JOSE CANGCO, 

plaintiff-appellant, vs. MANILA RAILROAD platform. His statement that he failed to see these objects in the darkness is
CO., defendant-appellee. readily to be credited.

FISHER, J.: The plaintiff was drawn from under the car in an unconscious condition, and
it appeared that the injuries which he had received were very serious. He
At the time of the occurrence which gave rise to this litigation the plaintiff, was therefore brought at once to a certain hospital in the city of Manila where
Jose Cangco, was in the employment of Manila Railroad Company in the an examination was made and his arm was amputated. The result of this
capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San operation was unsatisfactory, and the plaintiff was then carried to another
Mateo, in the province of Rizal, which is located upon the line of the hospital where a second operation was performed and the member was
defendant railroad company; and in coming daily by train to the company's again amputated higher up near the shoulder. It appears in evidence that the
office in the city of Manila where he worked, he used a pass, supplied by the plaintiff expended the sum of P790.25 in the form of medical and surgical
company, which entitled him to ride upon the company's trains free of fees and for other expenses in connection with the process of his curation.
charge. Upon the occasion in question, January 20, 1915, the plaintiff arose
from his seat in the second class-car where he was riding and, making, his Upon August 31, 1915, he instituted this proceeding in the Court of First
exit through the door, took his position upon the steps of the coach, seizing Instance of the city of Manila to recover damages of the defendant company,
the upright guardrail with his right hand for support. founding his action upon the negligence of the servants and employees of
the defendant in placing the sacks of melons upon the platform and leaving
On the side of the train where passengers alight at the San Mateo station them so placed as to be a menace to the security of passenger alighting from
there is a cement platform which begins to rise with a moderate gradient the company's trains. At the hearing in the Court of First Instance, his Honor,
some distance away from the company's office and extends along in front of the trial judge, found the facts substantially as above stated, and drew
said office for a distance sufficient to cover the length of several coaches. As therefrom his conclusion to the effect that, although negligence was
the train slowed down another passenger, named Emilio Zuñiga, also an attributable to the defendant by reason of the fact that the sacks of melons
employee of the railroad company, got off the same car, alighting safely at were so placed as to obstruct passengers passing to and from the cars,
the point where the platform begins to rise from the level of the ground. nevertheless, the plaintiff himself had failed to use due caution in alighting
When the train had proceeded a little farther the plaintiff Jose Cangco from the coach and was therefore precluded form recovering. Judgment was
stepped off also, but one or both of his feet came in contact with a sack of accordingly entered in favor of the defendant company, and the plaintiff
watermelons with the result that his feet slipped from under him and he fell appealed.
violently on the platform. His body at once rolled from the platform and was
drawn under the moving car, where his right arm was badly crushed and It can not be doubted that the employees of the railroad company were guilty
lacerated. It appears that after the plaintiff alighted from the train the car of negligence in piling these sacks on the platform in the manner above
moved forward possibly six meters before it came to a full stop. stated; that their presence caused the plaintiff to fall as he alighted from the
train; and that they therefore constituted an effective legal cause of the
The accident occurred between 7 and 8 o'clock on a dark night, and as the injuries sustained by the plaintiff. It necessarily follows that the defendant
railroad station was lighted dimly by a single light located some distance company is liable for the damage thereby occasioned unless recovery is
away, objects on the platform where the accident occurred were difficult to barred by the plaintiff's own contributory negligence. In resolving this problem
discern especially to a person emerging from a lighted car. it is necessary that each of these conceptions of liability, to-wit, the primary
responsibility of the defendant company and the contributory negligence of
the plaintiff should be separately examined.
