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G.R. No. 7567 November 12, 1912 - UNITED STATES v. SEGUNDO BARIAS<br /><br />023 Phil 434 : NOVEMBER 1912 - PHILIPPINE SUPREME C

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Philippine Supre m e C ourt Jurisprude nce > Ye ar 1912 > Nove m be r 1912 De cisions > G.R . No. 7567
Nove m be r 12, 1912 - UNITED STATES v. SEGUNDO BAR IAS
023 Phil 434:

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FIRST DIVISION
[G.R. No. 7567. November 12, 1912. ]
THE UNITED STATES, Plaintiff-Appellee, v. SEGUNDO BARIAS, Defendant-Appellant.
Bruce, Lawrence, Ross & Block for Appellant.
Solicitor-General Harvey for Appellee.
SYLLABUS
1. NEGLIGENC E DEFINED. Negligence is "the failure to observe, for the protection of the interests
of another person, that degree of care, precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury."
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2. ID.; ID. Silvelas observation that "if a moments attention and reflexion would have shown a
person that the act which he was about to perform was liable to have the harmful consequences
which it had, such person acted with temerity and may be guilty of imprudencia temeraria," cited with
approval.

DebtKollect Company, Inc.

3. ID.; ID. "The diligence with which the law requires the individual at all times to govern his
conduct varies with the nature of the situation in which he is placed and with the importance of the
act which he is to perform." (U. S. v. Reyes, 1 Phil. Rep., 375, 377.)
4. ID.; STREET RAILWAYS; DUTIES AND RESPONSIBILITIES OF MOTORMEN. Held, that a
motorman operating a street car on a public street in a densely populated section of the city of Manila
is bound to know and to recognize that any negligence on his part in observing the track over which
he is running his car may result in fatal accidents. He has no right, when he starts from a standstill, to
assume that the track before his car is clear. It is his duty to satisfy himself of that fact by keeping a
sharp lookout and doing everything in his power to avoid the danger which is necessarily incident to
the operation of heavy street cars on thoroughfares in populous sections of the city.
5. ID.; ID.; ID. In the absence of some regulation of his employers, a motorman who has brought
his car to a standstill is not bound to keep his eyes directly to the front while the car is stopped, but
before setting it again in motion, it is his duty to satisfy himself that the track is clear, and for that
purpose to look and to see the track just in front of his car.
6. ID.; ID.; ID. The reasons of public policy which impose upon street car companies and their
employees the duty of exercising the utmost degree of diligence in securing the safety of passengers,
apply with equal force to the duty of avoiding infliction of injuries upon pedestrians and others upon
the public streets and thoroughfares over which such companies are authorized to run their cars.

ChanRobles Intellectual Property

Division

7. ID.; ID.; ID. It is the manifest duty of a motorman operating an electric street car on a public
thoroughfare in as thickly settled district, to satisfy himself that the track is clear immediately in front
of his car before setting it in motion from a standstill and for that purpose to incline his body slightly
forward, if that be necessary, in order to bring the track immediately in front of his car within his line
of vision.
D EC IS ION
C ARSON, J. :

This is an appeal from a sentence imposed by the Honorable A. S. C rossfield, judge of the C ourt of
First Instance of Manila, for homicide resulting from reckless negligence. The information
charges:
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"That on or about November 2, 1911, in the city of Manila, Philippine Islands, the said Segundo Barias
was a motorman on street car No. 9, run 7, of the Pasay-C ervantes lines of the Manila Electric
Railroad and Light C ompany, a corporation duly organized and doing business in the city of Manila,
Philippine Islands; as such motorman he was controlling and operating said street car along Rizal
Avenue, formerly C alle C ervantes, of this city, and as such motorman of said street car he was

