Álvarez v. Hernández

74 P.R. 460

• Court: Supreme Court of Puerto Rico
• Decided: March 26, 1953
• Docket: No. 10742
• Status: Published

Opinions

Mr. Justice Ortiz

delivered the opinion of the Court.

José Manuel Alvarez Santana, a boy nine years old, was run over by an automobile belonging to codefendant Manuela Hernández, on January 1, 1950, at Fernández García Street of Luquillo, 'around four o’clock in the afternoon. On that same day the boy died. His brothers and sisters, as sole heirs, filed an action for damages against Manuela Hernán-dez and her insurer, Porto Rican Insurance Co., in the former District Court of Puerto Rico, .Humacao Section. After a hearing on the merits, the Humacao Court rendered judgment dismissing the complaint after setting forth, in part, the following findings of fact:

“That at the time of the accident the Hudson vehicle P-26029 driven by Carlos Rivera Correa, was going from Fer-nández García Street of the town of Luquillo towards Fajardo at an approximate speed of twenty to twenty-five miles and the minor José Antonio Alvarez Santana was on the right-hand sidewalk, in the direction from Luquillo to Fajardo, very near to the Insular Police Headquarters of Luquillo.

“That the minor José Antonio Alvarez Santana, whom Maria Teresa Ramos had sent to the drug store to look for some medicines, was playing with a group of children who were pushing one another and that as he attempted to cross the street and was two feet away from the sidewalk, he was hit by the right fender of the Hudson vehicle license No. P-26029, and the instance that the driver Carlos Rivera noticed that the child tried to cross the street he swerved the vehicle to the left, the car remaining crosswise on the street.

“That before the accident, there was a distance of approximately fifteen feet between the car and the minor José Antonio’ Álvarez Santana and when he started running from the sidewalk onto the street he did not look in any direction, and the accident having occurred, the minor fell on the street with his head lying on the sidewalk and the car three feet away from the place where the minor fell after receiving the blow.”

Plaintiffs have appealed to this Court assigning the following errors:

“1. The lower court erred in dismissing the complaint on the theory that the minor’s negligence was the proximate cause of the accident.

“2. The lower court erred in holding that the accident was^ not due to negligence on the part of defendant’s driver.

“3. The lower court erred in weighing the evidence and in. unduly applying the law and jurisprudence to the proved facts of the case.”

As it is stated in Blashfield, Cyclopedia of Automobile Law, Vol. 2 A, p. 382, § 1491, Permanent Edition, “of all the cases of destruction of lives and homes that have followed in the wake of the motor vehicle, that of the mangling of children beneath its wheels carries the most poignant sense of tragedy. This is partly due to the contrast between their innocence and helplessness on the one hand and the ponderousness of the machine that crushes them into the earth on the other. The safeguarding of the child has always appealed to the protective instincts of men, whether civilized or savage, and the humanitarian driver of an automobile, when the time and place is such that the presence of children in the neighborhood, and therefore their excursions into the streets, may reasonably be expected, will have his machine under such control that it can be stopped almost instantly.”

On the' other hand, it is our duty to maintain an attitude of judicial objectiveness. Our humanitarian feelings of sympathy towards children must not induce us to establish,, absolutely, the liability of vehicle conductors independently of the specific circumstances of the case and by the fact in itself that a child was the victim of the accident. Vehicle drivers are not absolute guarantors of the children’s safety. (Trowell v. Diamond Supply Co., 83 A. 2d 691; Hanson v. Binder, 50 N. W. 2d 676.) But it is their duty to observe a higher degree of vigilance when children are facing perilous situations. The judicial objectiveness admits a thorough understanding of life’s realities, and one of those realities refers to the risk involved in the external manifestations of children’s impulses and instincts.