The explanation of the presence of a sack of melons on the platform where
the plaintiff alighted is found in the fact that it was the customary season for
harvesting these melons and a large lot had been brought to the station for It is important to note that the foundation of the legal liability of the defendant
the shipment to the market. They were contained in numerous sacks which is the contract of carriage, and that the obligation to respond for the damage
has been piled on the platform in a row one upon another. The testimony which plaintiff has suffered arises, if at all, from the breach of that contract by
shows that this row of sacks was so placed of melons and the edge of reason of the failure of defendant to exercise due care in its performance.
platform; and it is clear that the fall of the plaintiff was due to the fact that his That is to say, its liability is direct and immediate, differing essentially, in legal
foot alighted upon one of these melons at the moment he stepped upon the viewpoint from that presumptive responsibility for the negligence of its
servants, imposed by article 1903 of the Civil Code, which can be rebutted by
proof of the exercise of due care in their selection and supervision. Article servant, he is not liable for the acts of the latter, whatever done within the
1903 of the Civil Code is not applicable to obligations arising ex contractu, scope of his employment or not, if the damage done by the servant does not
but only to extra-contractual obligations — or to use the technical form of amount to a breach of the contract between the master and the person
expression, that article relates only to culpa aquiliana and not to culpa injured.
contractual.
It is not accurate to say that proof of diligence and care in the selection and
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of control of the servant relieves the master from liability for the latter's acts —
the Civil Code, clearly points out this distinction, which was also recognized on the contrary, that proof shows that the responsibility has never existed. As
by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific Manresa says (vol. 8, p. 68) the liability arising from extra-
Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly contractual culpa  is always based upon a voluntary act or omission which,
points out the difference between "culpa, substantive and independent, which without willful intent, but by mere negligence or inattention, has caused
of itself constitutes the source of an obligation between persons not formerly damage to another. A master who exercises all possible care in the selection
connected by any legal tie" and culpa  considered as an accident in the of his servant, taking into consideration the qualifications they should
performance of an obligation already existing . . . ." possess for the discharge of the duties which it is his purpose to confide to
them, and directs them with equal diligence, thereby performs his duty to
In the Rakes case (supra) the decision of this court was made to rest third persons to whom he is bound by no contractual ties, and he incurs no
squarely upon the proposition that article 1903 of the Civil Code is not liability whatever if, by reason of the negligence of his servants, even within
applicable to acts of negligence which constitute the breach of a contract. the scope of their employment, such third person suffer damage. True it is
that under article 1903 of the Civil Code the law creates a presumption that
he has been negligent in the selection or direction of his servant, but the
Upon this point the Court said:
presumption is rebuttable and yield to proof of due care and diligence in this
respect.
The acts to which these articles [1902 and 1903 of the Civil Code]
are applicable are understood to be those not growing out of pre-
The supreme court of Porto Rico, in interpreting identical provisions, as found
existing duties of the parties to one another. But where relations
in the Porto Rico Code, has held that these articles are applicable to cases of
already formed give rise to duties, whether springing from contract or
extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico
quasi-contract, then breaches of those duties are subject to article
Reports, 215.)
1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf
and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction was again made patent by this Court in its decision in the
case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an
This distinction is of the utmost importance. The liability, which, under the
action brought upon the theory of the extra-contractual liability of the
Spanish law, is, in certain cases imposed upon employers with respect to
defendant to respond for the damage caused by the carelessness of his
damages occasioned by the negligence of their employees to persons to
employee while acting within the scope of his employment. The Court, after
whom they are not bound by contract, is not based, as in the English
citing the last paragraph of article 1903 of the Civil Code, said:
Common Law, upon the principle of respondeat superior — if it were, the
master would be liable in every case and unconditionally — but upon the
principle announced in article 1902 of the Civil Code, which imposes upon all From this article two things are apparent: (1) That when an injury is
persons who by their fault or negligence, do injury to another, the obligation caused by the negligence of a servant or employee there instantly
of making good the damage caused. One who places a powerful automobile arises a presumption of law that there was negligence on the part of
in the hands of a servant whom he knows to be ignorant of the method of the master or employer either in selection of the servant or
managing such a vehicle, is himself guilty of an act of negligence which employee, or in supervision over him after the selection, or both; and
makes him liable for all the consequences of his imprudence. The obligation (2) that that presumption is  juris tantum and not juris et de jure, and
to make good the damage arises at the very instant that the unskillful consequently, may be rebutted. It follows necessarily that if the
servant, while acting within the scope of his employment causes the injury. employer shows to the satisfaction of the court that in selection and
The liability of the master is personal and direct. But, if the master has not supervision he has exercised the care and diligence of a good father
been guilty of any negligence whatever in the selection and direction of the of a family, the presumption is overcome and he is relieved from
liability.
