G.R. No.

L-29745 June 4, 1973

MERCEDES M. TEAGUE, petitioner, vs. ELENA FERNANDEZ, et al., respondent.
The facts are stated in the decision of the Court of Appeals as follows:
The Realistic Institute, admittedly owned and operated by defendant-appellee Mercedes M. Teague
was a vocational school for hair and beauty culture situated on the second floor of the Gil-Armi
Building, a two-storey, semi-concrete edifice (Exhs. "C", "C-1" to "C-5" and "4") located at the
corner of Quezon Boulevard and Soler Street, Quiapo, Manila. The said second floor was
unpartitioned, had a total area of about 400 square meters, and although it had only one stairway,
of about 1.50 meters in width, it had eight windows, each of which was provided with two fireescape ladders (Exh. "4"), and the presence of each of said fire-exits was indicated on the wall (Exh.
"5").
At about four o'clock in the afternoon of October 24, 1955, a fire broke out in a store for surplus
materials located about ten meters away from the institute. Soler Street lay between that store and
the institute. Upon seeing the fire, some of the students in the Realistic Institute shouted 'Fire!
Fire!' and thereafter, a panic ensued. Four instructresses and six assistant instructress of the
Institute were present and they, together with the registrar, tried to calm down the students, who
numbered about 180 at the time, telling them not to be afraid because the Gil-Armi Building would
not get burned as it is made of concrete, and that the fire was anyway, across the street. They told
the students not to rush out but just to go down the stairway two by two, or to use the fire-escapes.
Mrs. Justitia Prieto, one of the instructresses, took to the microphone so as to convey to the
students the above admonitions more effectively, and she even slapped three students in order to
quiet them down. Miss Frino Meliton, the registrar, whose desk was near the stairway, stood up
and tried with outstretched arms to stop the students from rushing and pushing their way to the
stairs. The panic, however, could not be subdued and the students, with the exception of the few
who made use of fire-escapes kept on rushing and pushing their way through the stairs, thereby
causing stampede therein.
Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was over, four students,
including Lourdes Fernandez, a sister of plaintiffs-appellants, were found dead and several others
injured on account of the stampede.
xxx xxx xxx
The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on the upper
lip, contused abrasions in different parts of the body, internal hemorrhage and fractures in the
second and third right ribs. The cause of death, according to the autopsy report, was "Shock due to
traumatic fractures of the ribs with perinephric hematoma and lacerations of the conjunctiva of
both eyes."
The deceased's five brothers and sisters filed an action for damages against Mercedes M. Teague as
owner and operator of Realistic Institute. The Court of First Instance of Manila found for the
defendant and dismissed the case. The plaintiffs thereupon appealed to the Court of Appeals, which
by a divided vote of 3 to 2 (a special division of five members having been constituted) rendered a
judgment of reversal and sentenced the defendant to pay damages to the plaintiffs in the sum of
P11,000.00, plus interest at the legal rate from the date the complaint was filed.
The case came up to this Court on a petition for review filed by the defendant below.
The decision of the appellate court declared that the defendant, hereinafter to be referred to as the
petitioner, was negligent and that such negligence was the proximate cause of the death of Lourdes
Fernandez. This finding of negligence is based primarily on the fact that the provision of Section 491
Of the Revised Ordinances of the City of Manila had not been complied with in connection with the
construction and use of the Gil-Armi building where the petitioner's vocational school was housed.
This provision reads as follows:
Sec. 491. Firepro of partitions, exits and stairways. ... All buildings and separate sections of
buildings or buildings otherwise known as accessorias having less than three stories, having one or
more persons domiciled therein either temporarily or permanently, and all public or quasi-public
buildings having less than three stories, such as hospitals, sanitarium, schools, reformatories, places

of human detention, assembly halls, clubs, restaurants or panciterias, and the like, shall be provided
with at least two unobstructed stairways of not less than one meter and twenty centimeters in
width and an inclination of not less than forty degrees from the perpendicular, in case of large
buildings more than two stairways shall likewise be provided when required by the chief of the fire
department, said stairways shall be placed as far apart as possible.
The alleged violation of the ordinance above-quoted consisted in the fact that the second storey of
the Gil-Armi building had only one stairway, 1.5 meters wide, instead of two of at least 1.2 meters
each, although at the time of the fire the owner of the building had a second stairway under
construction.
In ruling that such non-compliance with the City Ordinances was an act of negligence and that such
negligence was the proximate cause of the death of Lourdes Fernandez, reliance is based on a
number of authorities in the American jurisdiction, thus: .
The mere fact of violation of a statute is not sufficient basis for an inference that such violation was
the proximate cause of the injury complained. However, if the very injury has happened which was
intended to be prevented by the statute, it has been held that violation of the statute will be deemed
to be proximate cause of the injury. (65 C.J.S. 1156).
The generally accepted view is that violation of a statutory duty constitutes negligence, negligence
as a matter or law, or, according to the decisions on the question, negligence per se for the reason
that non-observance of what the legislature has prescribed as a suitable precaution is failure to
observe that care which an ordinarily prudent man would observe, and, when the state regards
certain acts as so liable to injure others as to justify their absolute prohibition, doing the forbidden
act is a breach of duty with respect to those who may be injured thereby; or, as it has been
otherwise expressed, when the standard of care is fixed by law, failure to conform to such standard
is negligence, negligence per se or negligence in and of itself, in the absence of a legal
excuse. According to this view it is immaterial, where a statute has been violated, whether the act or
omission constituting such violation would have been regarded as negligence in the absence of any
statute on the subject or whether there was, as a matter of fact, any reason to anticipate that injury
would result from such violation. .... (65 C.J.S. pp. 623-628).
But the existence of an ordinance changes the situation. If a driver causes an accident by exceeding
the speed limit, for example, do not inquire whether his prohibited conduct was unreasonably
dangerous. It is enough that it was prohibited. Violation of an ordinance intended to promote safety
is negligence. If by creating the hazard which the ordinance was intended to avoid it brings about
the harm which the ordinance was intended to prevent, it is a legal cause of the harm. This comes
only to saying that in such circumstances the law has no reason to ignore the causal relation which
obviously exists in fact. The law has excellent reason to recognize it, since it is the very relation
which the makers of the ordinance anticipated. This court has applied these principles to speed
limits and other regulations of the manner of driving. (Ross vs. Hartman, 139 Fed. 2d 14 at 15).
... However, the fact that other happenings causing or contributing toward an injury intervened
between the violation of a statute or ordinance and the injury does not necessarily make the result
so remote that no action can be maintained. The test is to be found not in the number of
intervening events or agents, but in their character and in the natural and probable connection
between the wrong done and the injurious consequence. The general principle is that the violation
of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of
another agency if the occurrence of the accident, in the manner in which it happened, was the very
thing which the statute or ordinance was intended to Prevent. (38 Am Jur 841).
The petitioner has raised a number of issues. The first is that Section 491 of the Revised Ordinances
of the City of Manila refers to public buildings and hence did not apply to the Gil-Armi building
which was of private ownership. It will be noted from the text of the ordinance, however, that it is
not ownership which determines the character of buildings subject to its requirements, but rather
the use or the purpose for which a particular building is utilized. Thus the same may be privately
owned, but if it is devoted to any one of the purposes mentioned in the ordinance for instance as
a school, which the Realistic Institute precisely was then the building is within the coverage of
the ordinance. Indeed the requirement that such a building should have two (2) separate stairways

instead of only one (1) has no relevance or reasonable relation to the fact of ownership, but does
have such relation to the use or purpose for which the building is devoted.
It is next contended that the obligation to comply with the ordinance devolved upon the owners of
the building and therefore it is they and not the petitioner herein, who is a mere lessee, who should
be liable for the violation. The contention ignores the fact that it was the use of the building for
school purposes which brought the same within the coverage of the ordinance; and it was the
petitioner and not the owners who was responsible for such use.
The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to comply
with the requirement of the ordinance was the proximate cause of the death of Lourdes Fernandez.
The case ofVillanueva Vda. de Bataclan, et al. vs. Medina, G. R. No. L-10126, October 22, 1957, is
cited in support of the contention that such failure was not the proximate cause. It is there stated
by this Court:
The proximate legal cause is that acting first and producing the injury, either immediately or by
settling other events in motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor, the final event in the chain
immediately affecting the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event should, as an ordinarily
prudent and intelligent person, have reasonable ground to expect at the moment of his act or
default that an injury to some person might probably result therefrom.
Having in view the decision just quoted, the petitioner relates the chain of events that resulted in
the death of Lourdes Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring place;
(3) shouts of "Fire!, Fire!"; (4) panic in the Institute; (5) stampede; and (6) injuries and death.
As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all, and
cannot be the basis of liability since there intervened a number of independent causes which
produced the injury complained of. A statement of the doctrine relied upon is found in Manila
Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court, citing Corpus Juris said:
A prior and remote cause cannot be made the basis of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made possible,
if there intervened between such prior or remote cause and the injury a distinct, successive
unrelated, and efficient cause of the injury, even though such injury would not have happened but
for such condition or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an independent negligent
act or defective condition sets into operation the circumstances which result in injury because of
the prior defective condition, such subsequent act or condition is the proximate cause. (45 C.J. p.
931.)
According to the petitioner "the events of fire, panic and stampede were independent causes with
no causal connection at all with the violation of the ordinance." The weakness in the argument
springs from a faulty juxtaposition of the events which formed a chain and resulted in the injury. It
is true that the petitioner's non-compliance with the ordinance in question was ahead of and prior
to the other events in point of time, in the sense that it was coetaneous with its occupancy of the
building. But the violation was a continuing one, since the ordinance was a measure of safety
designed to prevent a specific situation which would pose a danger to the occupants of the building.
That situation was undue overcrowding in case it should become necessary to evacuate the
building, which, it could be reasonably foreseen, was bound to happen under emergency conditions
if there was only one stairway available. It is true that in this particular case there would have been
no overcrowding in the single stairway if there had not been a fire in the neighborhood which
caused the students to panic and rush headlong for the stairs in order to go down. But it was
precisely such contingencies or event that the authors of the ordinance had in mind, for under
normal conditions one stairway would be adequate for the occupants of the building. Thus, as
stated in 38 American Jurisprudence, page 841: "The general principle is that the violation of a
statute or ordinance is not rendered remote as the cause of an injury by the intervention of another
agency if the occurrence of the accident, in the manner in which it happened, was the very thing
which the statute or ordinance was intended to prevent." To consider the violation of the ordinance

as the proximate cause of the injury does not portray the situation in its true perspective; it would
be more accurate to say that the overcrowding at the stairway was the proximate cause and that it
was precisely what the ordinance intended to prevent by requiring that there be two stairways
instead of only one. Under the doctrine of the cases cited by the respondents, the principle of
proximate cause applies to such violation.
A procedural point mentioned by the petitioner is that the complaint did not specifically allege that
the ordinance in question had been violated. The violation, however, as an act of negligence which
gave rise to liability, was sufficiently comprehended within paragraph 7 of the complaint, which
reads: .
Par. 7. That the death of Lourdes Fernandez was due to the gross negligence of the defendant who
failed to exercise due care and diligence for the safety of its students in not providing the building
with adequate fire exits and in not practicing fire drill exercises to avoid the stampede, aside from
the fact that the defendant did not have a permit to use the building as a school-house.
The decision appealed from is affirmed, with costs.
G.R. No. 72964 January 7, 1988
FILOMENO URBANO, petitioner, vs. HON. INTERMEDIATE APPELLATE COURT AND PEOPLE OF THE
PHILIPPINES, respondents.
This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the
decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urban guilty
beyond reasonable doubt of the crime of homicide.
The records disclose the following facts of the case.
At about 8:00 o'clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his
ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the
tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with
water coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated
portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting
grass. He asked them who was responsible for the opening of the irrigation canal and Javier
admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked
palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including
the handle, by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was
used in parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was
overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of
said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his
daughter embraced and prevented him from hacking Javier.
Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about
50 meters away from where the incident happened. Emilio then went to the house of Barangay
Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis
instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San
Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The
group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to
Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available
medicine.
After Javier was treated by Dr. Meneses, he and his companions returned to Dr. Guillermo Padilla
who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit "C"
dated September 28, 1981) which reads:
TO WHOM IT MAY CONCERN:
This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married,
residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the
following:
1 -Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right.

As to my observation the incapacitation is from (7-9) days period. This wound was presented to me
only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original
Records)
Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences.
Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980,
the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable
settlement. Patrolman Torio recorded the event in the police blotter (Exhibit A), to wit:
xxx xxx xxx
Entry Nr 599/27 Oct '80/103OH/ Re entry Nr 592 on page 257 both parties appeared before this
Station accompanied by brgy. councilman Felipe Solis and settled their case amicably, for they are
neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to
Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to
him and to this Office that this will never be repeated anymore and not to harbour any grudge
against each other. (p. 87, Original Records.)
Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional
P300.00 was given to Javier at Urbano's house in the presence of barangay captain Soliven.
At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a
very serious condition. When admitted to the hospital, Javier had lockjaw and was having
convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter's serious
condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier's palm
which could have been infected by tetanus.
On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr.
Exconde are as follows:
Date Diagnosis
11-14-80 ADMITTED due to trismus
adm. at DX TETANUS
1:30 AM Still having frequent muscle spasm. With diffi#35, 421 culty opening his mouth. Restless at times. Febrile
11-15-80 Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm.
02 inhalation administered. Ambo bag resuscitation and cardiac massage done but to no avail.
Pronounced dead by Dra. Cabugao at 4:18 P.M.
PMC done and cadaver brought home by relatives. (p. 100, Original Records)
In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide
before the then Circuit Criminal Court of Dagupan City, Third Judicial District.
Upon arraignment, Urbano pleaded "not guilty." After trial, the trial court found Urbano guilty as
charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS
of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY
of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs
of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case
of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in
Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty.
The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the
award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant.
The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was
based on an affidavit of Barangay Captain Menardo Soliven (Annex "A") which states:
That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the
present having been re-elected to such position in the last barangay elections on May 17, 1982;
That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan
and other places of Central Luzon including San Fabian, a town of said province;

That during the typhoon, the sluice or control gates of the Bued irrigation dam which irrigates the
ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the
canals and ditches were regulated and reduced;
That due to the locking of the sluice or control gates of the dam leading to the canals and ditches
which will bring water to the ricefields, the water in said canals and ditches became shallow which
was suitable for catching mudfishes;
That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto
Jaravata;
That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching
fish in the shallow irrigation canals with some companions;
That few days there after,or on November l5, l980, I came to know that said Marcelo Javier died of
tetanus. (p. 33, Rollo)
The motion was denied. Hence, this petition.
In a resolution dated July 16, 1986, we gave due course to the petition.
The case involves the application of Article 4 of the Revised Penal Code which provides that
"Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the
wrongful act done be different from that which he intended ..." Pursuant to this provision "an
accused is criminally responsible for acts committed by him in violation of law and for all the natural
and logical consequences resulting therefrom." (People v. Cardenas, 56 SCRA 631).
The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of
which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which
was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition
and that on the following day, November 15, 1981, he died from tetanus.
Under these circumstances, the lower courts ruled that Javier's death was the natural and logical
consequence of Urbano's unlawful act. Hence, he was declared responsible for Javier's death. Thus,
the appellate court said:
The claim of appellant that there was an efficient cause which supervened from the time the
deceased was wounded to the time of his death, which covers a period of 23 days does not deserve
serious consideration. True, that the deceased did not die right away from his wound, but the cause
of his death was due to said wound which was inflicted by the appellant. Said wound which was in
the process of healing got infected with tetanus which ultimately caused his death.
Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw
because of the infection of the wound with tetanus. And there is no other way by which he could be
infected with tetanus except through the wound in his palm (tsn., p. 78, Oct. 5, 1981).
Consequently, the proximate cause of the victim's death was the wound which got infected with
tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences
of his unlawful act. (Article 4, par. 1, R.P.C. People v. Red, CA 43 O.G. 5072; People v. Cornel 78 Phil.
418).
Appellant's allegation that the proximate cause of the victim's death was due to his own negligence
in going back to work without his wound being properly healed, and lately, that he went to catch
fish in dirty irrigation canals in the first week of November, 1980, is an afterthought, and a
desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound
had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work
with a disabled hand. (pp. 20-21, Rollo)
The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was
due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier
got infected with tetanus when after two weeks he returned to his farm and tended his tobacco
plants with his bare hands exposing the wound to harmful elements like tetanus germs.
The evidence on record does not clearly show that the wound inflicted by Urbano was infected with
tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound,
which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow
got infected with tetanus However, as to when the wound was infected is not clear from the record.