In the case at bar, according to the- findings of fact of the court a quo the driver of the vehicle was driving along his right of way, at a lawful speed of twenty to. twenty- ■ five miles per hour. The child was on the sidewalk, generally considered a place of safety, and he unexpectedly ran onto the street when the vehicle was at a distance of fifteen feet ' from the child. The lower court held that the driver faced a sudden emergency, which resulted in an unavoidable and unfortunate accident. The general rule is to the effect that when a person occupies a place of safety, and unexpectedly abandons the same suddenly rushing in front of the vehicle, the driver is not responsible for the consequences of the accident. Hernández v. Acosta, 64 P.R.R. 166, 177; Meléndez v. Álvarez, 35 P.R.R. 316; Portalatin v. Noriega, 33 P.R.R. 755; Aguayo v. Municipality of San Juan, 35 P.R.R. 390; López v. Irizarry, 48 P.R.R. 355; Hernández v. P. R. Ry Lt. & P. Co., 42 P.R.R. 428; De García v. Figueroa & Gautier, 52 P.R.R. 865; Martinez v. Leavitt, 42 P.R.R. 795; Colón v. P. R. Ry. Lt. & Power Co., 40 P.R.R. 333; Franco v. Serra, 58 P.R.R. 216; Figueroa v. Vives & Maxán, 46 P.R.R. 233; De la Paz v. White Star Bus Line, 63 P.R.R. 659; Matos v. Pabón, 63 P.R.R. 855; Blashfield op. cit.; p. 406, § 1498. See also the Annotations in 65 A.L.R. 192, 197 and 113 A.L.R. 528, 536, on liability for damages of children who suddenly rush onto the street. That general rule has been followed in some cases, as to children standing upon a sidewalk. Wilson v. Butler Motor Transit Co., 84 A. 2d 207; Schnerfeld v. Hendry, 1952, 245 P. 2d 420.

- Notwithstanding the foregoing, the specific circumstances of this case do not authorize the application of the doctrine of unavoidable accidents. The Humacao Court set forth a ■conclusion to the effect that the child who was the victim of the •accident was playing with other children on the sidewalk, pushing each other, immediately before rushing onto the street. Although this was not an object of conclusions by the lower ■court, it was shown to the court a quo, by uncontroverted evidence not subject to conflicts of any kind, that besides, the children, were running and “making noise” on the sidewalk; that the accident took place in a straight stretch of street, and that the driver had a clear view ahead, at the time of the accident; that said street was wide with space enough for three vehicles, that at the time of the accident there were no other vehicles near the place where the collision occurred and that the driver did not sound his claxon nor gave any signal whatsoever. Besides, the court a quo concluded specifically that the vehicle in question was driven two feet from the sidewalk at the time of the accident.

The conduct and the movements of the children on the sidewalk entailed a potentially dangerous situation. They were not standing fixedly on the sidewalk nor under the custody or protection of an adult. They were playing, running and pushing each other. This implied that the driver could reasonably anticipate that one of the children might rush onto the street as a result of their childish games. There was the reasonable probability that one of the children might leave the sidewalk and rush onto the street. The children’s conduct made that risk possible and the driver was bound, reasonably, to anticipate that said inherently dangerous situation might materialize by way of some sudden movement of a child onto the street. Negligence depends on risks and is the result of the failure to exercise the duty of acting carefully when facing a dangerous situation. If a specific dangerous conduct may be anticipated, this gives' rise to the duty of acting carefully. The unavoidable accident doctrine requires in its application to cases as the one at bar, that the victim’s conduct be unexpected. If said conduct could be reasonably anticipated and the driver of the vehicle has had the opportunity to control and drive the automobile in such a manner that the accident might have been avoided, this results in liability.

The operative rules as to the care which the driver of a vehicle must exercise in connection with adult transients or pedestrians are not strictly applicable as to immature children inasmuch as, in connection with the latter, a higher degree of care should be required, due to the greater danger involved, in view of the fact that children have a lesser capacity for reflection since they act according to their instincts and childish impulses. Therefore, the driver of a vehicle must observe a higher degree of vigilance and control as to approaching children. Yokeley v. Kearns, 25 S. E. 2d 602; Blashfield, op. cit. Vol. 2 A, p. 383 et seq. This is especially true when the vehicle is approaching a school or a group of children who are playing or running. Figueroa v. Picó, 69 P.R.R. 372; King v. Griner, 1952, 60 So. 2d 177; Cotant v. U. S., 1952, 103 P. Supp. 770; McMinn v. Lilly, 1952, 60 So. 2d 603; Cimo v. Karstendiek, 173 So. 548; Brown v. Wade, 145 So. 790.

