten days hereafter let the case be remanded to the court below
Whatever may prove to be the doctrine finally adopted in Spain or in other for proper action. 80 ordered.
countries under the stress and counter stress of novel schemes of legislation,
we find the theory of damages laid down in this judgment the most consistent Arellano, C. J., Torres, and Mapa, JJ., concur.
with the history and the principles of our law in these Islands and with its logical
development. WILLARD, J., with whom concurs CARSON, J., dissenting:

Difficulty seems to be apprehended in deciding which acts of the injured party

shall be considered immediate causes of the accident. The test is simple. The knowledge which the plaintiff had in regard to the condition of the track is
Distinction must be made between the accident and the injury, between the indicated by his own evidence. He testified, among other things, as follows:
event itself, without which there could have been no accident, and those acts
of the victim not entering into it, independent of it, but contributing to his own "Q. Now, describe the best you can the character of the track that ran from the
proper hurt. For instance, the cause of the accident under review was the place where you loaded the irons from the barge up to the point where you
displacement of the crosspiece or the failure to replace it. This produced the unloaded them on the ground.—A Well, it was pretty bad character.
event giving occasion for
* * * * *
 T O R T S – 1 . R a k e s v . A t l a n t i c G u l f a n d P a c i f i c C o . | 10

"Q. And you were familiar with the track before that—its construction?—A. "Q. And the accident took place at the point where you believed it to be so
Familiar with what? dangerous?—A. Yes, sir.

"Q. Well, you have described it here to the court—A. Oh, yes; I knew the "Q. But you knew it was dangerous?—A. Why certainly, anybody could see it;
condition of the track. but a workingman had to work in those days or get arrested for a vag here in
Manila."
376
The court below, while it found that the plaintiff knew in a general way of the
bad condition of the track, found that he was not informed of the exact cause
376 of the accident, namely, the washing away of the large crosspiece laid upon
the ground or placed upon the posts as the foundation upon which the stringers
PHILIPPINE REPORTS ANNOTATED rested. This finding of fact to my mind is plainly and manifestly against the
weight of the evidence. Ellis, a witness for the plaintiff, testified that on the
Rakes vs. Atlantic, Gulf and Pacific Co.
morning of the accident he called the attention of McKenna, the foreman, to
"Q. You knew its condition as you have described it here at the time you were the defective condition of the track at this precise point where the accident
working around there?—A. Yes, sir. happened. His testimony in part is as f ollows:

* * * * * "A. I called Mr. McKenna. I showed him the track and told him I didn't think it
was safe working, and that if he

377
"Q. And while operating it from the side it was necessary for you to step from
board to board on the cross-ties which extended out over the stringers?—A.
Yes, sir.
VOL. 7, JANUARY 23, 1907
"Q. And these were of very irregular shape, were they not?—A. They were in
377
pretty bad condition.
Rakes vs. Atlantic, Gulf and Pacific Co.
* * * * *
didn't fix it he was liable to have an accident; I told him I thought if he put fish
plates on it it would hold it. He said, you keep on fishing around here for fish
"Q. And it was not safe to walk along on the outside of these crosspieces?— plates and you will be fishing for another job the first thing you know.' He says,
A. It was safe if the car stayed on the track. We didn't try to hold the load on. 'You see too much.'
We tried to hold the car back, keep it from going too fast, because we knew
* * * * *
the track was in bad condition just here, and going down too fast we would be
liable to run off most any time.

