Berenguer López v. Government Employees Insurance

90 P.R. 467
CourtSupreme Court of Puerto Rico
DecidedMay 29, 1964
DocketNo. R-62-244
StatusPublished

This text of 90 P.R. 467 (Berenguer López v. Government Employees Insurance) is published on Counsel Stack Legal Research, covering Supreme Court of Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berenguer López v. Government Employees Insurance, 90 P.R. 467 (prsupreme 1964).

Opinion

Mr. Justice Ramírez Bages

delivered the opinion of the Court.

We must decide in this case whether or not the driver of a motor vehicle, pickup type, is liable under the civil law for the death of a 5-year-old boy who was run over by the car on the highway leading from Guánica to Lajas.

The evidence adduced is not complex. On the day of the accident, May 21, 1961, about three o’clock in the afternoon two groups of persons were walking along the edge of said highway on a straight stretch of said road; one group was walking on the left-hand side and the other on the right-hand side, both going toward Lajas. In the same direction Carlos Rodolfo Nagel was driving said vehicle at a speed of 30 to 35 miles per hour. In the group walking on the right-hand side of the road was minor David Berenguer Torres beside his aunt, Milagros Torres Rodríguez, and the minor’s sister, also a minor, and behind them his parents. According to the testimony of the only witness for the defense, María Rodriguez de Sánchez — who was traveling in an automobile driven by her husband in the same direction and about 35 feet behind Nagel’s vehicle — she saw when the minor, who was walking on the right-hand side of the road “darted out at the very moment the bus was passing by.” “He crossed to the left.” She explained that the boy crossed suddenly when the vehicle operated by Nagel was passing. The trial court believed said testimony and not that offered by the minor’s [469]*469relatives to the effect that the minor only advanced “two feet more or less away from the walk of the road to the pavement.” The automobile hit the boy with the right front fender. Plaintiffs’ witnesses testified that they did not hear Nagel’s signal of the approach of his vehicle. The trial court decided that the accident was fortuitous, unforeseen and unavoidable; that plaintiffs were walking on the right-hand side of the highway in violation of the provisions of the Vehicle and Traffic Law of Puerto Rico; that said adults should have watched for the boy’s safety; that “Nothing, moreover, indicated the hoy’s presence, nor that he, who was traveling within the group, was going to abandon his place of safety.” By virtue thereof the trial court dismissed the complaint.

Appellants assign the commission of the following errors:

(1) In applying Art. 10, § 5, subd. B, of Act No. 141 of the Vehicle and Traffic Law of Puerto Rico, to the facts of the case.
(2) In dismissing the complaint under the theory that the minor’s negligence was the proximate cause of the accident.
(3) In deciding that the accident was not the result of the driver’s negligence; and
(4) In weighing the evidence and applying the law and the case law improperly to the proved facts in the case.

Because the four errors assigned by appellants are intimately related we shall discuss them jointly.

Let us review briefly the doctrine in relation to cases like the one before us. In Figueroa v. Picó, 69 P.R.R. 372 (1948) we said that a child of tender years is not required to conform to the standard of behavior which it is reasonable to expect of an adult, but his conduct is to be judged by the standard of behavior to be expected from a child of like age, intelligence, and experience. In said case liability was imposed on the driver of a panel delivery truck for the damages [470]*470caused to a 5-year-old minor when said minor darted to cross from a school to the avenue where the vehicle was passing. This case is different from the one under consideration. In the former the accident occurred in a school zone; this required the driver to be particularly careful and he was not. In Álvarez v. Hernández, 74 P.R.R. 460, 466-467 (1953) liability was imposed on the driver of an automobile for the death of a 9-year-old boy who was hit in a street in the municipality of Luquillo because when there are children playing, running, and pushing each other on the sidewalk, the driver of a vehicle is bound, “reasonably, to anticipate that said inherently dangerous situation might materialize by way of some sudden movement of a child onto the street” as it actually occurred. The circumstances in Alvarez, supra, differ from those under consideration. There is more similarity between the facts in Díaz v. Stuckert Motor Co., 74 P.R.R. 486, 492 (1953), and the case under consideration, but in certain aspects the former case is different, because although the accident for which the driver of a car who caused the death of an 8-year-old minor was found liable, it occurred on a straight stretch of road where visibility was good and the vehicle was driven at normal speed pursuant to the law, we concluded that the minor was “walking fast on the edge of the walk or bridge towards the road” a fact which “was or could have been a clear indication that the minor would come onto the highway, and therefore, a reasonable warning to the driver that he should have exercised the highest degree of care possible to avoid striking him.” In Rodríguez v. Franqui, 86 P.R.R. 727 (1962), under circumstances similar to. those of Alvarez, we imposed liability on the driver of a vehicle for the damages caused to a minor whom he hit while crossing a bridge on a highway where the minor was playing with other boys and pushing each other. We said in that case that the situation on said bridge constituted “an extreme and unusual situation” to which we alluded in Qui[471]*471ñones v. Hernández, 83 P.R.R. 206, 209 (1961). In the latter ease we refused to impose liability on the driver of a vehicle for injuries caused to a minor when the boy rushed suddenly across McLeary Avenue in Santurce, departing from a group of five persons composed of three minors, an adult lady, and a 16-year-old girl who were returning from the beach and stopped on the north sidewalk of said avenue to cross when the traffic permitted them. We stated that “the fact that there are children quietly standing on a sidewalk is not to be considered as a dangerous situation, especially in the case of children who are watched by adults.” We added that. “The fact that the warning signal was not used, does not alter the conclusion we have reached. The obligation to make use of the warning signal was not clearly evidence, since the avenue was broad and there was nothing to prevent the view of the approaching vehicles. Besides, there was nothing to show that the child would leave his place of safety.”1

Although it is not a decisive sign of negligence, it is worth pointing out that in the case under consideration neither appellants nor driver Nagel were complying with the obligations prescribed by the Vehicle and Traffic Law just before and until the moment that the accident which caused the death of the child in this case occurred. The former and the minor were traveling on the right-hand side of the highway, with their backs toward the traffic in violation of the provisions of § 5-1001, subd. (b) of said Law (9 L.P.R.A. § 1101). The driver, on his part, did not take all the precautions to avoid running over the group of pedestrians — that in this case were walking dangerously with their backs toward the traffic — even though they were incorrectly using the public highway, nor gave audible warning by horn of his approach, as prescribed by § 5-1002, subd. (a) (3) and [472]*472§ 5-1110, subd. (a) of said Law (9 L.P.R.A. § 1102(a) (3) and § 1140 (a)) .

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Bluebook (online)
90 P.R. 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berenguer-lopez-v-government-employees-insurance-prsupreme-1964.