G.R. No. 7760. October 01, 1914
E. M. WRIGHT, PLAINTIFF AND APPELLANT, VS. MANILA ELECTRIC R. R. & LIGHT CO., DEFENDANT AND APPELLANT.
MORELAND, J.:
accident which occurred in Caloocan on the night of August 8, 1909.
The defendant is a corporation engaged in operating an electric street
railway in the city of Manila and its suburbs, including the municipality of
Caloocan. The plaintiff’s residence in Caloocan fronts on the street along which
defendant’s tracks run, so that to enter his premises from the street plaintiff
is obliged to cross defendant’s tracks. On the night mentioned plaintiff drove
home in a calesa and in crossing the tracks to enter his premises the horse
stumbled, leaped forward, and fell, causing the vehicle to strike one of the
rails with great force. The fall of the horse and the collision of the vehicle
with the rails, resulting in a sudden stop, threw plaintiff from the vehicle and
caused the injuries complained of.
It is undisputed that at the point where plaintiff crossed the tracks on the
night in question not only the rails were above-ground, but that the ties upon
which the rails rested projected from one-third to one-half of their depth out
of the ground, thus making the tops of the rails some 5 or 6 inches or more
above the level of the street.
It is admitted that the defendant was negligent in maintaining its tracks as
described, but it is contended that the plaintiff was also negligent in that he
was intoxicated to such an extent at the time of the accident that he was unable
to take care of himself properly and that such intoxication was the primary
cause of the accident.
The trial court held that both parties were negligent, but that the
plaintiff’s negligence was not as great as defendant’s and under the authority
of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359)
apportioned the damages and awarded plaintiff a judgment of P1,000.
The question before us is stated by the defendant thus:
“Accepting the findings of the trial court that both plaintiff and defendant
were guilty of negligence, the only question to be considered is whether the
negligence of plaintiff contributed to the ‘principal occurrence’ or ‘only to
his own injury.’ If the former, he cannot recover; if the latter, the trial
court was correct in apportioning the damages.”
The question as stated by plaintiff is as follows: “The main question at
issue is whether or not the plaintiff was negligent, and, if so, to what extent.
If the negligence of the plaintiff was the primary cause of the accident then,
of course, he cannot recover; if his negligence had nothing to do with the
accident but contributed to his injury, then the court was right in apportioning
the damages, but if there was no negligence on the part of the plaintiff, then
he should be awarded damages adequate to the injury sustained.”
In support of the defendant’s contention counsel says:
“Defendant’s negligence was it,s failure properly to maintain the track;
plaintiff’s negligence was his intoxication; the ‘principal occurrence’ was
plaintiff’s fall from his calesa. It seems clear, that plaintiff’s intoxication
contributed to the fall; if he had been sober, it can hardly be doubted that he
would have crossed the track safely, as he had done a hundred times
before.”
While both parties appealed from the decision, the defendant on the ground
that it was not liable and the plaintiff on the ground that the damages were
insufficient according to the evidence, and while the plaintiff made a motion
for a new trial upon the statutory grounds and took proper exception to the
denial thereof, thus conferring upon this court jurisdiction to determine the
questions of fact, nevertheless, not all of the testimony taken on the trial, so
far as can be gathered from the record, has been brought to this court. There
seem to have been two hearings, one on the 31st of August and the other on the
28th of September. The evidence taken on the first hearing is here; that taken
on the second is not. Not all the evidence taken on the hearings being before
the court, we must refuse, under our rules, to consider even that evidence which
is here; and, in the decision of this case, we are, therefore, relegated to the
facts stated in the opinion of the court and the pleadings filed.
A careful reading of the decision of the trial court leads us to the
conclusion that there is nothing in the opinion which sustains the conclusion of
the court that the plaintiff was negligent with reference to the accident which
is the basis of this action. Mere intoxication is not negligence, nor does the
niere fact of intoxication establish a want of ordinary care. It is but a
circumstance to be corfsiclered with the other evidence tending to prove
negligence. It is the general rule that it is immaterial whether a man is drunk
or sober if no want of ordinary care or prudence can be imputed to him, and no
greater degree of care is required to be exercised by an intoxicated man for his
own protection than by a sober one. If one’s conduct is characterized by a
proper degree of care and prudence, it is immaterial whether he is drunk or
sober. (Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H. & T. C.
R. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen,
Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488; Maguire
vs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs. Pacific R.
