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[G.R. No. 7255. October 3, 1912. ]

THE UNITED STATES, Plaintiff-Appellee, v. TEODORO JUANILLO, Defendant-Appellant.

John Bordman for Appellant.

Solicitor-General Harvey for Appellee.


1. AUTOMOBILES; RECKLESS NEGLIGENCE. — The failure of the driver of an automobile to exercise the quantum of care required of him machine collided with a pedestrian, resulting in the death of the latter, constitutes reckless imprudence as defined and penalized in article 568 of a Penal Code.

2. ID.; JUDICIAL NOTICE. — Courts will take judicial notice of the facts concerning an automobile which are common and current knowledge, such as the fact that it makes an unusual noise, that it can be driven at great speed, that it is highly dangerous when used on the public highways, etc.

3. ID.; USE OF HIGHWAYS. — Automobiles have the same right to use the public highways as other vehicles or pedestrians. But their use must be accompanied by that degree of prudence in management and consideration for the rights of others consistent with safety.

4. ID.; DEGREE OF CARE. — The degree of care required in the operation of an automobile on the public highways is correlative with the conditions confronting the operator, such as the presence or absence of other travelers and their apparent ability to care for themselves, the unobstructedness of the view, etc.

5. ID.; GREATER DANGER FROM USE OF. — An automobile is more dangerous than vehicles drawn by animals for the reason that the former is capable of greater destruction and further that its is absolutely under the power and control of the driver, whereas a horse or other animal can and does to some extent aid in averting an accident.

6. ID.; REDUCTION OF SPEED. — Although, perhaps somewhat disagreeable to reduce speed when meeting or passing other travellers, a failure to do this increases the responsibility for an accident which occurs under such circumstances.

7. ID.; FAILURE TO REDUCE SPEED. — Failure to check the speed of an automobile when meeting or passing other travelers to such an extent as to give the driver sufficient control to avoid or avert an accident to due to the carelessness or imprudence of his fellow travelers, is reckless negligence.

8. ID.; NEGLIGENCE. — Negligence is want of 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 impose.



This is an appeal by Teodoro Juanillo from a sentence imposed by the Honorable J. S. Powell, judge of the Court of First Instance at Iloilo, condemning him to one year and one day of presidio correccional, to the payment of P1,000 to the heirs of the deceased, Ponciano Leal, to the corresponding subsidiary imprisonment in case of insolvency, and to the payment of the costs of the cause, for the crime of negligent homicide (imprudencia temeraria con homicidio).

It is admitted that Ponciano Leal was killed on the public highway while going from the town of Pavia to Santa Barbara, Province of Iloilo, at about 4 o’clock on the afternoon of April 23, 1911, by being struck by an automobile, of which the appellant was the chauffeur. The contention of the prosecution is that the death of the deceased was due to the reckless driving of the appellant, while counsel for the defense insists that the unfortunate occurrence was purely an accident. The prosecution presented four witnesses and the defense six, including the Appellant.

The first witness, Pedro Latoja, 18 years of age, an ordinary laborer, a resident of Lambunao, testified that Juan Labrila, Ponciano Leal, and he, were walking abreast along the road toward Santa Barbara on the afternoon in question; that he was in the middle with Leal on his right and Labrila on his left; that while they were going along in this manner carrying on an ordinary conversation, he heard a noise behind him, and on turning around saw an automobile approaching; that he called out immediately that an automobile was coming and jumped to the left, colliding with Labrila; that when he turned around to look for Leal the latter was lying on the ground, having been knocked down by the automobile, and that at that place the road was higher than the adjacent land for a considerable distance each way. The testimony of this witness is corroborated by that of Juan Labrila in every particular. Labrila also testified that he was knocked into the ditch on the left of the road by Latoja and that when he got up he saw Leal lying on the ground, the automobile having passed. Nicolas Agraviado testified that he had just passed the deceased and his companions going in the opposite direction when the automobile passed him; that on account of its speed he started to turn around to watch it, but when he had done so the machine had passed Leal and his companions and he saw Leal lying on the ground. The last witness presented by the prosecution was Petronio Leal, son of the deceased. He was walking a little ahead of his father when the latter was struck by the machine. This witness did not see the machine strike the deceased, neither did either of the other three witnesses see Leal at the precise moment he was struck.

The defense introduced the testimony of the members of the party riding in the automobile, namely, Henry J. Becker, Charles C. Dean, W. H. Rimmer, Garret A. Hardwood, and Joseph Miller, and that of the chauffeur.

