GR L 7567; (November, 1912)

EN BANC

G.R. No. L-7567; November 12, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
SEGUNDO BARIAS, defendant-appellant.

Bruce, Lawrence, Ross and Block for appellant.
Office of the Solicitor-General Harvey, for appellee.

CARSON, J.:

This is an appeal from a sentence imposed by the Honorable A. S. Crossfield, judge of the Court of First Instance of Manila, for homicide resulting from reckless negligence. The information charges:

That on or about November 2, 1911, in the city of Manila, Philippine Islands, the said Segundo Barias was a motorman on street car No. 9, run 7 of the Pasay-Cervantes lines of the Manila Electric Railroad and Light Company, a corporation duly organized and doing business in the city of Manila, Philippine Islands; as a such motorman he was controlling and operating said street car along Rizal Avenue, formerly Calle Cervantes, of this city, and as such motorman of the said street car he was under obligation to run the same with due care and diligence to avoid any accident that might occur to vehicles and pedestrians who were travelling on said Rizal Avenue; said accused, at said time and place, did willfully, with reckless imprudence and inexcusable negligence and in violation of the regulations promulgated to that effect, control and operate said street car, without heeding the pedestrians crossing Rizal Avenue from one side to the other, thus knocking down and causing by his carelessness and imprudent negligence that said street car No. 9, operated and controlled by said accused, as hereinbefore stated, should knock down and pass over the body and head of one Fermina Jose, a girl 2 years old, who at said time and place was crossing the said Rizal Avenue, the body of said girl being dragged along street-car on said Rizal Avenue for a long distance, thus crushing and destroying her head and causing her sudden death as a result of the injury received; that if the acts executed by the accused had been done with malice, he would be guilty of the serious crime of homicide.

The defendant was a motorman for the Manila Electric Railroad and Light Company. At about 6 o’clock on the morning of November 2, 1911, he was driving his car along Rizal avenue and stopped it near the intersection of that street with Calle Requesen to take on some passengers. When the car stopped, the defendant looked backward, presumably to note whether all the passengers were aboard, and then started his car. At that moment Fermina Jose, a child about 3 years old, walked or ran in front of he car. She was knocked down and dragged some little distance underneath the car, and was left dead upon the track. The motorman proceeded with his car to the end of the track, some distance from the place of the accident, and apparently knew nothing of it until his return, when he was informed of what happened.

There is no substantial dispute as to the facts. It is true that one witness testified that the defendant started the car without turning his head, and while he was still looking backwards and that this testimony was directly contradicted by that of another witness. But we do not deem it necessary to make an express finding as to the precise direction in which the defendant’s head was turned at the moment when he started his car. It is sufficient for the purpose of our decision to hold, as we do, that the evidence clearly discloses that he started his car from a standstill without looking over the track immediately in front of the car to satisfy himself that it was clear. he did not see the child until after he had run his car over it, and after he had return to the place where it was found dead, and we think we are justified in saying that whenever he was looking at the moment when he started his car, he was not looking at the track immediately in front of the car, and that he had not satisfied himself that this portion of the tract was clear immediately before putting the car in the motion.

The trial court found the defendant guilty of imprudencia temeraria (reckless negligence) as charged in the information, and sentenced him to over one year and one month of imprisonment in the Bilibid Prison, and to pay the cause of the action.

The sole question raised by this appeal is whether the evidence shows such carelessness or want of ordinary care on the part of the defendant as to amount to reckless negligence (imprudencia temeraria).

Judge Cooley in his work on Torts (3d ed., 1324) defines negligence to be: “The failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other persons suffers injury.”

In the case of U. S. vs. Nava, (1 Phil. Rep., 580), we held that: “Reckless negligence consists of the failure to take such precautions or advance measures in the performance of an act as the most prudence would suggest whereby injury is caused to persons or to property.”

Silvela says in his “Derecho Penal,” in speaking of reckless imprudence (imprudencia temeraria):

The word “negligencia” used in the code, and the term “imprudencia” with which this punishable act is defined, express this idea in such a clear manner that it is not necessary to enlarge upon it. He who has done everything on his part to prevent his actions from causing damage to another, although he has not succeeded in doing so, notwithstanding his efforts, is the victim of an accident and can not be considered responsible for the same. (Vol. 2, p. 127 [153].)