In Vda. de Bataclan, et al. v. Medina (102 Phil. 1181), we adopted the following definition of
proximate cause:
xxx xxx xxx
... A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American
Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows:
... "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred."And more
comprehensively, "the proximate legal cause is that acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate predecessor, the final event in the
chain immediately effecting the injury as a natural and probable result of the cause which first
acted, under such circumstances that the person responsible for the first event should, as an
ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his
act or default that an injury to some person might probably result therefrom." (at pp. 185-186)
The issue, therefore, hinges on whether or not there was an efficient intervening cause from the
time Javier was wounded until his death which would exculpate Urbano from any liability for
Javier's death.
We look into the nature of tetanusThe incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable
symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic
within 14 days. A short incubation period indicates severe disease, and when symptoms occur within
2 or 3 days of injury the mortality rate approaches 100 percent.
Non-specific premonitory symptoms such as restlessness, irritability, and headache are
encountered occasionally, but the commonest presenting complaints are pain and stiffness in the
jaw, abdomen, or back and difficulty swallowing. As the progresses, stiffness gives way to rigidity,
and patients often complain of difficulty opening their mouths. In fact, trismus in the commonest
manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more
muscles are involved, rigidity becomes generalized, and sustained contractions called risus
sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small
proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast
majority, however, most muscles are involved to some degree, and the signs and symptoms
encountered depend upon the major muscle groups affected.
Reflex spasm usually occur within 24 to 72 hours of the first symptom, an interval referred to as the
onset time. As in the case of the incubation period, a short onset time is associated with a poor
prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery,
which increases rigidity and causes simultaneous and excessive contraction of muscles and their
antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or
inapparent stimuli produce more intense and longer lasting spasms with increasing frequency.
Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which
prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage
and death.
Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more
than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief
and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time;
trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate
even during spasms. The criteria for severe tetanus include a short incubation time, and an onset
time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized
convulsive spasms. (Harrison's Principle of Internal Medicine, 1983 Edition, pp. 1004-1005;
Emphasis supplied)
Therefore, medically speaking, the reaction to tetanus found inside a man's body depends on the
incubation period of the disease.
In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo
which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or

on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The
following day, November 15, 1980, he died.
If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at
the time, it is more medically probable that Javier should have been infected with only a mild cause
of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident
or more than 14 days after the infliction of the wound. Therefore, the onset time should have been
more than six days. Javier, however, died on the second day from the onset time. The more credible
conclusion is that at the time Javier's wound was inflicted by the appellant, the severe form of
tetanus that killed him was not yet present. Consequently, Javier's wound could have been infected
with tetanus after the hacking incident. Considering the circumstance surrounding Javier's death,
his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died.
The rule is that the death of the victim must be the direct, natural, and logical consequence of the
wounds inflicted upon him by the accused. (People v. Cardenas, supra) And since we are dealing
with a criminal conviction, the proof that the accused caused the victim's death must convince a
rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct
possibility that the infection of the wound by tetanus was an efficient intervening cause later or
between the time Javier was wounded to the time of his death. The infection was, therefore,
distinct and foreign to the crime. (People v. Rellin, 77 Phil. 1038).
Doubts are present. There is a likelihood that the wound was but the remote cause and its
subsequent infection, for failure to take necessary precautions, with tetanus may have been
the proximate cause of Javier's death with which the petitioner had nothing to do. As we ruled
in Manila Electric Co. v. Remoquillo, et al. (99 Phil. 118).
"A prior and remote cause cannot be made the be of an action if such remote cause did nothing
more than furnish the condition or give rise to the occasion by which the injury was made possible,
if there intervened between such prior or remote cause and the injury a distinct, successive,
unrelated, and efficient cause of the injury, even though such injury would not have happened but
for such condition or occasion. If no danger existed in the condition except because of the
independent cause, such condition was not the proximate cause. And if an independent negligent
act or defective condition sets into operation the instances which result in injury because of the
prior defective condition, such subsequent act or condition is the proximate cause." (45 C.J. pp. 931932). (at p. 125)
It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very
least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner's
criminal liability in this respect was wiped out by the victim's own act. After the hacking incident,
Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement
where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement
of minor offenses is allowed under the express provisions of Presidential Decree G.R. No. 1508,
Section 2(3). (See also People v. Caruncho, 127 SCRA 16).
We must stress, however, that our discussion of proximate cause and remote cause is limited to the
criminal aspects of this rather unusual case. It does not necessarily follow that the petitioner is also
free of civil liability. The well-settled doctrine is that a person, while not criminally liable, may still
be civilly liable. Thus, in the recent case of People v. Rogelio Ligon y Tria, et al. (G.R. No. 74041, July
29, 1987), we said:
xxx xxx xxx
... While the guilt of the accused in a criminal prosecution must be established beyond reasonable
doubt, only a preponderance of evidence is required in a civil action for damages. (Article 29, Civil
Code). The judgment of acquittal extinguishes the civil liability of the accused only when it includes
a declaration that the facts from which the civil liability might arise did not exist. (Padilla v. Court of
Appeals, 129 SCRA 559).
The reason for the provisions of article 29 of the Civil Code, which provides that the acquittal of the
accused on the ground that his guilt has not been proved beyond reasonable doubt does not
necessarily exempt him from civil liability for the same act or omission, has been explained by the
Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is
one of the most serious flaws in the Philippine legal system. It has given use to numberless
instances of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind
of the court as to the guilt of the accused. The reasoning followed is that inasmuch as the civil
responsibility is derived from the criminal offense, when the latter is not proved, civil liability cannot
be demanded.
This is one of those causes where confused thinking leads to unfortunate and deplorable
consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability
and civil responsibility, and to determine the logical result of the distinction. The two liabilities are
separate and distinct from each other. One affects the social order and the other, private rights.
One is for the punishment or correction of the offender while the other is for reparation of damages
suffered by the aggrieved party. The two responsibilities are so different from each other that
article 1813 of the present (Spanish) Civil Code reads thus: "There may be a compromise upon the
civil action arising from a crime; but the public action for the imposition of the legal penalty shall
not thereby be extinguished." It is just and proper that, for the purposes of the imprisonment of or
fine upon the accused, the offense should be proved beyond reasonable doubt. But for the purpose
of indemnity the complaining party, why should the offense also be proved beyond reasonable
doubt? Is not the invasion or violation of every private right to be proved only by a preponderance
of evidence? Is the right of the aggrieved person any less private because the wrongful act is also
punishable by the criminal law?
"For these reasons, the Commission recommends the adoption of the reform under discussion. It
will correct a serious defect in our law. It will close up an inexhaustible source of injustice-a cause
for disillusionment on the part of the innumerable persons injured or wronged."
The respondent court increased the P12,000.00 indemnification imposed by the trial court to
P30,000.00. However, since the indemnification was based solely on the finding of guilt beyond
reasonable doubt in the homicide case, the civil liability of the petitioner was not thoroughly
examined. This aspect of the case calls for fuller development if the heirs of the victim are so
minded.
WHEREFORE, the instant petition is hereby GRANTED. The questioned decision of the then
Intermediate Appellate Court, now Court of Appeals, is REVERSED and SET ASIDE. The petitioner is
ACQUITTED of the crime of homicide. Costs de oficio.
SO ORDERED.
G.R. No. L-15688
November 19, 1921
REMIGIO
RODRIGUEZ,
ET
AL., plaintiffs-appellees,
COMPANY, defendant-appellant.

vs.THE

MANILA

RAILROAD

This action was instituted jointly by Remigio Rodrigueza and three others in the Court of First
Instance of the Province of Albay to recover a sum of money of the Manila Railroad Company as
damages resulting from a fire kindled by sparks from a locomotive engine under the circumstances
set out below. Upon hearing the cause upon the complaint, answer and an agreed statement of
facts, the trial judge rendered judgment against the defendant company in favor of the plaintiffs
and awarded to them the following sums respectively as damages, to wit, (1) to Remigio
Rodrigueza, P3,000; (2) to Domingo Gonzaga, P400; (3) to Cristina Luna, P300; and (4) to Perfecta
Losantas, P150; all with lawful interest from March 21, 1919. From this judgment the defendant
appealed.
The facts as appearing from the agreed statement, in relation with the complaint, are to the effect
that the defendant Railroad Company operates a line through the district of Daraga in the
municipality of Albay; that on January 29, 1918, as one of its trains passed over said line, a great
quantity of sparks were emitted from the smokestack of the locomotive, and fire was thereby
communicated to four houses nearby belonging to the four plaintiffs respectively, and the same
were entirely consumed. All of these houses were of light construction with the exception of the
house of Remigio Rodrigueza, which was of strong materials, though the roof was covered with nipa

and cogon. The fire occurred immediately after the passage of the train, and a strong wind was
blowing at the time. It does not appear either in the complaint or in the agreed statement whose
house caught fire first, though it is stated in the appellant's brief that the fire was first
communicated to the house of Remigio Rodrigueza, from whence it spread to the others.
In the fourth paragraph of the complaint which is admitted to be true it is alleged that the
defendant Railroad Company was conspicuously negligent in relation to the origin of said fire, in the
following respects, namely, first, in failing to exercise proper supervision over the employees in
charge of the locomotive; secondly, in allowing the locomotive which emitted these sparks to be
operated without having the smokestack protected by some device for arresting sparks; thirdly, in
using in its locomotive upon this occasion Bataan coal, a fuel of known inferior quality which, upon
combustion, produces sparks in great quantity.
The sole ground upon which the defense is rested is that the house of Remigio Rodrigueza stood
partly within the limits of the land owned by the defendant company, though exactly how far away
from the company's track does not appear. It further appears that, after the railroad track was laid,
the company notified Rodrigueza to get his house off the land of the company and to remove it
from its exposed position. Rodrigueza did not comply with this suggestion, though he promised to
put an iron roof on his house, which he never did. Instead, he changed the materials of the main
roof to nipa, leaving the kitchen and media-aguas covered with cogon. Upon this fact it is
contended for the defense that there was contributory negligence on the part of Remigio
Rodrigueza in having his house partly on the premises of the Railroad Company, and that for this
reason the company is not liable. This position is in our opinion untenable for the reasons which we
shall proceed to state.
In the first place, it will be noted that the fact suggested as constituting a defense to this action
could not in any view of the case operate as a bar to recovery by the three plaintiffs other than
Remigio Rodrigueza, even assuming that the fire was first communicated to his house; for said three
plaintiffs are in nowise implicated in the act which supposedly constitutes the defense. In this
connection it will be observed that the right of action of each of these plaintiffs is totally distinct
from that of his co-plaintiff, so much so that each might have sued separately, and the defendant if
it had seen fit to do so, might in this case have demurred successfully to the complaint for
misjoinder of parties plaintiff. The fact that the several rights of action of the different plaintiffs
arose simultaneously out of one act of the defendant is not sufficient of itself to require, or even
permit, the joinder of such parties as coplaintiffs in a single action (30 Cyc., 114) if objection had
been made thereto. Domingo Gonzaga, Cristina Luna, and Perfecta Losantas are therefore entitled
to recover upon the admitted fact that this fire originated in the negligent acts of the defendant;
and the circumstance that the fire may have been communicated to their houses through the house
of Remegio Rodrigueza, instead of having been directly communicated from the locomotive, is
immaterial. (See 38 Am. Dec., 64, 77; 1 11 R. C. L., 968-971; Kansas City, etc. Railroad Co. vs. Blaker,
64 L. R. A., 81 Pennsylvania Railroad Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep. 100.)
With respect to the case of Remegio Rodrigueza it is to be inferred that his house stood upon this
ground before the Railroad Company laid its line over this course; and at any rate there is no proof
that this plaintiff had unlawfully intruded upon the railroad's property in the act of building his
house. What really occurred undoubtedly is that the company, upon making this extension, had
acquired the land only, leaving the owner of the house free to remove it. Hence he cannot be
considered to have been a trespasser in the beginning. Rather, he was there at the sufferance of the
defendant company, and so long as his house remained in this exposed position, he undoubtedly
assumed the risk of any loss that might have resulted from fires occasioned by the defendant's
locomotives if operated and managed with ordinary care. But he cannot be held to have assumed
the risk of any damage that might result from the unlawful negligence acts of the defendant.
Nobody is bound to anticipate and defend himself against the possible negligence of another.
Rather he has a right to assume that the other will use the care of the ordinary prudent man.
(Philadelphia and Reading Railroad Co. vs. Hendrickson, 80 Pa. St., 182; 21 Am. Rep., 97.)
In the situation now under consideration the proximate and only cause of the damage that occurred
was the negligent act of the defendant in causing this fire. The circumstance that Remigio

