G.R. No.

L-10181             March 2, 1915

THE UNITED STATES, plaintiff-appellee,

Alfredo Chicote for appellant.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of Manila convicting the accused of the
crime of serious physical injuries through reckless negligence.

The information under which he was tried and convicted is as follows:

That on or about the 10th day of February, 1914, in the city of Manila, Philippine Islands, the said
Mariano Crame, being then and there the chauffeur of a motor vehicle, did then and there unlawfully,
with reckless imprudence and in violation of the regulations, conduct and drive the said motor vehicle
along Calle Herran in said city without using reasonable care and diligence to prevent injury to persons
and property and without paying any attention to the pedestrians occupying and crossing said street,
thus colliding with, running over, and by his neglect and imprudence in the management and lack of
control thereof, causing the said automobile guided and conducted by the said accused as aforesaid, to
knock down, drag, and run over the body of one George B. Coombs, a private in the United States Army,
who was then and there occupying and crossing the said Calle Herran, thereby causing injuries, wounds,
and bruises upon the person of the said George B. Coombs, which said injuries, wounds, and bruises
have deranged the mental faculties of the said George B. Coombs and have incapacitated him, the said
George B. Coombs, from further performance of his duties as a soldier of the said United States Army.

It appears from the evidence that on the night of the 10th of February, 1914, between 11 and 12
o'clock, the accused, Mariano Crame, a duly-licensed chauffeur, was driving an automobile, in which, at
the time, were Thomas M. Bill, a sailor belonging to the United States Navy, and Indalecio Rabonsa, an
apprentice to the accused who, at the time of the accident, was sitting at his side on the front seat. The
automobile was passing from Santa Ana to Manila and, at the time of the accident, was going in a
northwesterly direction. At the same time there were two automobile on the way from Manila to Santa
Ana, one belonging to Mr. Stuart, driven by himself, and the other a machine without passengers driven
by a chauffeur by the name of Miranda. The automobile driven by Stuart was a modern Cadillac with
high-powered electric lights. The accused states that this fact added to the other fact that he was near
the Damas Bridge at the time, induced him to reduce the speed of the automobile at that point so that
he was, at the time of the accident, going only about 10 miles an hour. He asserts that he suddenly saw
the form of a man in front of his automobile and that, on seeing him, he altered the course of the
machine as much as possible in order to avoid a collision; but that he was unable to do so, the right side
of the machine hitting the man and knocking him to the ground. He asserted that at the time it struck
the man, the machine was almost at a standstill, it coming to a complete stop within about 6 feet of
where the injured man lay.

Crame, Rabonsa, and Bill placed the injuries man in the automobile and carried him to the hospital.
Afterwards they went to the police station at Paco and gave an account of the accident. Immediately
thereafter Crame also went to the office of the superintendent of automobiles of the Bureau of Public
Works and reported the accident.

Relative to the injuries resulting to Coombs from the accident, it appears that he received a heavy blow
in the lower part of the back of the head which caused ecchymosis and coagulation of blood. As a result
of the blow he was rendered unconscious and has since remained in state of great mental debility, with
severe pains in the head, almost complete loss of memory, being unable to remember anything that
occurred during the accident and, it times forgetting the names and countenances of his most continual
attendance. He is described by the physician who examined and treated him as an incurable and
hopeless imbecile.

The learned trial court convicted the accused of the crime of producing serious physical injuries by
imprudencia temeraria, setting forth as the grounds of the conviction the following reasons:

First, in that [before the occurrence] the accused, having seen the coldier Coombs crossing the street at
a certain distance in front of the automobile, did not reduce the speed of the automobile sufficiently,
nor attempt to stop the machinery entirely, if that was necessary, to avoid an accident. Second, in that it
does not appear that the accused sounded his horn or whistle or used his voice to call the attention of
the person who was crossing the street or notify him that he should stop and avoid being struck by the
automobile. Third and last, in that the accused was driving in the center, or little to the right of the
center of the street instead of on the left side thereof:

Discussing these point the court said:

With reference to the first ground of negligence, the accused alleges that he was unable to stop his
machine suddenly; but to this it may be answered that if he had begun to stop the machine the first
moment that he saw the soldier the accident would undoubtedly have been avoided. . . . What the court
desires to say is that with a speed of only 12 to 20 mile an hour, if the accused had begun to reduce
speed in time, there is no doubt whatever that the accident would have been avoided and he would
have been able easily to stop his machine in time.

