CONSOLACION JUNIO, PLAINTIFF AND APPELLANT, VS. THE MANILA RAILROAD COMPANY, DEFENDANT AND APPELLEE.

Consolacion Junio, a young woman 22 years of age, and
Beatriz Soloria, another young woman of 18 years, represented by her father, Fausto Soloria, who was appointed
her guardian ad litem, brought these actions in the Court
of First Instance of Pangasinan to recover from the defendant, Manila Railroad Company, damages suffered by
them in an accident that occurred at the railroad crossing
situated at the, outskirts of the town of Calasiao, Pangasinan, when the automobile in which they were passengers
collided with a locomotive belonging to the aforementioned
defendant. This is an appeal taken by them from the judgment rendered by the trial court absolving the defendant,
without costs.

The two cases were tried jointly and only one decision
was rendered for both cases.

The trial court summarizes the facts established by the
evidence as follows:

“At about 11.40 o’clock on the night of April 13, 1930,
the plaintiffs herein with some other persons were traveling in a PU-Car on the road between Calasiao and Santa
Barbara. When they arrived at the intersection of the
road and the defendant’s railway, the car tried to cross
the track and collided with the engine of the night express
which left Dagupan for Manila at 11 o’clock that same
night and which was then passing over the crossing in
question at great speed. As a result of the collision, the
car was thrown some distance, plaintiff Junio’s right leg
was amputated and her right arm fractured, and Soloria
received various injuries on her head.

“The
aforementioned crossing is situated in the town of Calasiao and the
same is presumed to be dangerous due to the fact that gates were
required at that crossing. (Section 83, Act No. 1459, as amended by Act
No. 2100.) On the night of the accident, the gates were not lowered and
there was no notice to the effect that they were not operated at night
or that they were temporarily out of order. However, a notice to the
effect that that was a railroad crossing was there.

“As a general rule, the rights and obligations between
the public and a railroad company at a public crossing are
mutual and reciprocal. Both are under mutual obligation
to exercise due care to avoid causing or receiving injury.
Each is in duty bound to exercise reasonable or ordinary
care commensurate with the risk and danger involved.

“In the case under consideration, the driver alleges that
he slowed down from 19 miles an hour, at which rate he
was then going, to 16 miles, and that he was on the lookout
for any approaching train, while the engineer insists that
he rang the bell and sounded the whistle before reaching
the crossing. Both parties claim to be free from guilt, and
if the defendant company were completely so, the plaintiffs
would have no cause of action against it.”

In addition to the facts mentioned above, it has also been
proved that the gate in question was about three hundred
(300) meters from the railroad station at Calasiao; that
on each side of the crossing there was a wooden bar operated only during the daytime by a woman employee of the
defendant, and that just before the crossing on one side
of the road leading from the town of Calasiao there was a
signpost bearing the notice, “RAILROAD CROSSING”, written
crosswise.

The evidence also shows that the car driven by the chauffeur, Pedro Talbo, was an old Ford bearing number plates
PU-3636, which meant that it was a hired car. The
plate, Exhibit 2, was found by the engineer on the side of
the engine upon arrival at Paniqui, the next station, which
indicates that it was torn from the front of the radiator
when the auto collided with the right side of the engine
of the night express.

The appellants were passengers who took the car in Bayambang and were bound for Asingan, via Dagupan.

The plaintiffs’ attorney assigns in his brief the following
alleged errors:

“First. The trial court erred in finding that the defendant
company was not negligent in leaving its gates open at the
moment of the accident when a special night express train
was passing.

“Second. The trial court erred in holding that the driver
of the car occupied by the plaintiffs was negligent.

“Third. The trial court erred in holding that the plaintiffs were negligent or in making them responsible for the
driver’s alleged negligence.

”Fourth. The trial court erred in holding that the main
question in the accident was the driver’s alleged negligence.

“Fifth. The trial court erred in absolving the defendant
instead of ordering it to pay the damages proven which are
the subject of these actions.”

