Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-6897             February 15, 1912

THE UNITED STATES, plaintiff-appellee,

Jose M. Arroyo for appellant.

MORELAND, J.:

The defendant in this case was convicted of the crime of homicide by negligence (homicidio por
imprudencia temeraria). He appealed, basing his whole case here upon the proposition that the
evidence does not warrant the conviction.

It appears that on the 19th day of January, 1911, one Severino Resume was engaged in painting
telephones poles located along the highway between Jaro and Iloilo. On that day he was killed by
being run over by an automobile driven by the defendant. The highway at the point where Severino
met his death was straight, of considerable width, and in good condition. The telephone pole upon
which Severino was at work at the time of the accident was outside of the beaten portion of the
highway and located about 2 feet into the grass at the side. Between it and the edge of the road was
a pathway used by people traveling on foot. The machine which caused the death of the deceased is
a large passengers, and having upon each side and extending about 2 feet out beyond the wheels a
rack or other contrivance for the carrying of parcels, baggage, and freight. It is used solely for the
purpose of carrying passengers back and forth between Iloilo and Jaro.

The accident happened at about 10 o' clock in the morning. The automobile was then engaged in
making its third trip from Iloilo at Jaro, and was loaded to its fullest capacity. There were several
people who claim to have witnessed the accident. One of them, the principal witness for the
prosecution, and its only witness who saw the occurrence, named Pablo Tayson, is alleged to have
been standing within a few feet of the deceased, talking with him, at the time he was run down.
Another person, who was near by at the time of the accident, was Basilio Severaldo, who was
engaged in the same work as the deceased but, just prior to the passage of the automobile, had
gone away from the locality where the accident occurred and saw nothing of what happened. Two
other persons, who have been produced as witnesses for the defendant, allege that they were
present and saw the whole occurrence.

Pablo Tayson, who, as we have said, is the only witness for the prosecution testifying directly to the
facts and substantially the only witness upon whom the prosecution relies for a conviction, testified
that at the time of the accident he and the deceased were located on the left-hand side of the
highway going from Iloilo at Jaro; that he was standing a few feet from the deceased who was also
on the same side of the highway; that the deceased was standing up painting the side of the
telephone pole toward Jaro; that the telephone pole was, therefore, between the deceased and
Iloilo, the direction from which the automobile was coming; that the road on that day was very dusty
and the automobile, as he saw it coming from Iloilo toward him and the deceased, was raising a
cloud of dust which he was drifting to the side of the road upon which he and the deceased were
located. This witness further asserted that he saw the automobile when it was within about 1,200
feet of the place where he stood; that it was coming at a rate of speed variously termed by him "very
fast" and "at full speed;" that, on observing the machine as it approached, he saw that the driver, the
accused, was turning the steering wheel first in one direction and then the other, as if uncertain what
course he was going to pursue; that the machine, as a consequence, was darting first to one side of
the road and then to the other, thus zigzagging back and forth across the travelled portion of the
highway; that just before reaching the place where deceased was painting the telephone pole it
crossed to the side of the road opposite to him and then suddenly started back across the road
opposite to him and then suddenly started back across the road, striking the deceased as he stood
painting; that by the impact the deceased was thrown upon the ground somewhat toward the front of
the machine, which was going so fast that, although the accused was not within the reach of its
wheels, nevertheless, the "suction," as the witness called it, created by the swift passage of the
machine drew the deceased under its wheels where he was run over and crushed.

From the testimony of the witness it does not appear that the deceased moved or stirred in any way
until he was hit by the automobile.

The accused testified, and produced several witnesses to support his testimony, that at the time of
the accident he was driving the machine, which was loaded to its fullest capacity with passengers
and baggage, at about 10 to 15 miles an hour; that he was driving in or near the center of the road
and pas to either side; that the machine was under full control and was going steadily and smoothly
without deviating to the right or to the left; that on approaching the place where the witness Pablo
Tayson stood he saw him turn his back toward the road and place his cap over his face in such a
way as to cover his nose, mouth and eyes, evidently to protect them from the cloud of dust which
was rolling from behind the machine over toward the side of the road on which he was; that the
deceased, as the machine approached, probably seeing the cloud of dust which it was raising and
which would inevitably drift in his direction, and observing his companion, Pablo Tayson, under the
necessity of protecting himself from the dust in the manner described, just before the machine
reached a point opposite him, started to cross the road to the other side, evidently to escape the
dust; that he misjudged the distance and started too late; that in attempting to cross he placed
himself squarely in front of the machine; that his movement was so sudden and unexpected and,
when he reached the road, he was so close to the machine that it was impossible to stop it in time to
avert the catastrophe; that he did everything that was possible to be done to avoid the accident; that
he put on both brakes as hard as possible and turned the machine as much as could be done under
the circumstances; that in proof thereof he shows that only the front wheel of the machine passed
over the body of the deceased, it having been turned by him sufficiently so that the mind wheel
missed him, and that the machine was stopped a very few feet beyond the point where the accident
occurred. The accused testified, and his evidence in this regard is uncontradicted, that he was
thoroughly qualified as a driver, having served his apprenticeship on this very road and this very
machine before being employed.

