G.R. No. 991. December 19, 1902

The defendant, Francisco Nava, is charged with causing the death of one Luciano de la Cruz through reckless negligence in the following manner:

On the 14th day of October, 1901, the defendant was the the patron of and having full authority over a certain steam launch known as the Mariposa in the harbor of the city of Manila, and having such authority he took in tow a certain lorcha known as the Legaspi. That while the Mariposa was towing the Legaspi by means of a towline the defendant willfully cast loose the towline from the launch Mariposa so as to cause the Legaspi to go adrift, and the Legaspi being without motive power was unable to resist the action of the wind, current, and the sea in the said harbor. That by reason of so being cast adrift the Legaspi was thrown by the action of the wind and waves upon the breakwater, wrecked, and broken to pieces, and that one Luciano de la Cruz, who was then on board of the lorcha Legaspi, was drowned.

The defendant was found guilty under the provisions of article 568 of the Penal Code and sentenced to the penalty of presidio correccionalfor the period of one year and one day and to the payment of the costs of the proceed1 ings, from which judgment he has appealed to this court.

“Criminal negligence” according to Viada, “consists in 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.”

Does the evidence in the case show such inexcusable negligence and want cf care as to amount to reckless negligence?

The evidence shows that about 10 o’clock in the morning of the 14th of October, 19.01, the typhoon signal was raised at the Captain of the Port’s Office; that the launches set out to bring into the river the lorchas, cascoes, and other small craft which were used for loading and unloading the vessels in the bay.

That about 3.30 in the afternoon the steam launch Mariposa, of which the defendant was the patron, was solicited by the lorcha Legaspi, which was then lying alongside the steamer Perla, to be towed in the direction of the Pasig river; that the Mariposa took in tow the Legaspi and also three other lorchas; that while the Mariposa is a first-class launch it was unable on account of the weather growing worse to advance with the four lorchas, and she ordered the Legaspi to anchor and await her return.

At about 5.30 in the evening after the fifth typhoon signal was hoisted at the Captain of the Port’s Office, the Mariposa returned to the Legaspi and took her in tow, and was going to take a tow of the lorchas and cascoes that were lying alongside of the ship Esmeralda which was near by, but making a bad mark of it she was delayed for nearly half an hour, when, if properly done, she would have picked them up in five to ten minutes.

The weather in the meanwhile continued to grow worse, the wind increasing in velocity and the waves running high. Under the circumstances the Mariposa desisted in her purpose of taking the other two lorchas and started out for the river with the Legaspi in tow.

It is claimed by the prosecution that it was within the power of the Mariposa to have steamed around the end of the breakwater into the inside of the harbor instead of going up the River Pasig, which was farther than the outer end of the breakwater.

The Esmeralda was at anchor about 50 yards from the breakwater. When about halfway between the Esmeralda and the breakwater the Mariposa with the Legaspi in tow found herself by the action of the wind and water sagging down towards the breakwater. All the steam was put on that the boilers were able to withstand without gaining any distance, and as stated by the defendant, a trepidation being felt as of touching upon rock, the defendant ordered the Legaspi to anchor, and he cast the towline from the Mariposa, sending the Legaspi adrift. The Legaspi, being without motive power, was left to the mercy of the wind and waves and was soon dashed upon the breakwater. All those on the Legaspi succeeded in saving themselves except Luciano de la Cruz. The Mariposa after casting off the Legaspi steamed safely into harbor.without giving further attention to the Legaspi or making any effort whatever to save those who had been thus left to their fate.

It can not be said, we think, that the acts of the patron of the Mariposa were not strictly adjusted to the necessities of the case.

The weather was continually growing worse, and the Mariposa finding herself unable to make headway against the wind and waves, had the alternative of casting the Legaspi adrift or herself being wrecked on the breakwater. A witness testifies that it was impossible at the time the Mariposa cast the Legaspi adrift to have succeeded in going around the breakwater to the other side. The patron of the Mariposa, perhaps lacking in skill in attempting to reach the lorchas alongside the Esmeralda, lost valuable time, and failing to foresee on leaving the Esmeralda the difficulties which he would encounter ia attempting to go up the river, found himself drifting upon the breakwater, and was in such close proximity to the breakwater that the Mariposa could neither go up the river nor turn and make her way around the breakwater and go in the inside, and under these circumstances sent the Legaspi adrift.

The wrecking of the Legaspi seems to have been inevitable before the time of the casting off of its towline.

It can not be said with certainty that the casting off of the towline placed the Legaspi in a worse position than she would have been had the Mariposa held her tow and continued her course toward the river. The circumstances were such that it was impossible to calculate the chances with any degree of certainty. A different course might have been followed, but it is not certain that any other would not have been equally disastrous to the Legaspi.

We not only fail to discover that the defendant was guilty of reckless negligence, but we are in doubt as to whether he could have pursued any other course under the circumstances.

The negligence charged against the defendant is in sending the Legaspi adrift. There is no evidence showing that by proper effort on the part of the defendant the life of de la Cruz could have been saved, and therefore the act of his steaming oft” in safety can not be considered as an act of negligence. Whether the defendant, to whom was committed the sacred charge of the lives of his fellow beings, acted through the noble impulse and with the courageous conduct which so often characterizes those engaged in his occupation is not a matter for us to determine.

For the reasons stated we must reverse the judgment of the lower court as being unsupported by the evidence and acquit the defendant of the charge, which is accordingly done, and the costs of proceedings are adjudged de oficio. So ordered.

Arellano, C. J., Torres, Smith, Willard, Mapa, and Ladd, JJ., concur.