Temerario is, in our opinion, one who omits, with regard to this actions, which are liable to cause injury to another, that care and diligence, that attention, which can be required of the least careful, attentive, or diligent. If a moment’s attention and reflection would have shown a person that the act which he was about to perform was liable to have the harmful consequence which it had, such person acted with temerity and may be guilty of “imprudencia temeraria.” It may be that in practice this idea has been given a greater scope and the acts of imprudence which did not show carelessness as carried to such high degree, might have been punished as “imprudencia temeraria;” but in our opinion, the proper meaning of the word does not authorize another interpretation. (Id., p. 133 [161].)

Groizard, commenting upon “imprudencia temeraria,” on page 389, volume 8, of his work on the Penal Code, says:

Prudence is that cardinal virtue which teaches us to discern and distinguish the good from bad, in order to adopt or flee from it. It also means good judgment, temperance, and moderation in one’s actions. `Temerario is one who exposes himself to danger or rushes into it without reflection and without examining the same. Consequently, he who from lack of good judgment, temperance, or moderation in his actions, exposes himself without reflection and examination to the danger of committing a crime, must be held responsible under the provision of law aforementioned.

Negligence is want of the care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances. (Ahern vs. Oregon Telephone Co., 24 Oreg., 276, 294; 35 Pac., 549.)

Ordinary care, if the danger is great, may arise to the grade of a very exact and unchangeable attention. (Parry Mfg. Co. vs. Eaton, 41 Ind. App., 81, 1908; 83 N. E., 510.)

In the case of U. S. vs. Reyes (1 Phil. Rep., 375-377), we held that: “The diligence with which the law requires the individual at all the time to govern his conduct varies with the nature of the situation in which he is placed and with the importance of the act which he is to perform.lawph!l.net

The question to be determined then, is whether, under all the circumstances, and having in mind the situation of the defendant when he put his car in motion and ran it over the child, he was guilty of a failure to take such precautions or advance measures as common prudence would suggest.

The evidence shows that the thoroughfare on which the incident occurred was a public street in a densely populated section of the city. The hour was six in the morning, or about the time when the residents of such streets begin to move about. Under such conditions a motorman of an electric street car was clearly charged with a high degree of diligence in the performance of his duties. He was bound to know and to recognize that any negligence on his part in observing the track over which he was running his car might result in fatal accidents. He had no right to assume that the track before his car was clear. It was his duty to satisfy himself of that fact by keeping a sharp lookout, and to do everything in his power to avoid the danger which is necessarily incident to the operation of heavy street cars on public thoroughfares in populous sections of the city.

Did he exercise the degree of diligence required of him? We think this question must be answered in the negative. We do not go so far as to say that having brought his car to a standstill it was his bounden duty to keep his eyes directed to the front. Indeed, in the absence of some regulation of his employers, we can well understand that, at times, it might be highly proper and prudent for him to glance back before again setting his car in motion, to satisfy himself that he understood correctly a signal to go forward or that all the passengers had safely alighted or gotten on board. But we do insist that before setting his car again in motion, it was his duty to satisfy himself that the track was clear, and, for that purpose, to look and to see the track just in front of his car. This the defendant did not do, and the result of his negligence was the death of the child.