"Q. You knew the track was in bad condition when you got hold?—A. Sure, it "Q. Who else was present at the time you had this conversation with Mr.
was in bad condition. McKenna?—A. Well, at that conversation as far as I can remember, we were
all walking down the track and I know that McCoy and Mr. Rakes was along at
* * * * *
 T O R T S – 1 . R a k e s v . A t l a n t i c G u l f a n d P a c i f i c C o . | 11

the time. I remember them two, but we were all walking down the track in a not laid upon the ground but were placed upon posts driven into the ground,
bunch, but I disremember them. the height of the posts at this particular place being, according to the testimony
of the plaintiff's witnesses, from a foot to two feet and a half As has been said,
* * * * * Ellis testified that the reason why they did not put the 8 by 8 back in its place
was because that would have required the raising up of the track and digging
out along this upright piece and then putting it up again.
"Q. Was that the exact language that you used, that you wanted. some fish
plates put on?—A. No, sir; I told him look at that track. I says get some fish It conclusively appears from the evidence that the plaintiff, before the accident
plates. I says if there was any fish plates we would fix that. happened, knew the exact condition of the track and was informed and knew
of the defect which caused -the accident. There was no promise on the part of
"Q. What did the fish plates have to do with that?—A. It would have McKenna to repair the track.
strengthened that joint.
Under the circumstances the plaintiff was negligent in placing himself on the
"Q. Why didn't you put the 8 by 8 which was washed crossways in place?—A. side of the car where he knew that he would be injured by the falling of the
That would have taken the raising of the track and digging out along this rails from the car when they reached this point in the track where the two
upright piece and then putting it up again." stringers were left without any support at their ends. He either should have
refused to work at all or he should have placed himself behind the car, on the
The plaintiff himself testified that he was present with Ellis at the time this
other side of it, or in front of it, drawing it with a rope. He was guilty of
conversation was had with McKenna. It thus appears that on the morning in
contributory negligence and is not entitled to recover.
question the plaintiff and McKenna were standing directly over the place where
the accident happened later in the day. The accident was caused, as the court It is said, however, that contributory negligence on the part of the plaintiff in a
below found, by the washing away or displacement of the large 8 by 8 piece case like this is no defense under the law in force in these Islands. To this
of timber. This track was constructed as all other tracks are, all of it open work, proposition I can not agree. The liability of the defendant is based in the
with no floor over the ties, and of course anyone standing on the track at a majority opinion upon articles 1101 and 1103 of the Civil Code.
particular place could see the ground and the entire construction of the road,
including these large 8 by 8 pieces, the long stringers placed thereon, the ties In order to impose such liability upon the defendant, it must appear that its
placed on these stringers, and the rails placed on the ties. The plaintiff himself negligence caused the accident. The reason why contributory negligence on
must have seen that this 8 by 8 piece of timber was out of place. the part of the plaintiff is a defense in this class of cases is that the negligence
of the defendant did not alone cause the accident, If nothing but that
378 negligence had existed, the

379
378

PHILIPPINE REPORTS ANNOTATED VOL. 7, JANUARY 23, 1907

Rakes vs. Atlantic, Gulf and Pacific Co. 379
If the testimony of the plaintiff's witnesses is to be believed, the displacement Rakes vs. Atlantic, Gulf and Pacific Co.
was more markedly apparent even than it would appear from the testimony of
the defendant's witnesses. According to the plaintiff's witnesses, the water at accident would not have happened and, as I understand it, in every case in
high tide reached the place in question and these 8 by 8 pieces were therefore which contributory negligence is a defense it is made so because the
 T O R T S – 1 . R a k e s v . A t l a n t i c G u l f a n d P a c i f i c C o . | 12

negligence of the plaintiff is the cause of the accident, to this extent, that if the if the injury caused should not be the result of acts or omissions of a third party,
plaintiff had not been negligent the accident would not have happened, the latter has no obligation to repair the same, even though such acts or
although the defendant was also negligent. In other words, the negligence of omissions were imprudent or unlawful, and much less when it is shown that
the defendant is not alone sufficient to cause the accident. It requires also the the immediate cause of the injury was the negligence of the injured party
negligence of the plaintiff. himself.