The accused denies absolutely that portion of the story told by Pablo Tayson in which he alleges that
the accused was driving at a high rate of speed; that he was zigzagging from one side of the road to
the other; and that he struck the deceased while he stood painting the telephone pole.

We are satisfied that the evidence is not sufficient to convict. On the contrary, we believe that, under
all of the facts and circumstances of the case, the fair preponderance of the evidence indicates that
the deceased met his death in substantially the manner described by the accused. In the first place,
the testimony of Pablo Tayson is affected by an attack made upon his credibility during the progress
of the trial. It was shown that, on the preliminary investigation had by the justice of the peace, this
witness testified, precisely as the accused asserted in his evidence, that just as the machine was
arriving at a point in the highway opposite him, he, desiring to avoid the unpleasantness of the dust,
turned his back toward the road and covered his face with his cap, thereby excluding the dust from
his mouth, eyes, and nostrils. That he so testified on the preliminary investigation, according to the
record thereof, is admitted. In his testimony on the trial of this case he stated, at first, that he turned
his right side to the road and placed his hand over the side of his face. leaving his eyes uncovered,
so that he was able to see and did see the deceased at the time he was run down. Upon cross-
examination he changed this testimony to the extent of saying that he covered the right side of his
face with his cap instead of his hand, maintaining, however, that he did not cover his eyes and that
he was able to see the deceased and all that transpired. When confronted with the evidence which
he gave on the preliminary examination, he sought to explain the difference between his two
declarations by stating that the testimony before the justice of the peace, which was reduced to
writing and signed by him, was in a different language from that which he was able to speak and to
speak and that it was not translated so that he knew what he was signing.

In the second place, the testimony of this witness is unreasonable. It is improbable that a machine
as large as the one in question, going at the rate of speed described by Pablo Tayson, could zigzag
from one side of the highway to the other in the manner described by the witness. It is still more
improbable that this machine could have dodged from the right-hand side of the road to the left and,
in some unknown manner, picked the deceased out from behind the telephone pole, dragged him
into the highway and there run over him. It is not clear how an automobile can run over a man when
it is admitted that he is on the opposite side of a telephone post from the machine which ruins him
down, with only a portion of his body extending beyond it. Even if the machine had started toward
him in the manner described he would undoubtedly have seen it quickly enough to have passed
around the other side of the post and save himself from being touched. This is especially evident
when we observe that it is admitted that the deceased stood facing the automobile all the time and
could see it plainly and its every movement. It is difficult to believe that a machine of the size of the
one in question, driven at the high rate of speed alleged by the witness, could have turned suddenly,
darted toward the ditch, and struck the deceased while located partly on the opposite side of a post
from the machine without having collided with the post or gone into the ditch, it being remembered
that the post was not more than 6 feet from the ditch.

From the transcription given of the machine it appears, as we have already seen, that there were
certain portions of the body of the machine extending over and beyond the wheels, which were used
as receptacles for the baggage and bundles of passengers. This projection, under the theory of the
prosecution, would necessarily have been the portion of the machine to hit the deceased for the
reason that no other part of the machine could have come in contact with him without the projection
referred to striking the telephone pole. If this projection is that which struck the deceased first, then
he would have been thrown into the ditch away from the machine and not into the highway under the
machine. This is what would necessarily have happened when we remember that at the time the
deceased was struck the machine was going at full speed toward the ditch. It was apparently to
avoid the contradiction of his previous testimony inherent in this necessary result that the witness
testified that the force which prevented the deceased from going into the ditch and drew him under
the machine was the "suction" created by its rapid passage along the highway.