Becker testified that he saw some men in the road at a distance of about 300 yards ahead of the automobile; that at that time the chauffeur put on his brakes, used his exhaust, and blew his horn; that when they got up to within about 30 feet of the men — some of them having gone to the right and some to the left — the deceased, being on the right, started to run across to the left side of the road to join his companions; that the deceased did not clear the machine and was struck by some part of the left side of the machine, knocked down, and died soon thereafter. This witness further testified that at the time of the occurrence the machine was going at a "pretty fair speed;" and that the impact of the machine against the deceased raised him (witness) from his seat. The following questions and answers appear in the transcript of this witness’ testimony:jgc:chanrobles.com.ph

"Q. You could not see the deceased at the time he was hit from the place where you were sitting, could you? — A. I don’t see why I couldn’t. I was standing up like this. (Indicating a half-sitting posture.)

"Q. There were other people in front of you and there is a glass in front of the automobile and yet you say you could see? — A. I could see a clear road ahead except this man in the ditch on the right-hand side. I paid particular attention because I was looking that way.

"Q. Do you know how fast the automobile was going at the time the man was hit? — A. No, sir; I could not say just how fast we were going. We were going at a pretty fair speed.

"Q. More than an ordinary speed? — A. I don’t know; yes, an ordinary speed.

Q. What do you call ordinary speed? — A. Ordinary speed I should judge is about twenty miles an hour."cralaw virtua1aw library

The next witness, Charles Dean, testified that at the time of the occurrence he was sitting in the front seat, partly turned around, talking to the three men in the back seat; that when they were about 300 yards away from the deceased and his companions, the chauffeur having blown his horn, turned on his exhaust, and shut off the power, he looked ahead and saw some natives in the road; that these natives stepped out of the road, going to each side, and he then turned back to continue his conversation with his companions; that when he thought they had about reached the natives, he looked again and saw them about 25 feet ahead; that at that moment the chauffeur put on the brakes very strong; so strong that there was quite a shock in the machine; that at the same moment the deceased started to cross to the other side and was hit by the machine; and that before the machine struck the deceased it had been running under its own momentum for about 150 or 200 yards. The witness also testified that the road at the place when the deceased was killed was full of people at the time.

The witness Rimmer testified:jgc:chanrobles.com.ph

"Q. How far was the automobile from him (the deceased) when he started to cross the road? — A. When I saw him he was running. He just made a dash. He was about the center of the road and we were about anywhere from ten to twenty feet from him.

"Q. What did the chauffeur do when the man started to cross? — A. Why, he just stopped it as fast as he could. He nearly threw us out of the seats.

"Q. He (the chauffeur) did not put on the brake? — A. Oh, yes, he put on everything. He threw us all forward.

Q. But you were going fast? — A. Yes, we were going a pretty fair gait. I should judge anyway we were going over 15 miles an hour — about 20 miles."cralaw virtua1aw library

The witness Harwood says:jgc:chanrobles.com.ph

"I was sitting in the rear seat, sitting on the left. There were four or five natives about 30 feet away — I believe they were about 20 or 30 feet away from us the, and this one that was hit looked back and went across the road and the left front wheel or fender struck him."cralaw virtua1aw library

Miller testified that the appellant was a good chauffeur, and had never had an accident before the one which forms the basis for this action.

The appellant himself, on being asked to tell about the occurrence, stated:jgc:chanrobles.com.ph

"A. We were on the road to Santa Barbara after we have left Pavia. The road was a straight road, and I noticed up ahead about 80 or 100 brazas some men walking in the road. When I got up to within about 40 or 50 brazas of them I closed off my gasoline and kept tooting my horn and put my foot on the exhaust so I could make a notice. When I go within about 30 brazas of them some of the men turned around and looked back at the machine. We were then going about 10 miles an hour. When we were within about 2 or 3 brazas of the men the man on the right side started to run across the road. I put on my brakes but could not stop right on the spot. Some part of the automobile hit him. I could not see what part. At the time we hit the man we were going about 6 or 8 miles an hour. We ran about 3 or 4 brazas more when the automobile stopped.

"Q. Was there any body with him (the deceased) when you first saw him on the right hand side of the road? — A. He was alone on the right. His companions were on the left.

"Q. How far were you from him when you saw him? — A. Between 80 and 100 brazas.

"Q. Going very slow then? — A. Between 15 and 20 miles an hour.

"Q. When did you close down the power? — A. About 40 or 50 brazas from him.