There is, so far as I know, nothing in the Civil Code relating to contributory "For the reasons above stated, and the court below having found that the death
negligence. The rule of the Roman law was: "Quod quis ex culpa sua damnum of the deceased was due to his own imprudence, and not therefore due -to the
sentit, non intelligitur damnum sentire." (Digest, book 50, tit. 17, rule 203.) absence of a guard at the grade crossing where the accident occurred, it
seems clear that that court in acquitting the railroad company of the complaint
The Partidas contain the following provisions: filed by the widow did not violate the provisions of the aforesaid article of the
"The just thing is that a man should suffer the damage which comes to him Civil Code.
through his own fault, and that he can not demand reparation therefor from "For the same reason, although the authority granted to the railroad company
another." (Law 25, tit. 5, partida 3 3.) to open the grade crossing without a special guard was nullified by the
"And they even said that when a man received an injury through his own subsequent promulgation of the railroad police law and the regulations for the
negligence, he should blame himself for it." (Rule 22, tit. 34, partida 7.) execution of the same, the result would be identieal, leaving one of the grounds
upon which the judgment of acquittal is based, to wit, that the accident was
"According to ancient sages, when a man received an injury through his own caused by the imprudence of the injured party himself, unaffected."
acts, the grievance should be against himself and not against another." ( Law
2, tit. 7, partida 2.) It appears that the accident in this case took place at a grade crossing where,
according to the claim of the plaintiff, it was the duty of the railroad company
In several cases in the supreme court of Spain the fact has been mentioned to maintain a guard. It did not do so, and the plaintiff's deceased husband was
that the plaintiff was himself guilty of negligence, as in the civil judgments of injured by a train at this crossing, his negligence contributing to the injury
the 4th of June, 1888, and of the 20th of February, 1897, and in the criminal according to the ruling of the court below. This judgment, then, amounts to a
judgments of the 20th of February 1888, the 9th of March, 1876, and the 6th holding that contributory negligence is a defense according to the law of Spain.
of October, 1882. These cases do not throw much light upon the subject. The (See also judgment of the 21st of October, 1903, vol. 96, p. 400,
judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however, Jurisprudencia Civil)
directly in point. In that case the supreme court of Spain said:
Although in the Civil Code there is no express provision upon the subject, in
"According to the doctrine expressed in article 1902 of the Civil Code, fault or the Code of Commerce there is found a distinct declaration upon it in reference
negligence is a source of obligation when between such negligence and the to damages caused by collisions at sea. Article 827 of the Code of Commerce
injury thereby caused there exists the relation of cause and effect; but is as follows:
380 "If both vessels may be blamed for the collision, each one shall be liable for
his own damages, and both shall be jointly responsible for the loss and
damage suffered by their cargoes."
380
381
PHILIPPINE REPORTS ANNOTATED

Rakes vs. Atlantic, Gulf and Pacific Co.

 T O R T S – 1 . R a k e s v . A t l a n t i c G u l f a n d P a c i f i c C o . | 13

VOL. 7, JANUARY 23, 1907

381

Badger vs. New York Life Insurance Co.

That article is an express recognition of the fact that in collision cases

contributory negligence is a defense.

I do not think that this court is justified in vu*\v of the Roman law, of the
provisions of the I'ttrtMnH, of the judgment of March 7, 1902, of article 827 of
the Code of Commerce, and in the absemr of any declaration upon the subject
in the Civil Code, in saying that it was the intention of the legislature of Spain
to adopt for the Civil Code the rule announced in the majority opinion, a rule
diametrically opposed to that put in force by the Code of Commerce.

The chief, if not the only, reason stated in the opinion for adopting the rule that
contributory negligence is not a defense seems to be that such is the holding
of the later French decisions.

As to whether, if any liability existed in this case, it would be secondary in

accordance with the provisions of the Penal Code, or primary, in accordance
with the provisions of the Civil Code, I express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the
complaint.

Judgment modified.

___________

© Copyright 2016 Central Book Supply, Inc. All rights reserved. Rakes vs.
Atlantic, Gulf and Pacific Co., 7 Phil., 359, No. 1719 January 23, 1907