APPEAL: 1939/2002 - RESOLUTION: 123 509 - SECRETARY: SPECIAL
Santiago, 3 October, two thousand three.
SEEN: Plays the original ruling, dated February 7, two thousand two, written from fs. 146 to fs. 150 back, eliminating the recitals 16And from the 24inclusive 18hasta. Also removed, in recital 17 second line, the phrase referred to in the preceding paragraph, and it is replaced by the sentence, commas, after which passengers must remain until they can get on the cars. And it is in place and also this: 1Que in the first sentence grade given by the judge established the existence of the events giving rise to this view, work complements this Court expressly determines that occurred in circumstances that on June 23, 2000, approximately 17 hours, Isabel Margarita Navarro Rocco was at waiting for the subway station at Cal y Canto, after the security line in yellow, but in the first row and the approach of the mobile, which began opening its doors shortly before it is completely stopped, led to the large number of public waiting at the station who were pressed closer to the convoy, a fact that Margarita Navarro determined to find a foothold for avoid being hit by the train, putting her hands in front of the phone, which is open laterally inside the walls of the same action in conjunction with pressure, led to the fact that Rocco Navarro left hand with the introduction the door in the wall of the car, attending staff of the defendant company who made it possible to take out the hand you after a few minutes, resulting Margarita Navarro with mild bruise in his left hand, diagnosed by doctors of the Hospital's Emergency Posta Barros Luco, until he visited for treatment. 2Que for purposes of determining whether the company Metro SA has infringed the rules of the Law N19.496, circumstance you could be in responsible for damages in favor of the plaintiff, according to the provisions of Articles 3y 23de the same law, it should consider: whether there have been failures or deficiencies in the safety of service to the plaintiff, if these deficiencies are the result of their negligence, and if this has caused prejudice to the plaintiff. At the same time it must consider whether the plaintiff has failed in its duty to avoid risks that could hurt others, to the utilization of the Metro. 3 That the safety requirement, due to the Metro, means that this company must ensure the safety and protection of passengers, at least since they entered the hall where he provides the transport service their passage to the end of it, through the doors mechanized. And it matters that, as a minimum requirement, must take all measures to prevent a passenger to comply with safety instructions, be exposed to harm by the action of others, in the case that these actions were predictable for the Metro . It is clear that the safeguards adopted by Metro in order to draw a yellow line which must not transfer the passenger until the vehicle stops, and the placement of signs on the doors ordered that passengers must not rely on them, not sufficient if, as in the case, will be crowded a large group of pa messengers and press are pushing the frontline. This situation, passenger crowding and pressure them toward the subway cars, "certainly" is a totally predictable event type for the Metro, since it is public knowledge that the repetition of events of this nature, and it is just analysis of these situations foreseeable hazards and taking appropriate security measures, which give precise content to the safety requirement of the defendant utility. The fact that Metro has not considered this possibility and therefore the actions taken to avoid damage, such as the present, they constitute breach of its obligation to safety. And this failure be considered negligent, since the medium carefully with Metro could have adopted measures that'll take you to meet this safety requirement. 4 That, on the other hand, the plaintiff has acted on the instructions of the service company sued and settled, waiting for the subway car, behind the yellow safety line. And it can not be considered to act recklessly, or that has failed in its duty to avoid risks that may affect you, because you have crossed the yellow safety line, as this only occurred at the hands of peer pressure from people who was behind it and the failure of the defendant in order to implement actions aimed at preventing these kinds of events. Understanding otherwise your obligation to avoid risks that may affect it, according to the terms of Article 3, letter d) of that Act, mean that a passenger only fulfill its obligation to avoid risks placing so far from the line yellow as necessary to prevent the pressure from other passengers, located behind him, so nigh dangerously subway cars. This runs counter to the idea, commonly accepted, that is the company providing the service and, therefore, generating the risk which is able to prevent such risks and not the passenger. 5 That, furthermore Moreover, it should be noted that in this case, the subway opened the car doors before stopping completely, and that if, however, the doors only open with the train completely stopped, as expected normally, fact that caused the year has not been produced. 6 That, in recognition of the foregoing, it is undoubted that the Metro has failed to fulfill its security obligations with respect to the plaintiff, in rendering the service provided, that such failure was negligent, by failing to provide the possibility of this accident, having been able to foresee with a median diligence and therefore by failing to provide security measures that it impossible to its occurrence; and that the injury suffered by the plaintiff as a result of his injury to his left hand, the result of the allegation in the case, had the direct and necessary cause failure in the safety requirement referred to above. 