This is an appeal from a sentence imposed by the Honorable A. S. Crossfield judge of the Court of First Instance of Manila, for homicide resulting f reckless negligence. The information charges: 

"That on or about November  2, 1911, in the city of Manila, Philippine the said  Segundo Barias  was a  motorman on street car No.  9, run  7, the  Pasay-Cervantes lines of the Manila Electric Railroad and Light Com a corporation  duly  organized and doing business in the city of Manila, Philippine Islands; as  such motorman he was controlling and operating street car along Rizal Avenue, formerly  Calle Cervantes, of this city, such motorman of said street car he was under obligation to run the same with due  care and diligence to avoid any accident that might occur to vehicles and pedestrians who were traveling on said Rizal Avenue; said accused, at said time and place, did willfully, with reckless imprudence inexcusable negligence and in violation of the regulations promulgated t effect, control and  operate  said street car, without heeding the pedes crossing Rizal Avenue from one side to the other, thus knocking down and causing by his carelessness and imprudent negligence that said street ca 9, operated and  controlled by said accused,  as  herein before  stated, should knock  down  and pass over the body and head of one Fermina Jose, a girl 2 years old, who at said time and place was crossing the sa Rizal Avenue,  the  body  of  said  girl being  dragged along the street car  track on said  Rizal Avenue for a long distance,  thus  crushing  a destroying  her head  and causing her sudden death as a result of the in received; that if the acts executed by the accused had been done with malice, he would be guilty of the serious crime of homicide."

The  defendant was a motorman for  the  Manila Electric Railroad and Light  Company.  At about  6 o'clock on the morning of November 2, 1911, he was driving his car along Rizal Avenue  and  stopped  it near the intersection of that street with Calle  Requesen to take on some passeng When the car stopped, the defendant looked backward, presumably to note whether all the  passengers were aboard, and then started his car.   At that moment Fermina Jose, a child  about  3 years old, walked or ran in front of the car.  She was  knocked down and  dragged some little distance underneath the car, and was  left dead upon the track. The motorman proceeded with his car to  the end of the track, some distance from the place of the accident,  and apparently knew nothing of it until return, when he was informed of what had happened.

There is no  substantial  dispute as to the facts.  It is true that one testified that the defendant started the car without turning his head, a while he  was still looking backwards and that this  testimony was  dire contradicted by that of another witness.   But we do not deem it necessary to make an express finding as to the precise direction in which the defendant's head was turned at the  moment when he started  his car.  It is  sufficient for the purpose of  our  decision  to  hold, as we  do, the evidence clearly  discloses that  he started his car from  a standstout without looking over the track immediately in front of the car to satisfy himself that it was clear.  He did not see the child until after he had car over it, and  after he had returned to the  place where it was found dead, and we think we are justified in saying that wherever he was looking at the moment  when he started his car,  he was not looking at the track immediately in front of the car,  and that  he had not  satisfied himself that this portion of the track was clear immediately before putting the motion.

The trial court found the defendant guilty of imprudencia temeraria (reckless negligence) as charged in the information, and sentenced him one year and one month of imprisonment in Bilibid Prison, and to pay the costs of the action.

The sole question raised by this appeal is whether the evidence shows su carelessness or want  of ordinary care on the  part of  the defendant  a to  amount  to  reckless negligence  (imprudencia  temeraria).

Judge Cooley in  his work on Torts (3d ed., 1324) defines negligence to "The failure to observe, for  the protection  of the interests of another person, that degree of care, precaution and vigilance which  the circumstances justly demand, whereby such other person suffers injury."

In the case  of U. S. vs. Nava, (1 Phil. Rep., 580), we held that negligence consists of the failure to take such precautions or  advance measures in the performance of an act as the most common prudence would suggest whereby injury is caused to persons or to property."

Silvela says  in his "Derecho Penal"  in speaking of reckless imprudence (imprudencia temeraria): 

"The word 'negligencia' used in  the code, and the term 'imprudence with which this  punishable act is defined, express this idea  in  such manner that  it is not necessary to enlarge upon it.  He who  has done everything on his part to prevent his actions from  causing damage to another,  although he  has not succeeded in doing so, notwithstanding hi efforts,  is the victim  of an accident, and cannot be considered responsible for the same."   (Vol. 2, p. 127 [153].) 

