was driving his car along Rizal avenue and stopped
Republic of the Philippines
it near the intersection of that street with Calle SUPREME COURT Requesen to take on some passengers. When the Manila car stopped, the defendant looked backward, EN BANC presumably to note whether all the passengers were G.R. No. L-7567 November 12, 1912 aboard, and then started his car. At that moment Fermina Jose, a child about 3 years old, walked or THE UNITED STATES, plaintiff-appellee, ran in front of he car. She was knocked down and vs. dragged some little distance underneath the car, SEGUNDO BARIAS, defendant-appellant. and was left dead upon the track. The motorman Bruce, Lawrence, Ross and Block for appellant. proceeded with his car to the end of the track, some Office of the Solicitor-General Harvey, for appellee. distance from the place of the accident, and apparently knew nothing of it until his return, when he was informed of what happened. CARSON, J.: There is no substantial dispute as to the facts. It is This is an appeal from a sentence imposed by the true that one witness testified that the defendant Honorable A. S. Crossfield, judge of the Court of First started the car without turning his head, and while Instance of Manila, for homicide resulting from he was still looking backwards and that this reckless negligence. The information charges: testimony was directly contradicted by that of another witness. But we do not deem it necessary to That on or about November 2, 1911, in the make an express finding as to the precise direction city of Manila, Philippine Islands, the said in which the defendant's head was turned at the Segundo Barias was a motorman on street moment when he started his car. It is sufficient for car No. 9, run 7 of the Pasay-Cervantes lines the purpose of our decision to hold, as we do, that of the Manila Electric Railroad and Light the evidence clearly discloses that he started his car Company, a corporation duly organized and from a standstill without looking over the track doing business in the city of Manila, immediately in front of the car to satisfy himself that Philippine Islands; as a such motorman he it was clear. he did not see the child until after he was controlling and operating said street car had run his car over it, and after he had return to along Rizal Avenue, formerly Calle the place where it was found dead, and we think we Cervantes, of this city, and as such are justified in saying that whenever he was looking motorman of the said street car he was at the moment when he started his car, he was not under obligation to run the same with due looking at the track immediately in front of the car, care and diligence to avoid any accident that and that he had not satisfied himself that this might occur to vehicles and pedestrians who portion of the tract was clear immediately before were travelling on said Rizal Avenue; said putting the car in the motion. accused, at said time and place, did willfully, with reckless imprudence and inexcusable The trial court found the defendant guilty of negligence and in violation of the regulations imprudencia temeraria (reckless negligence) as promulgated to that effect, control and charged in the information, and sentenced him to operate said street car, without heeding the over one year and one month of imprisonment in pedestrians crossing Rizal Avenue from one the Bilibid Prison, and to pay the cause of the side to the other, thus knocking down and action. causing by his carelessness and imprudent The sole question raised by this appeal is whether negligence that said street car No. 9, the evidence shows such carelessness or want of operated and controlled by said accused, as ordinary care on the part of the defendant as to hereinbefore stated, should knock down and amount to reckless negligence (imprudencia pass over the body and head of one Fermina temeraria). Jose, a girl 2 years old, who at said time and place was crossing the said Rizal Avenue, the Judge Cooley in his work on Torts (3d ed., 1324) body of said girl being dragged along street- defines negligence to be: "The failure to observe, for car on said Rizal Avenue for a long distance, the protection of the interests of another person, thus crushing and destroying her head and that degree of care, precaution and vigilance which causing her sudden death as a result of the the circumstances justly demand, whereby such injury received; that if the acts executed by other persons suffers injury." the accused had been done with malice, he In the case of U. S. vs. Nava, (1 Phil. Rep., 580), we would be guilty of the serious crime of held that: "Reckless negligence consists of the homicide. failure to take such precautions or advance The defendant was a motorman for the Manila measures in the performance of an act as the most Electric Railroad and Light Company. At about 6 prudence would suggest whereby injury is caused to o'clock on the morning of November 2, 1911, he persons or to property." Silvela says in his "Derecho Penal," in speaking of (Ahern vs. Oregon Telephone Co., 24 Oreg., 276, reckless imprudence (imprudencia temeraria): 294; 35 Pac., 549.) The word "negligencia" used in the code, and Ordinary care, if the danger is great, may arise to the term "imprudencia" with which this the grade of a very exact and unchangeable punishable act is defined, express this