Moreu ex rel. Martínez v. McClurg
Moreu ex rel. Martínez v. McClurg
Opinion of the Court
delivered the opinion of the Court.
These facts occurred on March 5, 1958, when the amendment by addition to § 1802 of the Civil Code of Puerto Rico (1980), providing that in claim for damages, through fault or negligence, “concurrent imprudence of the party aggrieved does not exempt from liability, but entails a reduction of the indemnity” (1956), was already in force.
The trial court found proved the following facts: “That on or about March 5, 1958, about 10:15 p.m., and at the intersection of state highway No. 2, kilometer 87, hectometer 6, and state highway No. 130, while coplaintiff Ramón Cha-cón Martínez was in the scope of his employment as fireman
The law applicable to the case, according to the date of the accident, is § 17 of Act No. 279 of April 5, 1946, as amended by Act No. 492 of May 15, 1952; Act No. 96 of June 18, 1953—9 L.P.R.A. § 187, pp. 565-68—which provides: “(a) Persons operating motor vehicles on the public highways shall at all times exercise due care and take every reasonable precaution to insure the safety of persons and property. . . (g) a driver of a motor vehicle shall, on approaching an intersection, cede the right of way to every vehicle which may have entered said intersection from another street. The driver of a vehicle operated on a vicinal, municipal or private road shall cede the right of way to every motor vehicle operated on an insular road; Provided, That when both vehicles are operated on Commonwealth roads, the one coming from the road having less traffic shall cede the right of way to that coming from the road having more traffic. The preceding provisions of this clause shall apply when traffic is not regulated by traffic signals or traffic policemen. Every motor vehicle driver shall cede the right of way to fire engines, ambulances, and Police of Puerto Rico vehicles, when they are engaged in emergency activities, and when the drivers of said vehicles give audible signals, such as bells, sirens, or whistles; every driver shall, at the approach of said emergency vehicles sounding such audible signal, draw well to the right and stop the vehicle until the emergency vehicle has passed.”
In his review before us defendant-appellant McClurg assigns the following errors: (1) The findings of fact of the trial court are not supported by the evidence and are ad
1. Appellant is right in that some of the trial court’s findings of fact are not correlative with the preponderance of the evidence or with the evidence not contradicted by the opposing evidence. Some of the allegations, particularly those in quotation marks in the preceding recital, are mere reproductions of the allegations, as we shall see.
2. When these facts occurred the law which governed the speed permissible for crossing an intersection was § 15 of Act No. 279 of April 5, 1946, as amended by Act No. 1 of August 5, 1957 (Sp. Sess. Laws, p. 515), which provided a speed not to exceed 15 miles per hour when the driver of the vehicle can not see clearly the vehicles approaching or which may approach the intersection within a limit of 50 meters
3. As to the speed at which the fire engine was traveling, the evidence contains the following assertions: Coplaintiff-appellee Chacón testified: “At about 10 p.m. a man, Luis Toledo, from the ward of Capáez of Hatillo, called up to inform that there was a fire in a sugar-cane field where many houses were in danger, and we went to render the service of extinguishing the fire” (Tr. Ev. 5). He further added: “Well, perhaps it was not going slowly, about 10 to 15 miles” (Tr. Ev. 12). Antonio Delgado, the other fire department employee who accompanied coplaintiff-appellee Chacón, testified: “We passed through the town [Hatillo] at 10 miles, then when we arrived there [the intersection] we slackened the speed” (Tr. Ev. 22). However, on cross-examination he testified: “Well, we passed through the town at 10 miles; when we came out of the town we were traveling at about 25 miles” (Tr. Ev. 24). Longinos Mercado, a businessman whose establishment is situated at the intersection of highway No. 2 and highway 130, where the accident occurred, the only disinterested witness, testified: “As I was about to close my business, I heard a siren warning. . . and when I saw that it was the firemen’s car, the fire engine” (Tr. Ev. 37) ; the engine did not stop at the “stop” sign, but proceeded fast (Tr. Ev.
From the direct assertions of the witnesses as well as from the inferences which may be drawn from the description of the impact, it is clear that the trial court’s conclusion that the fire engine was operated at moderate speed is contrary to the evidence. People v. Rivera, 69 P.R.R. 500, 504 (Todd, Jr., 1949) ; Pérez v. Santiago, 56 P.R.R. 732, 736 (De Jesús, 1940) ; Efret v. Quiñones, 40 P.R.R. 183, 186 (Texidor, 1929).
