G.R. No. L-29462

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• It being understood, therefore, that the appealed judgment is modified by reducing the recovery to the sum of P2,500, the judgment, as thus modified, is affirmed. So ordered, with costs against the appellant.

• Manila Electric Company, is engaged in operating street cars in the City for the conveyance of passengers

• Teodorico Florenciano, as appellant's motorman

• After the car had stopped at its appointed place for taking on and letting off passengers,

• t resumed its course at a moderate speed under the guidance of the motorman.

• del Prado, ran across the street to catch the car,

• motorman eased up a little, without stopping.

• before the plaintiff's position had become secure, and even before his raised right foot had reached the flatform, the motorman applied the power, with the result that the car gave a slight lurch forward.

• plaintiff's foot to slip, and his hand was jerked loose from the handpost, He therefore fell to the ground, and his right foot was caught and crushed by the moving car.

• although the motorman of this car was not bound to stop to let the plaintiff on, it was his duty to do 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.

• The relation between a carrier of passengers for hire and its patrons is of a contractual nature; and in failure on the part of the carrier to use due care in carrying its passengers safely is a breach of duty (culpa contructual)

• where liability arises from a mere tort (culpa aquiliana), not involving a breach of positive obligation, an employer, or master, may exculpate himself,

• by providing that he had exercised due degligence to prevent the damage

• hereas this defense is not available if the liability of the master arises from a breach of contrauctual duty (culpa contractual).

• this proof is irrelevant in view of the fact that the liability involved was derived from a breach of obligation under article

• ompany pleaded as a special defense that it had used all the deligence of a good father of a family to prevent the damage suffered by the plaintiff;

• court is given a discretion to mitigate liability according to the circumstances of the case

• in dealing with the latter form of negligence,

• No such general discretion is given by the Code in dealing with liability arising under article 1902

• contributory negligence of the plaintiff,