AMADO PICART, plaintiff and appellant, vs. FRANK SMITH, jr.

,
defendant and appellee.
[Link]; CRITERION FOR DETERMINING EXISTENCE OF
[Link] test for determining whether a person is negligent
in doing an act whereby injury or damage results to the person or
property of another is this: Would a prudent man, in the position of the
person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course about to be pursued.
If so, the law imposes a duty on the actor to refrain from that course or to
take precaution against its mischievous results, and the failure to do so
constitutes negligence. Reasonable foresight of harm, followed by the
ignoring of the admonition born of this prevision, is the constitutive f act
in negligence.
[Link].; CONTRIBUTORY NEGLIGENCE; SUCCESSIVE NEGLIGENT
[Link] both parties are guilty of negligence, but the negligent
act of one succeeds that of the other by an appreciable interval of time,
the one who has the last reasonable opportunity to avoid the impending
harm and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.
[Link].; ID.; ID.; CASE AT [Link] plaintiff was riding a pony on a
bridge, Seeing an automobile ahead he improperly pulled his horse over
to the railing on the right. The driver of the automobile, however, guided
his car toward the plaintiff without diminution of speed until he was only
a few feet away. He then turned to the right but passed so closely to the
horse that the latter being frightened, jumped around and was killed by
the passing car. Held: That although the plaintiff was guilty of negligence
in being on the wrong side of the bridge, the defendant was nevertheless
civilly liable for the legal damages resulting from the collision, as he had
a fair opportunity to avoid the accident after he realized the situation
created by the negligence of the plaintiff and failed to avail himself of
that opportunity; while the plaintiff could by no means then place himself
in a position of greater safety.
APPEAL from a judgment of the Court of First Instance of La Union.
Camus, J.
The facts are stated in the opinion of the court.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.
STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the

defendant, Frank Smith, jr., the sum of P31,100, as damages alleged to
have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union
absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place
on December 12, 1912, on the Carlatan Bridge, at San Fernando, La
Union. It appears that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had gotten half way
across, the defendant approached from the opposite direction in an
automobile, going at the rate of about ten or twelve miles per hour. As
the defendant neared the bridge he saw a horseman on it and blew his
horn to give warning of his approach. He continued his course and after
he had taken the bridge he gave two more successive blasts, as it
appeared to him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the
warning signals. However, being perturbed by the novelty of the
apparition or the rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge instead of going to the
left. He says that the reason he did this was that he thought he did not
have sufficient time to get over to the other side. The bridge is shown to
have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that
being the proper side of the road for the machine. In so doing the
defendant assumed that the horseman would move to the other side.
The pony had not as yet exhibited fright, and the rider had made no sign
for the automobile to stop. Seeing that the pony was apparently quiet,
the defendant, instead of veering to the right while yet some distance
away or slowing down, continued to approach directly toward the horse

without diminution of speed. When he had gotten quite near, there being
then no possibility of the horse getting across to the other side, the
defendant quickly turned his car sufficiently to the right to escape hitting
the horse alongside of the railing where it was then standing; but in so
doing the automobile passed in such close proximity to the animal that it
became frightened and turned its body across the bridge with its head
toward the railing. In so doing, it was struck on the hock of the left hind
leg by the flange of the car and the limb was broken. The horse fell and
its rider was thrown off with some violence. From the evidence adduced
in the case we believe that when the accident occurred the free space
where the pony stood between the automobile and the railing of the
bridge was probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions which caused
temporary unconsciousness and required medical attention for several
days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of
negligence such as gives rise to a civil obligation to repair the damage
done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse and
rider would pass over to the proper side; but as he moved toward the
center of the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was too late
for the horse to cross with safety in front of the moving vehicle. In the
nature of things this change of situation occurred while the automobile
was yet some distance away; and from this moment it was not longer
within the power of the plaintiff to escape being run down by going to a
place of greater safety. The control of the situation had then passed
entirely to the defendant; and it was his duty either to bring his car to an
immediate stop or, seeing that there were no other persons on the
bridge, to take the other side and pass sufficiently far away from the
horse to avoid the danger of collision. Instead of doing this, the
defendant ran straight on until he was almost upon the horse. He was,
we think, deceived into doing this by the fact that the horse had not yet
exhibited fright. But in view of the known nature of horses, there was an
appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get excited and jump under the conditions which