 This theory bases the responsibility of the master ultimately on responsibility for the negligence of those person who acts or mission are
his own negligence and not on that of his servant. This is the notable imputable, by a legal fiction, to others who are in a position to exercise an
peculiarity of the Spanish law of negligence. It is, of course, in absolute or limited control over them. The legislature which adopted our Civil
striking contrast to the American doctrine that, in relations with Code has elected to limit extra-contractual liability — with certain well-defined
strangers, the negligence of the servant in conclusively the exceptions — to cases in which moral culpability can be directly imputed to
negligence of the master. the persons to be charged. This moral responsibility may consist in having
failed to exercise due care in the selection and control of one's agents or
The opinion there expressed by this Court, to the effect that in case of extra- servants, or in the control of persons who, by reason of their status, occupy a
contractual culpa  based upon negligence, it is necessary that there shall position of dependency with respect to the person made liable for their
have been some fault attributable to the defendant personally, and that the conduct.
last paragraph of article 1903 merely establishes a rebuttable presumption, is
in complete accord with the authoritative opinion of Manresa, who says (vol. The position of a natural or juridical person who has undertaken by contract
12, p. 611) that the liability created by article 1903 is imposed by reason of to render service to another, is wholly different from that to which article 1903
the breach of the duties inherent in the special relations of authority or relates. When the sources of the obligation upon which plaintiff's cause of
superiority existing between the person called upon to repair the damage and action depends is a negligent act or omission, the burden of proof rests upon
the one who, by his act or omission, was the cause of it. plaintiff to prove the negligence — if he does not his action fails. But when
the facts averred show a contractual undertaking by defendant for the benefit
On the other hand, the liability of masters and employers for the negligent of plaintiff, and it is alleged that plaintiff has failed or refused to perform the
acts or omissions of their servants or agents, when such acts or omissions contract, it is not necessary for plaintiff to specify in his pleadings whether the
cause damages which amount to the breach of a contact, is not based upon breach of the contract is due to willful fault or to negligence on the part of the
a mere presumption of the master's negligence in their selection or control, defendant, or of his servants or agents. Proof of the contract and of its
and proof of exercise of the utmost diligence and care in this regard does not nonperformance is sufficient prima facie  to warrant a recovery.
relieve the master of his liability for the breach of his contract.
