Instructions by

The facts of the case are about as follows:

Defendant owned a very old building covered with a heavy "tile and cement roof that projected over the city public sidewalk. This portion of the roof collapsed and fell upon and severely injured plaintiff, who was walking along the sidewalk at the time. Further details can be gathered from the instructions, and from the opinion overruling a motion for a new trial. 3 Porto Rico Fed. Rep. 472.

Rodey, Judge, omitting formal parts, gave the following charge and instructions to the jury:

This-is what is known as an action at law for damages which the plaintiff contends he has sustained owing to the negligence of the defendant.. In such cases this court is governed, save in a few instances of general principles of commercial law and a few other subjects, by the local law, if any is in existence, on the subject being litigated. In suits in equity the rule is entirely dif-*107fferent, and tbis court is rarely subject to the local law in regard ■to its practice.

The class of action we are trying here is one about which much •controversy exists in the different states of the Union and in the ¡several civilized countries of the world; but, as to us here, it is simplified by local laws of Porto Pico, and it becomes the •court’s duty now to select from the local statutes bearing upon the subject, those which, in the opinion of the court, apply. Section 396 of the Civil Code of Porto Eico provides: “When ¡a building, wall, column, or any other construction is in danger ■of falling, the owner shall be obliged to demolish it, or to do whatever is necessary to prevent its falling.” And § 398 of that same Code provides: “In the cases referred to in the two preceding sections, should a tree or building fall, the owner shall be liable for the damages caused, except in cases of vis major” This latter term means that a defendant is liable except in cases •of superior force; that is, the act of God or some other force for which the owner of the building could not be held liable; as, for instance, a stroke of lightning or an earthquake or a runaway team or automobile dashing into a building and throwing it upon people, or a cloud-burst or unexpected torrent of rain, or any such occurrence as that, of so unusual or extraordinary a •character as that the same could not be foreseen or provided against by the exercise of ordinary care. Section 1808 of the ■same Code provides that “the owner of a building is liable for the damages which may result from the collapse of the whole or a part thereof, if it should occur through the absence of the necessary repairs.” You are therefore instructed that, if you believe, from a preponderance of the evidence, that this defendant permitted his building to go to decay so that the roof or *108eave thereof was not sufficiently strong to withstand the ordinary weather to be expected here in this community where it is situated, and that, by reason of such fact, it fell and injured the plaintiff, without any fault upon the part of the plaintiff,, then you are instructed that the defendant owner of the building' is liable to the plaintiff in compensatory damages in such amount as you may deem proper under the evidence, within the amount, of $12,000 which he claims in his complaint.

And in estimating the damages to which you may believe the-plaintiff to be entitled, as aforesaid, you may take into account his age, his earning capacity and his loss thereof, what he has-paid for drugs, medicines, and medical attendance, the amount of suffering he has endured and the amount of expense he is liable to be put to in these regards, and the probable duration of the injury -and suffering, and his loss of earnings by such facts.

You are instructed that the rule in this sort of a case is different from the rule in criminal cases. In the latter, a conviction can take place only when you believe a defendant guilty beyond a reasonable doubt; while in a civil case like this, a plaintiff or a defendant can recover on a preponderance of the evidence. But a preponderance of the evidence does not necessarily mean that you must decide for the party presenting the-greater number of witnesses, but it means that you should believe the preponderance to lie on the side which has the more-reasonable testimony, and upon which it preponderates, in your judgment as reasonable men.

You are instructed that, if you believe, from a preponderance-of the evidence, that no vis major or superior force took-place,, or that no event of that character happened, as herein defined,, to cause the injury to this plaintiff, and that this defendant did *109not exercise proper care in and about tbe keeping of tbis building of bis in repair, then you should find for tbe plaintiff, and .assess bis damages at such sum, within tbe amount claimed, as .you may deem proper under these instructions.

You are further instructed that, while it is not negligence per se to have tbe roof of one’s building extend over tbe sidewalk in tbe way tbe proofs tend to show tbis roof to have ex-fended, still, tbe fact that a roof does so extend over tbe sidewalk, upon which tbe public have a right to be, imposes upon the owner of tbe building tbe exercise of not ordinary but extraordinary care to see that his roof and eave are kept in proper nepair to resist all strains that can be put upon them, that a reasonable man, under tbe circumstances, would know it would be liable to be subjected to; and the burden is on tbe defendant to show tbis; and, if you believe, from a preponderance of tbe evidence, that this defendant’s roof or eave so extended over tbe sidewalk, and that tbis plaintiff, while being upon tbe public street or sidewalk beneath tbe same, was injured by tbe falling thereof, and that tbe defendant did not exercise proper care to so keep tbe same in repair, and that tbe plaintiff was injured without any fault on bis own part, and without any contributory negligence of any sort (and tbe burden of showing tbis is on tbe plaintiff), then you must find for the plaintiff, and assess his damages within tbe limits heretofore stated.

You are further instructed that, if you believe, from a preponderance of the evidence, that this defendant exercised extraordinary care to see that bis roof and eave were kept in proper repair to resist tbe ordinary strains that they could be reasonably expected to be subjected to, and that, because of an extraordinary strain to which tbe said roof and eave were put by *110reason of the suelden and unexpected fall of an extraordinary and unexpected quantity of rain, that resulted in and was the-proximate cause of the said roof or eave collapsing, then the defendant is not liable under the local law, and you should find in his favor.

You are instructed that compensatory damages are what the-plaintiff is entitled to recover here, if at all, and that while you can consider all of the elements heretofore mentioned in your calculation of his damages, still, the evidence in this case does not warrant the infliction of any punitive or smart-money damages, because such damages are imposed only in cases where the injury is wilful and malicious; but this instruction is not intended to prevent you from giving such damages within or up to the amount claimed in the complaint, as you may deem proper under all the facts, evidence, and circumstances of the case.

You are further instructed that contributory negligence by a person injured, to avail a defendant against his claim, must have-been the proximate cause of the injury; and you are therefore instructed that unless you believe, from a preponderance of the-evidence, that this plaintiff was intoxicated on the evening in question in such a manner as to affect his judgment, and that, in consequence thereof, or for any other reason, he delayed under the eave or roof in question after he had reason to believe, or would have had such reason, were he in his normal condition,, that it was about to fall, and at a time when he had plenty of time to get away and prevent the injury, you should find for the plaintiff, and assess his damages as heretofore instructed.. Otherwise you should find for the defendant.

You are further instructed that the fact that this sort of suit may not yet have become common in this community, or that it *111may, in fact, be tbe first suit of the kind, is no reason why you should not accord the parties their rights here under the law as now given yon by the court; and the fact that there may be other houses constructed similarly, and requiring equally extraordinary care from their owners against injuring the public, should cut no figure and have no effect as to your verdict in this case, one way or the other.

You are further instructed that the plaintiff had a perfect right to be on the public sidewalk 01; street in question at any hour of the day or night; and the .question of the hour when he was there should not affect your verdict in any way.

The verdict was for the plaintiff in the sum of $9,000, from which defendant sued out a writ of error from the Supreme Court of the United States.