15. US vs POLICARPIO TAYONGTONG, G.R. No.

L-6897, February 15, 1912 (SHORT VERSION)

Topic: Book 1 > C. Circumstances which affect criminal liability > Article 12. Exempting Circumstances > iii.
A person who while performing a lawful act with due care causes injury, by mere accident without fault or
intention of causing it.

FACTS:

Defendant Policarpio Tayongyong was convicted of the crime of homicide by negligence

(homicidio por imprudencia temeraria) for the death of one Severino Resume, who was run over by an
automobile driven by the defendant while the he was engaged in painting telephones poles located
along the highway between Jaro and Iloilo. Defendant appealed the case.

Prosecution presented their only witness, Pablo Tayson, who testified that 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 the deceased stood painting the telephone pole. 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. Accordingly, 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
he was driving was one of extraordinary size and capable of carrying 35 passengers with their baggage
and effects, and 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. The deceased 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. Accused averred that he did
everything that was possible to be done to avoid the accident. The accused further 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.

ISSUE:

Whether the defendant should be convicted of the crime of homicide by negligence.

HELD:

No. The judgment of conviction was reversed and the accused was acquitted. In this case, the
death of the deceased was due entirely to his own negligence. There is no 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.

Although the court 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
the court here asserts 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.

The fair preponderance of the evidence indicates that the deceased met his death in
substantially the manner described by the accused. 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.

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15. US vs POLICARPIO TAYONGTONG, G.R. No. L-6897, February 15, 1912 (LONG VERSION)

FACTS:
 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.

 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 one of extraordinary size and capable of carrying 35 passengers with
their baggage and effects, 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.

 Prosecution presented their only witness, Pablo Tayson, alleged to have been standing within a few feet
of the deceased, talking with him, at the time he was run down. He testified that 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 the deceased stood painting the telephone pole. 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 pass
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.

ISSUE:
 Whether the defendant should be convicted of the crime of homicide by negligence.

HELD:
 No. The judgment of conviction was reversed and the accused was acquitted. In this case the death of
the deceased was due entirely to his own negligence. There is no sufficient reliable proof in the record to

2
 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.

 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.

 The fair preponderance of the evidence indicates that the deceased met his death in substantially the
manner described by the accused. 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.

 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.
o 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.
o If such was the case, 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.
o 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.

 The testimony of Pablo Tayson is affected by an attack made upon his credibility during the progress of
the trial.
o It was shown that, on the preliminary investigation had by the justice of the peace, this witness
testified that he covered his face with his cap. In his testimony on the trial of this case he stated,

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 at first, he placed his hand over the side of his face. 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.
o 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, 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.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

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

THE UNITED STATES, plaintiff-appellee,

vs.
POLICARPIO TAYONGTONG, defendant-appellant.

Jose M. Arroyo for appellant.

Acting Attorney-General Harvey for appellee.

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

4
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 traveled 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.

5
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.

6
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

7
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.