Mr. Justice Wolf
delivered the opinion of the court.
The record tends to show that Carlos Aguado y Vidal met his death in a state of intoxication; that while entirely under the influence of liquor he was lying on the ground with his legs across one of the rails on the right of way of the electric tramway known as the Porto Rico Railway, Light and Power Company, the defendant in this case; that he was killed by a car of the defendant company while his legs were so lying across the track. There was no evidence tending to show that the spot where the accident occurred was frequented by the public. On the contrary, the evidence tended to show that the place in question at the time of the accident formed no part of the public street by custom, dedication or otherwise; that there was no crossing at the spot in question and the public had no particular occasion to cross the track there, and that there were few houses in that particular neighborhood. In short, [708]*708it was a place where there was no reason to apprehend the presence of a person on the track. At a very short distance before reaching the spot of the accident the street crosses a canseway or embankment, curves and then goes in a slight ascent for a short number of meters. The court found that, after rounding the Curve, the motorman, had he been vigilant, could have seen the legs of the deceased thirty or thirty-five mdters ahead of the place of collision and in time to have stopped the car.
We may say that there was some evidence tending to show that at the date of the accident, differentiated from the date of the trial, a pile of stones somewhat obstructed the Anew of the motorman. The record shows that some, photographs of the spot were taken contemporaneously with the accident and admitted in evidence. An exception was reserved to the admission of these photographs. Nevertheless, they form no part of the evidence transcribed.
The court found, in substance, that defendant was guilty of negligence in failing to keep a lookout but that the complainant could not recover because the deceased was guilty of contributory negligence. The appellant has invoked the doctrine of the last clear chance. The court also' found that the motorman did not actually discover the peril of the deceased until within five meters of the place of the accident. This distance, under the evidence in this case, was unmistakably too short to stop the ear in time.
We shall discuss the doctrine of the last clear chance because it has figured prominently in our consideration and its non-applicability is decisive of the case.
The appellee insists that the doctrine of the last clear chance is only applicable where the peril of a person killed or injured is actually discovered in time to avert the accident, and a majority of the court has been inclined to agree. We do not find it necessary definitely to decide the question. The appellee drew attention to Chunn v. The City [709]*709& Suburban Railway of Washington, 207 U. S. 302. That was a case appealed from the Court of Appeals of the District of Columhia. In that jurisdiction the doctrine of the last clear chance is applicable, not only where the peril of the injured person is actually discovered, but also where, in the exercise of due care, the defendant could have discovered the peril. Washington R. & C. Co. v. Cullember, 39 App. D. C. 324.
In this last-named case the court also insists that there was nothing in the decision of the Supreme Court of the United States in the Ghunn Case, supra, excluding the possibility of the wider extension of the doctrine as. applied by the said Court of Appeals of the District of Columhia. Indeed, while a number of courts, and especially the Federal courts, make actual discovery of peril a condition precedent to the application of the doctrine, there are many others courts and perhaps the greater number of them that will permit a recovery where the defendant in the exercise of due care should have discovered the peril. Bourrett v. Chicago & N. W. R. Co., 36 L. R. A. (N. S.) 957, and citations; 36 Cyc. 1565 et seq.
The forerunner of all cases applying the principle was Davies v. Mann, reported in 19 English Ruling Cases, 190, 10 Mees. & Weis. 546. A donkey lawfully on a highway, but fettered, was killed by the defendant coming in a carriage at a smartish pace. The court held that the defendant might have avoided the accident in the exercise of due care. The proximate cause of the death was taken to he the act of the defendant in coming at a smartish pace on the highway and not stopping. No mention is made of the actual discovery of the peril.
Although not absolutely essential to the decision of the case, in Vargas v. Monroig, 15 P. R. R. 26, we cited Davies v. Mann, supra. We said that there were, many cases which decide that although a complainant might, by the exer[710]*710cise of caution, Rave avoided the accident, yet he may nevertheless recover if it he shown, that the defendant might have avoided the accident by the exercise of dne care. The evidence in the case of Vargas did not show that the peril was actually discovered. Perhaps in each case an assumption of such knowledge was implicit in the decision. An examination, however, of all the jurisprudence convinces us that a definite position should be postponed for a fuller presentation by counsel.