In the case of Smith vs. St. Paul City Ry. Co., (32 Minn., p. 1), the supreme court of Minnesota, in discussing the diligence required of street railway companies in the conduct of their business observed that: “The defendant was a carrier of passengers for hire, owing and controlling the tracks and cars operated thereon. It is therefore subject to the rules applicable to passenger carriers. (Thompson’s Carriers, 442; Barrett vs. Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N.S.), 205.) As respects hazards and dangers incident to the business or employment, the law enjoins upon such carrier the highest degree of care consistent with its undertaking, and it is responsible for the slightest negligence. (Wilson vs. Northern Pacific R. Co., 26 Minn., 278; Warren vs. Fitchburg R. Co., 8 Allen, 233; 43 Am. Dec. 354, 356, notes and cases.) . . . The severe ruled which enjoins upon the carrier such extraordinary care and diligence, is intended, for reasons of public policy, to secure the safe carriage of passengers, in so far as human skill and foresight can affect such result.” The case just cited was a civil case, and the doctrine therein announced had special reference to the care which should be exercised in securing the safety of passengers. But we hold that the reasons of public policy which impose upon street car companies and their employees the duty of exercising the utmost degree of diligence in securing the safety of passengers, apply with equal force to the duty of avoiding the infliction of injuries upon pedestrians and others on the public streets and thoroughfares over which these companies are authorized to run their cars. And while, in a criminal case, the courts will require proof of the guilt of the company or its employees beyond a reasonable doubt, nevertheless the care or diligence required of the company and its employees is the same in both cases, and the only question to be determined is whether the proofs shows beyond a reasonable doubt that the failure to exercise such care or diligence was the cause of the accident, and that the defendant was guilty thereof.

Counsel for the defendant insist that the accident might have happened despite the exercise of the utmost care by the defendant, and they have introduced photographs into the record for the purpose of proving that while the motorman was standing in his proper place on the front platform of the car, a child might have walked up immediately in front of he car without coming within the line of his vision. Examining the photographs, we think that this contention may have some foundation in fact; but only to this extent, that standing erect, at the position he would ordinarily assume while the car is in motion, the eye of the average motorman might just miss seeing the top of the head of a child, about three years old, standing or walking close up to the front of the car. But it is also very evident that by inclining the head and shoulders forward very slightly, and glancing in front of the car, a person in the position of a motorman could not fail to see a child on the track immediately in front of his car; and we hold that it is the manifest duty of a motorman, who is about to start his car on a public thoroughfare in a thickly-settled district, to satisfy himself that the track is clear immediately in front of his car, and to incline his body slightly forward, if that be necessary, in order to bring the whole track within his line of vision. Of course, this may not be, and usually is not necessary when the car is in motion, but we think that it is required by the dictates of the most ordinary prudence in starting from a standstill.

We are not unmindful of our remarks in the case of U. S. vs. Bacho (10 Phil. Rep., 577), to which our attention is directed by counsel for appellant. In that case we said that:

. . . In the general experience of mankind, accidents apparently avoidable and often inexplicable are unfortunately too frequent to permit us to conclude that some one must be criminally liable for negligence in every case where an accident occurs. It is the duty of the prosecution in each case to prove by competent evidence not only the existence of criminal negligence, but that the accused was guilty thereof.

Nor do we overlook the ruling in the case of U. S. vs. Barnes (12 Phil. Rep., 93), to which our attention is also invited, wherein we held that the defendant was not guilty of reckless negligence, where it appeared that he killed another by the discharge of his gun under such circumstances that he might have been held guilty of criminally reckless negligence had he had knowledge at that moment that another person was in such position as to be in danger if the gun should be discharged. In this latter case the defendant had no reason to anticipate that the person who was injured was in the line of fire, or that there was any probability that he or anyone else would place himself in the line of fire. In the case at bar, however, it was, as we have seen, the manifest duty of the motorman to take reasonable precautions in starting his car to see that in doing so he was not endangering the life of any pedestrian, old or young; and to this end it was further his duty to guard against the reasonable possibility that some one might be on the track immediately in front of the car. We think that the evidence showing, as it does, that the child was killed at the moment when the car was set in motion, we are justified in holding that, had the motorman seen the child, he could have avoided the accident; the accident was not, therefore, “unavailable or inexplicable,” and it appearing that the motorman, by the exercise of ordinary diligence, might have seen the child before he set the car in motion, his failure to satisfy himself that the track was clear before doing so was reckless negligence, of which he was properly convicted in the court below.

We think, however, that the penalty should be reduced to that of six months and one day of prision correccional. Modified by substituting for so much thereof as imposes the penalty of one year and one month of imprisonment, the penalty of six months and one day of prision correccional, the judgment of the lower court convicting and sentencing the appellant is affirmed, with costs of both instances against him. So ordered.

Arellano, C.J., Torres and Mapa, JJ., concur.

Batas Pinas