ALEKO E. LILIUS ET AL., PLAINTIFFS AND APPELLANTS, VS. THE MANILA RAILROAD COMPANY, DEFENDANT AND APPELLANT.

This case involves two appeals, one by the
defendant the Manila Railroad Company, and the other by the plaintiffs
Aleko E. Lilius et al., from the judgment rendered by the Court of
First Instance of Manila, the dispositive part of which reads as
follows:

“Wherefore, judgment is rendered ordering the
defendant company to pay to the plaintiffs, for the purposes above
stated, the total amount of P30,865, with the costs of the suit. And
although the suit brought by the plaintiffs has the nature of a joint
action, it must be understood that of the amount adjudicated to the
said plaintiffs in this judgment, the sum of P10,000 personally belongs
to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the
plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the
Calauan Hospital, Province of Laguna, and the balance to the plaintiff
Aleko E. Lilius.”

In support of its appeal, the appellant the Manila Railroad Company
assigns nine alleged errors as committed by the trial court in its said
judgment, which will be discussed in the course of this decision.

As a ground of their appeal, the appellants Aleko E. Lilius et al.,
in turn, assign two alleged errors as committed by the same court a quo in its judgment in question, which will be discussed later.

This case originated from a complaint filed by Aleko E. Lilius et
al., praying, under the facts therein alleged, that the Manila Railroad
Company be ordered to pay to said plaintiffs, by way of indemnity for
material and moral damages suffered by them through the fault and
negligence of the said defendant entity’s employees, the sum of P50,000
plus legal interest thereon from the date of the filing of the
complaint, with costs.

The defendant the Manila Railroad Company, answering the complaint,
denies each and every allegation thereof and, by way of special
defense, alleges that the plaintiff Aleko E. Lilius, with the
cooperation of his wife and co-plaintiff, negligently and recklessly
drove his car, and prays that it be absolved from the complaint.

The following facts have been proven at the trial, some without question and the others by a preponderance of evidence, to wit:

The plaintiff Aleko E. Lilius has, for many years, been a
well-known and reputed journalist, author and photographer. At the time
of the collision in question, he was a staff correspondent in the Far
East of the magazines The American Weekly of New York and The Sphere of
London.

Some of his works have been translated into various languages. He
had others in preparation when the accident occurred. According to him,
his writings netted him a monthly income of P1,500. He utilized the
linguistic ability of his wife Sonja Maria Lilius, who translated his
articles and books into English, German, and Swedish. Furthermore, she
acted as his secretary.

At about 7 o’clock on the morning of May 10, 1931, the plaintiff,
his wife Sonja Maria Lilius, and his 4-year old daughter Brita Marianne
Lilius, left Manila in their Studebaker car—driven by the said
plaintiff Aleko E. Lilius—for the municipality of Pagsanjan, Province
of Laguna, on a sight-seeing trip. It was the first time that he made
said trip although he had already been to many places, driving his own
car, in and outside the Philippines. Where the road was clear and
unobstructed, the plaintiff drove at the rate of from 19 to 25 miles an
hour. Prior thereto, he had made the trip as far as Calauan, but never
from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with
the conditions of the road at said points and had no knowledge of the
existence of a railroad crossing at Dayap. Before reaching the crossing
in question, there was nothing to indicate its existence and inasmuch
as there were many houses, shrubs and trees along the road, it was
impossible to see an approaching train. At about seven or eight meters
from the crossing, coming from Calauan, the plaintiff saw an autotruck
parked on the left side of the road. Several people, who seemed to have
alighted from the said truck, were walking on the opposite side. He
slowed down to about 12 miles an hour and sounded his horn for the
people to get out of the way. With his attention thus occupied, he did
not see the crossing, but he heard two short whistles. Immediately
afterwards, he saw a huge black mass fling itself upon him, which
turned out to be locomotive No. 713 of the defendant company’s train
coming eastward from Bay to Dayap station. The locomotive struck the
plaintiff’s car right in the center. After dragging the said car a
distance of about ten meters, the locomotive threw it upon a siding.
The force of the impact was so great that the plaintiff’s wife and
daughter were thrown from the car and were picked up from the ground
unconscious and seriously hurt. In spite of the efforts of engineer
Andres Basilio, he was unable to stop the locomotive until after it had
gone about seventy meters from the crossing.