idea in attention. (Parry Mfg. Co. vs. Eaton, 41 Ind. App., 81, such a clear manner that it is not necessary 1908; 83 N. E., 510.) to enlarge upon it. He who has done In the case of U. S. vs. Reyes (1 Phil. Rep., 375-377), everything on his part to prevent his actions we held that: "The diligence with which the law from causing damage to another, although requires the individual at all the time to govern his he has not succeeded in doing so, conduct varies with the nature of the situation in notwithstanding his efforts, is the victim of which he is placed and with the importance of the an accident and can not be considered act which he is to perform.lawph!l.net responsible for the same. (Vol. 2, p. 127 [153].) The question to be determined then, is whether, under all the circumstances, and having in mind the Temerario is, in our opinion, one who omits, situation of the defendant when he put his car in with regard to this actions, which are liable motion and ran it over the child, he was guilty of a to cause injury to another, that care and failure to take such precautions or advance diligence, that attention, which can be measures as common prudence would suggest. required of the least careful, attentive, or diligent. If a moment's attention and The evidence shows that the thoroughfare on which reflection would have shown a person that the incident occurred was a public street in a the act which he was about to perform was densely populated section of the city. The hour was liable to have the harmful consequence six in the morning, or about the time when the which it had, such person acted with residents of such streets begin to move about. temerity and may be guilty of "imprudencia Under such conditions a motorman of an electric temeraria." It may be that in practice this street car was clearly charged with a high degree of idea has been given a greater scope and the diligence in the performance of his duties. He was acts of imprudence which did not show bound to know and to recognize that any negligence carelessness as carried to such high degree, on his part in observing the track over which he was might have been punished as "imprudencia running his car might result in fatal accidents. He temeraria;" but in our opinion, the proper had no right to assume that the track before his car meaning of the word does not authorize was clear. It was his duty to satisfy himself of that another interpretation. (Id., p. 133 [161].) fact by keeping a sharp lookout, and to do everything in his power to avoid the danger which is Groizard, commenting upon "imprudencia necessarily incident to the operation of heavy street temeraria," on page 389, volume 8, of his work on cars on public thoroughfares in populous sections of the Penal Code, says: the city. Prudence is that cardinal virtue which Did he exercise the degree of diligence required of teaches us to discern and distinguish the him? We think this question must be answered in good from bad, in order to adopt or flee from the negative. We do not go so far as to say that it. It also means good judgment, temperance, having brought his car to a standstill it was his and moderation in one's actions. `Temerario bounden duty to keep his eyes directed to the front. is one who exposes himself to danger or Indeed, in the absence of some regulation of his rushes into it without reflection and without employers, we can well understand that, at times, it examining the same. Consequently, he who might be highly proper and prudent for him to from lack of good judgment, temperance, or glance back before again setting his car in motion, moderation in his actions, exposes himself to satisfy himself that he understood correctly a without reflection and examination to the signal to go forward or that all the passengers had danger of committing a crime, must be held safely alighted or gotten on board. But we do insist responsible under the provision of law that before setting his car again in motion, it was his aforementioned. duty to satisfy himself that the track was clear, and, Negligence is want of the care required by the for that purpose, to look and to see the track just in circumstances. It is a relative or comparative, not an front of his car. This the defendant did not do, and absolute, term and its application depends upon the the result of his negligence was the death of the situation of the parties and the degree of care and child. vigilance which the circumstances reasonably In the case of Smith vs. St. Paul City Ry. Co., (32 require. Where the danger is great, a high degree of Minn., p. 1), the supreme court of Minnesota, in care is necessary, and the failure to observe it is a discussing the diligence required of street railway want of ordinary care under the circumstances. 