"Q. When you saw him about 50 brazas away, was he on the right and his companions on the left? — A. When we were within 30 brazas of them; that is, when they separated.

"Q. Went to the right and his companions to the left? — A. Yes, sir.

"Q. That is when you closed down the power? — A. Yes, sir.

"Q. How was it that you kept on 3 or 4 brazas after you knocked the man down? — A. I ran between 3 and 4 brazas.

"Q. If you could stop going at 8 miles an hour within 2 brazas, why did you run 3 or 4? — A. I don’t know, sir; I was going about 8 miles an hour, I should say."cralaw virtua1aw library

It is very plain that the collision ought to have been avoided, and the inquiry is, who is to blame for it. It almost uniformly happens that in cases of this description different accounts are given of the occurrences by those who were present at or near the scene, and that the courts have difficulty in this conflict of evidence in deciding to which side credence should be given. There are generally, however, in every case some undeniable facts which aid in determining where the blame lies, and this case is one of that character.

There is no dispute that the deceased was struck on or near the left hip by the lamp or fender over the left front wheel of the automobile; that the blow knocked him to the side of the machine; that the machine did not pass over his body; and that as a direct result of the blow the deceased died very soon thereafter on the same day. If it were true that the deceased and his companions were walking abreast, the deceased on the right near the center of the road, Latoja next, and Labrila on the left, then the deceased, on hearing Latoja call out that an automobile was coming, would have turned to the left to escape, thereby placing his left side toward the coming machine. If the theory of the defense be accepted as true, the deceased could likewise have been struck on the left hip. The position of the deceased after the car had passed will accord with both the theory of the prosecution and that of the defense. So upon these admitted facts neither side can claim an advantage.

Latoja, Labrila, and Agraviado were country people with no personal experience in the handling of automobiles. This was the first time that Latoja had been in the city of Iloilo for ten years. Latoja and Labrila told a plaint, simple story. They were walking along the road abreast, Latoja heard a noise, looked back, and called out that an automobile was approaching. He then jumped to the left to get out of the way of the machine, colliding with Labrila and knocking him into the ditch on the left-hand side. Becker says that he saw a man in the ditch on the right side. There is nothing else in the record to show that there was any other person in the ditch on either side. All the witnesses for the defenses testified that the middle of the road was clear at that place and time and that the deceased, as well as all others, were in perfectly safe places and that the deceased would not have been killed if he had not attempted to cross from the right to the left side of the road. These fact show that Becker, was mistaken when he stated that he saw a man in the ditch on the right side. Labrilla was in the ditch on the left side. Becker also says that the machine was about 300 yards from the man when the chauffeur put on his brakes, and that putting on the brakes raised him in his seat, meaning that the application of the brakes checked the machine so suddenly that he was thrown forward. Again, he says that he was in a half-sitting posture at the time the deceased made a dash for the left side of the road, and also that the impact of the machine against the deceased raised him from his seat. The result is that Becker was raised in his seat when the brakes were put on, some 300 yards away. He either remained standing or sat down and got up again, as he was standing when the machine was within about thirty feet of the deceased. He must have sat down before the machine ran the 30 feet, as he was raised from his seat when the collision took place. Again, Becker says that the machine was going about 20 miles an hour when the brakes were first applied with great force, yet it ran about 300 yards with the brakes on, and after going that distance it still had sufficient momentum to strike the deceased with such force as to fatally injure him.

Dean says that the machine was about 300 yards away from the deceased and his companions when the defendant blew his horn, turned on the exhaust and shut off the power; that when they were about 25 feet away the brakes were applied with such force that he and his companions were all thrown forward, and that the machine had been running when it struck the deceased under its own momentum for about 150 or 200 yards. The defendant says that when he was about 80 or 100 yards away he cut off the gasoline, blew his horn, and put his foot on the exhaust, that when he was within about 4 or 6 yards (2 or 3 brazas) the deceased made a dash for the other side and he then put on the brakes; that at that time he was going 6 or 8 miles an hour; and that the machine ran about 3 or 4 brazas after hitting the deceased before he could stop it.

According to Becker, the impact of the machine against the deceased was so hard that he was raised in his seat, notwithstanding the fact that the brakes had been applied with great force 300 yards away. According to Dean, the brakes were applied with force 25 feet away and the machine had been running under its own momentum for about 150 or 200 yards when the deceased was struck. According to the defendant, the machine had been running without gasoline for about 100 yards and the brakes were applied when he was about 18 feet from the deceased. All agree, however, that the deceased was struck on the left hip by the fender or lamp with such force that he died within a short time thereafter, and that the machine did not pass over his body.