In the case at bar, the driver of the vehicle could have avoided the accident. Without considering any isolated factor as being operative, all the specific circumstances of this case, considered together, imply responsibility of defendant. It is true that the chauffeur was driving the automobile at a speed authorized by law, but that fact, alone, does not exempt from liability. The driver was bound to reasonably anticipate that the child could rush onto the street, and he ought to have slackened his speed still more in order to have a more effective control of the vehicle so as to avoid an accident. Even in the case of an emergency, it was one that could be anticipated. Before the specific moment of the accident the chauffeur ought to have swerved the vehicle more towards the center of the street in order that it would not be so near to the sidewalk upon approaching the place where the children were playing. The street was wide and at the time there were no other vehicles at the place, therefore, there was nothing which could prevent him from being cautious. The accident would not have happened if he would have acted in the manner which we have set forth.

The fact itself that a child is standing fixedly on a sidewalk does not imply, generally, that the driver of an automobile has to stop or take any extraordinary precautions, but that was not the situation in the case at bar. Each ease must be decided according to its own particular circumstances. Under the attendant circumstances defendant must be held liable.

There are two intertwined problems herein, one of negligence and the other of causation. Under any acceptable definition of the concept of negligence, defendants must be held liable in this case. If negligence is considered as an element of risks which may be anticipated, that is, if it is the failure to exercise care when facing a dangerous situation, undoubtedly the driver of the vehicle belonging to co-defendant Manuela Hernández faced a dangerous situation in view of the fact that the children were running, pushing each other and hand playing on the sidewalk. Witness for defendant Héctor Soto Tapia testified that the children were coming along the sidewalk “making noise ... they were coming to and fro and hand playing.” Furthermore, this witness testified that the decedent was running along the edge of the sidewalk. A “reasonable man” who would have been in the same position as the driver ought to have anticipated that, as a natural result and prolongation of' the games and movements of the children, one of them could have rushed onto the street. As we have stated, it was not the case of adults on a sidewalk, or even of a child standing fixedly on the sidewalk. It was the case of children moving and pushing each other and the victim of the accident himself was running along the edge of the sidewalk. Evidently, the situation was potentially dangerous and evidently the driver ought to have anticipated the probability that one of the children might rush onto the street. All the factors or elements of negligence were present and the reality which the conductor faced imposed on him an obvious duty of acting carefully in order to avoid hurting one of the children. As stated in 37 Yale L. J. 618, 619, footnote 3: “It is obvious that an actor is required to be more careful when his conduct is likely to endanger children than when it is likely to endanger only adults. In general, unless a defendant has reason to know otherwise, he is entitled to assume that persons . . . will react as they are commonly supposed to react under the circumstances. Children do generally exercise a lesser caution for their own safety than do adults. Since this is common knowledge, a defendant is not only entitled to assume it, but he is charged with the knowledge of it, and must act with a view to it. In determining a defendant’s negligence toward a child, it may, therefore, become important to ascertain whether or not the defendant should have foreseen a particular kind of conduct on the part of the child.”

If the negligence or causation is based on the probability of preventing the damage, that is, on the theory that should the defendant have acted otherwise the accident would have been avoided, it also implies responsibility on the part of defendant herein. We have already seen that the accident could have been avoided if the driver would have slowed down or if he would have driven the vehicle farther away from the sidewalk, which he could have done in this case in view of the fact that there were no other vehicles in the street at the time. Apparently the court a quo gave importance to two factors, to wit: (1) that the vehicle was being driven at a speed authorized by law and (2) that when the child rushed onto the street there was only an approximate distance of 15 feet between the car and the child and that therefore, no matter how much effort the driver would have made to stop the vehicle, and swerve it to the left he could not have avoided the accident. As to the first factor pointed out, we can apply the general rule to the effect that the fact that a car is driven at a speed authorized by law does not exonerate, per se, the conductor from liability if, in view of the circumstances of the case, he could have driven the car at a lower speed than the one authorized by law. When there are children on a sidewalk it is the driver’s duty to drive his vehicle at such a speed that may allow him to control the car in case of an emergency. Blashfield, op. cit, Vol. 2 A, p. 395, 396; Doyle v. Nelson, 11 So. 2d 645. Negligence need not be exclusively defined by a certain specific speed, but must be determined according to the speed required in view of the specific circumstances of the situation. As to the allegation to the effect that there was a distance of only 15 feet between the car and the child when the latter rushed onto the street, which made it impossible to avoid the accident, that argument begs the question involved, that is, if we assume that it was not the driver’s duty to reduce the speed then the distance was the operative factor in the case at bar. However, if the driver would have slowed down, then, when the child rushed onto the street, the distance between the child and the vehicle would have been greater and the driver could have avoided the accident.