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G.R. No. 7567 November 12, 1912 - UNITED STATES v. SEGUNDO BARIAS<br /><br />023 Phil 434 : NOVEMBER 1912 - PHILIPPINE SUPREME C
under obligation to run the same with due care and diligence to avoid any accident that might occur
to vehicles and pedestrians who were traveling on said Rizal Avenue; said accused, at said time and
place, did willfully, with reckless imprudenced and inexcusable negligence and in violation of the
regulations promulgated to that effect, control and operate said street car, without heeding the
pedestrians crossing Rizal Avenue from one side to the other, thus knocking down and causing by his
carelessness and imprudent negligence that said street car No. 9, operated and controlled by said
accused, as hereinbefore stated, should knock down and pass over the body and head of one
Fermina Jose, a girl 2 years old, who at said time and place was crossing the said Rizal Avenue, the
body of said girl being dragged along the street-car track on said Rizal Avenue for a long distance,
thus crushing and destroying her head and causing her sudden death as a result of the injury
received; that if the acts executed by the accused had been done with malice, he would be guilty of
the serious crime of homicide."
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The defendant was a motorman for the Manila Electric Railroad and Light C ompany. At about 6
oclock on the morning of November 2, 1911, he was driving his car along Rizal Avenue and stopped
it near the intersection of that street with C alle Requesen to take on some passengers. When the car
stopped, the defendant looked backward, presumably to note whether all the passengers were
aboard, and then started his car. At that moment Ferminia Jose, a child about 3 years old, walked or
ran in front of the car. She was knocked down and dragged some little distance underneath the car,
and was left dead upon the track. The motorman proceeded with his car to the end of the track,
some distance from the place of the accident, and apparently knew nothing of it until his return, when
he was informed of what had happened.
There is no substantial dispute as to the facts. It is true that one witness testified that the defendant
started the car without turning his head, and while he was still looking backwards and that this
testimony was directly contradicted by that of another witness. But we do not deem it necessary to
make an express finding as to the precise direction in which the defendants head was turned at the
moment when he started his car. It is sufficient for the purpose of our decision to hold, as we do, that
the evidence clearly discloses that he started his car from a standstill without looking over the track
immediately in front of the car to satisfy himself that it was clear. He did not see the child until after
he had run his car over it, and after he had returned to the place where it was found dead, and we
think we are justified in saying that wherever he was looking at the moment when he started his car,
he was not looking at the track immediately in front of the car, and that he had not satisfied himself
that this portion of the track was clear immediately before putting the car in motion.
The trial court found the defendant guilty of imprudencia temeraria (reckless negligence) as charged
in the information, and sentenced him to one year and one month of imprisonment in Bilibid Prison,
and to pay the costs of the action.
The sole question raised by this appeal is whether the evidence shows such carelessness or want of
ordinary care on the part of the defendant as to amount to reckless negligence (imprudencia
temeraria).
Judge C ooley in his work on Torts (3d ed., 1324) defines negligence to be: "The failure to observe,
for the protection of the interests of another person, that degree of care, precaution and vigilance
which the circumstances justly demand, whereby such other person suffers injury."
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In the case of U. S. v. Nava, (1 Phi. Rep., 580), we held that: "Reckless negligence consists of 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."
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Silvela says in his "Derecho Penal," in speaking of reckless imprudence (imprudencia temeraria):

"The word negligencia used in the code, and the term imprudencia with which this punishable act is
defined, express this idea in such a clear manner that it is not necessary to enlarge upon it. He who
has done everything on his part to prevent his actions from causing damage to another, although he
has not succeeded in doing so, notwithstanding his efforts, is the victim of an accident, and cannot be
considered responsible for the same." (Vol. 2, p. 127 [153].)

November-1912 Jurisprudence
G.R. No. 7063 November
GODUCO, ET A L

4,

1912 -

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TOMA S v.

023 Phil 342

G.R. No. 6169 November 5, 1912 - FLORENTINO
A DRIA NO v. HIPOLITO DE JESUS, ET A L.
023 Phil 350

"Temerario is, in our opinion, one who omits, with regard to his actions, which are liable to cause
injury to another, that care and diligence, that attention, which can be required of the least careful,
attentive, or diligent. If a moments attention and reflection would have shown a person that the act
which he was about to perform was liable to have the harmful consequence which it had, such person
acted with temerity and may be guilty of imprudencia temeraria." It may be that in practice this idea
has been given a greater scope and acts of imprudence which did not show carelessness as carried
to such a high degree, might have been punished as imprudencia temeraria; but in our opinion, the
proper meaning of the word does not authorize another interpretation." (Id., p 133 [161].)
Groizard, commenting upon "imprudencia temeraria," on page 389, volume 8, of his work on the
Penal C ode, says:
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G.R. No. 7006 November 5, 1912 - UNITED STA TES v.

