Yamada vs. Manila Railroad Co.

Owners or directors of an establishment or enterprise are liable for damages caused by employees in the service of the enterprise or on account of their duties, unless the presumption of negligence in selection or supervision is rebutted by proof of the diligence of a good father of a family, including proper supervision, rules, and instructions. Applied to a taxicab company operating automobiles for hire, furnishing a safe car and a competent driver of long service did not alone discharge that duty where a dangerous custom of crossing railroad tracks without precaution was known and sanctioned.

Butaro Yamada, Kenjiro Karabayashi, and Takutaru Uyehara were hirers of a public automobile operated by the Bachrach Garage & Taxicab Co., driven by a chauffeur supplied and controlled by that company. The Manila Railroad Co. owned and operated trains over tracks crossed by the public road to Cavite Viejo. Liability turned on Articles 1902 and 1903 of the Civil Code governing obligations arising from fault or negligence and the responsibility of owners or directors of an establishment or enterprise for acts of employees.

On January 2, 1913, Butaro Yamada, Kenjiro Karabayashi, and Takutaru Uyehara, together with three companions, hired an automobile from the Bachrach Garage & Taxicab Co. for a trip to Cavite Viejo at a certain price per hour, the vehicle being driven and controlled by a chauffeur supplied by the company. The journey to Cavite Viejo was made without incident. On the return trip, while crossing the tracks of the Manila Railroad Co. in the barrio of San Juan, municipality of Cavite Viejo, the automobile was struck by a train and the plaintiffs were injured.

According to the trial court's findings, sustained on appeal, the driver drove upon the tracks without observing the precautions required by ordinary care and prudence, without reducing speed and without taking any precaution to determine whether danger from a train existed. Appellant contended the view of the tracks in both directions was obstructed by bushes and trees alongside, making visual detection impossible, and offered evidence through its president, a nearby resident, and the driver that automobiles habitually passed the crossing without changing speed. The trial court found the speed fast on a clearly visible crossing approached on an upward grade, concluded the driver was grossly negligent and that such negligence was the proximate cause, and further found the company had in effect instructed and sanctioned that manner of crossing until it became a custom among its drivers.

Thereafter two related proceedings arising from the same collision had terminated: a criminal action against the locomotive engineer in an acquittal, and a civil action by the garage and taxicab company against the railroad company for destruction of the automobile in a judgment for the railroad defendant. Evidence was presented that the locomotive gave due and timely signals, with bell rung and whistle blown on nearing the crossing, testified to by corporate servants and train passengers. As to damages, Yamada claimed hospital, doctors', Japan hospital and hot-springs, and Manila Japanese-doctor expenses plus loss of time at P100 a month; Uyehara claimed hospital and medical expenses of P350, wages at P200 a month, and a P150 Japanese-doctor payment; Karabayashi, who was able to move about immediately after the accident and assist companions, claimed P310 to Japanese doctors, P130 to massage doctors, P365 for medicines, and two and one-half months' lost time at P160 a month. The trial court awarded damages in various larger amounts, whose factual bases were reexamined on appeal in light of Dr. Strahan's testimony that Yamada and Uyehara suffered only temporary shock and bruises with no permanent injury and recovery within about three months.

• Gross Negligence and Custom: Petitioner argued that the finding of gross negligence for failure to slacken speed and take precautions was erroneous, maintaining that drivers customarily crossed without changing speed, as testified to by its president, a nearby resident, and its driver, and that doing what was usual and customary could not be characterized as reckless or negligent.
• Imputed Negligence of Hirers: Petitioner argued that plaintiffs could not recover because the driver's negligence was imputable to them, they having permitted approach and passage over the crossing without ordinary care and having made no effort to caution, instruct, or compel the driver to take reasonable care.
• Negligence of the Railroad Company: Petitioner argued that the trial court erred in finding the Manila Railroad Co. free from contributing negligence, pointing to location in populous San Juan near the station, absence of flagman or protecting gates with a broken crossing sign, trees and undergrowth and houses obstructing view, and a twisting approach flanked by deep ditches.
• Non-Liability of Master Under Johnson vs. David: Petitioner argued that even on plaintiffs' facts it was not liable, having fully performed its duty by furnishing a suitable car and a competent driver with five or six years of accident-free service, and that the driver's negligence could not legally be imputed to the company under Johnson vs. David.

• Care at Railroad Crossing and Custom: Whether the chauffeur was grossly negligent in driving upon railroad tracks at speed without precaution, and whether an alleged custom among automobile drivers to do so negates negligence.
• Imputed Negligence to Hirer of Public Automobile: Whether negligence of the driver of a hired public automobile is imputable to a passenger who merely directs the destination and exercises no other control, so as to bar recovery.
• Negligence of Railroad Company: Whether the railroad company contributed to the accident by maintaining a grade crossing without flagman or gates, by obstructing vegetation and structures, or by failure to give timely warning signals.
• Enterprise Liability for Servant's Negligence: Whether the taxicab company as owner of an enterprise is liable under Article 1903 of the Civil Code for its driver's negligence, or is shielded by furnishing a safe car and competent driver under Johnson vs. David.
• Quantum of Damages: Whether the amounts awarded for hospital bills, doctors' fees, medicines, foreign expenses, and loss of time were sufficiently proved and should be reduced.