When the peril is actually discovered in time to avert the accident, a number of courts, under certain conditions, disregard the contributory negligence of the injured person. With this exception, and barring cases of malice or recklessness, the rule, we think, excepting, perhaps, in Missouri, is of universal application that the concurrent negligence of the injured person will prevent a recovery. Drown v. Northern Ohio Traction Co., 10 L. R. A. (N. S.) 421; Dyerson v. Union Pacific Co., 7 L. R. A. (N. S.) 132; Davies v. Mann, supra; Bourrett v. Chicago & N. W. R. Co., 36 L. R. A. (N. S.) 957 and note; Robbins v. Pennsylvania Co., 245 Fed. 441; Little Rock Ry. & Electric Co. v. Billings, 187 Fed. 960; 25 R. C. L. 1258. That is to say, despite the duty of the defendant to avoid injury, a person may not recover if his own negligence continues actively up to the moment of the accident. Where it was possible for a complainant, equally with the defendant, to avoid the accident at the last moment, no action arises. The most general application of the doctrine of the last clear chance is where the injured person was originally negligent but has no present power or ability, more or less plainly visible to defendant, to. avert the accident.
Under this idea of concurrent negligence some courts consider that the injured person’s negligence has ceased where he falls in a drunken stupor on a track of a railroad company, but others regard the voluntary intoxication of [711]*711a person as a continuing. negligence. Little Rock Railway & Electric Co. v. Billings, 31 L. R. A. (N. S.) 1031, and monographic note. If this court should regard the intoxication of the deceased as concurrent negligence, this consideration would be decisive of the case.
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Mr. Justice Wolf
delivered the opinion of the court.
The record tends to show that Carlos Aguado y Vidal met his death in a state of intoxication; that while entirely under the influence of liquor he was lying on the ground with his legs across one of the rails on the right of way of the electric tramway known as the Porto Rico Railway, Light and Power Company, the defendant in this case; that he was killed by a car of the defendant company while his legs were so lying across the track. There was no evidence tending to show that the spot where the accident occurred was frequented by the public. On the contrary, the evidence tended to show that the place in question at the time of the accident formed no part of the public street by custom, dedication or otherwise; that there was no crossing at the spot in question and the public had no particular occasion to cross the track there, and that there were few houses in that particular neighborhood. In short, [708]*708it was a place where there was no reason to apprehend the presence of a person on the track. At a very short distance before reaching the spot of the accident the street crosses a canseway or embankment, curves and then goes in a slight ascent for a short number of meters. The court found that, after rounding the Curve, the motorman, had he been vigilant, could have seen the legs of the deceased thirty or thirty-five mdters ahead of the place of collision and in time to have stopped the car.
We may say that there was some evidence tending to show that at the date of the accident, differentiated from the date of the trial, a pile of stones somewhat obstructed the Anew of the motorman. The record shows that some, photographs of the spot were taken contemporaneously with the accident and admitted in evidence. An exception was reserved to the admission of these photographs. Nevertheless, they form no part of the evidence transcribed.
The court found, in substance, that defendant was guilty of negligence in failing to keep a lookout but that the complainant could not recover because the deceased was guilty of contributory negligence. The appellant has invoked the doctrine of the last clear chance. The court also' found that the motorman did not actually discover the peril of the deceased until within five meters of the place of the accident. This distance, under the evidence in this case, was unmistakably too short to stop the ear in time.
We shall discuss the doctrine of the last clear chance because it has figured prominently in our consideration and its non-applicability is decisive of the case.