Rodrigueza's house was partly on the property of the defendant company and therefore in
dangerous proximity to passing locomotives was an antecedent condition that may in fact have
made the disaster possible, but that circumstance cannot be imputed to him as contributory
negligence destructive of his right of action, because, first, that condition was not created by
himself; secondly, because his house remained on this ground by the toleration, and therefore with
the consent of the Railroad Company; and thirdly, because even supposing the house to be
improperly there, this fact would not justify the defendant in negligently destroying it. (Grand Trunk
Railway of Canada vs. Richardson, 91 U. S., 454; 23 L. ed., 356; Norfolk etc. Ry. Co. vs. Perrow, 101
Va., 345, 350.)lawphil.net
The circumstance that the defendant company, upon planting its line near Remigio Rodrigueza's
house, had requested or directed him to remove it, did not convert his occupancy into a trespass, or
impose upon him any additional responsibility over and above what the law itself imposes in such
situation. In this connection it must be remembered that the company could at any time have
removed said house in the exercise of the power of eminent domain, but it elected not to do so.
Questions similar to that now before us have been under the consideration of American courts
many times, and their decisions are found to be uniformly favorable to recovery where the property
destroyed has been placed in whole or in part on the right of way of the railroad company with its
express or implied consent. (L. R. Martin Timber Co. vs. Great Northern Railway Co., 123 Minn., 423;
Ann. Cas., 1915A, p. 496, note; Burroughs vs.Housatonic R.R. Co., 15 Conn., 124; 38 Am. Dec., 64;
74; Southern Ry. Co. vs. Patterson, 105 Va. 6; 8 Ann. Cas., 44.) And the case for the plaintiff is
apparently stronger where the company constructs its line in proximity to a house already built and
fails to condemn it and remove it from its right of way.
From what has been said it is apparent that the judgment appealed from is in all respect in
conformity with the law, and the same is accordingly affirmed, with costs. So ordered.
G.R. No. L-47851 October 3, 1986
JUAN F. NAKPIL & SONS, and JUAN F. NAKPIL, petitioners, vs. THE COURT OF APPEALS, UNITED
CONSTRUCTION COMPANY, INC., JUAN J. CARLOS, and the PHILIPPINE BAR
ASSOCIATION, respondents.
These are petitions for review on certiorari of the November 28, 1977 decision of the Court of
Appeals in CA-G.R. No. 51771-R modifying the decision of the Court of First Instance of Manila,
Branch V, in Civil Case No. 74958 dated September 21, 1971 as modified by the Order of the lower
court dated December 8, 1971. The Court of Appeals in modifying the decision of the lower court
included an award of an additional amount of P200,000.00 to the Philippine Bar Association to be
paid jointly and severally by the defendant United Construction Co. and by the third-party
defendants Juan F. Nakpil and Sons and Juan F. Nakpil.
The dispositive portion of the modified decision of the lower court reads:
WHEREFORE, judgment is hereby rendered:
(a) Ordering defendant United Construction Co., Inc. and third-party defendants (except Roman
Ozaeta) to pay the plaintiff, jointly and severally, the sum of P989,335.68 with interest at the legal
rate from November 29, 1968, the date of the filing of the complaint until full payment;
(b) Dismissing the complaint with respect to defendant Juan J. Carlos;
(c) Dismissing the third-party complaint;
(d) Dismissing the defendant's and third-party defendants' counterclaims for lack of merit;
(e) Ordering defendant United Construction Co., Inc. and third-party defendants (except Roman
Ozaeta) to pay the costs in equal shares.
SO ORDERED. (Record on Appeal p. 521; Rollo, L- 47851, p. 169).
The dispositive portion of the decision of the Court of Appeals reads:
WHEREFORE, the judgment appealed from is modified to include an award of P200,000.00 in favor
of plaintiff-appellant Philippine Bar Association, with interest at the legal rate from November 29,
1968 until full payment to be paid jointly and severally by defendant United Construction Co., Inc.
and third party defendants (except Roman Ozaeta). In all other respects, the judgment dated

September 21, 1971 as modified in the December 8, 1971 Order of the lower court is hereby
affirmed with COSTS to be paid by the defendant and third party defendant (except Roman Ozaeta)
in equal shares.
SO ORDERED.
Petitioners Juan F. Nakpil & Sons in L-47851 and United Construction Co., Inc. and Juan J. Carlos in L47863 seek the reversal of the decision of the Court of Appeals, among other things, for
exoneration from liability while petitioner Philippine Bar Association in L-47896 seeks the
modification of aforesaid decision to obtain an award of P1,830,000.00 for the loss of the PBA
building plus four (4) times such amount as damages resulting in increased cost of the building,
P100,000.00 as exemplary damages; and P100,000.00 as attorney's fees.
These petitions arising from the same case filed in the Court of First Instance of Manila were
consolidated by this Court in the resolution of May 10, 1978 requiring the respective respondents to
comment. (Rollo, L-47851, p. 172).
The facts as found by the lower court (Decision, C.C. No. 74958; Record on Appeal, pp. 269-348; pp.
520-521; Rollo, L-47851, p. 169) and affirmed by the Court of Appeals are as follows:
The plaintiff, Philippine Bar Association, a civic-non-profit association, incorporated under the
Corporation Law, decided to construct an office building on its 840 square meters lot located at the
comer of Aduana and Arzobispo Streets, Intramuros, Manila. The construction was undertaken by
the United Construction, Inc. on an "administration" basis, on the suggestion of Juan J. Carlos, the
president and general manager of said corporation. The proposal was approved by plaintiff's board
of directors and signed by its president Roman Ozaeta, a third-party defendant in this case. The
plans and specifications for the building were prepared by the other third-party defendants Juan F.
Nakpil & Sons. The building was completed in June, 1966.
In the early morning of August 2, 1968 an unusually strong earthquake hit Manila and its environs
and the building in question sustained major damage. The front columns of the building buckled,
causing the building to tilt forward dangerously. The tenants vacated the building in view of its
precarious condition. As a temporary remedial measure, the building was shored up by United
Construction, Inc. at the cost of P13,661.28.
On November 29, 1968, the plaintiff commenced this action for the recovery of damages arising
from the partial collapse of the building against United Construction, Inc. and its President and
General Manager Juan J. Carlos as defendants. Plaintiff alleges that the collapse of the building was
accused by defects in the construction, the failure of the contractors to follow plans and
specifications and violations by the defendants of the terms of the contract.
Defendants in turn filed a third-party complaint against the architects who prepared the plans and
specifications, alleging in essence that the collapse of the building was due to the defects in the said
plans and specifications. Roman Ozaeta, the then president of the plaintiff Bar Association was
included as a third-party defendant for damages for having included Juan J. Carlos, President of the
United Construction Co., Inc. as party defendant.
On March 3, 1969, the plaintiff and third-party defendants Juan F. Nakpil & Sons and Juan F. Nakpil
presented a written stipulation which reads:
1. That in relation to defendants' answer with counterclaims and third- party complaints and the
third-party defendants Nakpil & Sons' answer thereto, the plaintiff need not amend its complaint by
including the said Juan F. Nakpil & Sons and Juan F. Nakpil personally as parties defendant.
2. That in the event (unexpected by the undersigned) that the Court should find after the trial that
the above-named defendants Juan J. Carlos and United Construction Co., Inc. are free from any
blame and liability for the collapse of the PBA Building, and should further find that the collapse of
said building was due to defects and/or inadequacy of the plans, designs, and specifications p by the
third-party defendants, or in the event that the Court may find Juan F. Nakpil and Sons and/or Juan
F. Nakpil contributorily negligent or in any way jointly and solidarily liable with the defendants,
judgment may be rendered in whole or in part. as the case may be, against Juan F. Nakpil & Sons
and/or Juan F. Nakpil in favor of the plaintiff to all intents and purposes as if plaintiff's complaint
has been duly amended by including the said Juan F. Nakpil & Sons and Juan F. Nakpil as parties
defendant and by alleging causes of action against them including, among others, the defects or

inadequacy of the plans, designs, and specifications prepared by them and/or failure in the
performance of their contract with plaintiff.
3. Both parties hereby jointly petition this Honorable Court to approve this stipulation. (Record on
Appeal, pp. 274-275; Rollo, L-47851,p.169).
Upon the issues being joined, a pre-trial was conducted on March 7, 1969, during which among
others, the parties agreed to refer the technical issues involved in the case to a Commissioner. Mr.
Andres O. Hizon, who was ultimately appointed by the trial court, assumed his office as
Commissioner, charged with the duty to try the following issues:
1. Whether the damage sustained by the PBA building during the August 2, 1968 earthquake had
been caused, directly or indirectly, by:
(a) The inadequacies or defects in the plans and specifications prepared by third-party defendants;
(b) The deviations, if any, made by the defendants from said plans and specifications and how said
deviations contributed to the damage sustained;
(c) The alleged failure of defendants to observe the requisite quality of materials and workmanship
in the construction of the building;
(d) The alleged failure to exercise the requisite degree of supervision expected of the architect, the
contractor and/or the owner of the building;
(e) An act of God or a fortuitous event; and
(f) Any other cause not herein above specified.
2. If the cause of the damage suffered by the building arose from a combination of the aboveenumerated factors, the degree or proportion in which each individual factor contributed to the
damage sustained;
3. Whether the building is now a total loss and should be completely demolished or whether it may
still be repaired and restored to a tenantable condition. In the latter case, the determination of the
cost of such restoration or repair, and the value of any remaining construction, such as the
foundation, which may still be utilized or availed of (Record on Appeal, pp. 275-276; Rollo, L-47851,
p. 169).
Thus, the issues of this case were divided into technical issues and non-technical issues. As
aforestated the technical issues were referred to the Commissioner. The non-technical issues were
tried by the Court.
Meanwhile, plaintiff moved twice for the demolition of the building on the ground that it may
topple down in case of a strong earthquake. The motions were opposed by the defendants and the
matter was referred to the Commissioner. Finally, on April 30, 1979 the building was authorized to
be demolished at the expense of the plaintiff, but not another earthquake of high intensity on April
7, 1970 followed by other strong earthquakes on April 9, and 12, 1970, caused further damage to
the property. The actual demolition was undertaken by the buyer of the damaged building. (Record
on Appeal, pp. 278-280; Ibid.)
After the protracted hearings, the Commissioner eventually submitted his report on September 25,
1970 with the findings that while the damage sustained by the PBA building was caused directly by
the August 2, 1968 earthquake whose magnitude was estimated at 7.3 they were also caused by the
defects in the plans and specifications prepared by the third-party defendants' architects,
deviations from said plans and specifications by the defendant contractors and failure of the latter
to observe the requisite workmanship in the construction of the building and of the contractors,
architects and even the owners to exercise the requisite degree of supervision in the construction
of subject building.
All the parties registered their objections to aforesaid findings which in turn were answered by the
Commissioner.
The trial court agreed with the findings of the Commissioner except as to the holding that the
owner is charged with full nine supervision of the construction. The Court sees no legal or
contractual basis for such conclusion. (Record on Appeal, pp. 309-328; Ibid).
Thus, on September 21, 1971, the lower court rendered the assailed decision which was modified
by the Intermediate Appellate Court on November 28, 1977.

All the parties herein appealed from the decision of the Intermediate Appellate Court. Hence, these
petitions.
On May 11, 1978, the United Architects of the Philippines, the Association of Civil Engineers, and
the Philippine Institute of Architects filed with the Court a motion to intervene as amicus
curiae. They proposed to present a position paper on the liability of architects when a building
collapses and to submit likewise a critical analysis with computations on the divergent views on the
design and plans as submitted by the experts procured by the parties. The motion having been
granted, the amicus curiaewere granted a period of 60 days within which to submit their position.
After the parties had all filed their comments, We gave due course to the petitions in Our
Resolution of July 21, 1978.
The position papers of the amicus curiae (submitted on November 24, 1978) were duly noted.
The amicus curiae gave the opinion that the plans and specifications of the Nakpils were not
defective. But the Commissioner, when asked by Us to comment, reiterated his conclusion that the
defects in the plans and specifications indeed existed.
Using the same authorities availed of by the amicus curiae such as the Manila Code (Ord. No. 4131)
and the 1966 Asep Code, the Commissioner added that even if it can be proved that the defects in
theconstruction alone (and not in the plans and design) caused the damage to the building, still the
deficiency in the original design and jack of specific provisions against torsion in the original plans
and the overload on the ground floor columns (found by an the experts including the original
designer) certainly contributed to the damage which occurred. (Ibid, p. 174).
In their respective briefs petitioners, among others, raised the following assignments of errors:
Philippine Bar Association claimed that the measure of damages should not be limited to
P1,100,000.00 as estimated cost of repairs or to the period of six (6) months for loss of rentals while
United Construction Co., Inc. and the Nakpils claimed that it was an act of God that caused the
failure of the building which should exempt them from responsibility and not the defective
construction, poor workmanship, deviations from plans and specifications and other imperfections
in the case of United Construction Co., Inc. or the deficiencies in the design, plans and specifications
prepared by petitioners in the case of the Nakpils. Both UCCI and the Nakpils object to the payment
of the additional amount of P200,000.00 imposed by the Court of Appeals. UCCI also claimed that it
should be reimbursed the expenses of shoring the building in the amount of P13,661.28 while the
Nakpils opposed the payment of damages jointly and solidarity with UCCI.
The pivotal issue in this case is whether or not an act of God-an unusually strong earthquake-which
caused the failure of the building, exempts from liability, parties who are otherwise liable because
of their negligence.
The applicable law governing the rights and liabilities of the parties herein is Article 1723 of the New
Civil Code, which provides:
Art. 1723. The engineer or architect who drew up the plans and specifications for a building is liable
for damages if within fifteen years from the completion of the structure the same should collapse
by reason of a defect in those plans and specifications, or due to the defects in the ground. The
contractor is likewise responsible for the damage if the edifice fags within the same period on
account of defects in the construction or the use of materials of inferior quality furnished by him, or
due to any violation of the terms of the contract. If the engineer or architect supervises the
construction, he shall be solidarily liable with the contractor.
Acceptance of the building, after completion, does not imply waiver of any of the causes of action
by reason of any defect mentioned in the preceding paragraph.
The action must be brought within ten years following the collapse of the building.
On the other hand, the general rule is that no person shall be responsible for events which could
not be foreseen or which though foreseen, were inevitable (Article 1174, New Civil Code).
An act of God has been defined as an accident, due directly and exclusively to natural causes
without human intervention, which by no amount of foresight, pains or care, reasonably to have
been expected, could have been prevented. (1 Corpus Juris 1174).
There is no dispute that the earthquake of August 2, 1968 is a fortuitous event or an act of God.

To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an
obligation due to an "act of God," the following must concur: (a) the cause of the breach of the
obligation must be independent of the will of the debtor; (b) the event must be either unforseeable
or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill his
obligation in a normal manner; and (d) the debtor must be free from any participation in, or
aggravation of the injury to the creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v.
Consolacion, 71 SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon
Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding
fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation
as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot
escape liability.
The principle embodied in the act of God doctrine strictly requires that the act must be one
occasioned exclusively by the violence of nature and all human agencies are to be excluded from
creating or entering into the cause of the mischief. When the effect, the cause of which is to be
considered, is found to be in part the result of the participation of man, whether it be from active
intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were,
and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).
Thus it has been held that when the negligence of a person concurs with an act of God in producing
a loss, such person is not exempt from liability by showing that the immediate cause of the damage
was the act of God. To be exempt from liability for loss because of an act of God, he must be free
from any previous negligence or misconduct by which that loss or damage may have been
occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379;
Limpangco & Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657).
The negligence of the defendant and the third-party defendants petitioners was established beyond
dispute both in the lower court and in the Intermediate Appellate Court. Defendant United
Construction Co., Inc. was found to have made substantial deviations from the plans and
specifications. and to have failed to observe the requisite workmanship in the construction as well
as to exercise the requisite degree of supervision; while the third-party defendants were found to
have inadequacies or defects in the plans and specifications prepared by them. As correctly
assessed by both courts, the defects in the construction and in the plans and specifications were the
proximate causes that rendered the PBA building unable to withstand the earthquake of August 2,
1968. For this reason the defendant and third-party defendants cannot claim exemption from
liability. (Decision, Court of Appeals, pp. 30-31).
It is well settled that the findings of facts of the Court of Appeals are conclusive on the parties and
on this court (cases cited in Tolentino vs. de Jesus, 56 SCRA 67; Cesar vs. Sandiganbayan, January 17,
1985, 134 SCRA 105, 121), unless (1) the conclusion is a finding grounded entirely on speculation,
surmise and conjectures; (2) the inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on misapprehension of facts; (5) the findings of fact are
conflicting , (6) the Court of Appeals went beyond the issues of the case and its findings are contrary
to the admissions of both appellant and appellees (Ramos vs. Pepsi-Cola Bottling Co., February 8,
1967, 19 SCRA 289, 291-292; Roque vs. Buan, Oct. 31, 1967, 21 SCRA 648, 651); (7) the findings of
facts of the Court of Appeals are contrary to those of the trial court; (8) said findings of facts are
conclusions without citation of specific evidence on which they are based; (9) the facts set forth in
the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents
(Garcia vs. CA, June 30, 1970, 33 SCRA 622; Alsua-Bett vs. Court of Appeals, July 30, 1979, 92 SCRA
322, 366); (10) the finding of fact of the Court of Appeals is premised on the supposed absence of
evidence and is contradicted by evidence on record (Salazar vs. Gutierrez, May 29, 1970, 33 SCRA
243, 247; Cited in G.R. No. 66497-98, Sacay v. Sandiganbayan, July 10, 1986).
It is evident that the case at bar does not fall under any of the exceptions above-mentioned. On the
contrary, the records show that the lower court spared no effort in arriving at the correct
appreciation of facts by the referral of technical issues to a Commissioner chosen by the parties