PA SCUA L MORA NDA RTE
023 Phil 358
G.R. No. 7050 November 5, 1912 - NA CA RIA
CA STILLO, ET A L. v. URBA NO CA STILLO, ET A L

"Prudence is that cardinal virtue which teaches us to discern and distinguish the good from the bad, in
order to adopt or to flee from it. It also means good judgment, temperance, and moderation in ones
action.Temerario without reflection and without examining the same. C onsequently, he who from
lack of good judgment, temperance, or moderation in his action, exposes himself without reflection
and examination to the danger of committing a crime, must be held responsible under the provision
of law aforementioned."
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023 Phil 364

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023 Phil 368

Negligence is want of the care required by the circumstances. It is a relative or comparative, not an
absolute, term and its application depends upon the situation of the parties and the degree of care
and vigilance which the circumstances reasonably require. Where the danger is great, a high degree
of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances.
(Ahern v. Oregon Telephone C o., 24 Oreg., 276, 294; 35 Pac., 549.)

G.R. No. 7539 November 5, 1912 - UNITED STA TES v.

CIRIA CO PUNSA LA N

Ordinary care, if the danger is great, may rise to the grade of a very exact and unchangeable
attention. (Parry Mfg. C o. v. Eaton, 41 Ind. App., 81, 1908; 83 N. E., 510.)

023 Phil 375

In the case of U. S. v. Reyes (1 Phil. Rep., 375-377), we held that: "The diligence with which the law
requires the individual at all times to govern his conduct varies with the nature of the situation in
which he is placed and with the importance of the act which he is to perform."

G.R. No. 7321 November 5, 1912 - UNITED STA TES v.

PA TRICIO CA MPO

G.R. No. 7892 November 5, 1912 - UNITED STA TES v.

SO FO
023 Phil 379
G.R. No. 7159 November 8, 1912 - UNITED STA TES v.
MA RCELINO RIVERA , ET A L.
023 Phil 383
G.R. No. 7929 November 8, 1912 - UNITED STA TES v.
GENOVEVA A PEGO
023 Phil 391

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The question to be determined then, is whether, under all the circumstances, and having in mind the
situation of the defendant when he put his car in motion and ran it over the child, he was guilty of a
failure to take such precautions or advance measures as common prudence would suggest.
The evidence shows that the thoroughfare on which the incident occurred was a public street in a
densely populated section of the city. The hour was six in the morning, or about the time when the
residents of such streets begin to move about. Under such conditions a motorman of an electric
street car was clearly charged with a high degree of diligence in the performance of his duties. He
was bound to know and to recognize that any negligence on his part in observing the track over
which he was running his car might result in fatal accidents. He had no right to assume that the track
before his car was clear. It was his duty to satisfy himself of that fact by keeping a sharp lookout,
and to do everything in his power to avoid the danger which is necessarily incident to the operation of

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G.R. No. 7567 November 12, 1912 - UNITED STATES v. SEGUNDO BARIAS<br /><br />023 Phil 434 : NOVEMBER 1912 - PHILIPPINE SUPREME C

G.R. No. 8179 November 8, 1912 - THEODORE E.

A TKINSON v. M. L. STEWA RT, ET A L.
023 Phil 405
G.R. No. 7424 November 12, 1912 - UNITED STA TES
v. POW SING, ET A L.
023 Phil 421
G.R. No. 7428 November 12, 1912 - UNITED STA TES
v. LIM SING, ET A L
023 Phil 424
G.R. No. 7567 November 12, 1912 - UNITED STA TES
v. SEGUNDO BA RIA S
023 Phil 434
G.R. No. 7768 November 14, 1912 - MA NUEL SA RITA ,
ET A L. v. A NDRES CA NDIA
023 Phil 443
G.R. No. 4656 November 18, 1912 - RICA RDO
PA RDELL Y CRUZ, ET A L v. GA SPA R DE BA RTOLOME Y
ESCRIBA NO, ET A L
023 Phil 450
G.R. No. 7735 November 18, 1912 - UNITED STA TES
v. LUISA POTESTA S
023 Phil 466
G.R. No. 7529 November 19, 1912 - UNITED STA TES
v. VA LERIA NO MOLINA

heavy street cars on public thoroughfares in populous sections of the city.

