FIRST DIVISION

[G.R. No. 10563. March 2, 1916.]

THE UNITED STATES , plaintiff-appellee, vs. ANTONIO

BONIFACIO, defendant-appellant.

William A. Kincaid and Thomas L. Hartigan for appellant.

Acting Attorney-General Zaragoza for appellee.

SYLLABUS

1. RAILROAD; PRECAUTIONS AS TO PERSONS SEEN ON TRACK. —

There is no obligation on an engine driver to stop, or even to slow down his
engine, when he sees an adult pedestrian standing or walking on or near the
track, unless there is something in the appearance or conduct of the person
on foot which would cause a prudent man to anticipate the possibility that
such person could not, or would not avoid the possibility of danger by
stepping aside. Ordinarily, all that may properly be required of an engine
driver under such circumstances is that he give warning of his approach, by
blowing his whistle or ringing his bell, until he is assured that the attention of
the pedestrian has been attracted by the oncoming train.
2. ID.; ID. — Nevertheless, it is the duty of an engine driver to adopt
every measure in his power to avoid the infliction of injury upon any person
who may happen to be the track in front of his engine, and to slow or stop
altogether if that be necessary, should he have reason to believe that only
by doing so can an accident be averted.
3. ID.; ID.; PRESUMPTION. — But an engine driver may fairly assume
that all persons walking or standing on or near the railroad track, except
children of tender years, are aware of the danger to which they are exposed,
and that they will take reasonable precautions to avoid accident, by looking
and listening for the approach of trains, and stepping out of the way of
danger when their attention is directed to an oncoming train.
4. CRIMINAL NEGLIGENCE; LIABILITY UNDER ARTICLE 568, PENAL
CODE. — Not in every case in which one accidentally injuries or kills another
is he criminally liable therefor under the provisions of article 568 of the
Criminal Code, even if at the time of the accident he happens to be guilty of
a violation of some regulation. The injury or death must have resulted from
some "imprudence or negligence" on his part. If it appears that the injury in
no wise resulted from the violation of the regulations, or the negligent
conduct of the accused, he incurs no criminal liability under the provisions of
this article.
5. ID.; PRESUMPTION; REBUTTAL. — Although a presumption of
negligence frequently arises from the very fact that an accident occurred at
the time when the accused was violating a regulation, especially if the
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 regulation has for its object the avoidance of such accident, this presumption
may be rebutted in criminal as well as in civil cases by competent evidence.