7 It also is undisputed that the plaintiff has suffered pecuniary and moral product of negligent breach of the defendant referred to above. In fact, according to the document fs. 76, has been proven that the plaintiff suffered damages consisting of cost of drugs, worth $ 4,355 (four thousand three hundred fifty-five pesos), and reportedly the legal medical service, which rolan fs. 132 and 141, and according to testimonies, fs. 71, Mario Alexis Giuliano Villar, and fs. 72, Guillermo Alfredo Cáceres Castro, it is proved that the plaintiff has also suffered material damage, consisting on the one hand, psychological damage, this is a modification or alteration of the personality of the plaintiff, expressed through depression, blocks, inhibitions and fears, and, secondly, in a biological damage, ie the integrity of his left hand, injury of medium gravity, meaning an inability of 20 to 22 days, pain and suffering that this Court assessed in the sum total of $ 1,500,000 (one million five hundred thousand pesos). 8Que, regarding the defense of the defendant should be allowed that it does not ignore the occurrence of events, tried to excuse the actions of others, it has met certain standards of safety and respect them not the plaintiff has recklessly exposed to damage, as also did not charge the seg uros you have to cover the facts giving rise to the claim, all that is rejected, since the subjective element of guilt is justified by the knowledge of how the service is provided transportation and the normal risks that may face the same users, increasing importance of the special capabilities and expertise and scientists who work for providing the service that, in this case the company Metro SA, which as is well known, has professionals dedicated to the prevention of risks, conditions and circumstances are appreciated objectively, under which a certain behavior is required in this case foresight, diligence and security that can be expected of it, especially the people who act by the defendant, as for establishing liability need not specifically provided is accurate damage that occurred, which undoubtedly is considered by Metro SA, who placed signs indicating that special door, if not that just because it has been expected, given that it allows indiscriminate access of passengers to the platform, however it is known to exist hours using their services more people than they can carry a train, having to wait for the public the following, times in which even has a higher value is expected passage and this is by increased security measures and not simply to raise larger amounts of money (Marcel Planiol and George Ripert, Treatise on Practical French Civil Law, Volume VI, page 719). These authors add that to prevent damage, the law and regulations prescribe or prohibit certain acts. As it turns out that these bodies of law are known by all, his failure to comply constitutes fault, which added, but compliance does not relieve them of the duty not to comply the general obligation of foresight. Which has adapted to the regulations will also be responsible if it causes injury that could and should provide (Idem, p. 720). The conduct of the defendant company, or more precisely their omissions have been the precise cause, necessary and direct damage because of non-negligent behavior Diar me the damage had not occurred, because allowing entry to the platforms of many people of what will be possible to transport the train cars near undoubtedly generate pressure in the sector who are far away for those who are close to the mobile, without further measures that tend to prevent this, for surely those who are close to the try line not to exceed the yellow stripe painted on the ground, which will yield to the pressure indicated, not by choice, without the measures indicated in the file arranged to prevent harmful acts against such a risk, being delivered to the criteria and user education. That is why in such cases, it suffices that among these causes is a fact or an omission intentional or culpable for the existence of causal relationship, provided that the act or omission, whether near or remote, immediate or mediate, has been a necessary element and direct it, that is, without him it would not have occurred, although entered into in the other cases (Arturo Alessandri Rodríguez, contractual liability in the Chilean Civil Law, page 242), to which the author adds, that all facts that have contributed to cause damage are considered as the cause of all of it and therefore as equivalent (Idem, p. 243), saying then that the effect of plurality of causes is that when guilt or deception is present in one of the necessary background and direct damage occurs, the author is obliged to fully repair. Its reduction could not be claimed under the pretext that there are other, because each case is what all the damage (Idem, p. 245), which is discarded that the concurrence of the actions of others to hold harmless to the defendant. For these reasons and legal citations, declares: That it revokes the original ruling dated February 7, two thousand two, written from fs. 146 to fs. 150 back, just as in operative paragraph c) does not give rise to the infraction report and rejects the civil suit for damages, deducted by Rocco Navarro Margarita against SA on Metro, and instead it was decided: I .- To the complaint welcomes deducted infraction against the company Metro SA, for infringements of the rules of the Law N19.496, and therefore, is punishable as this company Metro SA, to pay a fine of 10 units monthly tax as the provisions of Articles 24 and 61 of the Umbrella that law. II .- That is home to the civil claim for compensation for damages, deducted at page 1 by Rocco Navarro Margarita, against the company Metro SA, declaring that the defendant should pay the plaintiff the sum of $ 4,355 (four thousand three hundred fifty five dollars) on account of damages and the sum of $ 1,500,000 (one million five hundred thousand dollars) for moral damages, amounts will be adjusted according to changes you've experienced the consumer price index between month prior to the date on which the violation occurred and the preceding that in which the payment is cash, plus interest for operations calculated from the data indexed in the sentence becomes enforceable until the date of actual payment. Each party shall bear its own costs. Register and refunded Drafting Attorney Paulina Veloso Valenzuela Integrative N1.939 2002. Made by the Sixth Division, composed of the Ministers Mr. Juan Guzman Tapia, Sergio Muñoz Gajardo and integral lawyer Mrs Paulina Veloso Valenzuela.
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