As a general rule . . . it is logical that in case of extra-contractual
Every legal obligation must of necessity be extra-contractual or contractual. culpa, a suing creditor should assume the burden of proof of its
Extra-contractual obligation has its source in the breach or omission of those existence, as the only fact upon which his action is based; while on
mutual duties which civilized society imposes upon it members, or which the contrary, in a case of negligence which presupposes the
arise from these relations, other than contractual, of certain members of existence of a contractual obligation, if the creditor shows that it
society to others, generally embraced in the concept of status. The legal exists and that it has been broken, it is not necessary for him to
rights of each member of society constitute the measure of the prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
corresponding legal duties, mainly negative in character, which the existence
of those rights imposes upon all other members of society. The breach of As it is not necessary for the plaintiff in an action for the breach of a contract
these general duties whether due to willful intent or to mere inattention, if to show that the breach was due to the negligent conduct of defendant or of
productive of injury, give rise to an obligation to indemnify the injured party. his servants, even though such be in fact the actual cause of the breach, it is
The fundamental distinction between obligations of this character and those obvious that proof on the part of defendant that the negligence or omission of
which arise from contract, rests upon the fact that in cases of non-contractual his servants or agents caused the breach of the contract would not constitute
obligation it is the wrongful or negligent act or omission itself which creates a defense to the action. If the negligence of servants or agents could be
the vinculum juris, whereas in contractual relations the vinculum exists invoked as a means of discharging the liability arising from contract, the
independently of the breach of the voluntary duty assumed by the parties anomalous result would be that person acting through the medium of agents
when entering into the contractual relation. or servants in the performance of their contracts, would be in a better
position than those acting in person. If one delivers a valuable watch to
With respect to extra-contractual obligation arising from negligence, whether watchmaker who contract to repair it, and the bailee, by a personal negligent
of act or omission, it is competent for the legislature to elect — and our act causes its destruction, he is unquestionably liable. Would it be logical to
Legislature has so elected — whom such an obligation is imposed is morally free him from his liability for the breach of his contract, which involves the
culpable, or, on the contrary, for reasons of public policy, to extend that duty to exercise due care in the preservation of the watch, if he shows that it
liability, without regard to the lack of moral culpability, so as to include was his servant whose negligence caused the injury? If such a theory could
be accepted, juridical persons would enjoy practically complete immunity the plaintiff . . . we do not think that the provisions of articles 1902 and 1903
from damages arising from the breach of their contracts if caused by are applicable to the case."
negligent acts as such juridical persons can of necessity only act through
agents or servants, and it would no doubt be true in most instances that In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued
reasonable care had been taken in selection and direction of such servants. the defendant to recover damages for the personal injuries caused by the
If one delivers securities to a banking corporation as collateral, and they are negligence of defendant's chauffeur while driving defendant's automobile in
lost by reason of the negligence of some clerk employed by the bank, would which defendant was riding at the time. The court found that the damages
it be just and reasonable to permit the bank to relieve itself of liability for the were caused by the negligence of the driver of the automobile, but held that
breach of its contract to return the collateral upon the payment of the debt by the master was not liable, although he was present at the time, saying:
proving that due care had been exercised in the selection and direction of the
clerk? . . . unless the negligent acts of the driver are continued for a length
of time as to give the owner a reasonable opportunity to observe
This distinction between culpa aquiliana, as the source  of an obligation, them and to direct the driver to desist therefrom. . . . The act
and culpa contractual  as a mere incident to the performance of a contract complained of must be continued in the presence of the owner for
has frequently been recognized by the supreme court of Spain. such length of time that the owner by his acquiescence, makes the
(Sentencias  of June 27, 1894; November 20, 1896; and December 13, driver's acts his own.
1896.) In the decisions of November 20, 1896, it appeared that plaintiff's
action arose ex contractu, but that defendant sought to avail himself of the In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage &
provisions of article 1902 of the Civil Code as a defense. The Spanish Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion as
Supreme Court rejected defendant's contention, saying: to the liability of the defendant upon article 1903, although the facts disclosed
that the injury complaint of by plaintiff constituted a breach of the duty to him
These are not cases of injury caused, without any pre-existing arising out of the contract of transportation. The express ground of the
obligation, by fault or negligence, such as those to which article 1902 decision in this case was that article 1903, in dealing with the liability of a
of the Civil Code relates, but of damages caused by the defendant's master for the negligent acts of his servants "makes the distinction between
failure to carry out the undertakings imposed by the contracts . . . . private individuals and public enterprise;" that as to the latter the law creates
a rebuttable presumption of negligence in the selection or direction of
A brief review of the earlier decision of this court involving the liability of servants; and that in the particular case the presumption of negligence had
employers for damage done by the negligent acts of their servants will show not been overcome.