It is undisputed evidence of the case that that portion of the machine which struck the deceased first
was the mudguard over the left wheel. This fact alone shows the impossibility of the machine having
hit the deceased while standing at the post, as it is admitted that no part of the automobile collided
with the post. If the deceased had been at the post, as described by Tayson, the guard could not
possibly have struck him without the extended portions described having struck the post itself.

On the otherhand, the story told by the accused and supported by some of the passengers who saw
the accident is entirely reasonable, accords with common sense and ordinary experience. It was
clearly told, in a manner frank and straightforward, was free from contradictions and needs no
explanation or excuses.

We have read with detention the opinion upon which the judgment of conviction is based. In spite of
careful study, we are unable to discover anything therein that alters our views in relation to the
merits. As between the two theories, the one of the prosecution and the other of the defense, we
cannot have, under the evidence and record, any hesitation in choosing. The evidence presented by
the prosecution itself, and it is upon that evidence alone that the conviction must stand, every other
fact in the record being conspicuously in exculpation of the accused, shows the deceased standing
upon the east side of a telephone pole facing an automobile coming toward him from the west, about
half of his body extending beyond the pole toward the highway on his left. On his right was the
highway drainage ditch. The pole was outside of the travelled portion of the highway so far that a
footpath lay between it and said traveled portion. The automobile was coming toward him at a high
rate of speed, to judge from the evidence of this witness, at least 40 miles an hour, possibly more.
The machine was not proceeding in a straight line but it was going from one side of the road to the
other. Just before arriving opposite the deceased it darted to the right-hand side of the road and
then, turning, it started toward the left-hand side directly at the deceased. All of these things the
deceased saw, yet he did not move or attempt to save himself in any way. On the contrary, he stood
still and permitted the machine to strike him upon his left side. Having collided with him, the
machines turned back toward the center of the highway, carrying the deceased with it, depositing
him within the traveled portion of the highway, where it ran over him. On the other hand, the
evidence of the defendant shows that he was driving the machine at a moderate rate of speed within
the usually traveled portion of the highway, guiding it in a substantially straight line and handling it in
the usual and ordinary manner. The machine, one of extraordinary size and capable of carrying 35
passengers with their baggage and effects, was incapable of running at the rate of speed described
by the prosecution. Arriving at a point in the highway just in front of the deceased, the latter, to avoid
the cloud of dust which was drifting to his side of the road, started to cross the road to the other side.
He miscalculated the time and distance and as a result was struck by the automobile and run over.
His action in starting across the road was so sudden and unexpected and, when he reached the
road, he was so close to the automobile, that it was impossible to stop the machine in time to save
him. The body was picked up within the traveled portion of the highway.

Which of these two stories is the most reasonable? We have no hesitation in answering. The story of
the prosecution presents so many things that are unreasonable and incredible and for which there
exists in the record no explanation whatever, and concerning which no reasonable explanation can
give, that it must necessarily be rejected. Even if, going at such a high rate of speed, the accused
could have driven the automobile from one side of the road to the other as alleged, what could
possibly be his reason for so doing? It was market day at Jaro; this was his third trip; the machine
was loaded to its utmost capacity, both with passengers and with baggage; he was doubtedly
running according to a schedule and would have no time to waste in going from one side of the road
to the other; no reason is suggested and one can be supplied why a driver should handle his
machine in the manner described by the only witness for the prosecution who saw the whole
occurrence. Instead of Kepping to the travelled portion of the highway, which was admittedly in fine
condition, why should the accused go outside of it, across a foothpath used by pedestrians, and skin
alongside of the telephone poles located on that side? What object could he have had in thus
exposing himself, his passengers, and his machine to the risks and dangers of plunging into the
drainage ditch or driving against the telephone poles or meeting the other disasters and dangers
which might be encountered outside of the usually traveled portion of the highway? No explanation
of such extraordinary conduct is given in the record and none can be conceived. He was not
engaged in taking a party of hilarious companions on a "joy" ride, nor in giving an exhibition of his
skill in handling an automobile of that size and class. It does not appear that he was drunk or foolish.
He was engaged in a business enterprise, employed by a businessman purposes. What could
possibly have been his purpose when, or arriving at a point in front of the deceased, he turned his
automobile across the road and started squarely toward the telephone pole and the deceased? That
he saw the deceased and that the deceased saw him is admitted. What spirit or purpose could have
animated him in driving his automobile outside of the highway directly toward not only a telephone
post but the drainage ditch itself in order to run down an unoffending person? What motive can be
assigned by the prosecution when it asserts that the accused did this unaccountable thing? What
purpose does the prosecution allege the accused sought to subserve when, by this conduct, he
placed the safety of his passengers and of his machine, as well as of himself, at stake in thus driving
directly toward a place of great danger? Above all, why did the deceased stand still, instead of
stepping around behind the post, and permit himself to be crushed to death by the machine which he
clearly saw bearing down upon him? These unreasonable and accountable things must be
satisfactorily explained by the prosecution when it is confronted by the statement of the accused,
supported by a number of disinterested witnesses, that none of those things ever occurred. We have
already pointed out that, giving the story as told by the prosecution credence, it would have been
little short of an impossibility for the body of the deceased to have found itself in the travelled portion
of the highway after the accident. He would inevitably have been driven further away from the
highway and toward the ditch by the blow from the machine going in the direction in which it was
alleged by the prosecution to have been going.