Relative to the second ground of negligence, or the failure, in order to prevent the injury, to sound the
horn and arrest the attention of the soldier who was crossing the street, there is nowhere in the case
any proof or even an allegation in front of the accused. He testified as a witness in his own behalf, but
he never mentioned having sounded the horn, nor did he give any reason why he did not do so.

In regard to the third ground of negligence, the accused and his witnesses sought to establish the fact
that, at the place where the accident occurred, the automobile could not pass along the left side of the
street because the street-car rails are upon that side, and if he had attempted to pass upon the left side
of the rails the automobile would have been thrown into the ditch, as the street upon that side of the
street-car tracks is very uneven and as a result the chauffeur and his passenger would have been
exposed to a greater danger than the one that they tried to avoid. The court nevertheless, is of the
opinion that this claim is not sustainable in view of the fact that, at the place where the accident
occurred, as has already been said, there are two street-car tracks. One of those track, it is true, is very
close to the extreme left side of the street, but the other is located about the center of the street. The
accused should not have been required to drive his automobile upon the left said of the farther track;
but it is evident that he could have passed between this track and the track in the center of the street. If
the accident had occurred under such circumstances the court would have said that it was an
unavoidable accident. But as the collision occurred outside of the tack in the center of the street and on
the right hand side of the street, the court believes that the accused is the cause of said accident.

The court, in company with the prosecuting attorney, the attorney of the accused and Mariano Crame
himself, examined the place where the accident occurred and, from a careful examination of the place,
compared with the testimony of the seaman Bill and the witness Stuart, the Court is convinced that the
place where the soldier was hit is not the place indicated by the accused — that is, between the Damas
Bridge and the McKinley Junction, just opposite a wooden post, but at the place marked in the plan
Exhibit A by the witness Stuart.

We are satisfied from an examination of the record that the conclusions of the trial court are more than
sustained. The accused did not see the soldier whom he ran down until it was too late, although the
street at that point was brilliantly lighted; he did not sound his horn or give notice of his approach in any
other manner; he did not apply the brake or make any effort whatever to stop; he was traveling on the
wrong side of the street at the time of the collision.

In defense of the accused counsel says:

At what distance did the accused see the soldier? From the testimony of the accused and the witness
Rabonsa, which is all the proof there is in the record in this respect, it is inferred that neither the
chauffeur nor his companion saw the soldier at a sufficient distance to permit them to lose time in
useless or at least doubtful maneuvers; Rabonsa says that he saw the soldier first at the very moment of
the accident; Stuart saw him only as he was falling to the ground; and the accused says that the soldier
appeared suddenly in front of the machine and that he, accused, in the face of imminent danger of a
collision charged the direction of the automobile in order not to have the center of the machine strike
the soldier, but that he was unable to avoid hitting him with the rear part of the machine, thereby party
turning him and making him fall to the ground; that thereupon the accused, in order to prevent the rear
wheel from striking the soldier, again changed the direction of the machine, thereby avoiding by these
two maneuvers the passage of the machine over the body of the soldier.

This argument is, in our judgment, not a strong one. The fact that the accused did not see the soldier
until the machine was very close to him is strong evidence of inattention to duty. The street at the place
where the accident occurred is wide and unobstructed. There is no building on either side of the street.
There is no place from which a person desiring to cross the street can dart out so suddenly and
unexpectedly as to give a chauffeur no opportunity to protect him. The street at the point where the
accident occurred was well lighted by electric light placed on both sides of the street. Besides, it is in
close proximity to McKinley Junction and there are a number of electric lights in and about the waiting
station located at that point. Under such circumstance there is no reason why the accused did not see
that soldier long before he had reached the position in the street where he was struck down. It is
claimed by the accused himself that the soldier was near the center of the street when the collision
occurred. In that event he must have walked in plain sight of the oncoming machine for many feet
before he arrived at the place where he was struck. He could not have risen out of the ground nor could
he have darted suddenly into the street from a side street or door. He was walking in an open, level, and
thoroughly lighted street for many feet before he was hit by the automobile; and the fact that the
accused, under such circumstances, did not see him is strong evidence that he was negligent.
The accused intimates in his testimony that a carromata was approaching him just before the accident
occurred and that it obscured his vision to such an extent that he did not see that soldier until the very
moment of meeting the carromata. This story is not corroborated by any other witness in the case. No
one else speaks of the presence there of a carromata and no one offers this as a person why the soldier
was not seen in time to avoid the accident. Moreover, if the soldier were crossing the street the
carromata would have obscured him for a moment only and there would have been abundant time to
observe him before he reached the carromata and after he had passed it. Besides, it is the duty of
automobile drivers in meeting a moving vehicle on the public streets and highways to use due care and
diligence to see to it that person who may be crossing behind the moving vehicle are not run down by
their automobiles. There is nothing in this story of the accused which, if true, relieves from the charge of
negligence under the other facts and circumstances disclosed by the evidence. It is to be noted, also that
counsel for the accused lays no stress on this portion of his story and does not make it the basis of an
argument in his behalf.