that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for It is evident, therefore that in its decision Yamada case, the court treated
damages for breach of contract. plaintiff's action as though founded in tort rather than as based upon the
breach of the contract of carriage, and an examination of the pleadings and
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the of the briefs shows that the questions of law were in fact discussed upon this
owner of a carriage was not liable for the damages caused by the negligence theory. Viewed from the standpoint of the defendant the practical result must
of his driver. In that case the court commented on the fact that no evidence have been the same in any event. The proof disclosed beyond doubt that the
had been adduced in the trial court that the defendant had been negligent in defendant's servant was grossly negligent and that his negligence was the
the employment of the driver, or that he had any knowledge of his lack of skill proximate cause of plaintiff's injury. It also affirmatively appeared that
or carefulness. defendant had been guilty of negligence in its failure to exercise proper
discretion in the direction of the servant. Defendant was, therefore, liable for
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. the injury suffered by plaintiff, whether the breach of the duty were to be
Rep., 215), the plaintiff sued the defendant for damages caused by the loss regarded as constituting culpa aquiliana  or culpa contractual. As Manresa
of a barge belonging to plaintiff which was allowed to get adrift by the points out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in
negligence of defendant's servants in the course of the performance of a the course of the performance of a contractual undertaking or its itself the
contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if source of an extra-contractual undertaking obligation, its essential
the "obligation of the defendant grew out of a contract made between it and characteristics are identical. There is always an act or omission productive of
damage due to carelessness or inattention on the part of the defendant.
Consequently, when the court holds that a defendant is liable in damages for moving train. We are not disposed to subscribe to this doctrine in its absolute
having failed to exercise due care, either directly, or in failing to exercise form. We are of the opinion that this proposition is too badly stated and is at
proper care in the selection and direction of his servants, the practical result variance with the experience of every-day life. In this particular instance, that
is identical in either case. Therefore, it follows that it is not to be inferred, the train was barely moving when plaintiff alighted is shown conclusively by
because the court held in the Yamada case that defendant was liable for the the fact that it came to stop within six meters from the place where he
damages negligently caused by its servants to a person to whom it was stepped from it. Thousands of person alight from trains under these
bound by contract, and made reference to the fact that the defendant was conditions every day of the year, and sustain no injury where the company
negligent in the selection and control of its servants, that in such a case the has kept its platform free from dangerous obstructions. There is no reason to
court would have held that it would have been a good defense to the action, believe that plaintiff would have suffered any injury whatever in alighting as
if presented squarely upon the theory of the breach of the contract, for he did had it not been for defendant's negligent failure to perform its duty to
defendant to have proved that it did in fact exercise care in the selection and provide a safe alighting place.
control of the servant.
We are of the opinion that the correct doctrine relating to this subject is that
The true explanation of such cases is to be found by directing the attention to expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
the relative spheres of contractual and extra-contractual obligations. The field
of non- contractual obligation is much more broader than that of contractual The test by which to determine whether the passenger has been
obligations, comprising, as it does, the whole extent of juridical human guilty of negligence in attempting to alight from a moving railway
relations. These two fields, figuratively speaking, concentric; that is to say, train, is that of ordinary or reasonable care. It is to be considered
the mere fact that a person is bound to another by contract does not relieve whether an ordinarily prudent person, of the age, sex and condition
him from extra-contractual liability to such person. When such a contractual of the passenger, would have acted as the passenger acted under
relation exists the obligor may break the contract under such conditions that the circumstances disclosed by the evidence. This care has been
the same act which constitutes the source of an extra-contractual obligation defined to be, not the care which may or should be used by the
had no contract existed between the parties. prudent man generally, but the care which a man of ordinary
prudence would use under similar circumstances, to avoid injury."
