THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLEE, VS. NARCISO VISTAN Y DE LA CRUZ, DEFENDANT AND APPELLANT.

The appellant was prosecuted in the Court
of First Instance of Manila for the crime of serious physical injuries
through reckless imprudence, and sentenced to imprisonment for three
months of arresto mayor, with the corresponding accessory penalties and to pay the costs. The complaint is as follows:

“That on or about the 10th day of April, 1920, in
the city of Manila, Philippine Islands, while street car No. 203 of the
Manila Electric Railroad and Light Co. was receiving passengers at the
intersection of M. H. del Pilar and Isaac Peral Streets of this city,
said accused, who was then and there the conductor in charge of said
street car, did then and there wilfully, unlawfully, and feloniously
and with reckless imprudence signal the motorman to go ahead without
minding and without taking into account that one Hugo Borromeo, whom he
could then see was at that very moment about to board the car with one
foot on the running board, thereby causing the said Hugo Borromeo to be
thrown down by the jerk of the moving car and his foot overrun by the
rear wheels of said car No. 203 upon falling on the ground, with the
result that his left foot was crushed and injured to such an extent as
to require medical attendance and prevent the said offended party from
engaging in his habitual work for a period of more than ninety days;
that due to said accident Hugo Borromeo lost his left foot which had to
be amputated. Contrary to law.”

It appears from the record that on April 10, 1920, after two sons
of the offended Hugo Borromeo, who were with him had boarded the street
car No. 203 which had stopped at the intersection of M. H. del Pilar
and Isaac Peral Streets of this city, and also in attempting to board
the same car, the said Hugo Borromeo with his right hand took a hold of
the iron bar on the right side of the only entrance door, and with the
left the iron bar in the middle of the entrance. When he had his right
foot on the platform, the conductor in charge of the car, the accused
herein, gave the signal to start. Thereupon the car suddenly moved
forward with a jerk thus causing his left hand to slip off while the
right one was pinioned between the iron bar and the woodwork upon which
it was fixed and he was unable to draw it out immediately due to the
speed of the car. In the meantime he was momentarily dragged along and
when his knees were touching the ground, he felt that his left foot had
become numb, unaware that his foot was overrun by the wheel, until he
was on the ground about 10 meters, more or less, from the place where
the car had started.

The defense tried to prove that the street car being in motion, the
offended party ran after it and attempted to board it, but
unfortunately missed the running board and upon falling down one of his
feet was caught by the wheels of the car. The witnesses who testified
to this fact undoubtedly referred to the fact related by the aggrieved
party himself when he gave the tails as to how he was for a time
dragged by the car. It was not necessary for the offended party to run
after the car in order to board it, as it was stopped when his two sons
entered it, behind whom he was with his hands holding the bars of the
car, and was then placing his right foot on the running board when the
car started in response to the signal to start given at that very
moment by the accused. The fact is that due probably to the abrupt
motion of the car in starting, the left hand of the offended party
slipped off and his right hand was caught between the iron bar and
woodwork upon which it was attached and having lost the equilibrium he
was dragged along for a short distance until his left foot was caught
by the wheels of the car. This fact, which was seen by the witness
Lawson who was some distance behind the car, might cause the impression
that the offended party was running after the car when he fell down,
and, we believe, the witness testified under this impression.

We believe it to be clear that at the time of boarding the car, the
offended party was watching the man who gave the signal to start, that
is, the conductor, and the latter, who had his eyes toward the door,
seeing that nobody was alighting or boarding the car, rang the bell,
whereupon the car started. It is not improbable that when the accused
saw the last passenger with both hands clinging to the holding device
of the car and one foot on the running board, he thought that the
passenger had completely boarded the car and that is why he gave the
signal to start. The question that presents itself is whether or not
the accused acted with reckless negligence as alleged in the
information.

In the case of U. S. vs. Gomez (R. G. No. 14068),^[1]
the accused was convicted of the crime of homicide through reckless
negligence. The accused was the motorman of a street car that collided
with a carabao cart at the intersection of Concepcion and Arroceros
Streets of the city of Manila. As a result of the collision, one of the
occupants of the cart, Santos Alcartado, was thrown under the car and
killed. In discussing the responsibility of the accused, this court,
among other things, said:

“Upon the other point, whether the negligence or
imprudence of the accused can properly be denominated rash, it is to be
observed that the amount of care and diligence which a man is required
to use in a particular situation in order to avoid the imputation of
negligence varies with the obviousness of the risk. If the danger of
doing injury to the person or property of another by the pursuance of a
certain line of conduct is great, the individual who proposes to pursue
that particular course is bound to use great care in order to avoid the
foreseeable harm. On the other hand, if the danger is slight, only a
slight amount of care is required. It is thus seen that there are
infinite shades of care or diligence, from the slightest momentary
thought or transient glance of attention to the most vigilant anxiety
and solicitude, and whether a person is bound to use a high or a low
degree of care depends upon the situation presented in the particular
case. Now the term negligence is used to indicate the legal delinquency
which results wherever a man fails to exhibit the care which he ought
to exhibit, whether it be slight, ordinary or great; and it is clear
that in a situation where immediate danger to an individual is
indicated the requirement for the exercise of a high degree of care is
more exigent than where nothing more than possible harm to inanimate
things is concerned. As experience only too well teaches collisions
between cars and vehicles carrying people in the streets are fraught
with a high degree of danger to the passengers, and it results that a
high degree of care is required of those who have control of the
agencies involving such danger. The failure to use the requisite care
in such cases is properly denominated gross negligence or rash
imprudence if the actor, having at his command the means of avoiding
the harm, fails to avail himself of it.

“The term ‘rash
imprudence,’ as used in the Spanish Code, would seem to he
approximately equivalent to the ‘gross negligence’ of the common law;
and as was once observed by a brilliant English judge, gross negligence
is only negligence with a vituperative epithet (Rolfe, B., in Wilson vs.
Brett [1843], Mees. & Wels., 113). The same may substantially be
said of the term ‘rash imprudence’ in Spanish law. It is imprudence
with a vituperative epithet. In common usage the word ‘rash’ seems
sometimes to imply a wanton disregard of consequences, indicative of a
state of mind bordering upon deliberate intention to inflict a positive
injury. The legal import of the expression is in our opinion of
somewhat greater latitude, since it wholly excludes the idea of malice
and under conditions more readily felt than denned is satisfied by
proof of mere lack of foresight.

” ‘Reckless imprudence
consists in doing or not doing voluntarily, but without malice, an act,
from which material injury results due to lack of foresight,
unexcusable on the part of the person executing or omitting to do it.’
(Decision of the supreme court of Spain, May 14, 1904, referred to by
Viada in his Commentaries, 5 Supp., 457.)

” ‘Reckless
imprudence, punishable as crime, consists in the lack of prevision and
rational precaution with which all acts must be executed, from which
probable injury or damage may easily result.’ (Decision of the supreme
court of Spain, March 16, 1905, referred to by Viada in his
Commentaries, 5 Supp., 461.)

“The distinction between simple
imprudence, which is a constitutive element of a misdemeanor under
article 590 of the Penal Code, and rash imprudence, which is a
constitutive element of the offense punishable under article 568 of the
same Code, is not clearly indicated in the books; but we think the
weight of authority will be found to support the proposition that where
immediate personal harm, preventable in the exercise of reasonable
care, is threatened to a human being by reason of a course of conduct
which is being pursued by another, and the danger is visible and
consciously appreciated by the actor, the failure to use reasonable
care to prevent the threatened injury constitutes reckless negligence.

“Simple imprudence, on the other hand, is a mere lack of prevision in a
situation where either the threatened harm is not immediate or the
danger is not openly visible. The following is cited in Viada as a case
of simple imprudence: A man goes hunting and raises his gun to shoot at
a bird. Upon lowering the gun without firing, he negligently fails to
lower the hammer; and while the gun is being thus carried cocked, it is
accidentally discharged with the result that a person casually in range
of the gun is wounded. As will be seen in this case, although there is
imprudence, on the part of the hunter, there is not a conscious
advertance to the danger to which the other person is being subjected.
Said the court:

” ‘The fact set forth as proved in the first
finding of the court below is not sufficiently such as would indicate
real reckless imprudence on the part of Cecilio Mogarra, inasmuch as
the act of lowering his gun and putting it under his arm without
lowering the hammer, which constitutes negligence, does not show grave
fault, but only mere lack of foresight chargeable as simple
imprudence.’ (Decision of the supreme court of Spain, March 12, 1904,
referred to by Viada in his Commentaries, 5 Supp., 457.)”

Taking into consideration all the circumstances of the case at bar,
we are of the opinion that the act of the accused in giving the order
to start the car, when the offended party had his hands already on the
holding devices of the car and his foot on the running board,
constitutes carelessness or negligence, but does not show grave fault
amounting to reckless imprudence and the accused having acted with
simple imprudence or negligence, has incurred the penalty provided by
article 590, case No. 4, of the Penal Code.

The judgment appealed from is modified, and the accused and appellant is sentenced to pay a fine of 60 pesetas and to suffer the corresponding subsidiary imprisonment in case of insolvency and to censure, with the costs of this instance de oficio. So ordered

Johnson, Araullo, Street, and Avancena, JJ., concur.

---

^[1] Decided January 17, 1919, not reported.