"Temerario is,  in our opinion, one  who omits, with regard to hi which  are liable to  cause  injury  to another,  that care and diligenc that  attention,  which can be required of the least careful, attentive, diligent. If a moment's attention and reflection  would have shown a per that the act which he was  about to perform was liable to have the harmful consequence which it  had, such person acted with temerity and m be guilty of 'imprudencia temeraria.'  It may be that in practice has been given a greater scope and #cts of imprudence which did not show carelessness as carried to such a high degree, might have been  punished 'imprudencia  temeraria;' but in our opinion, the  proper meaning word does not authorize another interpretation."   (Id., p. 133 [16.1].) commenting upon "imprudencia temeraria" on page 389, volume 8, of work on the  Penal Code, says: 

"Prudence  is that  cardinal virtue which teaches us to discern and dist the good from  the bad, in order to adopt or  to  flee from it.  It also means good judgment, temperance, and moderation  in one's actions.  ' Temerario' is one who exposes. himself to danger or  rushes into  it without reflection  and without examining the same. Consequently, he w from lack of good judgment, temperance, or moderation in his actions, exposes  himself without reflection and  examination to  the danger of committing  a crime, must be held responsible under the provision of law aforementioned."

Negligence is want of the care required by the circumstances.  It is a r or comparative,  not an  absolute, term  and its application  depends up the situation of the parties  and the degree  of care and vigilance which the circumstances reasonably require.   Where the danger is great, a hig degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances.  (Ahern vs. Oregon Telephone 24 Oreg., 276, 294; 35Pac, 549,)

Ordinary care,  if the danger is great, may rise to  the grade of a very exact and unchangeable attention.  (Parry Mfg. Co. vs. Eaton, 41 App., 81, 1908; 83 N. E., 510.)

In the case of U. S.  vs. Reyes  (1 Phil. Rep.,  375-377), we hel "The diligence with which the law requires the  individual at all times his  conduct varies with the nature of the situation in which he is plac with the importance of the act which he is to perform."

The question to be determined then, is whether, under all the circumstance and having in mind the situation of the  defendant when he put his car motion and ran it over the child, he was guilty of a failure to take such precautions or advance measures as common prudence would suggest.

The evidence shows that the thoroughfare on which  the incident occurred was a public street in a densely populated section of the city.  The  ho was six in the morning, or about the time when the  residents of such st begin to move about.  Under such conditions a motorman of an electric street car was clearly charged with a high degree of diligence in the performance  of his  duties.   He was bound to know and to recognize that any negligence on  his part in observing  the track  over which  he was running his car might result in fatal  accidents.  He had no right to as that the track before his car was clear.  It was his duty to satisfy him that fact by keeping a sharp lookout, and to do everything in his power avoid  the danger  which is necessarily incident to the operation  of he street cars on public thoroughfares in populous sections of the city.

Did he exercise the degree of diligence required of him? We think this q must be answered in the negative. We  do  not  go so  far as  to say that having brought  his car to a standstill it was his bounden duty to his eyes directed to the front.   Indeed, in the absence of some regulation his employers, we can well understand that, at times, it might  be highly proper and prudent for him to glance  back before again setting his car motion, to satisfy himself that he understood correctly a signal to go forward or that all the passengers had safely alighted or gotten on boar But we do insist that before setting his car again in motion, it was his to satisfy himself that the track was clear, and, for that purpose, to l and to see the track just in front of his car.  This the defendant did n and the result of his negligence was the death of the child.