The contract of defendant to transport plaintiff carried with it, by implication, (Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
the duty to carry him in safety and to provide safe means of entering and
leaving its trains (civil code, article 1258). That duty, being contractual, was Or, it we prefer to adopt the mode of exposition used by this court in
direct and immediate, and its non-performance could not be excused by Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this; Was
proof that the fault was morally imputable to defendant's servants. there anything in the circumstances surrounding the plaintiff at the time he
alighted from the train which would have admonished a person of average
The railroad company's defense involves the assumption that even granting prudence that to get off the train under the conditions then existing was
that the negligent conduct of its servants in placing an obstruction upon the dangerous? If so, the plaintiff should have desisted from alighting; and his
platform was a breach of its contractual obligation to maintain safe means of failure so to desist was contributory negligence.1awph!l.net
approaching and leaving its trains, the direct and proximate cause of the
injury suffered by plaintiff was his own contributory negligence in failing to As the case now before us presents itself, the only fact from which a
wait until the train had come to a complete stop before alighting. Under the conclusion can be drawn to the effect that plaintiff was guilty of contributory
doctrine of comparative negligence announced in the Rakes case (supra), if negligence is that he stepped off the car without being able to discern clearly
the accident was caused by plaintiff's own negligence, no liability is imposed the condition of the platform and while the train was yet slowly moving. In
upon defendant's negligence and plaintiff's negligence merely contributed to considering the situation thus presented, it should not be overlooked that the
his injury, the damages should be apportioned. It is, therefore, important to plaintiff was, as we find, ignorant of the fact that the obstruction which was
ascertain if defendant was in fact guilty of negligence. caused by the sacks of melons piled on the platform existed; and as the
defendant was bound by reason of its duty as a public carrier to afford to its
It may be admitted that had plaintiff waited until the train had come to a full passengers facilities for safe egress from its trains, the plaintiff had a right to
stop before alighting, the particular injury suffered by him could not have assume, in the absence of some circumstance to warn him to the contrary,
occurred. Defendant contends, and cites many authorities in support of the that the platform was clear. The place, as we have already stated, was dark,
contention, that it is negligence per se  for a passenger to alight from a or dimly lighted, and this also is proof of a failure upon the part of the
defendant in the performance of a duty owing by it to the plaintiff; for if it were
by any possibility concede that it had right to pile these sacks in the path of
alighting passengers, the placing of them adequately so that their presence
would be revealed.

As pertinent to the question of contributory negligence on the part of the

plaintiff in this case the following circumstances are to be noted: The
company's platform was constructed upon a level higher than that of the
roadbed and the surrounding ground. The distance from the steps of the car
to the spot where the alighting passenger would place his feet on the
platform was thus reduced, thereby decreasing the risk incident to stepping
off. The nature of the platform, constructed as it was of cement material, also
assured to the passenger a stable and even surface on which to alight.
Furthermore, the plaintiff was possessed of the vigor and agility of young
manhood, and it was by no means so risky for him to get off while the train
was yet moving as the same act would have been in an aged or feeble
person. In determining the question of contributory negligence in performing
such act — that is to say, whether the passenger acted prudently or
recklessly — the age, sex, and physical condition of the passenger are
circumstances necessarily affecting the safety of the passenger, and should
be considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as the
nature of their wearing apparel obstructs the free movement of the limbs.
Again, it may be noted that the place was perfectly familiar to the plaintiff as it
was his daily custom to get on and of the train at this station. There could,
therefore, be no uncertainty in his mind with regard either to the length of the
step which he was required to take or the character of the platform where he
was alighting. Our conclusion is that the conduct of the plaintiff in undertaking
to alight while the train was yet slightly under way was not characterized by
imprudence and that therefore he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning
P25 a month as a copyist clerk, and that the injuries he has suffered have
permanently disabled him from continuing that employment. Defendant has
not shown that any other gainful occupation is open to plaintiff. His
expectancy of life, according to the standard mortality tables, is
approximately thirty-three years. We are of the opinion that a fair
compensation for the damage suffered by him for his permanent disability is
the sum of P2,500, and that he is also entitled to recover of defendant the
additional sum of P790.25 for medical attention, hospital services, and other
incidental expenditures connected with the treatment of his injuries. The
decision of lower court is reversed, and judgment is hereby rendered plaintiff
for the sum of P3,290.25, and for the costs of both instances. So ordered.