whose findings and conclusions remained convincingly unrebutted by the intervenors/amicus

curiae who were allowed to intervene in the Supreme Court.
In any event, the relevant and logical observations of the trial court as affirmed by the Court of
Appeals that "while it is not possible to state with certainty that the building would not have
collapsed were those defects not present, the fact remains that several buildings in the same area
withstood the earthquake to which the building of the plaintiff was similarly subjected," cannot be
ignored.
The next issue to be resolved is the amount of damages to be awarded to the PBA for the partial
collapse (and eventual complete collapse) of its building.
The Court of Appeals affirmed the finding of the trial court based on the report of the Commissioner
that the total amount required to repair the PBA building and to restore it to tenantable condition
was P900,000.00 inasmuch as it was not initially a total loss. However, while the trial court awarded
the PBA said amount as damages, plus unrealized rental income for one-half year, the Court of
Appeals modified the amount by awarding in favor of PBA an additional sum of P200,000.00
representing the damage suffered by the PBA building as a result of another earthquake that
occurred on April 7, 1970 (L-47896, Vol. I, p. 92).
The PBA in its brief insists that the proper award should be P1,830,000.00 representing the total
value of the building (L-47896, PBA's No. 1 Assignment of Error, p. 19), while both the NAKPILS and
UNITED question the additional award of P200,000.00 in favor of the PBA (L- 47851, NAKPIL's Brief
as Petitioner, p. 6, UNITED's Brief as Petitioner, p. 25). The PBA further urges that the unrealized
rental income awarded to it should not be limited to a period of one-half year but should be
computed on a continuing basis at the rate of P178,671.76 a year until the judgment for the
principal amount shall have been satisfied L- 47896, PBA's No. 11 Assignment of Errors, p. 19).
The collapse of the PBA building as a result of the August 2, 1968 earthquake was only partial and it
is undisputed that the building could then still be repaired and restored to its tenantable condition.
The PBA, however, in view of its lack of needed funding, was unable, thru no fault of its own, to
have the building repaired. UNITED, on the other hand, spent P13,661.28 to shore up the building
after the August 2, 1968 earthquake (L-47896, CA Decision, p. 46). Because of the earthquake on
April 7, 1970, the trial court after the needed consultations, authorized the total demolition of the
building (L-47896, Vol. 1, pp. 53-54).
There should be no question that the NAKPILS and UNITED are liable for the damage resulting from
the partial and eventual collapse of the PBA building as a result of the earthquakes.
We quote with approval the following from the erudite decision penned by Justice Hugo E.
Gutierrez (now an Associate Justice of the Supreme Court) while still an Associate Justice of the
Court of Appeals:
There is no question that an earthquake and other forces of nature such as cyclones, drought,
floods, lightning, and perils of the sea are acts of God. It does not necessarily follow, however, that
specific losses and suffering resulting from the occurrence of these natural force are also acts of
God. We are not convinced on the basis of the evidence on record that from the thousands of
structures in Manila, God singled out the blameless PBA building in Intramuros and around six or
seven other buildings in various parts of the city for collapse or severe damage and that God alone
was responsible for the damages and losses thus suffered.
The record is replete with evidence of defects and deficiencies in the designs and plans, defective
construction, poor workmanship, deviation from plans and specifications and other imperfections.
These deficiencies are attributable to negligent men and not to a perfect God.
The act-of-God arguments of the defendants- appellants and third party defendants-appellants
presented in their briefs are premised on legal generalizations or speculations and on theological
fatalism both of which ignore the plain facts. The lengthy discussion of United on ordinary
earthquakes and unusually strong earthquakes and on ordinary fortuitous events and extraordinary
fortuitous events leads to its argument that the August 2, 1968 earthquake was of such an
overwhelming and destructive character that by its own force and independent of the particular
negligence alleged, the injury would have been produced. If we follow this line of speculative
reasoning, we will be forced to conclude that under such a situation scores of buildings in the

vicinity and in other parts of Manila would have toppled down. Following the same line of
reasoning, Nakpil and Sons alleges that the designs were adequate in accordance with pre-August 2,
1968 knowledge and appear inadequate only in the light of engineering information acquired after
the earthquake. If this were so, hundreds of ancient buildings which survived the earthquake better
than the two-year old PBA building must have been designed and constructed by architects and
contractors whose knowledge and foresight were unexplainably auspicious and prophetic.
Fortunately, the facts on record allow a more down to earth explanation of the collapse. The failure
of the PBA building, as a unique and distinct construction with no reference or comparison to other
buildings, to weather the severe earthquake forces was traced to design deficiencies and defective
construction, factors which are neither mysterious nor esoteric. The theological allusion of
appellant United that God acts in mysterious ways His wonders to perform impresses us to be
inappropriate. The evidence reveals defects and deficiencies in design and construction. There is no
mystery about these acts of negligence. The collapse of the PBA building was no wonder performed
by God. It was a result of the imperfections in the work of the architects and the people in the
construction company. More relevant to our mind is the lesson from the parable of the wise man in
the Sermon on the Mount "which built his house upon a rock; and the rain descended and the
floods came and the winds blew and beat upon that house; and it fen not; for it was founded upon
a rock" and of the "foolish upon the sand. And the rain descended and man which built his house
the floods came, and the winds blew, and beat upon that house; and it fell and great was the fall of
it. (St. Matthew 7: 24-27)." The requirement that a building should withstand rains, floods, winds,
earthquakes, and natural forces is precisely the reason why we have professional experts like
architects, and engineers. Designs and constructions vary under varying circumstances and
conditions but the requirement to design and build well does not change.
The findings of the lower Court on the cause of the collapse are more rational and accurate. Instead
of laying the blame solely on the motions and forces generated by the earthquake, it also examined
the ability of the PBA building, as designed and constructed, to withstand and successfully weather
those forces.
The evidence sufficiently supports a conclusion that the negligence and fault of both United and
Nakpil and Sons, not a mysterious act of an inscrutable God, were responsible for the damages. The
Report of the Commissioner, Plaintiff's Objections to the Report, Third Party Defendants' Objections
to the Report, Defendants' Objections to the Report, Commissioner's Answer to the various
Objections, Plaintiffs' Reply to the Commissioner's Answer, Defendants' Reply to the
Commissioner's Answer, Counter-Reply to Defendants' Reply, and Third-Party Defendants' Reply to
the Commissioner's Report not to mention the exhibits and the testimonies show that the main
arguments raised on appeal were already raised during the trial and fully considered by the lower
Court. A reiteration of these same arguments on appeal fails to convince us that we should reverse
or disturb the lower Court's factual findings and its conclusions drawn from the facts, among them:
The Commissioner also found merit in the allegations of the defendants as to the physical evidence
before and after the earthquake showing the inadequacy of design, to wit:
Physical evidence before the earthquake providing (sic) inadequacy of design;
1. inadequate design was the cause of the failure of the building.
2. Sun-baffles on the two sides and in front of the building;
a. Increase the inertia forces that move the building laterally toward the Manila Fire Department.
b. Create another stiffness imbalance.
3. The embedded 4" diameter cast iron down spout on all exterior columns reduces the crosssectional area of each of the columns and the strength thereof.
4. Two front corners, A7 and D7 columns were very much less reinforced.
Physical Evidence After the Earthquake, Proving Inadequacy of design;
1. Column A7 suffered the severest fracture and maximum sagging. Also D7.
2. There are more damages in the front part of the building than towards the rear, not only in
columns but also in slabs.
3. Building leaned and sagged more on the front part of the building.
4. Floors showed maximum sagging on the sides and toward the front corner parts of the building.

5. There was a lateral displacement of the building of about 8", Maximum sagging occurs at the
column A7 where the floor is lower by 80 cm. than the highest slab level.
6. Slab at the corner column D7 sagged by 38 cm.
The Commissioner concluded that there were deficiencies or defects in the design, plans and
specifications of the PBA building which involved appreciable risks with respect to the accidental
forces which may result from earthquake shocks. He conceded, however, that the fact that those
deficiencies or defects may have arisen from an obsolete or not too conservative code or even a
code that does not require a design for earthquake forces mitigates in a large measure the
responsibility or liability of the architect and engineer designer.
The Third-party defendants, who are the most concerned with this portion of the Commissioner's
report, voiced opposition to the same on the grounds that (a) the finding is based on a basic
erroneous conception as to the design concept of the building, to wit, that the design is essentially
that of a heavy rectangular box on stilts with shear wan at one end; (b) the finding that there were
defects and a deficiency in the design of the building would at best be based on an approximation
and, therefore, rightly belonged to the realm of speculation, rather than of certainty and could very
possibly be outright error; (c) the Commissioner has failed to back up or support his finding with
extensive, complex and highly specialized computations and analyzes which he himself emphasizes
are necessary in the determination of such a highly technical question; and (d) the Commissioner
has analyzed the design of the PBA building not in the light of existing and available earthquake
engineering knowledge at the time of the preparation of the design, but in the light of recent and
current standards.
The Commissioner answered the said objections alleging that third-party defendants' objections
were based on estimates or exhibits not presented during the hearing that the resort to engineering
references posterior to the date of the preparation of the plans was induced by the third-party
defendants themselves who submitted computations of the third-party defendants are erroneous.
The issue presently considered is admittedly a technical one of the highest degree. It involves
questions not within the ordinary competence of the bench and the bar to resolve by themselves.
Counsel for the third-party defendants has aptly remarked that "engineering, although dealing in
mathematics, is not an exact science and that the present knowledge as to the nature of
earthquakes and the behaviour of forces generated by them still leaves much to be desired; so
much so "that the experts of the different parties, who are all engineers, cannot agree on what
equation to use, as to what earthquake co-efficients are, on the codes to be used and even as to the
type of structure that the PBA building (is) was (p. 29, Memo, of third- party defendants before the
Commissioner).
The difficulty expected by the Court if tills technical matter were to be tried and inquired into by the
Court itself, coupled with the intrinsic nature of the questions involved therein, constituted the
reason for the reference of the said issues to a Commissioner whose qualifications and experience
have eminently qualified him for the task, and whose competence had not been questioned by the
parties until he submitted his report. Within the pardonable limit of the Court's ability to
comprehend the meaning of the Commissioner's report on this issue, and the objections voiced to
the same, the Court sees no compelling reasons to disturb the findings of the Commissioner that
there were defects and deficiencies in the design, plans and specifications prepared by third-party
defendants, and that said defects and deficiencies involved appreciable risks with respect to the
accidental forces which may result from earthquake shocks.
(2) (a) The deviations, if any, made by the defendants from the plans and specifications, and how
said deviations contributed to the damage sustained by the building.
(b) The alleged failure of defendants to observe the requisite quality of materials and workmanship
in the construction of the building.
These two issues, being interrelated with each other, will be discussed together.
The findings of the Commissioner on these issues were as follows:
We now turn to the construction of the PBA Building and the alleged deficiencies or defects in the
construction and violations or deviations from the plans and specifications. All these may be
summarized as follows:

a. Summary of alleged defects as reported by Engineer Mario M. Bundalian.

(1) Wrongful and defective placing of reinforcing bars.
(2) Absence of effective and desirable integration of the 3 bars in the cluster.
(3) Oversize coarse aggregates: 1-1/4 to 2" were used. Specification requires no larger than 1 inch.
(4) Reinforcement assembly is not concentric with the column, eccentricity being 3" off when on
one face the main bars are only 1 1/2' from the surface.
(5) Prevalence of honeycombs,
(6) Contraband construction joints,
(7) Absence, or omission, or over spacing of spiral hoops,
(8) Deliberate severance of spirals into semi-circles in noted on Col. A-5, ground floor,
(9) Defective construction joints in Columns A-3, C-7, D-7 and D-4, ground floor,
(10) Undergraduate concrete is evident,
(11) Big cavity in core of Column 2A-4, second floor,
(12) Columns buckled at different planes. Columns buckled worst where there are no spirals or
where spirals are cut. Columns suffered worst displacement where the eccentricity of the columnar
reinforcement assembly is more acute.
b. Summary of alleged defects as reported by Engr. Antonio Avecilla.
Columns are first (or ground) floor, unless otherwise stated.
(1) Column D4 Spacing of spiral is changed from 2" to 5" on centers,
(2) Column D5 No spiral up to a height of 22" from the ground floor,
(3) Column D6 Spacing of spiral over 4 l/2,
(4) Column D7 Lack of lateral ties,
(5) Column C7 Absence of spiral to a height of 20" from the ground level, Spirals are at 2" from
the exterior column face and 6" from the inner column face,
(6) Column B6 Lack of spiral on 2 feet below the floor beams,
(7) Column B5 Lack of spirals at a distance of 26' below the beam,
(8) Column B7 Spirals not tied to vertical reinforcing bars, Spirals are uneven 2" to 4",
(9) Column A3 Lack of lateral ties,
(10) Column A4 Spirals cut off and welded to two separate clustered vertical bars,
(11) Column A4 (second floor Column is completely hollow to a height of 30"
(12) Column A5 Spirals were cut from the floor level to the bottom of the spandrel beam to a
height of 6 feet,
(13) Column A6 No spirals up to a height of 30' above the ground floor level,
(14) Column A7 Lack of lateralties or spirals,
c. Summary of alleged defects as reported by the experts of the Third-Party defendants.
Ground floor columns.
(1) Column A4 Spirals are cut,
(2) Column A5 Spirals are cut,
(3) Column A6 At lower 18" spirals are absent,
(4) Column A7 Ties are too far apart,
(5) Column B5 At upper fourth of column spirals are either absent or improperly spliced,
(6) Column B6 At upper 2 feet spirals are absent,
(7) Column B7 At upper fourth of column spirals missing or improperly spliced.
(8) Column C7 Spirals are absent at lowest 18"
(9) Column D5 At lowest 2 feet spirals are absent,
(10) Column D6 Spirals are too far apart and apparently improperly spliced,
(11) Column D7 Lateral ties are too far apart, spaced 16" on centers.
There is merit in many of these allegations. The explanations given by the engineering experts for
the defendants are either contrary to general principles of engineering design for reinforced
concrete or not applicable to the requirements for ductility and strength of reinforced concrete in
earthquake-resistant design and construction.
We shall first classify and consider defects which may have appreciable bearing or relation to' the
earthquake-resistant property of the building.