On the afternoon of the same day, the plaintiffs entered St. Paul’s
Hospital in the City of Manila where they were treated by Dr. Waterous.
The plaintiff Aleko E. Lilius suffered from a fractured nose, a
contusion above the left eye and a lacerated wound on the right leg, in
addition to multiple contusions and scratches on various parts of the
body. As a result of the accident, the said plaintiff was highly
nervous and very easily irritated, and for several months he had great
difficulty in concentrating his attention on any matter and could not
write articles nor short stories for the newspapers and magazines to
which he was a contributor, thus losing for some time his only means of
livelihood.

The plaintiff Sonja Maria Lilius suffered from fractures of the
pelvic bone, the tibia and fibula of the right leg, below the knee, and
received a large lacerated wound on the forehead. She underwent two
surgical operations on the left leg for the purpose of joining the
fractured bones but said operations notwithstanding, the leg in
question still continues deformed. In the opinion of Dr. Waterous, the
deformity is permanent in character and as a result the plaintiff will
have some difficulty in walking. The lacerated wound, which she
received on her forehead, has left a disfiguring scar.

The child Brita Marianne Lilius received two lacerated wounds, one
on the forehead and the other on the left side of the face, in addition
to fractures of both legs, above and below the knees. Her condition was
serious and, for several days, she was hovering between life and death.
Due to a timely and successful surgical operation, she survived her
wounds. The lacerations received by the child have left deep scars
which will permanently disfigure her face, and because of the fractures
of both legs, although now completely cured, she will be forced to walk
with some difficulty and continuous extreme care in order to keep her
balance.

Prior to the accident, there had been no notice nor sign of the
existence of the crossing, nor was there anybody to warn the public of
approaching trains. The flagman or switchman arrived after the
collision, coming from the station with a red flag in one hand and a
green one in the other, both of which were wound on their respective
sticks. The said flagman and switchman had many times absented himself
from his post at the crossing upon the arrival of a train. The train
left Bay station a little late and therefore traveled at great speed.

Upon examination of the oral as well as of the documentary evidence
which the parties presented at the trial in support of their respective
contentions, and after taking into consideration all the circumstances
of the case, this court is of the opinion that the accident was due to
negligence on the part of the defendant-appellant company, for not
having had on that occasion any semaphore at the crossing at Dayap, to
serve as a warning to passers-by of its existence in order that they
might take the necessary precautions before crossing the railroad; and,
on the part of its employees—the flagman and switchman, for not having
remained at his post at the crossing in question to warn passers-by of
the approaching train; the stationmaster, for failure to send the said
flagman and switchman to his post on time; and the engineer, for not
having taken the. necessary precautions to avoid an accident, in view
of the absence of said flagman and switchman, by slackening his speed
and continuously ringing the bell and blowing the whistle before
arriving at the crossing. Although it is probable that the
defendant-appellant entity employed the diligence of a good father of a
family in selecting its aforesaid employees, however, it did not employ
such diligence in supervising their work and the discharge of their
duties because, otherwise, it would have had a semaphore or sign at the
crossing and, on previous occasions as well as on the night in
question, the flagman and switchman would have always been at his post
at the crossing upon the arrival of a train. The diligence of a good
father of a family, which the law requires in order to avoid damage, is
not confined to the careful and prudent selection of -subordinates or
employees but includes inspection of their work and supervision of the
discharge of their duties.