From the evidence, it is obvious that the defendant as
well as the driver of the car in which the plaintiffs were
passengers were negligent, the former because, by installing the gates at the place or crossing where the accident
occurred, it had voluntarily imposed upon itself the obligation to operate them even at night and to close them every
time a train passed in order to avoid causing injury to the
public. It has been said that the gates constitute an invitation to the public to pass without fear of danger, and
failure to operate them conveniently constitutes negligence
on the part of the company.

The driver was, likewise, negligent because he did not
comply with his duty to slacken the speed of the car and
to “look and listen” before crossing the intersection and,
above all, because he did not maintain a reasonable speed
so as to permit him to stop any moment if it were necessary
in order to avoid an accident. If, in the present case, the
car had been running at a reasonable speed, there is no
doubt that he could have stopped it instantly upon seeing
the train from a distance of five meters.

If the action for damages were brought by the driver, it
is certain that it would not prosper in view of the fact that
he had incurred in a notorious contributory negligence.
But the persons who instituted the action are the appellants
who were mere passengers of the car. Therefore, the question raised is whether the driver’s negligence is imputable
to them so as to bar them from the right to recover damages
suffered by them by reason of the accident.

Although this question is, perhaps, raised in this jurisdiction for the
first time, it is, nevertheless, a well recognized principle of law
that the negligence of a driver, who, in turn, is guilty of
contributory negligence, cannot be imputed to a passenger who has no
control over him in the management of the vehicle and with whom he
sustains no relation of master and servant. This rule is applied more
strictly when, as in the present case, hired cars or those engaged in
public service, are involved.

“The
doctrine prevails in a few states that the contributory negligence of
the driver of a private conveyance is imputable to a person voluntarily
riding with him. But the general rule is that the negligence of the
driver of a vehicle is not to be imputed to an occupant thereof who is
injured at a crossing through the combined negligence of the driver and
the railroad company when such occupant is without fault and has no
control over the driver. And the law almost universally now recognized
is that when one accepts an invitation to ride in the vehicle of
another, without any authority or purpose to direct or control the
driver or the movements of the team, and without any reason to doubt
the competency of the driver, the contributory negligence of the owner
or driver of the conveyance will not be imputed to the guest or
passenger, so as to bar him of the right to recover damages from a
railroad company whose negligence occasions injury to him at a crossing
while he is so riding. This rule has been applied in a number of cases
involving, the corresponding relation between the driver of an
automobile and an occupant having no control over him. The rule is not
confined to cases of gratuitous transportation, but has been applied
where a conveyance is hired, and the passenger exercises no further
control over the driver than to direct him to the place to which he
wishes to be taken. Nor is any distinction made between private and
public vehicles, such as street cars and stages.” (22 R. C. L., pp.
1047, 1048.)

“As a
general rule the negligence of a driver of a vehicle approaching a
railroad crossing, in failing to look and listen for approaching
trains, cannot be imputed to an occupant of the vehicle who is without
personal fault, unless such driver is the servant or agent of the
occupant, unless they are engaged in a joint enterprise whereby
responsibility for each other’s acts exists, or unless the occupant is
under the driver’s care or control or has the right to direct and
control the driver’s actions, or where the driver is of obvious or
known imprudence or incompetency. This rule that negligence of the
driver is not imputable to an occupant only applies to cases in which
the relation of master and servant or principal and agent does not
exist between the parties, or where the occupant has no right to direct
or control the driver’s actions, as where the occupant is a passenger
for hire or is the guest of the owner or driver and has no reason to
believe the driver careless or imprudent, or where the occupant is
seated away from the driver or is separated from him by an inclosure so
that he is without opportunity to discover danger and inform the driver
thereof. * * *” (52 C. J., pp. 315, 316 and 317.)

“A passenger in the automobile of another having no
control over the owner driving the car or the operation of
the car which he occupied merely as passenger was not
chargeable with contributory negligence of the owner and
driver at a railroad crossing.” (Carpenter vs. Atchison,
195 Pac, 1073.)

“In railroad crossing accident, negligence of truck driver
was not imputable to truck passenger not himself guilty of
contributory negligence.” (Lucchese vs. Spingola, 289
Pac., 189.)

