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.
(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
(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.