However, in order that a victim of an accident may recover
indemnity for damages from the person liable therefor, it is not enough
that the latter has been guilty of negligence, but it is also necessary
that the said victim has not, through his own negligence, contributed
to the accident, inasmuch as nobody is a guarantor of his neighbor’s
personal safety and property, but everybody should look after them,
employing the care and diligence that a good father of a family should
apply to his own person, to the members of his family and to his
property, in order to avoid any damage. It appears that the herein
plain tiff-appellant Aleko E. Lilius took all precautions which his
skill and the presence of his wife and child suggested to him in order
that his pleasure trip might be enjoyable and have a happy ending,
driving his car at a speed which prudence demanded according to the
circumstances and conditions of the road, slackening his speed in the
face of an obstacle and blowing his horn upon seeing persons on the
road, in order to warn them of his approach and request them to get out
of the way, as he did when he came upon the truck parked on the left
hand side of the road seven or eight meters from the place where the
accident occurred, and upon the persons who appeared to have alighted
from the said truck. If he failed to stop, look and listen before going
over the crossing, in spite of the fact that he was driving at 12 miles
per hour after having been free from obstacles, it was because, his
attention having been occupied in attempting to go ahead, he did not
see the crossing in question, nor anything, nor anybody indicating its
existence, as he knew nothing about it beforehand. The first and only
warning, which he received of the impending danger, was two short blows
from the whistle of the locomotive immediately preceding the collision
and when the accident had already become inevitable.

In view of the foregoing considerations, this court is of the
opinion that the defendant the Manila Railroad Company alone is liable
for the accident by reason of its own negligence and that of its
employees, for not having employed the diligence of a good father of a
family in the supervision of the said employees in the discharge of
their duties.

The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for damages which the defendant company should pay to the plaintiffs-appellants.

With respect to the plaintiff-appellant Aleko E. Lilius, although
this court believes his claim of a net income of P1,500 a month to be
somewhat exaggerated, however, the sum of P5,000, adjudicated to him by
the trial court as indemnity for damages, is reasonable.

As to the sum of P10,635 which the court awards to the plaintiffs
by way of indemnity for damages, the different items thereof
representing doctor’s, fees, hospital and nursing services, loss of
personal effects and torn clothing, have duly been proven at the trial
and the sum in question is not excessive, taking into consideration the
circumstances in which the said expenses have been incurred.

Taking into consideration the fact that the plaintiff Sonja Maria
Lilius, wife of the plaintiff Aleko E. Lilius is—in the language of the
court, which saw her at the trial—”young and beautiful and the big
scar, which she has on her forehead caused by the lacerated wound
received by her from the accident, disfigures her face and that the
fracture of her left leg has caused a permanent deformity which renders
it very difficult for her to walk”, and taking into further
consideration her social standing, neither is the sum of P10,000,
adjudicated to her by the said trial court by way of indemnity for
patrimonial and moral damages, excessive. In the case of Gutierrez vs.
Gutierrez (56 Phil, 177), the right leg of the plaintiff Narciso
Gutierrez was fractured as a result of a collision between the autobus
in which he was riding and the defendant’s car, which fracture required
medical attendance for a considerable period of time. On the day of the
trial the fracture had not yet completely healed but it might cause him
permanent lameness. The trial court sentenced the defendants to
indemnify him in the sum of P10,000 which this court reduced to P5,000,
in spite of the fact that the said plaintiff therein was neither young
nor good-looking, nor had he suffered any facial deformity, nor did he
have the social standing that the herein plaintiff-appellant Sonja
Maria Lilius enjoys.

As to-the indemnity of P5,000 in favor of the child Brita Marianne
Lilius, daughter of Aleko E. Lilius and Sonja Maria Lilius, neither is
the same excessive, taking into consideration the fact that the
lacerations received by her have left deep scars that permanently
disfigure her face and that the fractures of both her legs permanently
render it difficult for her to walk freely, continuous extreme care
being necessary in order to keep her balance in addition to the fact
that all of this unfavorably and to a great extent affect her
matrimonial future.

With respect to the plaintiffs’ appeal, the first question to be
decided is that raised by the plaintiff Aleko E. Lilius relative to the
insufficiency of the sum of P5,000 which the trial court adjudicated to
him by way of indemnity for damages consisting in the loss of his
income as journalist and author as a result of his illness. This
question has impliedly been decided in the negative when the
defendant-appellant entity’s petition for the reduction of said
indemnity was denied, declaring it to be reasonable.

As to the amount of P10,000 claimed by the plaintiff Aleko E.
Lilius as damages for the loss of his wife’s services in his business
as journalist and author, which services consisted in going over his
writings, translating them into English, German and Swedish, and acting
as his secretary, in addition to the fact that such services formed
part of the work whereby he realized a net monthly income of ^1,500,
there is no sufficient evidence of the true value of said services nor
to the effect that he needed them during her illness and had to employ
a translator to act in her stead.