The appellee insists that the doctrine of the last clear chance is only applicable where the peril of a person killed or injured is actually discovered in time to avert the accident, and a majority of the court has been inclined to agree. We do not find it necessary definitely to decide the question. The appellee drew attention to Chunn v. The City [709]*709& Suburban Railway of Washington, 207 U. S. 302. That was a case appealed from the Court of Appeals of the District of Columhia. In that jurisdiction the doctrine of the last clear chance is applicable, not only where the peril of the injured person is actually discovered, but also where, in the exercise of due care, the defendant could have discovered the peril. Washington R. & C. Co. v. Cullember, 39 App. D. C. 324.
In this last-named case the court also insists that there was nothing in the decision of the Supreme Court of the United States in the Ghunn Case, supra, excluding the possibility of the wider extension of the doctrine as. applied by the said Court of Appeals of the District of Columhia. Indeed, while a number of courts, and especially the Federal courts, make actual discovery of peril a condition precedent to the application of the doctrine, there are many others courts and perhaps the greater number of them that will permit a recovery where the defendant in the exercise of due care should have discovered the peril. Bourrett v. Chicago & N. W. R. Co., 36 L. R. A. (N. S.) 957, and citations; 36 Cyc. 1565 et seq.
The forerunner of all cases applying the principle was Davies v. Mann, reported in 19 English Ruling Cases, 190, 10 Mees. & Weis. 546. A donkey lawfully on a highway, but fettered, was killed by the defendant coming in a carriage at a smartish pace. The court held that the defendant might have avoided the accident in the exercise of due care. The proximate cause of the death was taken to he the act of the defendant in coming at a smartish pace on the highway and not stopping. No mention is made of the actual discovery of the peril.
Although not absolutely essential to the decision of the case, in Vargas v. Monroig, 15 P. R. R. 26, we cited Davies v. Mann, supra. We said that there were, many cases which decide that although a complainant might, by the exer[710]*710cise of caution, Rave avoided the accident, yet he may nevertheless recover if it he shown, that the defendant might have avoided the accident by the exercise of dne care. The evidence in the case of Vargas did not show that the peril was actually discovered. Perhaps in each case an assumption of such knowledge was implicit in the decision. An examination, however, of all the jurisprudence convinces us that a definite position should be postponed for a fuller presentation by counsel.
When the peril is actually discovered in time to avert the accident, a number of courts, under certain conditions, disregard the contributory negligence of the injured person. With this exception, and barring cases of malice or recklessness, the rule, we think, excepting, perhaps, in Missouri, is of universal application that the concurrent negligence of the injured person will prevent a recovery. Drown v. Northern Ohio Traction Co., 10 L. R. A. (N. S.) 421; Dyerson v. Union Pacific Co., 7 L. R. A. (N. S.) 132; Davies v. Mann, supra; Bourrett v. Chicago & N. W. R. Co., 36 L. R. A. (N. S.) 957 and note; Robbins v. Pennsylvania Co., 245 Fed. 441; Little Rock Ry. & Electric Co. v. Billings, 187 Fed. 960; 25 R. C. L. 1258. That is to say, despite the duty of the defendant to avoid injury, a person may not recover if his own negligence continues actively up to the moment of the accident. Where it was possible for a complainant, equally with the defendant, to avoid the accident at the last moment, no action arises. The most general application of the doctrine of the last clear chance is where the injured person was originally negligent but has no present power or ability, more or less plainly visible to defendant, to. avert the accident.
Under this idea of concurrent negligence some courts consider that the injured person’s negligence has ceased where he falls in a drunken stupor on a track of a railroad company, but others regard the voluntary intoxication of [711]*711a person as a continuing. negligence. Little Rock Railway & Electric Co. v. Billings, 31 L. R. A. (N. S.) 1031, and monographic note. If this court should regard the intoxication of the deceased as concurrent negligence, this consideration would be decisive of the case. Similarly, however, as on the proposition of whether the undiscovered peril permits the application of the doctrine, we prefer to postpone a definite decision of whether voluntary intoxication rendering a person helpless is to be regarded as an act of continuing negligence. Given the prohibitions in the Constitution of the United States and the severed Acts of Congress applicable to Porto Eico, it is a serious question whether voluntary intoxication should not be regarded as continuing negligence and also whether a person who permits himself to be intoxicated to a point of helplessness should not be said to have intended the natural and probable consequences of his act and be guilty of concurrent negligence. In this discussion we are barring certain acts of the defendant which are generally held to be the proximate cause. It is well settled that ordinarily the acts of an intoxicated man are to be considered in exactly the same light as if he were sober.
