Colón Alvarado v. Municipal Corp. of Barranquitas

93 P.R. 62

• Court: Supreme Court of Puerto Rico
• Decided: January 31, 1966
• Docket: No. R-64-227
• Status: Published

Opinions

per curiam:

In determining that the appellant municipality was liable to plaintiffs-appellees, the trial judge set forth the accident which occurred in the following words: “(1) On October 30, 1962, Jesús Ortiz Jiménez, an employee of the municipality of Barranquitas, in the exercise of his functions as such, was operating a tractor belonging to said municipality to open a road on a farm owned by the plaintiff, Blas Colón Alvarado. At about 9:30 in the morning, Roberto Colón Ortiz, a minor son of Blas Colón Alvarado [he was 16 years old then], went to take coffee to Jesús Ortiz Jiménez and to his assistant, José López. Jesús Ortiz Jiménez stopped the tractor but left the motor running while he drank the coffee brought by Roberto Colón Ortiz. After he drank the coffee and gave the cup to his assistant José López, he continued working. While the tractor operated by Jesús Ortiz Jiménez moved forward, Roberto Colón Ortiz was going to cross from left to right behind the tractor. Suddenly the operator of the tractor, Jesús Ortiz Jiménez, moved backwards throwing the minor, Roberto Colón Ortiz, to the ground and running over him with the chains that impel the tractor.” On the basis of these findings, he concluded that the accident was due to the sole negligence of the operator, “who, upon reversing the tractor which he was operating, did not look in that direction and being aware that the minor was there ... at the place where the work was being carried out, he' did not take any precaution to prevent the accident.” He rendered judgment awarding a compensation of $25,000 to the minor, $5,000 to his father and $500 for attorney’s fees.

In the present appeal several errors are adduced which in essence (1) allege the lack of liability on the part of the municipality, or in the alternative, the contributory negligence of the injured party; (2) challenge the finding on the unforeseen conduct of the operator in moving the tractor backwards; and (3) they complain that the compensation awarded was excessive.

The determination of the trial court to the effect that the operator’s conduct upon moving the tractor backwards was unforeseen finds sufficient ground in the evidence, but even though it were not so, such fact by itself would not excuse the defendant municipality from liability. Accepting that the operator’s action was not sudden we agree that it was his obligation to anticipate the probability that the minor could be in the neighborhood of the tractor and take the minimum precaution of noticing his presence, either personally or through his assistant. It is merely a case where the criterion of foreseeability comes into play. Weber v. Mejías, 85 P.R.R. 72 (1962); cf. Martínez v. Comunidad M. Fajardo, 90 P.R.R. 451 (1964). We are not deciding now, as it is intimated in the dissenting opinion, that in the operation of a tractor it is not invariably required that the operator look backwards every time he tries to reverse it as his usual practice in the work, merely that under the circumstances of this case, such precaution was indispensable, for the presence of the minor must have been noticed since a moment before he had taken food to the operator and his assistant.

Now then, the account we have made of the accident indicates that the injured youth was imprudent in putting himself in a dangerous situation. He was not a boy of tender years, but a lad 16 years old who knew and was acquainted with the way the tractor operated. We shall order that the compensation be proportionately reduced by forty percent.

Taking into consideration the injuries received — fracture of the pelvis, thrypsis of the right femur, fracture of the fibula of the right leg and of the tibia and fibula of the left leg — and other factors, as well as the painful and prolonged treatment, the resulting physiological limitation, and the fact of falling two years behind in his studies, the assessment of the damages is not excessive nor unreasonable. Nor that awarded to the father.

Judgment will be rendered accordingly.

Mr. Justice Ramirez Bages dissented.

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