Did he exercise the degree of diligence required of him? We think this question must be answered in
the negative. We do not go so far as to say that having brought his car to a standstill it was his
bounden duty to keep his eyes directed to the front. Indeed, in the absence of some regulation of his
employers, we can well understand that, at times, it might be highly proper and prudent for him to
gland back before again setting his car in motion, to satisfy himself that he understood correctly a
signal to go forward or that all the passengers had safely alighted or gotten on board. But we do
insist that before setting his car again in motion, it was his duty to satisfy himself that the track was
clear, and, for that purpose, to look and to see the track just in front of his car. This the defendant
did not do, and the result of his negligence was the death of the child.
In the case of Smith v. St. Paul C ity Ry. C o., (32 Min., p. 1), the supreme court of Minnesota, in
discussing the diligence required of street railway companies in the conduct of their business
observed that: "The defendant was a carrier of passengers for hire, owning and controlling the tracks
and cars operated thereon. It is therefore subject to the rules applicable to passenger carriers.
(Thompsons C arriers, 442; Barrett v. Third Ave. R. C o., 1 Sweeny, 568; 8 Abb. Pr. (N. S.) , 205.) As
respects hazards and dangers incident to the business or employment, the law enjoins upon such
carrier the highest degree of care consistent with its undertaking, and it is responsible for the
slightest negligence. (Wilson v. Northern Pacific R. C o., 26 minn., 278; Warren v. Fitchburg R. C o., 8
Allen, 233; 43 Am. Dec. 354, 356, notes and cases.) . . . The severe rule which enjoins upon the
carrier such extraordinary care and diligence, is intended, for reasons of public policy, to secure the
safe carriage of passengers, in so far as human skill and foresight can affect such result." The case
just cited was a civil case, and the doctrine therein announced d especial reference to the care which
should be exercised in securing the safety of passengers. But we hold that the reasons of public
policy which imposed upon street car companies and their employees the duty of exercising the
utmost degree of diligence in securing the safety of passengers, apply with equal force to the duty of
avoiding the infliction of injuries upon pedestrians and others on the public streets and thoroughfares
over which these companies are authorized to run their cars. And while, in a criminal case, the courts
will require proof of the guilt of the company or its employees beyond a reasonable doubt,
nevertheless the care or diligence required of the company and its employees is the same in both
cases, and the only question to be determined is whether the proof shows beyond a reasonable doubt
that the failure to exercise such care or diligence was the cause of the accident, and that the
defendant was guilty thereof.

023 Phil 484

C ounsel for the defendant insist that the accident might have happened despite the exercise of the
utmost care by the defendant, and they have introduced photographs into the record for the purpose
of proving that while the motorman was standing in his proper place on the front platform of the car,
a child might have walked up immediately in front of the car, a child might have walked up
immediately in front of the car without coming within the line of his vision. Examining the
photographs, we think that this contention may have some foundation in fact; but only to this extent,
that standing erect, at the position he would ordinarily assume while the car is in motion, the eye of
the average motorman might just miss seeing the top of the head of a child, about three years old,
standing or walking close up to the front of the car. But it is also very evident that by inclining the
head and shoulders forward very slightly, and glancing in front of the car, a person in the position of
a motorman could not fail to see a child on the track immediately in front of his car; and we hold that
it is the manifest duty of a motorman, who is about to start his car on a public thoroughfare in a
thickly-settled district, to satisfy himself that the track is clear immediately in front of his car, a
person in the position of a motorman could not fail to see a child on the track immediately in front of
his car; and we hold that it is the manifest duty of a motorman, who is about to start his car on a
public thoroughfare in a thickly-settled district, to satisfy himself that the track is clear immediately in
front of his car, and to incline his body slightly forward, if that be necessary, in order to bring the
whole track within his line of vision. Of course, this may not be, and usually is not necessary when
the car is in motion, but we think that it is required by the dictates of the most ordinary prudence in
starting from a standstill.