here confronted him. When the defendant exposed the horse and rider
to this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a
particular case may be stated as follows: Did the defendant in doing the
alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not,
then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in
a given case is not determined by reference to the personal judgment of
the actor in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man
in a given situation must of course be always determined in the light of
human experience and in view of the f facts involved in the particular
case. Abstract speculation cannot here be of much value but this much
can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not,
and are not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something bef fore them to
suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued?
If so, it was the duty of the actor to take precautions to guard against
that harm. Reasonable foresight of harm, followed by the ignoring of the
suggestion born of this prevision, is always necessary before negligence
can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct
is said to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing the conduct or guarding
against its consequences.
Applying this test to the conduct of the defendant in the present case we
think that negligence is clearly established. A prudent man, placed in the
position of the defendant, would, in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and would therefore

have foreseen harm to the horse and rider as a reasonable

consequence of that course. Under these circumstances the law
imposed on the defendant the duty to guard against the threatened
harm.
It goes without saying that the plaintiff himself was not free from fault, for
he was guilty of antecedent negligence in planting himself on the wrong
side of the road. But as we have already stated, the defendant was also
negligent; and in such case the problem always is to discover which
agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by
an appreciable interval. Under these circumstances the law is that the
person who has the last fair chance to avoid the impending harm and f
ails to do so is chargeable with the consequences, without reference to
the prior negligence of the other party.
The decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7
Phil. Rep., 359) should perhaps be mentioned in this connection. This
Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be received in
evidence to reduce the damages which would otherwise have been
assessed wholly against the other party. The defendant company had
there employed the plaintiff, a laborer, to assist in transporting iron rails
from a barge in Manila harbor to the company's yards located not far
away. The rails were conveyed upon cars which were hauled along a
narrow track. At a certain spot near the water's edge the track gave way
by reason of the combined effect of the weight of the car and the
insecurity of the road bed. The car was in consequence upset; the rails
slid off; and the plaintiff's leg was caught and broken. It appeared in
evidence that the accident was due to the effects of a typhoon which had
dislodged one of the supports of the track. The court found that the
defendant company was negligent in having failed to repair the bed of
the track and also that the plaintiff was, at the moment of the accident,
guilty of contributory negligence in walking at the side of the car instead
'of being in front or behind. It was held that while the defendant was
liable to the plaintiff by reason of its negligence in having failed to keep
the track in proper repair, nevertheless the amount of the damages

should be reduced on account of the contributory negligence of the

plaintiff. As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a case like the
one now before us, where the defendant was actually present and
operating the automobile which caused the damage, we do not f feel
constrained to attempt to weigh the negligence of the respective parties
in order to apportion the damage according to the degree of their relative
fault. It is enough to say that the negligence of the def fendant was in
this case the immediate and determining cause of the accident and that
the antecedent negligence of the plaintiff was a more remote factor in
the case.
A point of minor importance in the case is indicated in the special
defense pleaded in the defendant's answer, to the effect that the subject
matter of the action had been previously adjudicated in the court of a
justice of the peace. In this connection it appears that soon after the
accident in question occurred, the plaintiff caused criminal proceedings
to be instituted before a justice of the peace charging the defendant with
the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the
proceedings were dismissed. Conceding that the acquittal of the def
fendant at a trial upon the merits in a criminal prosecution for the offense
mentioned would be res adjudicata upon the question of his civil liability
arising from negligencea point upon which it is unnecessary to
express an opinionthe action of the justice of the peace in dismissing
the criminal proceeding upon the preliminary hearing can have no such
effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court
must be reversed, and judgment is here rendered that the plaintiff
recover of the defendant the sum of two hundred pesos (P200), with
costs of both instances. The sum here awarded is estimated to include
the value of the horse, medical expenses of the plaintiff, the loss or
damage occasioned to articles of -his apparel, and lawful interest on the
whole to the date of this recovery. The other damages claimed by the
plaintiff are remote or otherwise of such character as not to be
recoverable. So ordered.

Arellano, C. J., Torres, Carson, Araullo, Avancea, and Fisher, JJ.,

concur.
Johnson, J., reserves his vote.
MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the

judgment in this case. I do so because of my understanding of the "last
clear chance" rule of the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked where the negligence
of the plaintiff is concurrent with that of the defendant. Again, if a
traveller when he reaches the point of collision is in a situation to
extricate himself and avoid injury, his negligence at that point will
prevent a recovery. But Justice Street finds as a fact that the negligent
act of the defendant succeeded that of the plaintiff by an appreciable
interval of time, and that at that moment the plaintiff had no opportunity
to avoid the accident. Consequently, the "last clear chance" rule is
applicable. In other words, when a traveller has reached a point where
he cannot extricate himself and vigilance on his part will not avert the
injury, his negligence in reaching that position becomes the condition
and not the proximate cause of the injury and will not preclude a
recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
Judgment reversed. [Picart vs. Smith., 37 Phil. 809(1918)]