In the case of Little vs. Hackett (116 U. S., 366; 29 Law.
ed., 652, 654, 657), the United States Supreme Court said:

“That
one cannot recover damages for an injury to the commission of which he
has directly contributed is a rule of established law and a principle
of common justice. And it matters not whether that contribution
consists in his participation in the direct cause of the injury, or in
his omission of duties which, if performed, would have prevented it. If
his fault, whether of omission or commission, has been the proximate
cause of the injury, he is without remedy against one also in the
wrong. It would seem that the converse of this doctrine should be
accepted as sound; that when one has been injured by the wrongful act
of another, to which he has in no respect contributed, he should be
entitled to compensation in damages from the wrongdoer. And such is the
generally received doctrine, unless a contributory cause of the injury
has been the negligence or fault of some person towards whom he
sustains the relation of superior or master, in which case the
negligence is imputed to him, though he may not have personally
participated in or had knowledge of it; and he must bear the
consequences. The doctrine may also be subject to other exceptions
growing out of the relation of parent and child, or guardian and ward,
and the like. Such a relation involves considerations which have no
bearing upon the question before us.

“There is no distinction
in principle whether the passengers be on a public conveyance like a
railroad train or an omnibus or be on a hack hired from a public stand
in the street for a drive. Those on a hack do not become responsible
for the negligence of the driver, if they exercise no control over him
further than to indicate the route they wish to travel or the places to
which they wish to go. If he is their agent so that his negligence can
be imputed to them to prevent their recovery against a third party, he
must be their agent in all other respects, so far as the management of
the carriage is concerned; and responsibility to third parties would
attach to them for injuries caused by his negligence in the course of
his employment. But as we have already stated, responsibility cannot,
within any recognized rules of law, be fastened upon one who has in no
way interfered with and controlled in the matter causing the injury.
From the simple fact of hiring the carriage or riding in it no such
liability can arise. The party hiring or riding must in some way have
cooperated in producing the injury complained of before he incurs any
liability for it. ‘If the law were otherwise,’ as said by Mr. Justice
Depue in his elaborate opinion in the latest case in New Jersey, ‘not
only the hirer of the coach but also all the passengers in it would be
under a constraint to mount the box and superintend the conduct of the
driver in the management and control of his team, or be put for remedy
exclusively to an action against the irresponsible driver or equally
irresponsible owner of a coach taken, it may be, from a coach stand,
for the consequences of an injury which was the product of the
cooperating wrongful acts of the driver and of a third person; and that
too, although the passengers were ignorant of the character of the
driver, and of the responsibility of the owner of the team, and
strangers to the route over which they were to be carried.’ (18 Vroom,
171.)”

There is nothing of record to show that the appellants
herein have incurred in any negligence imputable to them
and we do not see any reason whatsoever why they should
be made responsible for the driver’s negligence. The doctrine established in the cases cited above should be applied
to the case at bar and it should be held that the appellants
herein are entitled to recover from the appellee damages
occasioned by the accident of which they were victims.

We shall now proceed to determine the amount of the damages. With
respect to Soloria, we do not find any difficulty because the evidence
shows that she spent only three hundred pesos (P300) for her treatment
and stay in the hospital. Her injuries are not of such a nature as to
entitle her to a further indemnity. The damages to which she is
entitled may, therefore, be assessed at the amount stated above.

Such is not the case with respect to Consolacion Junio.
According to the evidence presented, she was a dancer
earning from six pesos (P6) to eight pesos (P8) a day for
two or three days every week that she danced. She lost
her right leg which was amputated, suffered a fracture of
her right arm and was wounded on her occipital region.
With these details in view, the members of this court are
of the opinion that she may justly be awarded the sum of
two thousand five hundred pesos (P2,500) as damages and
five hundred pesos (P500) as indemnity for expenses incurred by her in her treatment, medical attendance and
stay in the hospital, making the total amount she is entitled
to recover aggregating three thousand pesos (P15,000).

Wherefore, the judgment appealed from is hereby reversed and it is ordered that the appellee pay to Consolacion
Junio the sum of three thousand pesos (P3,000) and to
Beatriz Soloria three hundred pesos (P300), with costs of
both instances. So ordered.

Street, Villamor, Ostrand, Abad Santos, Vickers, and Butte, JJ., concur.
Villa-Real, J., concurs in the result.