4. Regarding appellant McClurg’s duty to stop the motor vehicle on the right-hand side and yield the right of way to the fire engine, the evidence ought to show that the engine was at that moment on its way to perform a public emergency duty and that it was sounding the alarm devices. There is no doubt in this case that at the time of the accident the engine was on its way to extinguish a fire, and that as it crossed the intersection it was sounding the siren to warn other drivers of such public emergency duty. Coplaintiff-appellee
The version contained in the evidence of coplaintiff-ap-pellee Chacón in the sense that the fire engine siren could be heard within a radius of five miles, seems not only exaggerated but also a premise which would require an ideal physical space in which the sound wave were not intercepted by other objects or solid bodies which tended to deaden it. In any event, within the rules of conjectural evidence it is possible to
5. According to our existing negligence legislation, the trial court was bound, as alleged by codefendant-appellant, to make findings of fact on coplaintiff-appellee’s failure to obey the “stop” warning sign located before approaching the intersection and on the defective condition of the brakes, bearing in mind that although § 17 supra of Act No. 279, as amended, provides that “every motor vehicle driver shall cede the right of way to fire engines,” it is also the duty of fire engine drivers upon crossing a preferential right of way “to exercise care for the safety of the lives and property of others.” Vélez ex rel. González v. Atlas Line, infra. Had it made those findings, there is no question that the trial court would have concluded that coplaintiff-appellee did not exercise due diligence and circumspection and that the fire engine brakes were worn out, that that day it was necessary to repair them twice, and that the other employee warned coplaintiff-appellee before the accident on the defective condition of the brakes, all of which shows clearly that in the comparison of faults coplaintiff-appellee can not be considered totally exempt from liability.
6-7. The attorney for codefendant-appellant McClurg is right in his contention that the compensation for damages awarded in this case is excessive and confiscatory when compared with the injuries sustained by coplaintiff-appellee Cha-cón.
Coplaintiff-appellee testified with respect to the injuries that he received “a wound on the head, bruises on this side and this left side, on a knee, and a wound on a finger” (Tr. Ev. 6) ; as to the injuries, “I don’t feel very well yet. . . I
The attorney for codefendant-appellant McClurg is also right in alleging that the trial court erred by its failure to admit in evidence such certificate. According to the hold
The $6,000 indemnity awarded to coplaintiff-appellee Chacón is not commensurate with the injuries sustained. It is well to point out that the State Insurance Fund only paid and claims in this action the sum of $306.93 for per diems, incapacity, X rays, traveling expenses, hospitalization and medical assistance. Before fixing the new compensation it is necessary to dispose of the last error assigned.
8. These facts occurred on March 5, 1958, during the effectiveness of the amendment to § 1802 of the Civil Code of Puerto Rico (1930 ed.) added by Act No. 28 of June 9, 1956, which provides with respect to the reparation of the damage caused through fault or negligence: “Concurrent imprudence of the party aggrieved does not exempt from liability, but entails a reduction of the indemnity.” The term “concurrent imprudence” is undoubtedly a felicitous term in legal lexicography, since as commented by Manresa : “Man, an author has said, should subordinate all his actions to the rules and precepts of prudence.” 12 Manresa, Comentarios al Código Civil Español 639 (5th ed., Reus 1951). On our part, in Pagan v. Guardiola, 78 P.R.R. 372, 374 (Belaval, 1955), we held, following the language of a Spanish judgment: “The obligation to pay damages for a wrongful act flows, in the quasi-delictive sphere, from the lack of prudence or diligence which is normally due in the ambit of human coexistence.”
When the amendment of “concurrent imprudence” was not yet in force, in Vélez ex rel. González v. Atlas Line, 78 P.R.R. 735, 737-38 (Belaval, 1955), we established for this class of accidents the following norm: “The driver of the am
After the amendment of “concurrent imprudence” we believe that the norm continues to be the same, the same care by both parties even though a preferential right of way is recognized within the care to the person engaged in an emergency activity. This binds the trial courts to compare the faults as if the case were a common one, allowing at the time of exacting his liability some margin in favor of a driver engaged in an emergency activity.
The trial court’s error consisted in considering this case as if it were still governed by the already superseded principle of the exclusion of liability where there is contributory negligence. Comparing the faults in this case, it is evident that the only fault for which codefendant-appellant McClurg could be held responsible is his failure to stop the vehicle in order to yield the right of way to the fire engine. If this had occurred while both were traveling on the same road and the proximity of the warning had been more audible, his imprudence would be greater. However, there are certain circumstances in this case which enable us to infer that the sound wave did not create that sensation of proximity which makes it more compulsory to adopt measures of security as rapidly as would have been advisable in a different situation.
This case is not proper for making a detailed apportionment of the compensation due each party, and, hence, of the compensation corresponding to coplaintiff-appellee Chacón, since the case was prosecuted on the assumption of liability excluded from the contributory negligence and the compensations are claimed in separate actions. Guided by a practical criterion which may not be at variance with substantial justice, we are of the opinion that the judgment should be modified awarding to the State Insurance Fund—to a certain extent an innocent interest—the total expenses incurred in the treatment of coplaintiff-appellee Chacón, namely the sum of $306.93, and in addition to that amount to award to coplaintiff-appellee Ramón Chacón Martínez the sum of S650, plus costs and $200 for attorney’s fees.
The judgment will be modified accordingly.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.