If the defendant’s car was going at such a rate of speed that it could not stop, as alleged in one of the paragraphs of the complaint, then after the possibility of seeing the peril of the man on the track arose there was no opportunity to stop the car in time. In all cases the application of the doctrine depends upon the possibility of averting' the peril after it was actually discovered or could have been discovered in the exercise of due care. State v. Cumberland etc. R. Co., 106 Md. 529, 16 L. R. A. (N. S.) 297; Illinois Central R. Co. v. Nelson, 173 Fed. 917; Smith v. Metropolitan Street R. R. Co., 201 S. W. 569.
That when a complainant intends to rely on the application of the doctrine of the last clear chance he must allege [712]*712the necessary facts, will appear from the following citations: Drown v. Northern Ohio Traction Co., 10 L. R. A. (N. S.) 421; Emmons v. Southern Pacific R. R. (Oregon), 191 Pac. 334; Hawkins v. Missouri K. & T. Ry. Co. of Texas, 83 S. W. 52; Hart v. Northern Pacific Ry. Co., 196 Fed. 188. When tlie complainant relies on an ultimate or supervening duty on the part of the defendant and a neglect of that duty, the defendant should he given an opportunity to defend against such charges. The complaint in this regard is not all that it should he, but inasmuch as appellee does not discuss this point we shall place no insistence on it. We may remark in passing that the doctrine of the last clear ehan.ce is not directly considered by the court, except so far as it was involved in a citation, apparently made for another purpose.
Perhaps a pleading may not be so important if the defendant at the trial stands by and permits the doctrine to be invoked. Sections 136 et seq., Code of Civil Procedure, People v. Heirs of Valdés, 31 P. R. R. 213. But nothing of the kind appears. On the contrary, the opinion of the court held the negligence of the defendant to be the failure to keep a lookout, and then found that the defendant was guilty of contributory negligence. The doctrine is applicable in the face of contributory negligence, and here there was absolutely no consideration by the court of the said doctrine. There is nothing in the record, including the transcribed arguments of counsel, to show that complainant invoked the doctrine.
Coming to the evidence, the court found that the car was running at topnotch speed and that the defendant only saw the danger at a distance of five meters. The court found that the car could have been stopped -within a distance of thirty meters or a little more, but we cannot agree with the court that the evidence tends to show that fact. The positive evidence of defendant’s witnesses was to the [713]*713contrary, and the testimony of complainant’s witnesses in this regard satisfies ns not at all. A car running at 30 miles an hour will cover 44 feet in a second. Three seconds will make the distance covered 132 feet, or over a hundred, allowing for a reducing speed. To bring a car to a full stop within three seconds from the time a peril is visible would be an achievement, especially when the other duties of defendant are to be considered. The motorman must discover the peril, must apply his brakes, and he owes a paramount duty to. injure no one in his car. Supposing even a speed of less than thirty miles an hour, we were not convinced by the evidence that the car could have been stopped in time. Where a trolley ear is going at topnotch speed, 100 feet, or perhaps even more, is generally necessary. For similar facts and reasoning the following cases are applicable: Kramer v. New Orleans City & L. R. Co., 51 La. Ann. 1689; Royalty v. Lusk (Mo. App.) 198 S. W. 472.
The burden of proof is on the complainant to show every element necessary to the application of the doctrine: Smith v. Metropolitan St. Ry. Co. (Mo. App.), 201 S. W. 569; Texas & P. R. Co. v. Buddow, 90 Texas, 26; Pennell v. Chicago Rock Island & Pacific, 153 Mo. App. 566; Kramer v. New Orleans City & L. R. Co., 51 La. Ann. 1689; St. Louis & S. F. R Co. v. Summers et al., 173 Fed. 358. This includes the proof that the car could have been stopped in time.