The plaintiff Aleko E. Lilius also seeks to recover the sum of
P2,500 for the loss of what is called Anglo-Saxon common law
“consortium” of his wife, that is, “her services, society and conjugal
companionship”, as a result of personal injuries which she had received
from the accident now under consideration.

In the case of Goitia vs. Campos Rueda (35 Phil., 252,
255, 256), this court, interpreting the provisions of the Civil
Marriage Law of 1870, in force in these Islands with reference to the
mutual rights and obligations of the spouses contained in articles
44-48 thereof, said as follows:

“The above quoted provisions of the Law of Civil
Marriage and the Civil Code fix the duties and obligations of the
spouses. The spouses must be faithful to, assist, and support each
other. The husband must live with and protect his wife. The wife must
obey and live with her husband and follow him when he changes his
domicile or residence, except when he removes to a foreign country.

Therefore, under the law and the doctrine of this court, one of the
husband’s rights is to count on his wife’s assistance. This assistance
comprises the management of the home and the performance of household
duties, including the care and education of the children and attention
to the husband upon whom primarily devolves the duty of supporting the
family of which he is the head. When the wife’s mission was
circumscribed to the home, it was not difficult to assume, by virtue of
the marriage alone, that she performed all the said tasks and her
physical incapacity always redounded to the husband’s prejudice
inasmuch as it deprived him of her assistance. However, nowadays when
women, in their desire to be more useful to society and to the nation,
are demanding greater civil rights and are aspiring to become man’s
equal in all the activities of life, commercial and industrial,
professional and political, many of them spending their time outside
the home, engaged in their businesses, industry, profession and within
a short time, in politics, and entrusting the care of their home to a
housekeeper, and their children, if not to a nursemaid, to public or
private institutions which take charge of young children while their
mothers are at work, marriage has ceased to create the presumption that
a woman complies with the duties to her husband and children, which the
law imposes upon her, and he who seeks to collect indemnity for damages
resulting from deprivation of her domestic services must prove such
services. In the case under consideration, apart from the services of
his wife Sonja Maria Lilius as translator and secretary, the value of
which has not been proven, the plaintiff Aleko E. Lilius has not
presented any evidence showing the existence of domestic services and
their nature, rendered by her prior to the accident, in order that it
may serve as a basis in estimating their value.

Furthermore, inasmuch as a wife’s domestic assistance and conjugal
companionship are purely personal and voluntary acts which neither of
the spouses may be compelled to render (Arroyo vs. Vazquez de
Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity
for the loss of such services to prove that the person obliged to
render them had done so before he was injured and that he would be
willing to continue rendering them had he not been prevented from so
doing.

In view of the foregoing considerations this court is of the
opinion and so holds: (1) That a railroad company which has not
installed a semaphore at a crossing and does not see to it that its
flagman and switchman faithfully complies with his duty of remaining at
the crossing when a train arrives, is guilty of negligence and is
civilly liable for damages suffered by a motorist and his family who
cross its line without negligence on their part; (2) that an indemnity
of P10,000 for a permanent deformity on the face and on the left leg,
suffered by a young and beautiful society woman, is not excessive; (3)
that an indemnity of P5,000 for a permanent deformity on the face and
legs of a four-year old girl belonging to a well-to-do family, is not
excessive; and (4) that in order that a husband may recover damages for
deprivation of his wife’s assistance during her illness from an
accident, it is necessary for him to prove the existence of such
assistance and his wife’s willingness to continue rendering it had she
not been prevented from so doing by her illness.

The plaintiffs-appellants are entitled to interest of 6 per cent
per annum on the amount of the indemnities adjudicated to them, from
the date of the appealed judgment until this judgment becomes final, in
accordance with the provisions of section 510 of Act No. 190.

Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto,
with the sole modification that interest of 6 per cent per annum from
the date of the appealed judgment until this judgment becomes final
will be added to the indemnities granted, with the costs of both
instances against the appellant. So ordered.

Malcolm, Hull, Imperial, and Goddard, JJ., concur.