DECISION

CARSON, J : p

The appellant in this case was charged in the court below with
homicidio por imprudencia temeraria (homicide committed with reckless
negligence), and was convicted of homicidio committed with simple
negligence and sentenced to four months and one day of arresto mayor and
to pay the costs of the proceedings.
The information charges the commission of the offense as follows:
"On or about the 31st day of October of the present year, 1913,
in the barrio of Santa Rita of the municipality of Batangas, Batangas,
the accused, being an engineer and while conducting the freight train
which was going to the municipality of Bauan, at about 10 o'clock in
the morning of the said day saw that Eligio Castillo, a deaf-mute, was
traveling along the railroad track, and as the said Castillo did not get
off of the said track in spite of the whistles or warnings given by the
accused, the accused did maliciously and criminally cause the said
train to run over the said Castillo, thereby killing him instantly; an act
committed with violation of law."
On the 31st of October, 1913, Eligio Castillo, a deaf-mute, was run
down and killed, while attempting to cross the railroad track in the barrio of
Santa Rita, Batangas, by an engine on which the accused was employed as
engineer. The deaf-mute stepped out on the track from an adjoining field
shortly before the accident, walked along one side of the track for some little
distance and was killed as the attempted, for some unknown reason, to
cross over to the other side.
When the accused engineer first saw the deceased, he was walking
near the track, in the same direction as that in which the train was running.
The train, a heavy freight train, had just rounded a curve, and the man in
front was about 175 meters ahead of the engine. The engineer immediately
blew his whistle twice, and noticing, a few moments afterwards, that the
man in front did not respond to the warning by stepping aside from the
track, he tried to slow down the engine, but did not succeed in stopping in
time to avoid running down the pedestrian. He did not attempt to stop his
engine when he first saw the walking along the side of the track; but he
claims that he did all in his power to slow down a few moments afterwards,
that is to say after he had blown his whistle without apparently attracting the
attention of the pedestrian, who, about that time, turned and attempted to
cross the track.
The only evidence as to the rate of speed at which the train was
running at the time of the accident was the testimony of the accused
himself, who said that his indicator showed that he was travelling at the rate
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 of 35 kilometers an hour, the maximum speed permitted under the railroad
regulations for freight trains on that road.
There was a heavy decline in the track from the turn at the curve to a
point some distance beyond the place where the accident tool place, and the
undisputed evidence discloses that a heavy freight train running at the rate
of 35 miles an hour could not be brought to a stop on that decline in mush
less than one hundred and fifty meters.
We think that the mere statement of facts, as disclosed by the
undisputed evidence of record, sufficiently and conclusively demonstrates
that the death of the deaf-mute was the result of a regrettable accident,
which was unavoidable so far as this accused was concerned.
It has been suggested that, had the accused applied his brakes when
he first saw the man walking near the track, after his engine rounded the
curve, he might have stopped the train in time to have avoided the accident,
as it is admitted that the distance from the curve to the point where the
accident occurred was about 175 meters.
But there is no obligation on an engine driver to stop, or even to slow
down his engine, when he sees an adult pedestrian standing or walking on
or near the track, unless there is something in the appearance or conduct of
the person on foot which would cause a prudent man to anticipate the
possibility that such person could not, or would not avoid the possibility of
danger by steeping aside. Ordinarily, all that may properly be required of an
engine driver under such circumstances is that he give warning of his
approach, by blowing his whistle or ringing his bell until he is assured that
the attention of the pedestrian has been attracted to the oncoming train.
Of course it is the duty of an engine driver to adopt every measure in
his power to avoid the infliction of injury upon any person who may happen
to be on the track in front of his engine, and to slow down, or stop altogether
if that be necessary, should he have reason to believe that only by doing so
can an accident be averted.
But an engine driver may fairly assume that all persons walking or
standing on or near the railroad track, except children of tender years, are
aware of the danger to which they are exposed; and that they will take
reasonable precautions to avoid accident, by looking and listening for the
approach of trains, and stepping out of the way of danger when their
attention is directed to an oncoming train.
Any other rule would render it impracticable to operate railroads so as
to secure the expeditious transportation of passengers and freight which the
public interest demands. If engine drivers were required to slow down or stop
their trains every time they see a pedestrian on or near the track of the
railroad it might well become impossible for them to maintain a reasonable
rate of speed. As a result the general traveling public would be exposed to
great inconvenience and delay which may be, and is readily avoided by
requiring all persons approaching a railroad track, to take reasonable
precautions against danger from trains running at high speed.
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 There was nothing in the appearance or conduct of the victim of the
accident in the case at bar which would have warned the accused engine
driver that the man walking along the side of the track was a deaf-mute, and
that despite the blowing of the whistle and the noise of the engine he was
unconscious of his danger. It was not until the pedestrian attempted to cross
the track, just in front of the train, that the accused had any reason to
believe that his warning signals had not been heard, and by that time it was
too late to avoid the accident. Under all the circumstances, we are satisfied
that the accused was without fault; and that the accident must be attributed
wholly to the reckless negligence of the deaf-mute, in walking on the track
without taking the necessary precautions to avoid danger from a train
approaching him from behind.
The trial judge, although he was satisfied that the accused was not
guilty of reckless negligence, held that he was guilty of homicide through
simple negligence, accompanied by a breach of speed regulations, and
imposed the penalty prescribed for that offense in article 568 of the Penal
Code.
The only evidence as to the speed at which the train was running at the
time of the accident was the testimony of the accused himself, who said that
before the accident occurred his indicator showed that he was running at the
rate of 35 kilometers an hour, the maximum speed authorized under the