The appellee strongly urges that the complainant failed to make out a ease of negligence. Under the authorities cited and generally, the burden was on the complainant to show a breach of duty on the part of the defendant. This burden extends to showing the peculiar conditions surrounding the spot where the accident occurred. When there is even slight evidence that the spot is frequented or has become dedicated to the public, the fact that the accident oc-[714]*714curre cl on tlie right of way of the railroad is of relative unimportance. But when the defendant, as here, shows that the accident occurred on its right of way, the burden is on the complainant to show that the spot was merged in the public road or was a frequented one, or some other similar element. The evidence in this case tended to show the Contrary. •
The deceased was a trespasser. On its rights of way at an unfrequented spot a defendant company is under no duty to keep a lookout for trespassers. Thompson on Negligence, Supp., Sec. 1709.
The complainant has shown ,us nothing that would create a duty on the part of defendant to anticipate the presence of the deceased at the spot where he was found or to find any other person there. That there was no duty to run slowly at this unfrequented spot the following citations show. Morales v. P. R. Ry., L. & P. Co., 27 P. R. R. 169; Olavarría v. P. R. Ry., L. & P. Co., 26 P. R. R. 584.
We have been cited to nothing that makes it the duty of a railroad company before rounding a curve on its right of way to lessen its speed or to anticipate the presence of persons at an unfrequented spot. Of course, a defendant must not run around a curve recklessly at a frequented spot. After rounding the curve at a permissible speed it was impossible to have stopped this car in time, so that the supposed violation of duty here has no causal connection with the accident.
In short, the intoxication of the deceased was the proximate cause of the accident and no supervening negligence of the defendant was shown.
Incidentally, we have discussed a number of the assignments of error and shall consider some of the others.
The court found that the defendant did not see the deceased until the car was five meters awa}g and hence its fail[715]*715ure, if any there was, to apply the emergency brakes conld not have been the negligence causing the accident.
The mere fact that a person is an employee of the company does not incapacitate him from giving testimony as an expert..
The appellant does not convince us that the evidence of habits of intoxication is entirely irrelevant; nor that the testimony of witnesses of the condition of the deceased on the same day shortly before the accident is inadmissible; nor yet that one needs to be an expert to testify to the intoxication of a person.
One alleged error has caused us some difficulty. Some of the testimony of the witnesses in regard to intoxication was admitted exclusively on the theory that the habits of intoxication tend to reduce the earning capacity and hence the amount of damages. Nevertheless, in its opinion, the court refers to some of the evidence so given as acts tending to prove the actual intoxication.
The proof of intoxication was clear -and convincing and the court may have been careless in referring to this testimony as tending to prove the main fact. Ns we have already said, we are not convinced that habits of intoxication may not have some relevancy. The error, if any, was harmless, inasmuch as the evidence, as tending to prove an actual state of intoxication, was merely cumulative. The only result of sending the case back on this ground would be that the court would still necessarily find a state of intoxication at the time of the accident. "We should find an intoxicated state - if the court had found otherwise. The a-ppellee did not attempt to offer the, supposed objectionable evidence for any other purpose than in mitigation of damages, and there is no indication of any effort to have undue testimony considered. Furthermore, the intoxication vel non has no bearing if, as we have held, no negligence of the defendant, causing the accident, was shown.
[716]*716On the question of the failure to perform its duty to maintain a lookout, or the question of the way the ear should have been run at this alleged unfrequented spot, photographs were offered in evidence. They have been certified to us in no form and hence we are in no condition to reverse from any standpoint. Objection was made to the admission of these protographs as not identified by the photographer; hut, like signatures and other matters, persons showing a competent knowledge may identify.
Other supposed errors have either been treated by us necessarily or, by their lack of specification, do not need further consideration.
The judgment appealed from must be
Affirmed.
Justices Aldrey, Hutchison and Franco Soto concurred.
Mr. Chief Justice Del Toro dissented.