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 his car, and to incline his body slightly forward, if operated thereon. It is therefore subject to the rules that be necessary, in order to bring the whole track applicable to passenger carriers. (Thompson's within his line of vision. Of course, this may not be, Carriers, 442; Barrett vs. Third Ave. R. Co., 1 and usually is not necessary when the car is in Sweeny, 568; 8 Abb. Pr. (N.S.), 205.) As respects motion, but we think that it is required by the hazards and dangers incident to the business or dictates of the most ordinary prudence in starting employment, the law enjoins upon such carrier the from a standstill. highest degree of care consistent with its We are not unmindful of our remarks in the case of undertaking, and it is responsible for the slightest U. S. vs. Bacho (10 Phil. Rep., 577), to which our negligence. (Wilson vs. Northern Pacific R. Co., 26 attention is directed by counsel for appellant. In that Minn., 278; Warren vs. Fitchburg R. Co., 8 Allen, case we said that: 233; 43 Am. Dec. 354, 356, notes and cases.) . . . The severe ruled which enjoins upon the carrier . . . In the general experience of mankind, such extraordinary care and diligence, is intended, accidents apparently avoidable and often for reasons of public policy, to secure the safe inexplicable are unfortunately too frequent to carriage of passengers, in so far as human skill and permit us to conclude that some one must be foresight can affect such result." The case just cited criminally liable for negligence in every case was a civil case, and the doctrine therein announced where an accident occurs. It is the duty of had special reference to the care which should be the prosecution in each case to prove by exercised in securing the safety of passengers. But competent evidence not only the existence we hold that the reasons of public policy which of criminal negligence, but that the accused impose upon street car companies and their was guilty thereof. employees the duty of exercising the utmost degree Nor do we overlook the ruling in the case of U. S. vs. of diligence in securing the safety of passengers, Barnes (12 Phil. Rep., 93), to which our attention is apply with equal force to the duty of avoiding the also invited, wherein we held that the defendant infliction of injuries upon pedestrians and others on was not guilty of reckless negligence, where it the public streets and thoroughfares over which appeared that he killed another by the discharge of these companies are authorized to run their cars. his gun under such circumstances that he might And while, in a criminal case, the courts will require have been held guilty of criminally reckless proof of the guilt of the company or its employees negligence had he had knowledge at that moment beyond a reasonable doubt, nevertheless the care that another person was in such position as to be in or diligence required of the company and its danger if the gun should be discharged. In this latter employees is the same in both cases, and the only case the defendant had no reason to anticipate that question to be determined is whether the proofs the person who was injured was in the line of fire, or shows beyond a reasonable doubt that the failure to that there was any probability that he or anyone exercise such care or diligence was the cause of the else would place himself in the line of fire. In the accident, and that the defendant was guilty thereof. case at bar, however, it was, as we have seen, the Counsel for the defendant insist that the accident manifest duty of the motorman to take reasonable might have happened despite the exercise of the precautions in starting his car to see that in doing so utmost care by the defendant, and they have he was not endangering the life of any pedestrian, introduced photographs into the record for the old or young; and to this end it was further his duty purpose of proving that while the motorman was to guard against the reasonable possibility that standing in his proper place on the front platform of some one might be on the track immediately in the car, a child might have walked up immediately front of the car. We think that the evidence showing, in front of he car without coming within the line of as it does, that the child was killed at the moment his vision. Examining the photographs, we think that when the car was set in motion, we are justified in this contention may have some foundation in fact; holding that, had the motorman seen the child, he but only to this extent, that standing erect, at the could have avoided the accident; the accident was position he would ordinarily assume while the car is not, therefore, "unavailable or inexplicable," and it in motion, the eye of the average motorman might appearing that the motorman, by the exercise of just miss seeing the top of the head of a child, about ordinary diligence, might have seen the child before three years old, standing or walking close up to the he set the car in motion, his failure to satisfy himself front of the car. But it is also very evident that by that the track was clear before doing so was inclining the head and shoulders forward very reckless negligence, of which he was properly slightly, and glancing in front of the car, a person in convicted in the court below. the position of a motorman could not fail to see a We think, however, that the penalty should be child on the track immediately in front of his car; reduced to that of six months and one day of prision and we hold that it is the manifest duty of a correccional. Modified by substituting for so much motorman, who is about to start his car on a public thereof as imposes the penalty of one year and one thoroughfare in a thickly-settled district, to satisfy month of imprisonment, the penalty of six months himself that the track is clear immediately in front of 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.