R. Co., 40 Mo., 151; Chicago & N. W. R. R. Co. vs. Drake, 33 Ill.
App., 114.)
If intoxication is not in itself negligence, what are the facts found by the
trial court and stated in its opinion upon which may be predicated the finding
that the plaintiff did not use ordinary care and prudence and that the
intoxication contributed to the injury complained of? After showing clearly and
forcibly the negligence of the defendant in leaving its tracks in the condition
in which they were on the night of the injury, the court has the following to
say, and it is all that can be found in its opinion, with reference to the
negligence of the plaintiff: “With respect to the condition in which Mr. Wright
was on returning to his house on the night in question, the testimony of Doctor
Kneedler, who was the physician who attended him an hour after the accident,
demonstrates that he was intoxicated. * * *
“If the defendant or its employees were negligent by reason of having left
the rails and a part of the ties uncovered in a street where there is a large
amount of travel, the plaintiff was no less negligent, he not having abstained
from his custom of taking more wine than he could carry without disturbing his
judgment and his self-control, he knowing that he had to drive a horse and wagon
and to cross railroad tracks which were to a certain extent dangerous by reason
of the rails being elevated above the level of the street.“If the plaintiff had been prudent on the night in question and had not
attempted to drive his conveyance while in a drunken condition, he would
certainly have avoided the damages which he received, although the company, on
its part, was negligent in maintaining its tracks in a bad condition for
travel.“Both parties, therefore, were negligent and both contributed to the damages
resulting to the plaintiff, although the plaintiff, in the judgment of the
court, contributed in greater proportion to.the damages than did the
defendant.”
As is clear from reading the opinion, no facts are stated therein which
warrant the conclusion ttiat the plaintiff was negligent. The conclusion that if
he had been sober he would not have been injured is not warranted by the facts
as found. It is impossible to say that a sober man would not have fallen from
the vehicle under the conditions described. A horse crossing the railroad tracks
with not only the rails but a portion of the ties themselves aboveground,
stumbling by reason of the unsure footing and falling, the vehicle crashing
against the rails with such force as to break a wheel, this might be sufficient
to throw a person from the vehicle no matter what his condition; and to conclude
that, under such circumstances, a sober man would not have fallen while a
drunken man did, is to draw a conclusion which enters the realm of speculation
and guess work.
It having been found that the plaintiff was not negligent, it is unnecessary
to discuss the question presented by the appellant company with reference to the
applicability of the case of Rakes vsi A. G. & P. Co., above; and we do not
find facts in the opinion of the court below which justify a larger verdict than
the one found.
The judgment appealed from is affirmed, without special finding as to
costs.
Arellano, C. J., Torres and Araullo, JJ., concur.
Johnson, J,, dissents.
DISSENTING
CARSON, J.
I dissent. I think, in the first place, that before pronouncing judgment the
parties should have an.opportunity, if they so desire, to correct the manifestly
accidental omission from the record of a part of the transcript of the record.
It is very clear that when the case was submitted, and the briefs filed, both
parties were under the mistaken impression that all the evidence was in the
record.
I think, furthermore, that if the case is to be decided on the findings of
fact by the trial judge, these findings sufficiently establish the negligence of
the plaintiff.
The trial judge expressly found that—
“If the plaintiff had been prudent on the night in question and had not
attempted to drive his conveyance while in a drunken condition, he would
certainly have avoided the damages which he received, although the company, on
its, part, was negligent in maintaining its tracks in a bad condition for
travel.”
This is a finding of fact—the-fact of negligence—and I know of no rule which
requires the trial court to set forth not only the ultimate facts found by it,
but also all the evidentiary facts on which such conclusions are based The
finding is not in conflict with the other facts found by the trial judge, and
though it is not fully sustained thereby, we must assume, if we decline to
examine the record, that there were evidentiary facts disclosed at the trial
which were sufficient to sustain the finding of negligence. “The statement of
facts must contain only those facts which are essential to a clear understanding
of the issues presented and the facts involved.” (Act No. 190, sec. 133.)
“The facts required to be found are the ultimate facts forming the issues
presented by the pleadings, and which constitute the foundation for a judgment,
and not those that are merely evidentiary of them. The court is not required to
find merely evidentiary facts, or to set forth and explain the means or
processes by which he arrived at such findings. Neither evidence, argument, nor
comment has any legitimate place in findings of facts.” (Conlan vs. Grace, 36
Minn., 276,282.)