SECOND DIVISION

[G.R. No. 17218. September 8, 1921.]

THE PEOPLE OF THE PHILIPPINE ISLANDS , plaintiff-appellee, vs .

NARCISO VISTAN Y DE LA CRUZ , defendant-appellant.

Ross & Lawrence, and Ewald E. Selph for appellant.

Acting Attorney-General Tuason for appellee.

SYLLABUS

1. RECKLESS IMPRUDENCE. — Reckless imprudence consists in doing or not

doing voluntarily but without malice an act from which material injury results on
account of lack of foresight, for which the person executing or omitting it can have no
excuse.
2. HOMICIDE THROUGH RECKLESS IMPRUDENCE; DEGREE OF CARE
REQUIRED. — The degree of precaution and diligence required of an individual in any
given case so as to avoid being charged with recklessness varies with the degree of the
danger. If the degree to do harm to a person or to another's property, on account of a
certain line of conduct is great, the individual who chooses to follow that particular
course of conduct is compelled to be very careful in order to prevent causing a harm
that could be avoided. On the other hand, if the danger is small, very little care is
required. It thus results that there are in nite degrees of precaution or diligence, from
the most slight and instantaneous thought or the transitory glance of care to the most
vigilant effort and care; and as to the duty of the person to employ more or less degree
of care in such cases will depend upon the circumstances of each particular case.
3. SIMPLE IMPRUDENCE AND RECKLESS IMPRUDENCE DISTINGUISHED. —
The weight of authority supports the proposition that where mediate personal harm,
preventable in the exercise of reasonable care, is threatened upon a human being by
reason of the course of conduct pursued by another, and the danger is visible and
consciously appreciated by the author, the failure to use reasonable care to prevent the
impending injury constitutes reckless imprudence. On the other hand, simple
imprudence is a mere lack of precaution in those cases where either the threatened
harm is not imminent or the danger is not openly visible.