As heretofore mentioned, details which insure ductility at or near the connections between
columns and girders are desirable in earthquake resistant design and construction. The omission of
spirals and ties or hoops at the bottom and/or tops of columns contributed greatly to the loss of
earthquake-resistant strength. The plans and specifications required that these spirals and ties be
carried from the floor level to the bottom reinforcement of the deeper beam (p. 1, Specifications, p.
970, Reference 11). There were several clear evidences where this was not done especially in some
of the ground floor columns which failed.
There were also unmistakable evidences that the spacings of the spirals and ties in the columns
were in many cases greater than those called for in the plans and specifications resulting again in
loss of earthquake-resistant strength. The assertion of the engineering experts for the defendants
that the improper spacings and the cutting of the spirals did not result in loss of strength in the
column cannot be maintained and is certainly contrary to the general principles of column design
and construction. And even granting that there be no loss in strength at the yield point (an
assumption which is very doubtful) the cutting or improper spacings of spirals will certainly result in
the loss of the plastic range or ductility in the column and it is precisely this plastic range or ductility
which is desirable and needed for earthquake-resistant strength.
There is no excuse for the cavity or hollow portion in the column A4, second floor, and although this
column did not fail, this is certainly an evidence on the part of the contractor of poor construction.
The effect of eccentricities in the columns which were measured at about 2 1/2 inches maximum
may be approximated in relation to column loads and column and beam moments. The main effect
of eccentricity is to change the beam or girder span. The effect on the measured eccentricity of 2
inches, therefore, is to increase or diminish the column load by a maximum of about 1% and to
increase or diminish the column or beam movements by about a maximum of 2%. While these can
certainly be absorbed within the factor of safety, they nevertheless diminish said factor of safety.
The cutting of the spirals in column A5, ground floor is the subject of great contention between the
parties and deserves special consideration.
The proper placing of the main reinforcements and spirals in column A5, ground floor, is the
responsibility of the general contractor which is the UCCI. The burden of proof, therefore, that this
cutting was done by others is upon the defendants. Other than a strong allegation and assertion
that it is the plumber or his men who may have done the cutting (and this was flatly denied by the
plumber) no conclusive proof was presented. The engineering experts for the defendants asserted
that they could have no motivation for cutting the bar because they can simply replace the spirals
by wrapping around a new set of spirals. This is not quite correct. There is evidence to show that
the pouring of concrete for columns was sometimes done through the beam and girder
reinforcements which were already in place as in the case of column A4 second floor. If the
reinforcement for the girder and column is to subsequently wrap around the spirals, this would not
do for the elasticity of steel would prevent the making of tight column spirals and loose or improper
spirals would result. The proper way is to produce correct spirals down from the top of the main
column bars, a procedure which can not be done if either the beam or girder reinforcement is
already in place. The engineering experts for the defendants strongly assert and apparently believe
that the cutting of the spirals did not materially diminish the strength of the column. This belief
together with the difficulty of slipping the spirals on the top of the column once the beam
reinforcement is in place may be a sufficient motivation for the cutting of the spirals themselves.
The defendants, therefore, should be held responsible for the consequences arising from the loss of
strength or ductility in column A5 which may have contributed to the damages sustained by the
building.
The lack of proper length of splicing of spirals was also proven in the visible spirals of the columns
where spalling of the concrete cover had taken place. This lack of proper splicing contributed in a
small measure to the loss of strength.
The effects of all the other proven and visible defects although nor can certainly be accumulated so
that they can contribute to an appreciable loss in earthquake-resistant strength. The engineering
experts for the defendants submitted an estimate on some of these defects in the amount of a few

percent. If accumulated, therefore, including the effect of eccentricity in the column the loss in
strength due to these minor defects may run to as much as ten percent.
To recapitulate: the omission or lack of spirals and ties at the bottom and/or at the top of some of
the ground floor columns contributed greatly to the collapse of the PBA building since it is at these
points where the greater part of the failure occurred. The liability for the cutting of the spirals in
column A5, ground floor, in the considered opinion of the Commissioner rests on the shoulders of
the defendants and the loss of strength in this column contributed to the damage which occurred.
It is reasonable to conclude, therefore, that the proven defects, deficiencies and violations of the
plans and specifications of the PBA building contributed to the damages which resulted during the
earthquake of August 2, 1968 and the vice of these defects and deficiencies is that they not only
increase but also aggravate the weakness mentioned in the design of the structure. In other words,
these defects and deficiencies not only tend to add but also to multiply the effects of the
shortcomings in the design of the building. We may say, therefore, that the defects and deficiencies
in the construction contributed greatly to the damage which occurred.
Since the execution and supervision of the construction work in the hands of the contractor is direct
and positive, the presence of existence of all the major defects and deficiencies noted and proven
manifests an element of negligence which may amount to imprudence in the construction work.
(pp. 42-49, Commissioners Report).
As the parties most directly concerned with this portion of the Commissioner's report, the
defendants voiced their objections to the same on the grounds that the Commissioner should have
specified the defects found by him to be "meritorious"; that the Commissioner failed to indicate the
number of cases where the spirals and ties were not carried from the floor level to the bottom
reinforcement of the deeper beam, or where the spacing of the spirals and ties in the columns were
greater than that called for in the specifications; that the hollow in column A4, second floor, the
eccentricities in the columns, the lack of proper length of splicing of spirals, and the cut in the
spirals in column A5, ground floor, did not aggravate or contribute to the damage suffered by the
building; that the defects in the construction were within the tolerable margin of safety; and that
the cutting of the spirals in column A5, ground floor, was done by the plumber or his men, and not
by the defendants.
Answering the said objections, the Commissioner stated that, since many of the defects were minor
only the totality of the defects was considered. As regards the objection as to failure to state the
number of cases where the spirals and ties were not carried from the floor level to the bottom
reinforcement, the Commissioner specified groundfloor columns B-6 and C-5 the first one without
spirals for 03 inches at the top, and in the latter, there were no spirals for 10 inches at the bottom.
The Commissioner likewise specified the first storey columns where the spacings were greater than
that called for in the specifications to be columns B-5, B-6, C-7, C-6, C-5, D-5 and B-7. The objection
to the failure of the Commissioner to specify the number of columns where there was lack of
proper length of splicing of spirals, the Commissioner mentioned groundfloor columns B-6 and B-5
where all the splices were less than 1-1/2 turns and were not welded, resulting in some loss of
strength which could be critical near the ends of the columns. He answered the supposition of the
defendants that the spirals and the ties must have been looted, by calling attention to the fact that
the missing spirals and ties were only in two out of the 25 columns, which rendered said
supposition to be improbable.
The Commissioner conceded that the hollow in column A-4, second floor, did not aggravate or
contribute to the damage, but averred that it is "evidence of poor construction." On the claim that
the eccentricity could be absorbed within the factor of safety, the Commissioner answered that,
while the same may be true, it also contributed to or aggravated the damage suffered by the
building.
The objection regarding the cutting of the spirals in Column A-5, groundfloor, was answered by the
Commissioner by reiterating the observation in his report that irrespective of who did the cutting of
the spirals, the defendants should be held liable for the same as the general contractor of the
building. The Commissioner further stated that the loss of strength of the cut spirals and inelastic

deflections of the supposed lattice work defeated the purpose of the spiral containment in the
column and resulted in the loss of strength, as evidenced by the actual failure of this column.
Again, the Court concurs in the findings of the Commissioner on these issues and fails to find any
sufficient cause to disregard or modify the same. As found by the Commissioner, the "deviations
made by the defendants from the plans and specifications caused indirectly the damage sustained
and that those deviations not only added but also aggravated the damage caused by the defects in
the plans and specifications prepared by third-party defendants. (Rollo, Vol. I, pp. 128-142)
The afore-mentioned facts clearly indicate the wanton negligence of both the defendant and the
third-party defendants in effecting the plans, designs, specifications, and construction of the PBA
building and We hold such negligence as equivalent to bad faith in the performance of their
respective tasks.
Relative thereto, the ruling of the Supreme Court in Tucker v. Milan (49 O.G. 4379, 4380) which may
be in point in this case reads:
One who negligently creates a dangerous condition cannot escape liability for the natural and
probable consequences thereof, although the act of a third person, or an act of God for which he is
not responsible, intervenes to precipitate the loss.
As already discussed, the destruction was not purely an act of God. Truth to tell hundreds of ancient
buildings in the vicinity were hardly affected by the earthquake. Only one thing spells out the fatal
difference; gross negligence and evident bad faith, without which the damage would not have
occurred.
WHEREFORE, the decision appealed from is hereby MODIFIED and considering the special and
environmental circumstances of this case, We deem it reasonable to render a decision imposing, as
We do hereby impose, upon the defendant and the third-party defendants (with the exception of
Roman Ozaeta) a solidary (Art. 1723, Civil Code, Supra, p. 10) indemnity in favor of the Philippine
Bar Association of FIVE MILLION (P5,000,000.00) Pesos to cover all damages (with the exception of
attorney's fees) occasioned by the loss of the building (including interest charges and lost rentals)
and an additional ONE HUNDRED THOUSAND (P100,000.00) Pesos as and for attorney's fees, the
total sum being payable upon the finality of this decision. Upon failure to pay on such finality,
twelve (12%) per cent interest per annum shall be imposed upon afore-mentioned amounts from
finality until paid. Solidary costs against the defendant and third-party defendants (except Roman
Ozaeta).
SO ORDERED.
G.R. No. 165413
February 22, 2012
PHILAM INSURANCE COMPANY, INC. and AMERICAN HOME INSURANCE CO., Petitioners, vs.
COURT OF APPEALS, and D.M. CONSUNJI INC., Respondents.
In this Petition for Review on Certiorari under Rule 45, petitioners Philam Insurance Company,
Incorporated (Philam) and American Home Insurance Company (AHIC) seek the reversal of the
Decision of the Court of Appeals (CA) in CA-G.R. CV No. 60098 dated 28 June 2004 and its
Resolution dated 24 September 2004. The CA Decision reversed and set aside that of the Regional
Trial Court (RTC) of Makati City in Civil Case No. 95-540 dated 28 April 1998.
The CA ruled against petitioners demand for the recovery of the value of the insureds generator
set (genset) against private respondent D.M. Consunji Incorporated (DMCI), whose alleged
negligence damaged the said equipment.
The antecedent facts are as follows:
Four gensets from the United States of America were ordered by Citibank, N.A. (Citibank). Petitioner
AHIC insured these gensets under Certificate No. 60221 for USD 851,500 covering various risks.1 The
insurance policy provided that the claim may be paid in the Philippines by Philam Insurance Co., Inc,
AHICs local settling agent.2
Citibanks broker-forwarder, Melicia International Services (MIS),3 transported the gensets in
separate container vans. It was instructed by Citibank to deliver and haul one genset to Makati
City,4 where the latters office was being constructed by the building contractor, DMCI.

MIS was further instructed to place the 13-ton genset5 at the top of Citibanks building. The brokerforwarder declined, since it had no power cranes.6 Thus, Citibank assigned the job to private
respondent DMCI, which accepted the task.7
On 16 October 1993, DMCI lifted the genset with a crane (Unic-K-2000) that had a hydraulic
telescopic boom and a loading capacity of 20 tons.8 During the lifting process, both the cranes
boom and the genset fell and got damaged.9
The events leading to the fall, based mainly on the signed statement10 of DMCIs crane operator,
Mr. Ariel Del Pilar, transpired as follows:
The genset was lifted clear out of the open top container by the crane. After clearing the container
van, the crane operator, Mr. Ariel del Pilar, had to position the genset over the vicinity of the
storage area. To do this, the boom of the crane carrying the generator set had to be turned (swing)
to face right and stopped when it loomed over the storage area. The genset was swinging as it came
to a stop following the right turn. The crane operator waited for the genset to stop swinging for him
to perform the next maneuver. The boom had to be raised three (3) degrees more from its position
at 75 degrees, up to 78 degrees. At 78 degrees the genset could be lowered straight down to the
delivery storage area.
The genset stopped swinging. The crane operator proceeded to raise the boom to 78 degrees.
While so doing, the crane operator felt a sudden upward movement of the boom. The genset began
to swing in and out, towards the crane operator, then outward and away. The body of the crane
lifted off the ground, the boom fell from an approximate height of 9 feet, first hitting a Meralco line,
then falling to the ground.11
After two days, DMCIs surveyor, Manila Adjusters & Surveyors Co. (MASC) assessed the condition
of the crane and the genset.12 According to its Survey Certificate, the genset was already
deformed.13
Citibank demanded from DMCI the full value of the damaged genset, including the cost, insurance
and freight amounting to USD 212,850.14 Private respondent refused to pay, asserting that the
damage was caused by an accident.15
Thereafter, Citibank filed an insurance claim with Philam, AHICs local settling agent, for the value of
the genset. Philam paid the claim for PhP 5,866,146.16
Claiming the right of subrogation, Philam demanded the reimbursement of the gensets value from
DMCI, which denied liability.17 Thus, on 19 April 1994, Philam filed a Complaint with the RTC to
recover the value of the insured genset.18
At the trial court, petitioner Philam did not invoke res ipsa loquitur. Rather, during the pre-trial
conference, the parties agreed on this sole issue: "Whether or not the damage was the fault of the
defendant or within their area of supervision at the time the cause of damage occurred."19
The RTC ruled in favor of Philam and ordered as follows:
WHEREFORE PREMISES CONSIDERED, judgment is hereby rendered in favor of plaintiff as against
defendant ordering the latter to pay plaintiff as follows:
1. the amount of PhP 5,866,146.00 as actual damages with interest at 6% per annum from the date
of filing of this Complaint until the sum is fully paid.
2. the amount equivalent to 25% of the sum recoverable as attorneys fees;
3. cost of suit.
SO ORDERED. 20
The trial court ruled that the loss or damage to the genset was due to the negligent operation of the
crane:
This Court finds that the loss or damage brought about by the falling of the genset was caused by
negligence in the operation of the crane in lifting the genset to as high as 9 feet causing the boom
to fall [sic], hitting the Meralco line to ground, sustaining heavy damage, which negligence was
attributable to the crane operator.21
DMCI appealed to the CA, which reversed and set aside the RTCs Decision. The appellate court
ruled that the falling of the genset was a clear case of accident and, hence, DMCI could not be held
responsible.

In this case, plaintiffs-appellees failed to discharge the burden of proving negligence on the part of
the defendant-appellants crane operator and other employees assisting in unloading the genset.
xxx
xxx
xxx
The falling of the genset to the ground was a clear case of accident xxx. xxx [D]efendant-appellant
cannot be held responsible for the event which could not be foreseen, or which though foreseen,
was inevitable.22
Accordingly, the dispositive portion reads:
WHEREFORE, there being merit in the appeal, the assailed Decision dated April 28, 1998 of the
Regional Trial Court, Branch 61 of Makati City in Civil Case no. 95-1450, is REVERSED and SET ASIDE,
and the complaint dismissed.
SO ORDERED.23
Hence, the pertinent issue in this Petition is whether petitioners have sufficiently established the
negligence of DMCI for the former to recover the value of the damaged genset. While this Court is
not a trier of facts, and hesitates to review the factual findings of the lower courts, in this occasion,
it would do so considering the conflicting legal conclusions of the RTC and the CA.
For DMCI to be liable for damages, negligence on its part must be established.24 Additionally, that
finding must be the proximate cause of the damage to the genset. 25 We agree with the CA that
Philam failed to establish DMCIs negligence.
Negligence is the want of care required by the circumstances.26 It is a conduct that involves an
unreasonably great risk of causing damage; or, more fully, a conduct that falls below the standard
established by law for the protection of others against unreasonably great risk of harm.27
Philam blames the conduct of DMCIs crane operator for the gensets fall. Essentially, it points out
the following errors in operating the crane:
First, Del Pilar did not give any reason for his act of raising the boom from 75 to 78 degrees at the
stage when the genset was already set for lowering to the ground.28
Second, Del Pilars revving of the motor of the boom "triggered the chain of events starting with
the jerk, then followed by the swinging of the genset which was obviously violent as it caused the
body of the crane to tilt upward, and ultimately, caused the boom with the genset to fall."29
It would be a long stretch to construe these as acts of negligence. Not all omissions can be
considered as negligent. The test of negligence is as follows:
Could a prudent man, in the case under consideration, foresee harm as a result of the course
actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist.30
Applying the test, the circumstances would show that the acts of the crane operator were rational
and justified.
Addressing Philams first submission, this Court finds that the records are replete with explanations
for why the boom of the crane had to be raised from 75 to 78 degrees. Although the boom is
already in the general area of the gensets storage place, still, it had to be raised three (3) degrees in
order to put it exactly in the proper designation. At 78 degrees, the genset could be lowered
straight down to the delivery/storage area.31 DMCIs crane operation team determined accordingly
that there was a need to raise the boom in order to put the genset in the exact location. Indeed, the
heavy equipment must be secured in its proper place.
Proceeding to the more contentious claim, Philam emphasized the apparent inconsistencies in Del
Pilars narration. In his signed statement, executed 15 days after the incident, Del Pilar stated that
when he raised the boom from 75 to 78 degrees, he revved the motor, upon which he felt the
sudden upward movement (jerk) of the boom followed by the swinging of the genset.32
But in his affidavit, executed already during the trial, Del Pilar mentioned that he moved the boom
slowly when he raised it to 78 degrees.33 Philam deems this narration questionable since the "slow
movement" was never mentioned in Del Pilars earlier signed statement.34
Examining the signed statement and the affidavit of Del Pilar, petitioner Philam inaccurately
portrayed his narration.