G.R. No. 7819 November 21, 1912 - UNITED STA TES

v. PO CHENGCO

We are not unmindful of our remarks in the case of U. S. v. Bacho (10 Phil. Rep., 577), to which our
attention is directed by counsel for Appellant. In that case we said that:

023 Phil 487

". . . In the general experience of mankind, accidents apparently unavoidable and often inexplicable
are unfortunately too frequent to permit us to conclude that some one must be criminally liable for
negligence in every case where an accident occurs. it is the duty of the prosecution in each case to
prove by competent evidence not only the existence of criminal negligence, but that the accused was
guilty thereof."

023 Phil 471

G.R. No. 8098 November 19, 1912 - UNITED STA TES
v. FULGENCIO GERNA LE
023 Phil 474
G.R. No. 8138 November 19, 1912 - UNITED STA TES
v. JUA N MORA DA
023 Phil 477
G.R. No. 6769 November 20, 1912 - SA NTIA GO VA NO
UY TA T TONG v. INSULA R COLLECTOR OF CUSTOMS
023 Phil 480
G.R. No. 7705 November 21, 1912 - ELIA S ORO v.
LEOCA DIO PA JA RILLO

G.R. No. 7480 November 22, 1912 - MIGUEL VELA SCO

Y CUA RTERONI v. LA O TA M
023 Phil 495
G.R. No. 7520 November 23, 1912 - UNITED STA TES
v. JOSE A BA D
023 Phil 504
G.R. No. 7841 November 23, 1912 - LIM QUIM v.
INSULA R COLLECTOR OF CUSTOMS
023 Phil 509
G.R. No. 7897 November 23, 1912 - UNITED STA TES
v. FULGENCIO CONTRERA S, ET A L.
023 Phil 513
G.R. No. 5675 November 26, 1912 - JOSE CA RLOS
CHUNG MUY COS A DMINISTRA TOR v. LIM QUIOC, ET
AL
023 Phil 518
G.R. No. 6693 November 26, 1912 - ROBERT G.
SHIELDS v. JOSE MCMICKING

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Nor do we overlook the ruling in the case of U. S. v. Barnes (12 Phil. Rep., 93), to which our attention
is also invited, wherein we held that the defendant was not guilty of reckless negligence, where it
appeared that he killed another by the discharge of his gun under such circumstances that he might
have been held guilty of criminally reckless negligence had he had knowledge at that moment that
another person was in such position as to be in danger if the gun should be discharged. In this latter
case the defendant had no reason to anticipate that the person who was injured was in the line of
fire, or that there was any probability that he or anyone else would place himself in the line of fire. In
the case at bar, however, it was, as we have seen, the manifest duty of the motorman to take
reasonable precautions in starting his car to see that in doing so he was not endangering the life of
any pedestrian, old or young; and to this end it was further his duty to guard against the reasonable
possibility that some one might be on the evidence showing, is it does, that the child was killed at the
moment when the car was set in motion, we are justified in holding that, had the motorman seen the
child, he could have avoided the accident; the accident was not, therefore, "unavoidable or
inexplicable," and it appearing that the motorman, by the exercise of ordinary diligence, might have
seen the child before he set the car in motion, his failure to satisfy himself that the track was clear
before doing so was reckless negligence, of which he was properly convicted in the court below.
We think, however, that the penalty should be reduced to that of six months and one day of prision
correccional. Modified by substituting for so much thereof as imposes the penalty of one year and
one month of imprisonment, the penalty of six months and one day of prision correccional, the
judgment of the lower court convicting and sentencing the appellant is affirmed, with the costs of both
instances against him. So ordered.

023 Phil 526

Arellano, C.J., Torres and Mapa, JJ., concur.

G.R. No. 7718 November 27, 1912 - UNITED STA TES

v. LEE CHIA O

Johnson, J., concurs in the result.

023 Phil 543

Trent, J., dissents.

G.R. No. 7627 November 30, 1912 - CITY OF MA NILA

v. MA NILA ELECTRIC RA ILROA D A ND LIGHT CO.
023 Phil 547

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