Taking the statement of the defendant himself, the machine had been going for 100 yards without gasoline, 18 feet of the last part of the hundred yards with the brakes strongly applied, when the deceased was struck, and continued for some 25 feet before he could stop. That so fatal results could have been accomplished by the automobile without passing over the body of the deceased under these circumstances, we think highly improbable, if not impossible. In view of all the admitted facts and circumstances, and the unreasonableness of the stories told by the defendant and his witnesses we are fully satisfied that the trial court was justified in accepting the testimony of Latoja, Labrila, and Agraviado as to how the collision took place. This being true, the deceased was killed just a little to the left of the center of the road. Just before the machine struck him he had been walking abreast with his companions. Neither Latoja nor Labrila heard the blowing of the horn or any other warning whatever until the machine was so close that Latoja and Labrila barely had time to make their escape, what the deceased, being on the left, did not have sufficient time. The road at the place where the collision took place was about 23 feet wide, a little higher than the adjacent country, and clear of obstacles which might obstruct the view, for quite a long distance each way.

Now, do these facts constitute a violation of article 568 of the Penal Code? This article reads:jgc:chanrobles.com.ph

"ART. 568. Any person who by reckless imprudence shall commit any act which, had it been intentional, would constituted a grave felony shall suffer a penalty ranging from arresto mayor in it maximum degree to prision correccional in its minimum degree; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium degree shall be imposed."cralaw virtua1aw library

Counsel for the appellant insists that the court erred, first, in taking judicial notice of the power of stopping appliances of automobiles; and second, in its conception of reckless negligence as applied to the rights of vehicles and parties on foot on public highways.

In support of the first assignment of error, counsel cites that part of the decision appealed from wherein the court says:jgc:chanrobles.com.ph

"Everybody knows that all first-class cars turned out at the shops have appliances that will stop a machine going at 15 miles an hour within 5 feet."cralaw virtua1aw library

It is true that there is nothing in the evidence to warrant this statement or deduction. But this was a casual observation made by the court, and did not from the basis upon which the judgment rests. If this statement of the trial court were material, it might constitute a reversible error. It has been held, however, that courts will take judicial notice that an automobile makes an unusual noise; that it can be driven at a great velocity — at a speed many times greater than that of ordinary vehicles drawn by animals, and that it is highly dangerous when used on country roads. (Brazier v. Philadelphia, 215 Pa., 297. Ex parte Berry, 147 Cal., 523.) In the latter case the court said:jgc:chanrobles.com.ph

"There is nothing in the record which shows with any particularity what an automobile is, and, of course, a court could not declare unreasonable a regulation about something of which it has no knowledge; therefore, in order to at all consider the question here involved, we must assume judicial knowledge of an automobile and its characteristics and the consequences of its use — under the statutory provision that courts take judicial notice ’of the true significance of all English words and phrases.’ (Sec. 1875, Code Civ. Proc.) WE may assume, therefore, to have what is common and current knowledge about an automobile. Its use as a vehicle for traveling is comparatively recent. It makes an unusual noise. It can be and usually is made to go on common roads at great velocity — at a speed many times greater than that of ordinary vehicles hauled by animals; and beyond doubt it is highly dangerous when used on country roads, putting to great hazard the safety and lives of the mass of the people who travel on such roads."cralaw virtua1aw library

In support of the second assignment of error, counsel calls this court’s attention to that part of the trial court’s decision wherein it is stated:jgc:chanrobles.com.ph

"It (the automobile) has no right to run at a greater speed along the public highway in passing people afoot or in vehicles than it can stop when danger arises. A footman has the right of way in public highways and people in vehicles have no right to ride him down."cralaw virtua1aw library

It is generally held that the rights and duties of pedestrians and vehicles are equal. Each may use the highway, and each must exercise such care and prudence as the circumstances demand. (20 L. R. A., n. s., 32 [232], Note.) Owners of automobiles have the same rights in the streets and highways that pedestrians and drivers of horses have. Automobile drivers or the drivers of animals are not to use the means of locomotion without regard to the rights of others having occasion to travel on the highway. While an automobile is a lawful means of conveyance and has equal rights upon the roads with pedestrians, horses, and carriages, its use cannot be lawfully countenanced unless accompanied with that degree of prudence in management and consideration for the rights of others which consistent with safety.

Judge Colley, in his work on Torts (3d ed.) ,
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