• Care at Railroad Crossing and Custom: Yes. Gross negligence was established, the driver having proceeded at reckless speed without effort to ascertain a train's approach, and a dangerous practice cannot ripen into a protective custom.
• Imputed Negligence to Hirer of Public Automobile: No. A hirer who merely indicates destination and exercises no control over management of the vehicle is not identified with the driver and is not barred by the driver's contributory negligence.
• Negligence of Railroad Company: No. Exoneration was affirmed, timely warning signals having been given and grade crossings without flagman or gates not constituting negligence per se, with conflicting evidence on obstruction resolved in the railroad's favor.
• Enterprise Liability for Servant's Negligence: Yes. Liability attached under Article 1903 as owner of an enterprise, the company having failed in supervision and instruction and having sanctioned the dangerous custom, rendering Johnson vs. David inapplicable.
• Quantum of Damages: Yes, reduced. Awards were modified to proven hospital and medical expenses and loss of time, rejecting inadequately documented Japanese-doctor, medicine, and Japan expenses.

• Care at Railroad Crossing and Custom: Ordinary care and diligence is always incumbent on one passing over a railroad crossing, with the acts required depending on circumstances; where view is obstructed, the duty includes slackening speed, reducing noise, looking and listening, and doing any act necessary to determine a train is not in dangerous proximity. Appellant's own showing of obstruction aggravated the breach, the collision itself evidencing failure to permit the faculties to operate, since trains rarely pass without detectable noise. The alleged custom was rejected because performance of an inherently life-endangering act without ascertaining a train's approach cannot be excused by others having done so safely.
• Imputed Negligence to Hirer of Public Automobile: Following Little vs. Hackett, identification of the passenger with the negligent driver without personal cooperation or encouragement was deemed a gratuitous assumption; hirers of a hack who exercise no control beyond route or destination do not become responsible for the driver's management and are not confined to a remedy against the driver. Contributory negligence is imputable only where the passenger has or is in position to have and exercise control over the driver as to the negligent matter, a question of fact; no such control was shown here.
• Negligence of Railroad Company: Abundant testimony by servants and passengers that bell and whistle gave due and timely warning supported the finding of full performance of duty, with nothing materially impairing credibility. The conflict on trees and undergrowth was resolved by the trial court for the railroad, finding twelve or fifteen meters of unobstructed view, undisturbed for lack of demonstrated error. Maintaining a grade crossing even in a populous district and omitting a flagman were not negligence per se; the obligation is care commensurate with locality in operation, not elimination of grade crossings.
• Enterprise Liability for Servant's Negligence: Articles 1902-1903 limit vicarious liability to enumerated cases, distinguishing private owners from owners or directors of an establishment or enterprise answerable for employees acting in service or on account of duties, as clarified in Johnson vs. David, Chapman vs. Underwood, and Bahia vs. Litonjua and Leynes. Injury by an employee instantly raises a rebuttable presumption of the employer's negligence in selection or supervision, overcome only by diligence of a good father of a family including promulgation of proper rules and instructions. Operation of automobiles for hire is an enterprise; furnishing a safe car and long-serving driver did not satisfy supervision where the president admitted settled practice to cross without stopping, reducing speed, or other precaution unless a signal was heard, thereby adopting the negligence as the company's own.
• Quantum of Damages: Recovery was limited to proven time loss, doctors' bills, hospital bills, medicines, and other necessary expenses. Yamada was allowed two months at P100 plus P49 hospital and P50 to Dr. Strahan, rejecting Japan expenses after nearly six months in Manila and return to work in two months contrary to claimed continuing disability, and rejecting an undocumented P150 Manila payment based on morning-of-trial memory without name, receipt, or witness. Uyehara was allowed P600 for three months at P200 plus P350 hospital and medical attendance, rejecting an identical undocumented P150 claim. Karabayashi, with no physician-testified physical injury and only self-serving loss-of-memory and large medicine claims exceeding those of the hospitalized plaintiffs, was allowed P400 for short shock-related inability to work.