In  the case  of Smith vs. St.  Paul City Ry.  Go.,  (32 Minn., p supreme court of Minnesota, in discussing the diligence required of street railway companies in the conduct  of  their business observed that:  "Th defendant was a carrier of passengers for hire, owning and controlling t tracks and cars operated thereon.  It is therefore subject to the rule applicable to passenger carriers.   (Thompson's  Carriers, 442; Barrett Third Ave. R. Co., 1 Sweeny, 568;  8 Abb. Pr. (N. S.), 205.)  As respect hazards and dangers  incident to the business  or employment, the law enjoins upon such carrier the highest degree of care consistent with its undertaking, and  it is responsible for the slightest negligence.  (Wils Northern Pacific R. Co., 26 Minn., 278; Warren vs. Fitchburg R. C 233; 43 Am.  Dec. 354,  356,  notes and cases.)   *   *  *  The severe r which enjoins upon the carrier such extraordi- nary  care and diligence, intended, for reasons of public policy, to secure the safe carriage of passengers, in so far as human skill and foresight can affect such result case just cited  was a civil case, and the doctrine therein announced ha especial reference to the care which should be exercised in securing  th safety of passengers.   But we hold that the reasons of public policy which impose upon street car companies and their employees the duty of exercise the utmost degree ,of diligence in securing the safety of passengers, apply with equal force to the duty of avoiding the infliction of injuries upon pedestrians and others on the public streets and thoroughfares over which these companies are authorized  to run  their cars.  And while, in a crime case, the courts will require proof of the guilt of the company or its employees beyond a reasonable doubt, nevertheless the care or  diligence required of the company and its employees is the same in both cases, and the only question to be determined is whether the proof shows beyond a reasonable doubt that the failure to exercise such care or diligence was cause of the accident,  and that the defendant was guilty thereof.

Counsel for the defendant insist that the accident might have happened despite the exercise of the  utmost care by the defendant,  and they have introduced  photographs into the record for the purpose of proving that while the motorman was standing in his proper place on the front platform of the car,  a child might have  walked up  immediately in front of the without coming within the line of his vision.  Examining the photographs think that this contention may have some foundation in fact; but only to extent,  that standing erect, at the position he would ordinarily assume the  car  is  in motion, the  eye of the average motorman might  just mi seeing the top of the head of a child, about three years old, standing o walking close up to the front of the car.   But it is also very evident inclining the head and shoulders forward very slightly, and glancing in of the  car, a person in the position of a motorman could not fail  to s a child on the track immediately in front of his  car; and we hold that the manifest duty of a motorman, who is about to start his car on  a public thoroughfare in a thickly-settled district, to satisfy himself that track is clear  immediately in front of his car,  and to incline  his bo slightly  forward, if that be necessary, in order to bring the whole tra his line of vision.  Of course, this may not be, and usually is not necessary when the car is in motion, but we think that it  is required by the dict the most  ordinary prudence in starting from a standstill.

We are not unmindful of our remarks in the case of U. S, vs.  Bacho Phil. Rep.,  577),  to which our attention is directed by  counsel for appellant.   In that case we  said that: 

"*   *   *  In the general experience of mankind, accidents apparently unavoidable  and often inexplicable are unfortunately too frequent to permit us to conclude that some one must  be  criminally liable for negligence every case where an accident occurs. It is the duty of the prosecution each case  to prove by competent evidence not only the existence of criminal negligence, but that the accused was guilty thereof."

Nor  do  we overlook the  ruling in the case of U. S. vs. Barnes Rep., 93), to  which our attention is also invited, wherein we held that defendant was not guilty of reckless negligence,  where  it appeared that killed Another by the discharge of his gun under  such  circumstances th might have been held guilty  of criminally reckless negligence had  he knowledge at that moment that another person was in  such position as to be in  danger if the gun should be discharged.  In this latter case the defendant  had no reason to anticipate that the person who was injured was in the  line of  fire, or that there was any probability that he  or anyone else would  place himself in the line of fire.  In the case at bar however,  it was, as we have seen, the manifest duty of the motorman to take reasonable precautions in starting his car to see that in doing so not endangering the life of any pedestrian, old or young;  and to this it was  further his duty to guard against the reasonable possibility that one might be on the track immediately in front of the car.  We think that the evidence showing, as it does, that the child was killed at the moment when the car was set in motion, we are justified in holding that, had the motorman seen the child, he could have avoided the accident; the accident was not, therefore, "unavoidable or inexplicable," and  it appearing that motorman,  by the  exercise of ordinary diligence, might have seen the c before he set the car m motion, his failure to satisfy himself that the was clear  before doing so was reckless negligence, of which he was prop convicted in the court below.

We think, however, that the penalty should be reduced to that  of six months and one  day of prisidn  correctional. Modified by substituting f much  thereof as imposes the penalty of one year and one month of imprisonment, the penalty of six months and one day of prision correctional, the judgment of the lower court convicting and sentence appellant is affirmed,  with the costs of  both instances against him. ordered.

Arellano, C. J.,, Torres and  Mapa, JJ., concur.
Johnson, J., concurs in the result
Trent, J., dissents.