In his signed statement, Del Pilar already mentioned that he slowly moved the genset, and when it
swayed, he waited for the swinging to stop before he lifted the equipment:
Itinuloy ko na ang pag-angat ng genset at pagkatapos ng malagpas na sa open top van container,
dahan-dahan na ako nagpihit o swing papunta sa kanan at pagkatapos ng nasa direksyon na ako ng
paglalagyan, itinigil ko ang pagpihit o pag swing pagkatapos hinintay ko ang genset sa paggalaw at
ng huminto na ang genset sa paggalaw, nagboom up ako mula 75 hanggang 78, sa tantya ko at
noong mag boom up, nag-rebolution (sic) ako at naramdaman ko na biglang gumalaw paangat
(paboom-up) ang boom ng Crane No. CR-81 at nag-swing na naman patungo sa akin ang genset. At
nang ito ay umindayog papalayo sa crane ay doon ko naramdaman na iyong body ng Crane No. CR81 ay umangat at nakita kong tumumba ang boom ng Crane CR-81 at bumagsak ang genset sa loob
ng Citibank (sic) Parking Area. Noon ika-16 ng Octubre 1993 ng oras na alas 4:55 ng umaga."
(Emphasis supplied.)
In his affidavit, Del Pilars statements concentrated on the manner of lifting of the genset. At this
point, he recalled that the boom was raised slowly35 :
T: Papaano mo naitaas ang "boom" ng "crane" mula 75 digri hanggang 78 digri?
S: Dahan-dahan lang po.
T: Pagkatapos mong maitaas ang boom ng crane sa 78 digri, iyong inumpisahan ibinaba ang
"generator set" sa lupa subalit ito ay nagumpisang umugoy-ugoy o dumuyan-duyan palabas at
papasok ang karga na "generator set" patungo sa akin. Ito ba ay tutuo?
S: Opo. 36 (Emphasis supplied.)
The affidavit, which the CA used as the main basis for its Decision, pertained exactly to how the
cranes boom had been raised. It is only when a witness makes two sworn statements, and these
two statements incur the gravest contradictions, that the court cannot accept both statements as
proof.37
Logically, in order to raise the cranes boom, the operator must step on the pedal; else, the 13-ton
genset would not be brought down. Philam did not even present expert evidence to challenge the
need of increasing the power supply to move the boom.
Donato F. Solis, DMCIs electrical engineer assigned to supervise and coordinate the cranes
operations, corroborated Del Pilars description. He gave an eyewitness account of the incident, and
his statements thereon were taken by the surveyor, MASC. Solis said:
Q: What happened when the genset was already lifted out and at the above proposed storage area?
A: After it was already at above the designated area, the genset was still swinging during the time
(at about 4:50 a.m., October 16, 1993) and when the genset stopped swinging I noticed that it was
being lowered slowly to the ground and until approx. 6 feet above the ground. I noticed that it was
not being lowered because it was moving diagonally toward us. When it was moving toward us we
ran to avoid being hit by the genset.38
Even if Del Pilar failed to mention the slow manner of raising the boom in his earlier signed
statement, the reverse is not necessarily established. Persons are easily liable to commit errors in
the recollection of minute details of an important occurrence.39
Alternatively, Philam asserts that if care was exercised in operating the crane, and yet the genset
was damaged, then it must have been the very crane itself that was defective.40
We cannot give credence to mere conjectures and assumptions on the condition of the crane to
prove negligence. In Picart v. Smith, the Court stressed that abstract speculations cannot be of
much value:
The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger.41
The speculative assertion of Philam should be supported by specific evidence of the cranes defects.
Instead, Philam utterly failed to contradict the findings of MASC which made an actual site

inspection to observe the crane used in lifting the genset. In its Survey Certificate, it stated that:
"[U]pon close examination, the crane was observed in actual operation and found to be in
satisfactory working condition."42 (Emphasis supplied.)
Since Philam failed to convince us of actions that would lay the blame on DMCI, this Court agrees
with the CA that DMCI exercised the necessary care and precaution in lifting the genset.
Firstly, a whole team was involved in transferring the genset. Petitioners did not even the question
the acts of the other team members involved in the crane operations. Del Pilar stated thus:
T: Ikaw lang ba mag-isa ang magbababa ng nasabing "generator set"?
S: Hindi po, ako po ay tinulungan ng isang katrabahong "rigger" na ang pangalan ay si G.
MARCELINO ROMERO, ng aming Foreman na si G. FERNANDO DELA ROSA ng Motor Pool, isang
mekaniko, at ni DONATO SOLIS, isang ehenyero.
T: Anu-ano tulong o ayuda ang naibigay sa iyo ng bawat isa sa mga taong iyong nabanggit?
S: Si G. MARCELINO ROMERO na isang "rigger" ay tumulong sa akin upang maitali ang "generator
set" sa kable ng "crane" at sa pagbibigay ng senyas sa akin kung kailan itataas ang pagbuhat ng
"generator set", kung kailan magaalalay sa pagtaas at mga iba pang bagay-bagay na may kinalaman
sa pagpapatakbo ng "crane". Ang motor pool foreman ay nandoon naman upang tingnan at
subaybayan na lahat ng bagay pangkaligtasan sa pagbubuhat ng crane sa "generator set" upang
itoy maibaba ng maayos. Si Ehenyero DONATO SOLIS ay ang pangkalahatang nangangasiwa sa
pagbubuhat o paglalapag ng nasabing "generator set". Ang mekaniko naman na hindi ko na
matandaan ang kanyang pangalan ay nandoon upang tumulong kung sakaling magkakaroon ng
suliranin pang-mekanikal ang "crane".43
Secondly, as found by the CA,44 Del Pilar exercised reasonable care and caution when he tested the
crane four times right before actual operations to make sure that it could lift the genset. He stated
further:
T: Maari (sic) mo bang isalaysay ang buong pangyayari tungkol sa pagbuhat at pagdiskarga ng
genset mula sa open top van container na nasa trailer ng ibabaw ng Marzan Trucking?
S: Nang matalian po namin (ako at ang nasabing rigger man) ang genset, pumunta na po ako sa
operating cab ng Crane No. CR-81 pagkatapos pinaandar ko ang Crane CR-81 para umpisahan iangat
ang genset mula sa open top container pagkatapos sinubukan ko ng buhatin ang genset at nang
mabuhat ng isa o dalawang dangkal, ibinaba ko ito muli sa dating pwesto ng maka-apat na beses.
T: Bakit mo ibinaba ng apat na beses ang genset mula ng ito ay iangat mo?
S: Sinisigurado ko ho na kaya ng Crane No. 81 ang bigat ng genset[.]45
The testing of the crane during actual operations was corroborated by Solis when he stated as
follows:
Q: What did you observe during the lifting operation?
A: During the lifting operation, I noticed that it took awhile (approx. 30 minutes) in lifting the
genset, because the Crane Operator, Mr. Ariel del Pilar was testing the lifting capability of Crane No.
CR-81. I saw the genset, which was several times lifted about 1 foot high from the flooring of the
open top van container.46
Thirdly, as can be gleaned from the statements above, Del Pilar stopped turning the controls, and it
was only when the swinging stopped that he performed the next maneuver.1wphi1 All of these
acts, as proven by the evidence, showed due diligence in operating the crane.
In their final effort to reverse the appellate court, petitioners invoked res ipsa loquitur, even if they
never had raised this doctrine before the trial court.
According to petitioners, the requisites of res ipsa loquitur are present in this case.47 Had the
principle been applied, the burden of proof in establishing due diligence in operating the crane
would have shifted to DMCI.48
In this case, res ipsa loquitur is not applicable, since there is direct evidence49 on the issue of
diligence or lack thereof pertaining to the lifting of the genset. The doctrine is not a rule of
substantive law, but merely a mode of proof or a mere procedural convenience.50
In any event, res ipsa loquitur merely provides a rebuttable presumption of negligence. On this, we
have already pointed out that the evidence does not prove negligence on the part of DMCI, and
that due diligence on its part has been established.

Hence, it has generally been held that the presumption arising from the doctrine cannot be availed
of, or is overcome when the plaintiff has knowledge and testifies or presents evidence as to the
specific act of negligence that caused the injury complained of; or when there is direct evidence as
to the precise cause of the accident, and with all the attendant facts clearly present.51 Finally,
neither the presumption nor the doctrine would apply when the circumstances have been so
completely elucidated that no inference of the defendant's liability can reasonably be made,
whatever the source of the evidence.52
Absent any finding of negligence, we sustain the CAs findings that DMCI exercised due diligence;
that the event is an accident; and that consequently Philam cannot claim damages for the damaged
genset.53
IN VIEW THEREOF, the assailed 28 June 2004 Decision of the Court of Appeals and its 24 September
2004 Resolution are AFFIRMED. The 11 October 2004 Petition for Review filed by Philam Insurance
Company, Inc. and American Home Insurance Corporation is hereby denied for lack of merit.
SO ORDERED.
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner, vs. COURT OF APPEALS and
SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.
This case had its inception in an action for damages instituted in the former Court of First Instance
of Negros Occidental 1 by private respondent spouses against petitioner Philippine Long Distance
Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30,
1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation
allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint
alleged that respondent Antonio Esteban failed to notice the open trench which was left uncovered
because of the creeping darkness and the lack of any warning light or signs. As a result of the
accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving
a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent
spouses were the result of their own negligence and that the entity which should be held
responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which
undertook the construction of the manhole and the conduit system. 3 Accordingly, PLDT filed a
third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should
in no manner be answerable for any accident or injuries arising from the negligence or carelessness
of Barte or any of its employees. 4 In answer thereto, Barte claimed that it was not aware nor was it
notified of the accident involving respondent spouses and that it had complied with the terms of its
contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the
work site, with barricades at both ends of the excavation and with red lights at night along the
excavated area to warn the traveling public of the presence of excavations. 5
On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal
part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone
Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of P20,000.00 as moral
damages and P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as
moral damages and P500.00 as exemplary damages, with legal rate of interest from the date of the
filing of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff the sum
of P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third
party plaintiff has paid to the plaintiff. With costs against the defendant. 6
From this decision both PLDT and private respondents appealed, the latter appealing only as to the
amount of damages. Third-party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in
said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the
lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban
spouses were negligent and consequently absolved petitioner PLDT from the claim for damages. 7 A
copy of this decision was received by private respondents on October 10, 1979. 8 On October 25,
1979, said respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24,
1980, the Special Ninth Division of the Court of Appeals denied said motion for
reconsideration.10 This resolution was received by respondent spouses on February 22, 1980. 11
On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave
of court to file a second motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980,
respondent court, in a resolution likewise penned by Justice Agrava, allowed respondents to file a
second motion for reconsideration, within ten (10) days from notice thereof. 13 Said resolution was
received by private respondents on April 1, 1980 but prior thereto, private respondents had already
filed their second motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second
motion for reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the
resolution of the second motion for reconsideration, designated two additional justices to form a
division of five. 16 On September 3, 1980, said division of five promulgated its resolution, penned by
Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in toto the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of
the resolution of September 3, 1980, contending that the second motion for reconsideration of
private respondent spouses was filed out of time and that the decision of September 25, 1979
penned by Justice Agrava was already final. It further submitted therein that the relationship of
Barte and petitioner PLDT should be viewed in the light of the contract between them and, under
the independent contractor rule, PLDT is not liable for the acts of an independent contractor. 18 On
May 11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to set
aside and/or for reconsideration and affirming in toto the decision of the lower court dated October
1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second motion for
reconsideration on the ground that the decision of the Special Second Division, dated September
25, 1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already final,
and on the additional ground that said second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the
independent contractor rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the records
and admitted by both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava
asponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was received by private respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by
private respondents
(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;
(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for
reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original
decision dated September 25, 1979 and setting aside the resolution dated January 24, 1980.

From the foregoing chronology, we are convinced that both the motion for leave to file a second
motion for reconsideration and, consequently, said second motion for reconsideration itself were
filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided
that a second motion for reconsideration may be presented within fifteen (15) days from notice of
the order or judgment deducting the time in which the first motion has been pending. 20 Private
respondents having filed their first motion for reconsideration on the last day of the reglementary
period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the order
denying said motion to file, with leave of court, a second motion for reconsideration. 21 In the
present case, after their receipt on February 22, 1980 of the resolution denying their first motion
for reconsideration, private respondents had two remedial options. On February 23, 1980, the
remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for
leave of court to file a second motion for reconsideration, conceivably with a prayer for the
extension of the period within which to do so. On the other hand, they could have appealed
through a petition for review on certiorari to this Court within fifteen (15) days from February 23,
1980. 22 Instead, they filed a motion for leave to file a second motion 'for reconsideration on
February 29, 1980, and said second motion for reconsideration on March 7, 1980, both of which
motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the
running of which was suspended during the pendency of the first motion for reconsideration, the
Court of Appeals could no longer validly take further proceedings on the merits of the case, much
less to alter, modify or reconsider its aforesaid decision and/or resolution. The filing of the motion
for leave to file a second motion for reconsideration by herein respondents on February 29, 1980
and the subsequent filing of the motion itself on March 7, 1980, after the expiration of the
reglementary period to file the same, produced no legal effects. Only a motion for re-hearing or
reconsideration filed in time shall stay the final order or judgment sought to be re-examined. 23
The consequential result is that the resolution of respondent court of March 11, 1980 granting
private respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to
file a second motion for reconsideration, is null and void. The period for filing a second motion for
reconsideration had already expired when private respondents sought leave to file the same, and
respondent court no longer had the power to entertain or grant the said motion. The aforesaid
extension of ten (10) days for private respondents to file their second motion for reconsideration
was of no legal consequence since it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed prior to the expiration of the
period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said
extension for filing a second motion for reconsideration is conditioned upon the timeliness of the
motion seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated September 25,
1979, became final and executory on March 9, 1980. The subsequent resolutions of respondent
court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a second
motion for reconsideration and reversing the original decision are null and void and cannot disturb
the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the
accepted rule that once a decision has become final and executory it is removed from the power
and jurisdiction of the court which rendered it to further alter or amend, much less revoke it. 25 The
decision rendered anew is null and void. 26 The court's inherent power to correct its own errors
should be exercised before the finality of the decision or order sought to be corrected, otherwise
litigation will be endless and no question could be considered finally settled. Although the granting
or denial of a motion for reconsideration involves the exercise of discretion, 27 the same should not
be exercised whimsically, capriciously or arbitrarily, but prudently in conformity with law, justice,
reason and equity. 28
Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no
error in the findings of the respondent court in its original decision that the accident which befell
private respondents was due to the lack of diligence of respondent Antonio Esteban and was not

