UNITED STATES vs .

SEGUNDO BARIAS

FIRST DIVISION

[G.R. No. 7567. November 12, 1912.]

THE UNITED STATES , plaintiff-appellee, vs. SEGUNDO BARIAS,

defendant-appellant.

Bruce, Lawrence, Ross & Block for appellant.

Solicitor-General Harvey for appellee.

SYLLABUS

1. NEGLIGENCE DEFINED. — Negligence is "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 person
suffers injury."
2. ID.; ID. — Silvela's observation that "if a moment's attention and
reflexion would have shown a person that the act which he was about to perform
was liable to have the harmful consequences which it had, such person acted
with temerity and may be guilty of imprudencia temeraria," cited with approval.
3. ID.; ID. — "The diligence with which the law requires the individual at all
times 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." (U. S. vs.
Reyes, 1 Phil. Rep., 375, 377.)
4. ID.; STREET RAILWAYS; DUTIES AND RESPONSIBILITIES OF MOTORMEN.
— Held, that a motorman operating a street car on a public street in a densely
populated section of the city of Manila is bound to know and to recognize that
any negligence on his part in observing the track over which he is running his car
may result in fatal accidents. He has no right, when he starts from a standstill, to
assume that the track before his car is clear. It is his duty to satisfy himself of
that fact by keeping a sharp lookout and doing everything in his power to avoid
the danger which is necessarily incident to the operation of heavy street cars on
thoroughfares in populous sections of the city.
5. ID.; ID.; ID. — In the absence of some regulation of his employers, a
motorman who has brought his car to a standstill is not bound to keep his eyes
directly to the front while the car is stopped, but before setting it again in
motion, it is his duty to satisfy himself that the track is clear, and for that
purpose to look and to see the track just in front of his car.
6. ID.; ID.; ID. — 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 infliction of injuries upon pedestrians and others upon the public
streets and thoroughfares over which such companies are authorized to run their
cars.
7. ID.; ID.; ID. — It is the manifest duty of a motorman operating an electric
street car on a public thoroughfare in as thickly settled district, to satisfy himself
that the track is clear immediately in front of his car before setting it in motion
from a standstill and for that purpose to incline his body slightly forward, if that
be necessary, in order to bring the track immediately in front of his car within his
line of vision.

DECISION

CARSON, J : p

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 such motorman he was controlling and
operating said street car along Rizal Avenue, formerly Calle Cervantes, of
this city, and as such motorman of 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 traveling on said Rizal Avenue;
said accused, at said time and place, did willfully, with reckless imprudenced
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 the street-car
track 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 Ferminia Jose, a child
about 3 years old, walked or ran in front of the 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 had 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 returned to the place where it was found
dead, and we think we are justified in saying that wherever 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 track was clear immediately before putting the car in motion.
The trial court found the defendant guilty of imprudencia temeraria
(reckless negligence) as charged in the information, and sentenced him to one
year and one month of imprisonment in Bilibid Prison, and to pay the costs 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 person suffers injury."
In the case of U. S. vs. Nava, (1 Phi. 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 common 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 cannot be considered responsible for the same." (Vol. 2, p.
127 [153].)

"Temerario is, in our opinion, one who omits, with regard to his 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 acts of imprudence which did not show carelessness as
carried to such a 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 the bad, in order to adopt or to flee from it. It also
means good judgment, temperance, and moderation in one's action.
'Temerario' without reflection and without examining the same.
Consequently, he who from lack of good judgment, temperance, or
moderation in his action, 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 rise 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 times 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."
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 gland 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 Min., 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, owning 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 rule 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 d especial reference to the care which
should be exercised in securing the safety of passengers. But we hold that the
reasons of public policy which imposed 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 proof 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 the car, a child might have
walked up immediately in front of the 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, 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
unavoidable 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 evidence showing, is 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, "unavoidable 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 the costs of
both instances against him. So ordered.
Arellano, C.J., Torres and Mapa, JJ., concur.
Johnson, J., concurs in the result.
Trent, J., dissents.