DECISION

VILLAMOR , J : p

The appellant was prosecuted in the Court of First Instance of Manila for the
crime of serious physical injuries through reckless imprudence, and sentenced to
imprisonment for three months of arresto mayor, with the corresponding accessory
penalties and to pay the costs.
The complaint is as follows:
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 "That on or about the 10th day of April, 1920, in the city of Manila,
Philippine Islands, while street car No. 203 of the Manila Electric Railroad and
Light Co. was receiving passengers at the intersection of M. H. del Pilar and Isaac
Peral Streets of this city, said accused, who was then and there the conductor in
charge of said street car, did then and there wilfully, unlawfully, and feloniously
and with reckless imprudence signal the motorman to go ahead without minding
and without taking into account that one Hugo Borromeo, whom he could then
see was at that very moment about to board the car with one foot on the running
board, thereby causing the said Hugo Borromeo to be thrown down by the jerk of
the moving car and his foot overrun by the rear wheels of said car No. 203 upon
falling on the ground, with the result that his left foot was crushed and injured to
such an extent as to require medical attendance and prevent the said offended
party from engaging in his habitual work for a period of more than ninety days;
that due to said accident Hugo Borromeo lost his left foot which had to be
amputated. Contrary to law."
It appears from the record that on April 10, 1920, after two sons of the offended
Hugo Borromeo, who were with him had boarded the street car No. 203 which had
stopped at the intersection of M. H. del Pilar and Isaac Peral Streets of this city, and
also in attempting to board the same car, the said Hugo Borromeo with his right hand
took a hold of the iron bar on the right side of the only entrance door, and with the left
the iron bar in the middle of the entrance. When he had his right foot on the platform,
the conductor in charge of the car, the accused herein, gave the signal to start.
Thereupon the car suddenly moved forward with a jerk thus causing his left hand to slip
off while the right one was pinioned between the iron bar and the woodwork upon
which it was xed and he was unable to draw it out immediately due to the speed of the
car. In the meantime he was momentarily dragged along and when his knees were
touching the ground, he felt that his left foot had become numb, unaware that his foot
was overrun by the wheel, until he was on the ground about 10 meters, more or less,
from the place where the car had started.
The defense tried to prove that the street car being in motion, the offended party
ran after it and attempted to board it, but unfortunately missed the running board and
upon falling down one of his feet was caught by the wheels of the car. The witnesses
who testi ed to this fact undoubtedly referred to the fact related by the aggrieved party
himself when he gave the tails as to how he was for a time dragged by the car. It was
not necessary for the offended party to run after the car in order to board it, as it was
stopped when his two sons entered it, behind whom he was with his hands holding the
bars of the car, and was then placing his right foot on the running board when the car
started in response to the signal to start given at that very moment by the accused. The
fact is that due Probably to the abrupt motion of the car in starting, the left hand of the
offended party slipped off and his right hand was caught between the iron bar and
woodwork upon which it was attached and having lost the equilibrium he was dragged
along for a short distance until his left foot was caught by the wheels of the car. This
fact, which was seen by the witness Lawson who was some distance behind the car,
might cause the impression that the offended party was running after the car when he
fell down, and, we believe, the witness testified under this impression.
We believe it to be clear that at the time of boarding the car, the offended party
was watching the man who gave the signal to start, that is, the conductor, and the latter,
who had his eyes toward the door, seeing that nobody was alighting or boarding the
car, rang the bell, whereupon the car started. It is not improbable that when the accused
saw the last passenger with both hands clinging to the holding device of the car and
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 one foot on the running board, he thought that the passenger had completely boarded
the car and that is why he gave the signal to start. The question that presents itself is
whether or not the accused acted with reckless negligence as alleged in the
information.
In the case of U. S. vs. Gomez (R. G. No. 14068), 1 the accused was convicted of
the crime of homicide through reckless negligence. The accused was the motorman of
a street car that collided with a carabao cart at the intersection of Concepcion and
Arroceros Streets of the city of Manila. As a result of the collision, one of the occupants
of the cart, Santos Alcartado, was thrown under the car and killed. In discussing the
responsibility of the accused, this court, among other things, said:
"Upon the other point, whether the negligence or imprudence of the
accused can properly be denominated rash, it is to be observed that the amount
of care and diligence which a man is required to use in a particular situation in
order to avoid the imputation of negligence varies with the obviousness of the
risk. If the danger of doing injury to the person or property of another by the
pursuance of a certain line of conduct is great, the individual who proposes to
pursue that particular course is bound to use great care in order to avoid the
foreseeable harm. On the other hand, if the danger is slight, only a slight amount
of care is required. It is thus seen that there are in nite shades of care or
diligence, from the slightest momentary thought or transient glance of attention
to the most vigilant anxiety and solicitude, and whether a person is bound to use
a high or a low degree of care depends upon the situation presented in the
particular case. Now the term negligence is used to indicate the legal delinquency
which results wherever a man fails to exhibit the care which he ought to exhibit,
whether it be slight, ordinary or great; and it is clear that in a situation where
immediate danger to an individual is indicated the requirement for the exercise of
a high degree of care is more exigent than where nothing more than possible
harm to inanimate things is concerned. As experience only too well teaches
collisions between cars and vehicles carrying people in the streets are fraught
with a high degree of danger to the passengers, and it results that a high degree
of care is required of those who have control of the agencies involving such
danger. The failure to use the requisite care in such cases is properly
denominated gross negligence or rash imprudence if the actor, having at his
command the means of avoiding the harm, fails to avail himself of it.
"The term 'rash imprudence,' as used in the Spanish Code, would seem to
be approximately equivalent to the 'gross negligence' of the common law; and as
was once observed by a brilliant English judge, gross negligence is only
negligence with a vituperative epithet (Rolfe, B., in Wilson vs. Brett [1843], Mees. &
Wels., 113). The same may substantially be said of the term 'rash imprudence' in
Spanish law. It is imprudence with a vituperative epithet. In common usage the
word 'rash' seems sometimes to imply a wanton disregard of consequences,
indicative of a state of mind bordering upon deliberate intention to in ict a
positive injury. The legal import of the expression is in our opinion of somewhat
greater latitude, since it wholly excludes the idea of malice and under conditions
more readily felt than defined is satisfied by proof of mere lack of foresight.
" 'Reckless imprudence consists in doing or not doing voluntarily, but
without malice, an act, from which material injury results due to lack of foresight,
unexcusable on the part of the person executing or omitting to do it.' (Decision of
the supreme court of Spain, May 14, 1904, referred to by Viada in his
Commentaries, 5 Supp., 457 )
" 'Reckless imprudence, punishable as crime, consists in the lack of
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 prevision and rational precaution with which all acts must be executed, from
which probable injury or damage may easily result.' (Decision of the supreme
court of Spain, March 16, 1905, referred to by Viada in his Commentaries, 5 Supp.,
461.)
"The distinction between simple imprudence, which is a constitutive
element of a misdemeanor under article 590 of the Penal Code, and rash
imprudence, which is a constitutive element of the offense punishable under
article 568 of the same Code, is not clearly indicated in the books; but we think the
weight of authority will be found to support the proposition that where immediate
personal harm, preventable in the exercise of reasonable care, is threatened to a
human being by reason of a course of conduct which is being pursued by
another, and the danger is visible and consciously appreciated by the actor, the
failure to use reasonable care to prevent the threatened injury constitutes reckless
negligence.
"Simple imprudence, on the other hand, is a mere lack of prevision in a
situation where either the threatened harm is not immediate or the danger is not
openly visible The following is cited in Viada as a case of simple imprudence: A
man goes hunting and raises his gun to shoot at a bird. Upon lowering the gun
without ring, he negligently fails to lower the hammer; and while the gun is being
thus carried cocked, it is accidentally discharged with the result that a person
casually in range of the gun is wounded. As will be seen in this case, although
there is imprudence on the part of the hunter, there is not a conscious advertance
to the danger to which the other person is being subjected. Said the court:
" 'The fact set forth as proved in the rst nding of the court below is not
su ciently such as would indicate real reckless imprudence on the part of Cecilio
Mogarra, inasmuch as the act of lowering his gun and putting it under his arm
without lowering the hammer, which constitutes negligence, does not show grave
fault, but only mere lack of foresight chargeable as simple imprudence.' (Decision
of the supreme court of Spain, March 12, 1904, referred to by Viada in his
Commentaries, 5 Supp., 457.)"
Taking into consideration all the circumstances of the case at bar, we are of the
opinion that the act of the accused in giving the order to start the car, when the
offended party had his hands already on the holding devices of the car and his foot on
the running board, constitutes carelessness or negligence, but does not show grave
fault amounting to reckless imprudence and the accused having acted with simple
imprudence or negligence, has incurred the penalty provided by article 590, case No. 4,
of the Penal Code.
The judgment appealed from is modi ed, and the accused and appellant is
sentenced to pay a ne of 60 pesetas and to suffer the corresponding subsidiary
imprisonment in case of insolvency and to censure, with the costs of this instance de
oficio. So ordered.
Johnson, Araullo, Street and Avanceña, JJ., concur.

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