As we have said, the testimony and the exhibit show that the accident occurred at or near the McKinley
Junction, where there is a waiting station, a kiosko, and a hydrant, where many persons habitually wait
to transfer and where, as a matter of fact, even up to midnight, many persons stroll about waiting for
cars. The defendant was aware of these facts. Moreover, he testified himself that the street at that place
was not level, that the rails of the street-car track made it difficult for automobiles to cross or pass over
them and that keeping to the extreme left-hand side of the street would endanger the safety of the
automobile and the passengers. All of these are facts which require care and diligence on the part of an
automobile driver; and such a place should be approached guardedly, with the machine under control
and with ability to stop with reasonable quickness.

It appears clearly established by the evidence that the accused was driving on the right-hand side of the
street when the accident happened. According to the law of the road and the custom of the country he
should have been on the left-hand side of the street. According to the evidence there was abundant
room for him to drive upon what may properly be called the left-hand side of the street and still be free
from danger or risk. Instead of that he chose to take what appears from the evidence to have been
almost the extreme right-hand side of the street. Thomas M. Bill, who was a passenger in the
automobile which ran down the soldier, testified that the automobile at the time of the accident was
traveling on the right-hand side of the street. A. R. Stuart, who was driving an automobile approaching
the place of the accident from the opposite direction, testified that the victim was struck at the point
marked "A" on the plan introduced in evidence and that the automobile was located at the point
marked "B", a point indisputably on the right-hand side of the street; that the automobile, when it
stopped after the collision, was not standing parallel with the street but at an angle with the center line
of the streets, having turned toward the left-hand side of the street after it had continued upon what
was to him the left-hand side of the street, he would have run over the body of the soldier. The
testimony showing that the accused was driving on the right-hand side of the street is corroborated by
the fact that the witness Rabonsa, who testified on the trial that the accused was driving on the left-
hand side of the street, first declared, in his statement to the prosecuting attorney, that, at the time of
the accident, the automobile was being driven on the right-hand side of the street.

While it is true that the law does not draw an inference of negligence from the mere showing that there
was a collision between a man and an automobile on a public street but that negligence must be
proved, nevertheless, we believe it to be the rule that testimony that plaintiff, while driving on the right-
hand side of a wide road, was overtaken by an automobile which struck the hind wheel of his wagon,
establishes a case of negligence. (Salminen vs. Ross, 185 Fed., 997.) And a bicyclist has the burden of
disproving his negligence when he rides up behind another who is walking where he has a right to walk
and, without giving any warning strikes him with his vehicle. (Myers vs. hinds, 110 Mich ., 300.) And we
have held in the case of Cahpman vs. Underwood (27 Phil., Rep., 374), that where, in the an action to
recover damages for having been run down by defendant's automobile, it appeared that the
automobile, at the time the injury was produced, was being driven on the wrong side of the street, the
burden of proof was on defendant to establish that the accident occurred through other causes than his
negligence.