imputable to negligent omission on the part of petitioner PLDT. Such findings were reached after an
exhaustive assessment and evaluation of the evidence on record, as evidenced by the respondent
court's resolution of January 24, 1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that
inside lane, it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving
from the left that is, swerving from the inside lane. What caused the swerving is not disclosed; but,
as the cause of the accident, defendant cannot be made liable for the damages suffered by
plaintiffs. The accident was not due to the absence of warning signs, but to the unexplained abrupt
swerving of the jeep from the inside lane. That may explain plaintiff-husband's insistence that he
did not see the ACCIDENT MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND
could have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT
MOUND.
It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4
meters where the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson
Street north of the ACCIDENT MOUND had already been covered, but not in such a way as to allow
the outer lane to be freely and conveniently passable to vehicles. The situation could have been
worse to the south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND
facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that
speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep
would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit
B. The jeep must have been running quite fast. If the jeep had been braked at 25 kilometers an
hour, plaintiff's would not have been thrown against the windshield and they would not have
suffered their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane
and for some reason or other it had to swerve suddenly to the right and had to climb over the
ACCIDENT MOUND, then plaintiff-husband had not exercised the diligence of a good father of a
family to avoid the accident. With the drizzle, he should not have run on dim lights, but should have
put on his regular lights which should have made him see the ACCIDENT MOUND in time. If he was
running on the outside lane at 25 kilometers an hour, even on dim lights, his failure to see the
ACCIDENT MOUND in time to brake the car was negligence on his part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did not see the ACCIDENT
MOUND in time, he would not have seen any warning sign either. He knew of the existence and
location of the ACCIDENT MOUND, having seen it many previous times. With ordinary precaution,
he should have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT
MOUND. 29
The above findings clearly show that the negligence of respondent Antonio Esteban was not only
contributory to his injuries and those of his wife but goes to the very cause of the occurrence of the
accident, as one of its determining factors, and thereby precludes their right to recover
damages. 30 The perils of the road were known to, hence appreciated and assumed by, private
respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have
avoided the injurious consequences of his act, even assuming arguendo that there was some
alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only purpose
of said signs was to inform and warn the public of the presence of excavations on the site. The
private respondents already knew of the presence of said excavations. It was not the lack of
knowledge of these excavations which caused the jeep of respondents to fall into the excavation
but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound.
As opined in some quarters, the omission to perform a duty, such as the placing of warning signs on
the site of the excavation, constitutes the proximate cause only when the doing of the said omitted
act would have prevented the injury. 31 It is basic that private respondents cannot charge PLDT for

their injuries where their own failure to exercise due and reasonable care was the cause thereof. It
is both a societal norm and necessity that one should exercise a reasonable degree of caution for
his own protection. Furthermore, respondent Antonio Esteban had the last clear chance or
opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT.
As a resident of Lacson Street, he passed on that street almost everyday and had knowledge of the
presence and location of the excavations there. It was his negligence that exposed him and his wife
to danger, hence he is solely responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that
there was insufficient evidence to prove any negligence on the part of PLDT. We have for
consideration only the self-serving testimony of respondent Antonio Esteban and the unverified
photograph of merely a portion of the scene of the accident. The absence of a police report of the
incident and the non-submission of a medical report from the hospital where private respondents
were allegedly treated have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980
(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court
can only rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very
carefully evaluated, with defendant, as the party being charged, being given the benefit of any
doubt. Definitely without ascribing the same motivation to plaintiffs, another person could have
deliberately engineered a similar accident in the hope and expectation that the Court can grant him
substantial moral and exemplary damages from the big corporation that defendant is. The
statement is made only to stress the disadvantageous position of defendant which would have
extreme difficulty in contesting such person's claim. If there were no witness or record available
from the police department of Bacolod, defendant would not be able to determine for itself which
of the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to
the police department. 32
A person claiming damages for the negligence of another has the burden of proving the existence of
such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively
established by competent evidence. 33 Whosoever relies on negligence for his cause of action has
the burden in the first instance of proving the existence of the same if contested, otherwise his
action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September
3,1980, are hereby SET ASIDE. Its original decision, promulgated on September 25,1979, is hereby
REINSTATED and AFFIRMED.
SO ORDERED.
G.R. No. 139130
November 27, 2002
RAMON K. ILUSORIO, petitioner, vs. HON. COURT OF APPEALS, and THE MANILA BANKING
CORPORATION, respondents.
This petition for review seeks to reverse the decision1 promulgated on January 28, 1999 by the
Court of Appeals in CA-G.R. CV No. 47942, affirming the decision of the then Court of First Instance
of Rizal, Branch XV (now the Regional Trial Court of Makati, Branch 138) dismissing Civil Case No.
43907, for damages.
The facts as summarized by the Court of Appeals are as follows:
Petitioner is a prominent businessman who, at the time material to this case, was the Managing
Director of Multinational Investment Bancorporation and the Chairman and/or President of several
other corporations. He was a depositor in good standing of respondent bank, the Manila Banking
Corporation, under current Checking Account No. 06-09037-0. As he was then running about 20
corporations, and was going out of the country a number of times, petitioner entrusted to his
secretary, Katherine2 E. Eugenio, his credit cards and his checkbook with blank checks. It was also
Eugenio who verified and reconciled the statements of said checking account.3
Between the dates September 5, 1980 and January 23, 1981, Eugenio was able to encash and
deposit to her personal account about seventeen (17) checks drawn against the account of the

petitioner at the respondent bank, with an aggregate amount of P119,634.34. Petitioner did not
bother to check his statement of account until a business partner apprised him that he saw Eugenio
use his credit cards. Petitioner fired Eugenio immediately, and instituted a criminal action against
her for estafa thru falsification before the Office of the Provincial Fiscal of Rizal. Private respondent,
through an affidavit executed by its employee, Mr. Dante Razon, also lodged a complaint for estafa
thru falsification of commercial documents against Eugenio on the basis of petitioners statement
that his signatures in the checks were forged.4 Mr. Razons affidavit states:
That I have examined and scrutinized the following checks in accordance with prescribed
verification procedures with utmost care and diligence by comparing the signatures affixed thereat
against the specimen signatures of Mr. Ramon K. Ilusorio which we have on file at our said office on
such dates,
xxx
That the aforementioned checks were among those issued by Manilabank in favor of its client MR.
RAMON K. ILUSORIO,
That the same were personally encashed by KATHERINE E. ESTEBAN, an executive secretary of MR.
RAMON K. ILUSORIO in said Investment Corporation;
That I have met and known her as KATHERINE E. ESTEBAN the attending verifier when she
personally encashed the above-mentioned checks at our said office;
That MR. RAMON K. ILUSORIO executed an affidavit expressly disowning his signature appearing on
the checks further alleged to have not authorized the issuance and encashment of the same.5
Petitioner then requested the respondent bank to credit back and restore to its account the value
of the checks which were wrongfully encashed but respondent bank refused. Hence, petitioner filed
the instant case.6
At the trial, petitioner testified on his own behalf, attesting to the truth of the circumstances as
narrated above, and how he discovered the alleged forgeries. Several employees of Manila Bank
were also called to the witness stand as hostile witnesses. They testified that it is the banks
standard operating procedure that whenever a check is presented for encashment or clearing, the
signature on the check is first verified against the specimen signature cards on file with the bank.
Manila Bank also sought the expertise of the National Bureau of Investigation (NBI) in determining
the genuineness of the signatures appearing on the checks. However, in a letter dated March 25,
1987, the NBI informed the trial court that they could not conduct the desired examination for the
reason that the standard specimens submitted were not sufficient for purposes of rendering a
definitive opinion. The NBI then suggested that petitioner be asked to submit seven (7) or more
additional standard signatures executed before or about, and immediately after the dates of the
questioned checks. Petitioner, however, failed to comply with this request.
After evaluating the evidence on both sides, the court a quo rendered judgment on May 12, 1994
with the following dispositive portion:
WHEREFORE, finding no sufficient basis for plaintiff's cause herein against defendant bank, in the
light of the foregoing considerations and established facts, this case would have to be, as it is
hereby DISMISSED.
Defendants counterclaim is likewise DISMISSED for lack of sufficient basis.
SO ORDERED.7
Aggrieved, petitioner elevated the case to the Court of Appeals by way of a petition for review but
without success. The appellate court held that petitioners own negligence was the proximate cause
of his loss. The appellate court disposed as follows:
WHEREFORE, the judgment appealed from is AFFIRMED. Costs against the appellant.
SO ORDERED.8
Before us, petitioner ascribes the following errors to the Court of Appeals:
A. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE RESPONDENT BANK IS ESTOPPED
FROM RAISING THE DEFENSE THAT THERE WAS NO FORGERY OF THE SIGNATURES OF THE
PETITIONER IN THE CHECK BECAUSE THE RESPONDENT FILED A CRIMINAL COMPLAINT FOR ESTAFA
THRU FALSIFICATION OF COMMERCIAL DOCUMENTS AGAINST KATHERINE EUGENIO USING THE

AFFIDAVIT OF PETITIONER STATING THAT HIS SIGNATURES WERE FORGED AS PART OF THE
AFFIDAVIT-COMPLAINT.9
B. THE COURT OF APPEALS ERRED IN NOT APPLYING SEC. 23, NEGOTIABLE INSTRUMENTS LAW.10
C. THE COURT OF APPEALS ERRED IN NOT HOLDING THE BURDEN OF PROOF IS WITH THE
RESPONDENT BANK TO PROVE THE DUE DILIGENCE TO PREVENT DAMAGE, TO THE PETITIONER,
AND THAT IT WAS NOT NEGLIGENT IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEES.11
D. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT RESPONDENT BANK SHOULD BEAR THE
LOSS, AND SHOULD BE MADE TO PAY PETITIONER, WITH RECOURSE AGAINST KATHERINE EUGENIO
ESTEBAN.12
Essentially the issues in this case are: (1) whether or not petitioner has a cause of action against
private respondent; and (2) whether or not private respondent, in filing an estafa case against
petitioners secretary, is barred from raising the defense that the fact of forgery was not
established.
Petitioner contends that Manila Bank is liable for damages for its negligence in failing to detect the
discrepant checks. He adds that as a general rule a bank which has obtained possession of a check
upon an unauthorized or forged endorsement of the payees signature and which collects the
amount of the check from the drawee is liable for the proceeds thereof to the payee. Petitioner
invokes the doctrine of estoppel, saying that having itself instituted a forgery case against Eugenio,
Manila Bank is now estopped from asserting that the fact of forgery was never proven.
For its part, Manila Bank contends that respondent appellate court did not depart from the
accepted and usual course of judicial proceedings, hence there is no reason for the reversal of its
ruling. Manila Bank additionally points out that Section 2313 of the Negotiable Instruments Law is
inapplicable, considering that the fact of forgery was never proven. Lastly, the bank negates
petitioners claim of estoppel.14
On the first issue, we find that petitioner has no cause of action against Manila Bank. To be entitled
to damages, petitioner has the burden of proving negligence on the part of the bank for failure to
detect the discrepancy in the signatures on the checks. It is incumbent upon petitioner to establish
the fact of forgery, i.e., by submitting his specimen signatures and comparing them with those on
the questioned checks. Curiously though, petitioner failed to submit additional specimen signatures
as requested by the National Bureau of Investigation from which to draw a conclusive finding
regarding forgery. The Court of Appeals found that petitioner, by his own inaction, was precluded
from setting up forgery. Said the appellate court:
We cannot fault the court a quo for such declaration, considering that the plaintiffs evidence on
the alleged forgery is not convincing enough. The burden to prove forgery was upon the plaintiff,
which burden he failed to discharge. Aside from his own testimony, the appellant presented no
other evidence to prove the fact of forgery. He did not even submit his own specimen signatures,
taken on or about the date of the questioned checks, for examination and comparison with those of
the subject checks. On the other hand, the appellee presented specimen signature cards of the
appellant, taken at various years, namely, in 1976, 1979 and 1981 (Exhibits "1", "2", "3" and "7"),
showing variances in the appellants unquestioned signatures. The evidence further shows that the
appellee, as soon as it was informed by the appellant about his questioned signatures, sought to
borrow the questioned checks from the appellant for purposes of analysis and examination (Exhibit
"9"), but the same was denied by the appellant. It was also the former which sought the assistance
of the NBI for an expert analysis of the signatures on the questioned checks, but the same was
unsuccessful for lack of sufficient specimen signatures.15
Moreover, petitioners contention that Manila Bank was remiss in the exercise of its duty as drawee
lacks factual basis. Consistently, the CA and the RTC found that Manila Bank employees exercised
due diligence in cashing the checks. The banks employees in the present case did not have a hint as
to Eugenios modus operandi because she was a regular customer of the bank, having been
designated by petitioner himself to transact in his behalf. According to the appellate court, the
employees of the bank exercised due diligence in the performance of their duties. Thus, it found
that:

The evidence on both sides indicates that TMBCs employees exercised due diligence before
encashing the checks. Its verifiers first verified the drawers signatures thereon as against his
specimen signature cards, and when in doubt, the verifier went further, such as by referring to a
more experienced verifier for further verification. In some instances the verifier made a
confirmation by calling the depositor by phone. It is only after taking such precautionary measures
that the subject checks were given to the teller for payment.
Of course it is possible that the verifiers of TMBC might have made a mistake in failing to detect any
forgery -- if indeed there was. However, a mistake is not equivalent to negligence if they were
honest mistakes. In the instant case, we believe and so hold that if there were mistakes, the same
were not deliberate, since the bank took all the precautions.16
As borne by the records, it was petitioner, not the bank, who was negligent. Negligence is the
omission to do something which a reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of something which a prudent and
reasonable man would do.17 In the present case, it appears that petitioner accorded his secretary
unusual degree of trust and unrestricted access to his credit cards, passbooks, check books, bank
statements, including custody and possession of cancelled checks and reconciliation of accounts.
Said the Court of Appeals on this matter:
Moreover, the appellant had introduced his secretary to the bank for purposes of reconciliation of
his account, through a letter dated July 14, 1980 (Exhibit "8"). Thus, the said secretary became a
familiar figure in the bank. What is worse, whenever the bank verifiers call the office of the
appellant, it is the same secretary who answers and confirms the checks.
The trouble is, the appellant had put so much trust and confidence in the said secretary, by
entrusting not only his credit cards with her but also his checkbook with blank checks. He also
entrusted to her the verification and reconciliation of his account. Further adding to his injury was
the fact that while the bank was sending him the monthly Statements of Accounts, he was not
personally checking the same. His testimony did not indicate that he was out of the country during
the period covered by the checks. Thus, he had all the opportunities to verify his account as well as
the cancelled checks issued thereunder -- month after month. But he did not, until his partner asked
him whether he had entrusted his credit card to his secretary because the said partner had seen her
use the same. It was only then that he was minded to verify the records of his account. 18
The abovecited findings are binding upon the reviewing court. We stress the rule that the factual
findings of a trial court, especially when affirmed by the appellate court, are binding upon us19 and
entitled to utmost respect20 and even finality. We find no palpable error that would warrant a
reversal of the appellate courts assessment of facts anchored upon the evidence on record.
Petitioners failure to examine his bank statements appears as the proximate cause of his own
damage. Proximate cause is that cause, which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which the result would not have
occurred.21 In the instant case, the bank was not shown to be remiss in its duty of sending monthly
bank statements to petitioner so that any error or discrepancy in the entries therein could be
brought to the banks attention at the earliest opportunity. But, petitioner failed to examine these
bank statements not because he was prevented by some cause in not doing so, but because he did
not pay sufficient attention to the matter. Had he done so, he could have been alerted to any
anomaly committed against him. In other words, petitioner had sufficient opportunity to prevent or
detect any misappropriation by his secretary had he only reviewed the status of his accounts based
on the bank statements sent to him regularly. In view of Article 2179 of the New Civil Code, 22 when
the plaintiffs own negligence was the immediate and proximate cause of his injury, no recovery
could be had for damages.
Petitioner further contends that under Section 23 of the Negotiable Instruments Law a forged check
is inoperative, and that Manila Bank had no authority to pay the forged checks. True, it is a rule that
when a signature is forged or made without the authority of the person whose signature it purports
to be, the check is wholly inoperative. No right to retain the instrument, or to give a discharge
therefor, or to enforce payment thereof against any party, can be acquired through or under such
signature. However, the rule does provide for an exception, namely: "unless the party against

