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On November 2, 1911, defendant Segundo Barias, a motorman for the Manila Electric Railroad and Light Company, was driving his car along Rizal Avenue and stopped at an intersection to take on some passengers. He looked backward, presumably to be sure that all passengers were aboard, and then started the car. At that moment, Fermina Jose, a 3-year-old child, walked or ran in front of the car. She was knocked down and dragged at some distance to death. Defendant knew nothing of this until his return when he was informed of what happened. He was charged and found guilty of homicide resulting from reckless negligence.
Whether the evidence shows such carelessness or want of ordinary care on the part of the defendant as to amount to reckless negligence
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.
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 heavy street cars on public thoroughfares in populous sections of the city. At times, it might be highly proper and prudent for him to glance 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.
We hold that 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 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 proofs 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.
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, 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.
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