Turning to the story of the event as given by the defendant and his witnesses, we meet nothing that
requires explanation. There can, therefore, be no hesitation on our part in accepting the truth of the
story told by the defendant.

Although we have held in a recent case (U. S. vs. Reyes, 10 Off. Gaz., 1045), a criminal action for
homicide by imprudencia temeraria, that contributory negligence on the part of the person killed is no
defense, provided the driver of automobile himself was negligent and that negligence was the
proximate cause of the death, nevertheless, that doctrine does not in any way inveigh against the
proposition which we here assert that, where death is due to the negligence of the decedent himself
and not to the negligence of the driver of the automobile, the latter cannot be held for homicide. In
this case the death of the deceased was due entirely to his own negligence. There is not sufficient
reliable proof in the record to establish negligence on the part of the accused. There being no
negligence, he is not responsible, no matter what the result of the accident may have been.

The judgment of conviction is reversed and the accused acquitted.

Torres, Johnson, Carson and Trent, JJ., concur.

\
US V TAYONGTONG

11 FEB
GR No. 6897 | February 15, 1912 | J. Moreland
Accident

Facts:
Driver Policarpio Tayongtong files for an appeal from the judgment of the lower court, which found
him guilty of homicide by negligence for running over Severino Resume, while the latter was painting
telephone poles along the highway of Jaro and Iloilo.

Tayongtong was driving a large passenger automobile at the time of the incident and was making his
third trip from Iloilo to Jaro, with the vehicle loaded at its fullest capacity (capable of carrying 35
passengers and their baggage).

Principal witness Pablo Tayson alleges that the driver was moving very fast towards them, raising a
cloud of dust, moving the steering wheel from one direction to another, causing the vehicle to zigzag
from its track, cross the other side of the road and strike the deceased – eventually creating “a
suction” which drew the victim under the vehicle’s wheel. From the testimony, the deceased did not
appear to have moved or stirred to avoid the collision.

The driver denies these, saying he was driving at a moderate speed when the victim suddenly crossed
the road.

Issue:
W/N the driver run over the victim by negligence or pure accident

 
Held:

Accident.

Conviction was reversed and the accused acquitted because the Court finds that the witness made
unreasonable, improbable and conflicting comments in his testimony. It was established by the
Court upon fair preponderance of evidence that the driver, having been a thoroughly qualified driver
who served his apprenticeship on the very road, using the very machine employed, was actually
driving the vehicle under a moderate speed. There was no reason to show that he was doing
otherwise, as corroborated by other disinterested witnesses, and the fact that a vehicle so large
couldn’t have gone at the rate of speed described. Per Tayson’s testimony, it was also unreasonable
that the deceased, seeing plainly that the vehicle was moving towards him, did not move to save
himself.

It was finally established in the trial that the deceased, upon seeing the cloud of dust, decided to
cross the street to avoid it, but upon miscalculation of time and distance, was struck by the
automobile and run over. The Court finds that where the death is due to the negligence of the
decedent himself and not the negligence of the driver, the latter cannot be held for homicide.
Advertisements
In the case of United States vs. Tayongtong (21 Phil. Rep., 476), wherein
we reversed a judgment of conviction of a chauffeur charged with reckless
negligence in running down and killing a foot passenger, we said that: Where
death is due to the negligence of the decedent himself and not to the
negligence of the driver of automobile, the latter cannot be held for homicide.
In this case the death of the deceased was due entirely to his own negligence.
There is not sufficient reliable proof in the record to establish negligence on
the part of the accused. There being no negligence, he is not responsible, no
matter what the result of the accident may have been.