delivered tbe opinion of tbe court.
Tbis action originated in tbe Municipal Court of Ponce *186and in it both tbe plaintiff and the defendant pray for damages as the result of a collision between two motor vehicles.
The plaintiff alleged that the sole cause of the accident was the negligence of the defendant, and the defendant not only denies that material allegation of the complaint but sets up a counter-claim charging all blame against the plaintiff and praying for the damages caused to his automobile by the collision.
On May 21, 1924, the district court rendered judgment on appeal sustaining. the complaint and dismissing the counter-complaint.
On May 26, 1924, the defendant moved for reconsideration of that judgment.and after more mature consideration of the evidence the court reconsidered its judgment and dismissed both the complaint and the counter-complaint.
Both parties appealed from the judgment and allege that the trial court erred in weighing the evidence. The plaintiff also alleges that the court erred in reconsidering its judgment on grounds not set up in the motion for reconsideration.
The court reconsidered its judgment on the ground that there was contributory negligence on the part' of the plaintiff’s chauffeur, and the plaintiff contends that as this was not one of the allegations of the defendant, the ruling was a surprise to him, as he at no time was given an opportunity to anticipate the grounds of the decision modifying the judgment. The essential contention of the plaintiff is that the allegation of contributory negligence was an admission of negligence on the part of the defendant. This seems to be the rule when it is the only defense, but other authorities hold that such defense is not inconsistent with a denial that the defendant was negligent. 20 R.C.L. 107.
The defendant, both in the answer and in the counter-complaint, alleged that the negligence of the plaintiff’s chauffeur was the only cause of the accident, and it does not appear logical to hold that the charge that only the plaintiff *187was negligent was not sufficient notice to Mm of the defendant’s theory of the case. Consequently, the district court did not err, considering the allegations of the defendant, in finding that the plaintiff was partly hut not entirely to blame for the proximate cause of the accident.
We have examined the evidence carefully and as a whole it tends to establish, as the court below found, that in fact both the plaintiff and the defendant were to blame for the accident and, therefore, neither can complain of the consequences of such negligence.
The judgment of the trial court must be affirmed.