We still have to consider the allegation that the child José Manuel Alvarez Santana was guilty of contributory negligence. Independently of any discussion in connection with the establishment of uncontrovertible or rebuttable presumptions as to the lack of negligence in a child according to his age (174 A.L.R. 1080, 1103, 1110, 1149; 37 Yale L. J. 618: The Standard of Care Required of Children) the prevailing rule, which has been accepted by this Court, is to the effect that children of tender age are not required to conform to the standard of behavior which is reasonable to expect of adults and their conduct is to be judged by the standards of behavior to be expected from a child of equal age, intelligence and experience under similar circumstances to the ones appearing in the case. Cruz v. Rivera, 73 P.R.R. 632, 642; Figueroa v. Picó, 69 P.R.R. 372; Hernández v. Acosta, 64 P.R.R. 166; 174 A.L.R. 1084. It has been stated that the standards of conduct to which a child is to be held when his own liability is in question may be different from that to which he is to be held when he seeks to recover from a negligent defendant inasmuch as there is a strong public policy in favor of protecting children from losses attributable to their own lack of maturity. Incidentally in Michalsky v. Gaertner, 5 N. E. 2d 181, it is held that as a matter of law, a child 9 years old who rushed to cross a street without looking in any direction was not negligent. See also 36 Mich. L. Rev. 328; 95 Pa. L. Rev. 93, 96.

In the light of the legal rules previously stated, we shall consider the evidence introduced therein as to the conduct of the child in question. Jesús Bird Gómez, witness for the plaintiff stated the following:

The boy rushed from the sidewalk to the street and when he was about two feet from the sidewalk, “then he saw the car coming and tried to run back to the sidewalk in front of the drug store where he was standing”; the car hit the boy with the right front fender, and hit him in the mouth, in the front, carrying him for a distance of about 8 to 10 feet from the car; the child’s head rested on the sidewalk; the child rushed from the sidewalk to the street and “had advanced about two feet towards the street”; tried to return to the sidewalk and it was then that the car hit him with the right fender; the child “tried to protect himself running back to the sidewalk,” the witness does not know if the child rushed to the street with the intention of crossing it but he does know that he rushed to the street; he was about two feet from the sidewalk.

Héctor Soto Tapia, witness for the defendants, testified as follows:

“There was a small group of children hand playing and one of them tried to cross the street, but when he attempted to cross, the car passed, it seems that the boy heard the motor of the car, tried to turn back and as he moved the car was coming and at this point the car ‘struck’ him; they were all hand playing on the sidewalk; the child tried to cross the street, he was running; he fell on the sidewalk with his head on the sidewalk; when he rushed out to the street he continued running without looking at any direction; the children were pushing each other and it was then that the child rushed to cross the street; when they were pushing each other, ‘they were coming to and fro, running, making noise and hand playing’; the child was on the sidewalk, on the very edge.”

That was, essentially, the evidence as to the child’s conduct. It is evident that he was not responsible of contributory negligence. The evidence shows that the action of the child in rushing out to the street was an integral part of the motions of the child within the sidewalk, and was connected with the play he had with the other children. There was unity of movements in time and space. The child’s motion of rushing out to the street was a natural action which does not imply negligence on his part. There is no evidence in the record that when the child rushed onto the street he saw, or could have seen the vehicle which was coming along, especially in view of the fact that there was no evidence to the effect that the driver of the vehicle sounded the claxon at all, and besides, the movement of the child in the street extended to a distance of two feet and that did not really imply a negligent conduct on his part. Even with such a limited movement he tried to turn back to the sidewalk when he realized the danger he was facing and actually moved towards the sidewalk, so much so that when the collision ■occurred, his head rested on the sidewalk. We must also observe that the blow was caused by the right front fender ■of the vehicle, and he received the blow in the face, in the child’s mouth. From an objective and realistic point of view the child’s conduct was not negligent.

The judgment appealed from will be reversed and the case .remanded to the court a quo to fix the damages suffered by plaintiff and render judgment in accordance with this opinion.

Mr. Chief Justice Snyder dissented.