railroad regulations. From this statement of the accused, taken together with
the evidence disclosing that the train was running at more than 35 miles an
hour at that moment, that is to say at a speed in excess of that allowed
under the railroad regulations.
We are of opinion, however, that the evidence does not sustain a
finding, beyond a reasonable doubt, that the train was running at more than
35 miles an hour at the time when the accident occurred. We think that the
statement of the accused engineer that the indicator on his engine showed
that he was running at 35 miles an hour before the accident referred to the
time immediately preceding the accident. Even if it were true, as the trial
judge inferred from his evidence, that the accused looked at the indicator
several seconds before the accident, and before the train entered on the
down-grade some 175 yards from the place at which it occurred, it does not
necessarily follow that the speed of travel was increased thereafter beyond
the limit prescribed by regulations. That would depend to some extent on
the steam pressure maintained on the engine, and perhaps upon other
factors not developed in the record.
Mere conjecture, and inferences unsupported by satisfactory evidence,
are not sufficient to establish a material finding of fact upon which a finding
of guilt, beyond a reasonable doubt, can be sustained.
Moreover, even if it were true that the train was running at a speed
slightly in excess of the limit prescribed by regulations, just before the
accident took place, that fact would not justify or require the imposition of
the penalty prescribed in article 568 of the Criminal Code, it affirmatively
appearing that the slight excess of speed had no possible causal relation to
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 the accident.
Granting it to be true, as found by the trial judge, that train had gained
some small addition in speed beyond the authorized rate of travel, as a
result of the fact that it was running on down grade for about one hundred
meters before the accident occurred, it affirmatively appears from the
statement of facts set forth above, that, under all the circumstances, the
accident must have taken place whether the speed had been slightly under
rather than slightly over the limit prescribed by regulation, and that it was
due wholly to the negligent conduct of the deceased.
The provisions of article 568 of the Criminal Code under which the
accused was convicted are as follows:
xxx xxx xxx
"Any person who, while violating any regulation, shall, by any act
imprudence or negligence not amounting to reckless imprudence,
commit an offense, shall suffer the penalty of arresto mayor in its
medium and maximum degrees."
This does not mean that in every case in which one accidentally injures
or kills another he is criminally liable therefor, if at the moment he happens
to be guilty of a violation of some petty regulation (reglamento). The injury
or death must have resulted from some "imprudence or negligence"
(imprudencia or negligencia) on his part. True it need only be slight
negligence, if accompanied by a violation of the regulations, but the relation
of cause and effect must exist between the negligence or imprudence of the
accused and the injury inflicted. If it appears that the injury in no wise
resulted from the violation of the regulations, or the negligent conduct of the
accused, he incurs no criminal liability under the provisions of this article.
Viada, in his commentaries on this article of the Penal Code (vol. 3, p.
685), sets out the following question and answer which clearly discloses that
a conviction thereunder cannot be maintained, unless there was culpable
negligence in the violation of a duly prescribed regulation; and unless,
further, the latter was the proximate and immediate cause of the injury
inflicted:
"Question No. 17. — A pharmacist left his store forgetting and
leaving behind the keys to the case where the most powerful drugs
were kept. During his absence his clerk filed a prescription which he
believed was duly made out by a physician but which, in fact, was
signed by an unauthorized person. The prescription called for certain
substances which were afterwards employed to procure an abortion.
These substances, according to a medical report, were of a poisonous
and extremely powerful nature such as should be most carefully
safeguarded and only expended after ratification of the prescription in
accordance with article 20 of the ordinance relating to the practice of
pharmacy. Under these circumstances would it be proper to consider
the pharmacist as guilty of the offense of simple imprudence with
violation of the regulation of the said faculty? The Supreme Court has
decided this question in the negative on the ground that the fact of the
pharmacist having forgotten and left behind, during the short time he
was out walking, the key of the closet in which, in conformity with the
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 pharmacy ordinances, he kept the most powerful and active drugs,
properly considered, does not constitute the culpable negligence
referred to in article 581 of the Penal Code, nor was it the proximate
and immediate cause of the said prescription being filled in his store
without being properly ratified by the physician who signed it, as
required by the said ordinances. The Court held, therefore, that the
trial court committed an error of law in holding the appellant liable.
(Decision of December 23, 1881; Official Gazette of April 14, 1832.)"
See also the recent decision of the Tribunal Supremo de España dated
July 11, 1906, wherein the doctrine is reaffirmed in a case involving the
alleged negligence of certain railroad employees in handling railroad cars.
Doubtless a presumption of negligence will frequently arise from the
very fact that an accident occurred at the time when the accused was
violating a regulation; especially if the regulation has for its object the
avoidance of such an accident. But this presumption may, of course, be
rebutted in criminal as well as in civil cases by competent evidence. In the
Federal Court of the United States the rule is stated as follows:
"Where a ship at the time of collision is in actual violation of a
statutory rule intended to prevent collisions the burden is upon her of
showing that her fault could not have been a contributory cause of the
collision." (7 Cyc., 370 and numerous other cases there cited.)
The evidence of record in the case at bar clearly and satisfactorily
discloses that even if the train was running at a speed slightly in excess of
the maximum speed prescribed in the regulations, that fact had no causal
relation to the accident and in no wise contributed to it.
The judgment convicting and sentencing the appellant in this case
should be reversed, and the accused acquitted of the offense with which he
is charged in the information, and his bail bond exonerated, with the costs of
both instances de officio. So ordered.
Arellano, C. J., Johnson, Trent and Araullo, JJ., concur.

Separate Opinions
TORRES, J., dissenting:
The writer is of the opinion that the defendant should be sentenced for
the crime of reckless negligence to eight months of prison correccional, the
accessories, indemnity and costs with subsidiary imprisonment.

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