There is no evidence in the case which shows negligence on the part of the injured soldier. The mere
fact that he was run down by an automobile does not signify that he was negligent. At the time he was
struck he was, speaking from the direction in which the accused was driving the automobile at the time,
on the right-hand side of the street where he had a right to be and where the law fully protested him
from vehicles traveling in the direction in which tested him from vehicles traveling in the direction in
which the accused was driving at the time of the injury. The rule which requires travelers to look out for
trains at railroad crossings by stopping, looking and listening before they pass over the tracks does not
fix the measure of care which a pedestrian attempting to cross a street must use in looking out for
automobiles. Negligence and contributory negligence are matters to be proved, and the burden is on
the one alleging injury from negligence to establish it and upon the other alleging immunity because of
contributory negligence to establish it, unless soldier cannot be held to have been negligent except upon
evidence establishing that fact. The beggar on his crutches has the same right to the use of the streets of
the city as has the man in his automobile. Each is bound to the exercise of ordinary care for his own
safety and the prevention of injury to others, in the use thereof. (Millsaps vs. Brogdon, 32 L.R.A. (N.S.),
1177.) This is especially true when we take into consideration the assertion of the accused that, by
reason of the position of the street-car tracks, he was unable to take the left-hand side of the street,
which is the side which the law requires him to take, but that it was necessary for him to pass in the
middle of the street or a little to the right of the middle in other to make a safe passage for the
automobile and its passengers. We have held in the case of Chapman vs. Underwood (27 Phil., Rep.,
374), a case in which the defendant's chauffeur was driving on the wrong side of the street at the time
accident, which was the basis of the action, occurred, that 'defendant's driver was guilty of negligence in
running upon and over the plaintiff. He was passing an oncoming car upon the wrong side. The plaintiff,
in coming out to board the car, was not obliged, for his own protection, to observe whether a car was
coming upon him from his left hand. He had only to guard against those coming from the right. he knew
that, according to the law of the road, no automobile or other vehicle coming from his left hand should
pass upon his side of the car. He needed only to watch for cars coming from his right, as they were the
only ones under the law permitted to pass upon that side of the street car."

We regard it as clear from the record that the accused was driving much faster than he claims he was or
else he was negligent in not watching the street for foot passengers, or in the handing of hid
automobile. It is a matter of common knowledge that an automobile being driven at 10 miles an hour
can be stopped if, necessity requires it, within 10 or 15 feet at the most. That rate of speed is extremely
low for an automobile and , with such a sped, it can be stopped almost instantly. If, therefore, the
accused was going at the rate of 10 miles an hour only and saw the soldiers 20 feet ahead of him, he
could, without difficulty, have stopped the automobile and avoided the accident. As a necessary
consequence, the accused was either driving at a rate of speed much higher than that stated or else he
was negligent in not stopping his car. Furthermore, if he did not see that soldier until too late to stop,
the burden is on him to show why he did not. There is something wrong when a chauffeur runs over a
man who is in plain view of the automobile for a long distance before the point of the accident is
reached. No negligence on the part of the injured person has shown. Whichever way the case is looked
at, whether from the viewpoint of the failure to see the soldier in time to avoid the accident or failure to
stop or give warning by horn or whistle, it is clear that the learned trial court was right when it held that
the accused was guilty of negligence.

There is no competent evidence to show that the soldier was drunk at the time of the accident; but,
even if he was drunk, it is of little consequence in the decision of this case, it not having been shown that
such drunkenness contributed to the accident. Whatever his condition he could easily have been seen
by the automobile driver if he had been vigilant, as he should have been, in passing over the streets of a
city and especially in passing a place where many used by people on foot. It is not shown that the
soldier's drunkenness, if he was in that state, any degree contributed to the accident or that the
accident would have been avoided if he had been sober. We have held in the case of Wright vs. Manila
Electric Railroad and Light Co. (28 Phil., Rep., 122):

Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary
care. It is but a circumstance to be considered with the other evidence tending to prove negligence. It is
the general rule that it is immaterial whether a man is drunk or if no want of ordinary care or prudence
can be imputed to him, and no greater degree of care is required to be exercised by an intoxicated man
for his own protection than by a sober one. If one's conduct is characterized by a proper degree of care
and prudence, it is immaterial whether he is drunk or sober. (Ward vs. Chicago etc. Ry. Co., 85 Wios.,
601; Houston and T.C. Ry. Ry. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen, 402; Central R. and
Bkg. Co. vs. Phinazee, 93 Ga., 488; Maguire vs. Middlesex R. Co., 115 Mass., 239; Meyer vs. Pacific R.R.
Co., 40 Mo., 151; Chicago and N.W. Ry. Co. vs. Drake, 33 III. App., 114.)

The judgment appealed from is affirmed, with costs against the appellant. So ordered.

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