• Care required at railroad crossings — One crossing railroad tracks must exercise ordinary care and diligence, the specific precautions varying with circumstances; unobstructed view may make sight alone sufficient without stopping, while obstructed view requires slackening speed, reducing vehicle noise, looking and listening, and any other act needed to ascertain that no train is in dangerous proximity. Applied to reject the chauffeur's full-speed crossing despite claimed obstruction.
• Dangerous practice as custom — A practice dangerous to human life cannot ripen into a custom that protects one who follows it; habitually driving over crossings without effort to ascertain a train's approach remains actionable negligence though others have done so safely. Applied to deny exculpation based on Manila drivers' alleged habit.
• Non-imputability of hired driver's negligence to passenger vs. Hackett rule — A person hiring a public automobile and directing only the destination, without other control over the driver, is not identified with the driver and is not barred from recovering for a collision caused by the driver's negligence combined with a third person's negligence. Imputation requires that the passenger have or be positioned to exercise control over the driver as to the negligent act. Applied to permit plaintiffs' recovery despite the chauffeur's fault.
• Enterprise liability under Article 1903 of the Civil Code — Owners or directors of an establishment or enterprise are liable for damages caused by employees in service or on account of duties, unlike purely private owners addressed in Johnson vs. David and Chapman vs. Underwood; operation of automobiles for hire is an enterprise under Bahia vs. Litonjua and Leynes. Applied to hold the taxicab company answerable for its chauffeur's crossing negligence.
• Presumption of employer negligence, juris tantum — When injury is caused by an employee's negligence, the law instantly presumes negligence of the master in selection or supervision or both, rebuttable by proof of diligence of a good father of a family, which includes supervision and, where necessary, promulgation of proper rules, regulations, and instructions. Failure to disapprove a known dangerous custom constitutes adoption of the negligence and defeats rebuttal. Applied to find the company failed to rebut the presumption and in effect made the custom its own.
• Proof of damages — Recoverable damages comprise proven loss of time, doctors' and hospital bills, medicines, and other necessary expenses; bare self-serving statements based on memory without names, dates, receipts, corroborating witnesses, or medical support may be rejected, particularly where contradicted by medical testimony of full recovery and return to work. Applied to reduce all three awards.

• "always incumbent on him to use ordinary care and diligence" — States the constant standard for crossing railroad tracks, with particular precautions left to the circumstances of each case.
• "that a practice which is dangerous to human life cannot ripen into a custom which will protect anyone who follows it." — Rejects the defense that habitual full-speed crossing by automobile drivers negated recklessness or negligence.
• "The identification of the passenger with the negligent driver or the owner, without his personal cooperation or encouragement, is a gratuitous assumption." — Adopts Little vs. Hackett in repudiating Thorogood vs. Bryan to hold a hirer's negligence not imputable from merely hiring the conveyance.
• "From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the selection of the servant or employee or in supervision over him after the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure and consequently may be rebutted." — Formulates the Article 1903 presumption governing enterprise liability and its rebuttal by diligence of a good father of a family.

• Little vs. Hackett, 116 U.S., 366 — Followed as controlling on non-imputation; a hirer directing only route or destination does not become responsible for the driver's negligence and is not barred from recovering against a concurring third-party tortfeasor.
• Thorogood vs. Bryan, 8 C.B., 115 — Rejected as resting on indefensible identification theory that a passenger selecting a conveyance becomes party to the driver's negligence.
• Johnson vs. David, 5 Phil. Rep., 663 — Distinguished; non-liability of a private vehicle owner for a coachman's negligence on private affairs does not govern an owner of a business or enterprise operating vehicles for hire.
• Chapman vs. Underwood, 27 Phil. Rep., 374 — Followed on the private-owner rule and the limited present-owner exception requiring continued negligent acts with reasonable opportunity to correct; inapplicable to enterprise operation.
• Bahia vs. Litonjua and Leynes, 30 Phil. Rep., 624 — Followed; operation of automobiles for hire is an enterprise under Article 1903, imposing duties of safe equipment, careful selection, supervision, and proper rules and instructions.
• New York, Lake Erie & Western Railroad vs. Steinbrenner, 47 N.J.L., 161 — Quoted for the consequence of imputing negligence to hirers, which would constrain all passengers to superintend the driver.
• Duval vs. Railroad Co., 134 N.C., 331; Hampel vs. Detroit etc. R.R. Co.; Cotton vs. Willmar etc. R.R. Co., 99 Minn., 366; Shultz vs. Old Colony Street Ry. Co., 193 Mass., 309; Wilson vs. Puget Sound Elec. Ry. Co., 52 Wash., 522; Johnson vs. Coey, 237 Ill., 88; Hindu vs. Steere, 209 Mass., 442 — Cited as supporting that passenger control over the driver is a factual question determining imputability.

• Articles 1902-1903, Civil Code — Article 1902 obliges one causing damage by fault or negligence to repair it; Article 1903 extends liability to fathers, guardians, owners or directors of establishments or enterprises for employees acting in service or on account of duties, the State through special agents, and masters for pupils, ceasing upon proof of diligence of a good father of a family. Applied to impose enterprise liability on the taxicab company and to define rebuttal through selection, supervision, rules, and instructions.
• Articles 1905-1908 and 1910, Civil Code — Enumerate special liabilities for animals, game preserves, building collapse, machine explosions, smoke, falling trees, sewer emanations, and objects thrown or falling from houses. Cited to show the legislature intended to enumerate exhaustively the persons answerable for others' negligence or things.

Arellano, C.J., Torres, Carson and Araullo, JJ., concur. Johnson, J., concurs in the result. Trent, J., did not sit in the case.