delivered tbe following opinion:
This case was tried at Ponce by the judge without a jury, and developed a great difference, if not conflict, between the testimony for the plaintiff and that for the defendant. The witnesses for the plaintiff, including the plaintiff himself, testified that he was driving a two-horse buggy along the road to Ponce from Gruayama, and as he neared the dry bed of the river called Port-ugués, his buggy was struck by the automobile of the defendant, thrown against one of several guard posts at the curve of the road at this point, and plaintiff was precipitated to the ground, between the buggy and the automobile. The plaintiff himself remembers nothing after the fall, but some of the evidence is that he was conscious enough to give his name. A policeman, with another man was passing at the time. It was at 9 o’clock at night, however, and there were no lights except those of the automobile and buggy. A coach was standing a few yards off at a cafetín, and the testimony of the driver was that he was at his horse’s head looking towards Gruayama, and heard the plaintiff cry out, “They are killing me.” lie thereupon called his passengers out of the cafetín, and they drove the few yards to the place of the accident, picked up the plaintiff, and took him to a house in the neighborhood, where he received treatment. He was taken from there to a hospital at Ponce, and, although better for a day or two, soon developed serious injuries. He was sent to Spain for his health, but without any result. He is ap*330parently injured for life. On tbe other band, the testimony, of the defendant and of the three other occupants of his auto is that the auto did not pass within three or four yards of the buggy, and certainly never touched it. They noticed the buggy by the light of the auto and saw it apparently strike the post, but were not conscious of an accident, and knew nothing else until the auto was halted some distance on by a policeman, after telephonic message from Ponce. When notified of the accident, defendant got the policeman to examine the auto, and no scratch or other sign of collision was to be found on it.
1. There are no matters of law connected with the case which need consideration at this time. The responsibility of the owner, while in the auto, was decided at the trial upon a question of admissibility of evidence.
2. As to the facts, it is difficult to get at the truth of the transaction. The plaintiff was undoubtedly thrown out of his buggy in its contact with the guard post at the side of the road, and has suffered serious injuries, but the liability for this regrettable accident is not so clear. The plaintiff may have thought he was struck by the auto, and his witnesses may have thought the same thing; but their testimony is not at all convincing of the fact, in view of the absolute denial on the part of' the occupants of the auto, whose testimony was not shaken by cross-examination. This is true, without taking into account at all the station in life of the respective witnesses. For the purposes of this case all may be considered equally honest in their testimony. There seems to be no necessity for supposing that one side or the other consciously perjured themselves. Both parties published newspaper accounts a few days after the accident, which agree with their testimony on the stand. It is *331tbe duty of tbe court, no less than of a jury, to try and reconcile conflicting testimony. Probably tbe solution of tbe opposing statements is found in tbe fact that tbe accident was at night, and occurred so suddenly that no one fully realized wbat was happening. But, to say tbe least, tbe mind of tbe court is left in doubt, and tbe familiar rule of law is that in such case the balance is inclined against the plaintiff, upon whom rests tbe burden of proof. Tbe court may even go further, and say that tbe fact that the auto was uninjured after tbe accident tends strongly to confirm tbe contention of tbe defendant.
3. There would be another possible view of the matter. In this case, if tbe auto was being driven in a reckless manner, and ran so close to tbe buggy as to drive tbe plaintiff up on tbe post, or so frighten him that be spontaneously ran against it in tbe effort to get away from tbe auto, tbe defendant might be liable. This would be somewhat similar to tbe classical example of injury caused when a man threw a lighted squib into a crowd and tbe one upon whom it fell threw it off upon another. Tbe original thrower of the squib was held liable for tbe injury to the third person. Perhaps a more modern instance is tbe liability of a railroad where a passenger is justly alarmed, and jumps from tbe train to bis own injury, although in point of fact tbe accident which be anticipated never did happen.
But tbe evidence is not at all convincing that there was any recklessness, or that there was any good reason for tbe plaintiff to try to avoid tbe automobile. No doubt be thought so, and this is probably tbe explanation of tbe accident; but tbe court is not at all convinced that be bad any good reason for tbe fear. Tbe probability seems to be that be was, so to speak, stampeded by tbe sudden light and noise of tbe automobile *332coming np the hill, and, perhaps blinded by the headlights, swerved too far to one side. Of course, if there had been no automobile, there would have been no accident, but automobiles, as well as buggies, have the right to use the public highways at night. The accident was probably either unavoidable, or caused by a mistake in judgment of the plaintiff himself.
4. Furthermore, such consideration cannot come up under the pleadings in this cause. The common-law pleadings in this court are, by virtue of Revised Statutes § 914, U. S. Comp. Stat. 1901, p. 684, similar to those under the Porto Rican Code of Civil Procedure. This requires (§ 103) that the facts constituting the cause of action shall be stated concisely, and does not admit, as in a semi-code state like Alabama, of the joinder of different statements of facts, or of what at common law are called the common counts. The plaintiff must recover substantially upon the cause of action set out in his complaint, except so far as the question of amendment may be allowable. The court must hold that, upon a complaint alleging collision between an auto and a buggy,, there could not be a recovery upon evidence showing that the horse shied away from the auto, and collided with a post on the other side of the road, even if the driver of the auto was to blame in frightening the horses or the occupant of the buggy. Whether it would have been allowable to amend by alleging this fault need not be considered. The fact is that no offer to amend was made by plaintiff, and so he must stand upon the allegations as found in the original complaint.
In this view of the case the measure of damages need not be inquired into.
As a result, judgment will be entered for the defendant.