whom it is sought to enforce such right is precluded from setting up the forgery or want of
authority." In the instant case, it is the exception that applies. In our view, petitioner is precluded
from setting up the forgery, assuming there is forgery, due to his own negligence in entrusting to his
secretary his credit cards and checkbook including the verification of his statements of account.
Petitioners reliance on Associated Bank vs. Court of Appeals23 and Philippine Bank of Commerce vs.
CA24 to buttress his contention that respondent Manila Bank as the collecting or last endorser
generally suffers the loss because it has the duty to ascertain the genuineness of all prior
endorsements is misplaced. In the cited cases, the fact of forgery was not in issue. In the present
case, the fact of forgery was not established with certainty. In those cited cases, the collecting
banks were held to be negligent for failing to observe precautionary measures to detect the forgery.
In the case before us, both courts below uniformly found that Manila Banks personnel diligently
performed their duties, having compared the signature in the checks from the specimen signatures
on record and satisfied themselves that it was petitioners.
On the second issue, the fact that Manila Bank had filed a case for estafa against Eugenio would not
estop it from asserting the fact that forgery has not been clearly established. Petitioner cannot hold
private respondent in estoppel for the latter is not the actual party to the criminal action. In a
criminal action, the State is the plaintiff, for the commission of a felony is an offense against the
State.25 Thus, under Section 2, Rule 110 of the Rules of Court the complaint or information filed in
court is required to be brought in the name of the "People of the Philippines." 26
Further, as petitioner himself stated in his petition, respondent bank filed the estafa case against
Eugenio on the basis of petitioners own affidavit,27 but without admitting that he had any personal
knowledge of the alleged forgery. It is, therefore, easy to understand that the filing of the estafa
case by respondent bank was a last ditch effort to salvage its ties with the petitioner as a valuable
client, by bolstering the estafa case which he filed against his secretary.
All told, we find no reversible error that can be ascribed to the Court of Appeals.
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed decision of the Court of
Appeals dated January 28, 1999 in CA-G.R. CV No. 47942, is AFFIRMED.
Costs against petitioner.
SO ORDERED.
G.R. No. 154259
February 28, 2005
NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners, vs. ROBERTO REYES, a.k.a. "AMAY
BISAYA," respondent.
In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko)1 and
Ruby Lim assail the Decision2 of the Court of Appeals dated 26 November 2001 reversing the
Decision3 of the Regional Trial Court (RTC) of Quezon City, Branch 104, as well as the Resolution4 of
the Court of Appeals dated 09 July 2002 which denied petitioners motion for reconsideration.
The cause of action before the trial court was one for damages brought under the human relations
provisions of the New Civil Code. Plaintiff thereat (respondent herein) Roberto Reyes, more
popularly known by the screen name "Amay Bisaya," alleged that at around 6:00 oclock in the
evening of 13 October 1994, while he was having coffee at the lobby of Hotel Nikko,5 he was
spotted by his friend of several years, Dr. Violeta Filart, who then approached him.6 Mrs. Filart
invited him to join her in a party at the hotels penthouse in celebration of the natal day of the
hotels manager, Mr. Masakazu Tsuruoka.7 Mr. Reyes asked if she could vouch for him for which she
replied: "of course."8 Mr. Reyes then went up with the party of Dr. Filart carrying the basket of fruits
which was the latters present for the celebrant.9 At the penthouse, they first had their picture
taken with the celebrant after which Mr. Reyes sat with the party of Dr. Filart. 10 After a couple of
hours, when the buffet dinner was ready, Mr. Reyes lined-up at the buffet table but, to his great
shock, shame and embarrassment, he was stopped by petitioner herein, Ruby Lim, who claimed to
speak for Hotel Nikko as Executive Secretary thereof.11 In a loud voice and within the presence and
hearing of the other guests who were making a queue at the buffet table, Ruby Lim told him to
leave the party ("huwag ka nang kumain, hindi ka imbitado, bumaba ka na lang").12 Mr. Reyes tried

to explain that he was invited by Dr. Filart.13 Dr. Filart, who was within hearing distance, however,
completely ignored him thus adding to his shame and humiliation.14 Not long after, while he was
still recovering from the traumatic experience, a Makati policeman approached and asked him to
step out of the hotel.15 Like a common criminal, he was escorted out of the party by the
policeman.16 Claiming damages, Mr. Reyes asked for One Million Pesos actual damages, One Million
Pesos moral and/or exemplary damages and Two Hundred Thousand Pesos attorneys fees.17
Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the
ignominious circumstance painted by the latter. Ms. Lim narrated that she was the Hotels
Executive Secretary for the past twenty (20) years.18 One of her functions included organizing the
birthday party of the hotels former General Manager, Mr. Tsuruoka.19 The year 1994 was no
different. For Mr. Tsuruokas party, Ms. Lim generated an exclusive guest list and extended
invitations accordingly.20 The guest list was limited to approximately sixty (60) of Mr. Tsuruokas
closest friends and some hotel employees and that Mr. Reyes was not one of those invited.21 At the
party, Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink.22 Mindful of Mr.
Tsuruokas wishes to keep the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain
waiter," to inquire as to the presence of Mr. Reyes who was not invited.23 Mr. Miller replied that he
saw Mr. Reyes with the group of Dr. Filart.24 As Dr. Filart was engaged in conversation with another
guest and as Ms. Lim did not want to interrupt, she inquired instead from the sister of Dr. Filart, Ms.
Zenaida Fruto, who told her that Dr. Filart did not invite Mr. Reyes.25 Ms. Lim then requested Ms.
Fruto to tell Mr. Reyes to leave the party as he was not invited.26 Mr. Reyes, however, lingered
prompting Ms. Lim to inquire from Ms. Fruto who said that Mr. Reyes did not want to leave.27 When
Ms. Lim turned around, she saw Mr. Reyes conversing with a Captain Batung whom she later
approached.28Believing that Captain Batung and Mr. Reyes knew each other, Ms. Lim requested
from him the same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party
as he was not invited.29 Still, Mr. Reyes lingered. When Ms. Lim spotted Mr. Reyes by the buffet
table, she decided to speak to him herself as there were no other guests in the immediate
vicinity.30 However, as Mr. Reyes was already helping himself to the food, she decided to
wait.31 When Mr. Reyes went to a corner and started to eat, Ms. Lim approached him and said:
"alam ninyo, hindo ho kayo dapat nandito. Pero total nakakuha na ho kayo ng pagkain, ubusin na
lang ninyo at pagkatapos kung pwede lang po umalis na kayo."32 She then turned around trusting
that Mr. Reyes would show enough decency to leave, but to her surprise, he began screaming and
making a big scene, and even threatened to dump food on her.331awphi1.nt
Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her version
of the story to the effect that she never invited Mr. Reyes to the party. 34 According to her, it was
Mr. Reyes who volunteered to carry the basket of fruits intended for the celebrant as he was
likewise going to take the elevator, not to the penthouse but to Altitude 49.35 When they reached
the penthouse, she reminded Mr. Reyes to go down as he was not properly dressed and was not
invited.36 All the while, she thought that Mr. Reyes already left the place, but she later saw him at
the bar talking to Col. Batung.37 Then there was a commotion and she saw Mr. Reyes shouting.38 She
ignored Mr. Reyes.39 She was embarrassed and did not want the celebrant to think that she invited
him.40
After trial on the merits, the court a quo dismissed the complaint,41 giving more credence to the
testimony of Ms. Lim that she was discreet in asking Mr. Reyes to leave the party. The trial court
likewise ratiocinated that Mr. Reyes assumed the risk of being thrown out of the party as he was
uninvited:
Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the
birthday celebrant. He assumed the risk of being asked to leave for attending a party to which he
was not invited by the host. Damages are pecuniary consequences which the law imposes for the
breach of some duty or the violation of some right. Thus, no recovery can be had against
defendants Nikko Hotel and Ruby Lim because he himself was at fault (Garciano v. Court of Appeals,
212 SCRA 436). He knew that it was not the party of defendant Violeta Filart even if she allowed him
to join her and took responsibility for his attendance at the party. His action against defendants
Nikko Hotel and Ruby Lim must therefore fail.42

On appeal, the Court of Appeals reversed the ruling of the trial court as it found more commanding
of belief the testimony of Mr. Reyes that Ms. Lim ordered him to leave in a loud voice within
hearing distance of several guests:
In putting appellant in a very embarrassing situation, telling him that he should not finish his food
and to leave the place within the hearing distance of other guests is an act which is contrary to
morals, good customs . . ., for which appellees should compensate the appellant for the damage
suffered by the latter as a consequence therefore (Art. 21, New Civil Code). The liability arises from
the acts which are in themselves legal or not prohibited, but contrary to morals or good customs.
Conversely, even in the exercise of a formal right, [one] cannot with impunity intentionally cause
damage to another in a manner contrary to morals or good customs.43
The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people to
inquire into the presence of Mr. Reyes exposed the latter to ridicule and was uncalled for as she
should have approached Dr. Filart first and both of them should have talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim was to
approach appellee Mrs. Filart and together they should have told appellant Reyes in private that the
latter should leave the party as the celebrant only wanted close friends around. It is necessary that
Mrs. Filart be the one to approach appellant because it was she who invited appellant in that
occasion. Were it not for Mrs. Filarts invitation, appellant could not have suffered such humiliation.
For that, appellee Filart is equally liable.
...
The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human dignity but respect of such
dignity. Under Article 20 of the Civil Code, every person who violates this duty becomes liable for
damages, especially if said acts were attended by malice or bad faith. Bad faith does not simply
connote bad judgment or simple negligence. It imports a dishonest purpose or some moral obliquity
and conscious doing of a wrong, a breach of a known duty to some motive or interest or ill-will that
partakes of the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603).44
Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart the
solidary obligation to pay Mr. Reyes (1) exemplary damages in the amount of Two Hundred
Thousand Pesos (P200,000); (2) moral damages in the amount of Two Hundred Thousand Pesos
(P200,000); and (3) attorneys fees in the amount of Ten Thousand Pesos (P10,000).45 On motion for
reconsideration, the Court of Appeals affirmed its earlier decision as the argument raised in the
motion had "been amply discussed and passed upon in the decision sought to be reconsidered."46
Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of Appeals
seriously erred in
I.
NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING THAT BY ITS OWN
FINDINGS, AMAY BISAYA WAS A GATE-CRASHER
II.
HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE WITH DR. FILART FOR
DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA "COULD NOT HAVE SUFFERED SUCH
HUMILIATION," "WERE IT NOT FOR DR. FILARTS INVITATION"
III.
DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS THE
CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY BISAYA
IV.
IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF HIS POVERTY,
CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO EVIDENCE WAS PRESENTED IN THIS
REGARD
V.
IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANTS BRIEF, THEREBY
DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS

Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria, they
cannot be made liable for damages as respondent Reyes assumed the risk of being asked to leave
(and being embarrassed and humiliated in the process) as he was a "gate-crasher."
The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law as
injury"47 ) refers to self-inflicted injury48 or to the consent to injury49 which precludes the recovery
of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not
negligent in doing so.50 As formulated by petitioners, however, this doctrine does not find
application to the case at bar because even if respondent Reyes assumed the risk of being asked to
leave the party, petitioners, under Articles 19 and 21 of the New Civil Code, were still under
obligation to treat him fairly in order not to expose him to unnecessary ridicule and shame.
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes, a.k.a.
"Amay Bisaya," to leave the party where he was not invited by the celebrant thereof thereby
becoming liable under Articles 19 and 21 of the Civil Code. Parenthetically, and if Ruby Lim were so
liable, whether or not Hotel Nikko, as her employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and irreconcilable conclusions
concerning the same facts and evidence of the case, this Court is left without choice but to use its
latent power to review such findings of facts. Indeed, the general rule is that we are not a trier of
facts as our jurisdiction is limited to reviewing and revising errors of law.51 One of the exceptions to
this general rule, however, obtains herein as the findings of the Court of Appeals are contrary to
those of the trial court.52 The lower court ruled that Ms. Lim did not abuse her right to ask Mr.
Reyes to leave the party as she talked to him politely and discreetly. The appellate court, on the
other hand, held that Ms. Lim is liable for damages as she needlessly embarrassed Mr. Reyes by
telling him not to finish his food and to leave the place within hearing distance of the other guests.
Both courts, however, were in agreement that it was Dr. Filarts invitation that brought Mr. Reyes to
the party.
The consequential question then is: Which version is credible?
From an in depth review of the evidence, we find more credible the lower courts findings of fact.
First, let us put things in the proper perspective.
We are dealing with a formal party in a posh, five-star hotel,53 for-invitation-only, thrown for the
hotels former Manager, a Japanese national. Then came a person who was clearly uninvited (by the
celebrant)54 and who could not just disappear into the crowd as his face is known by many, being an
actor. While he was already spotted by the organizer of the party, Ms. Lim, the very person who
generated the guest list, it did not yet appear that the celebrant was aware of his presence. Ms.
Lim, mindful of the celebrants instruction to keep the party intimate, would naturally want to get
rid of the "gate-crasher" in the most hush-hush manner in order not to call attention to a glitch in
an otherwise seamless affair and, in the process, risk the displeasure of the celebrant, her former
boss. To unnecessarily call attention to the presence of Mr. Reyes would certainly reflect badly on
Ms. Lims ability to follow the instructions of the celebrant to invite only his close friends and some
of the hotels personnel. Mr. Reyes, upon whom the burden rests to prove that indeed Ms. Lim
loudly and rudely ordered him to leave, could not offer any satisfactory explanation why Ms. Lim
would do that and risk ruining a formal and intimate affair. On the contrary, Mr. Reyes, on crossexamination, had unwittingly sealed his fate by admitting that when Ms. Lim talked to him, she was
very close. Close enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet table?
How close was she when she approached you?
A: Very close because we nearly kissed each other.
Q: And yet, she shouted for you to go down? She was that close and she shouted?
A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba ka na lang."
Q: So, you are testifying that she did this in a loud voice?
...
A: Yes. If it is not loud, it will not be heard by many.55
In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose him
to ridicule and shame, it is highly unlikely that she would shout at him from a very close distance.

Ms. Lim having been in the hotel business for twenty years wherein being polite and discreet are
virtues to be emulated, the testimony of Mr. Reyes that she acted to the contrary does not inspire
belief and is indeed incredible. Thus, the lower court was correct in observing that
Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave the
party was made such that they nearly kissed each other, the request was meant to be heard by him
only and there could have been no intention on her part to cause embarrassment to him. It was
plaintiffs reaction to the request that must have made the other guests aware of what transpired
between them. . .
Had plaintiff simply left the party as requested, there was no need for the police to take him out.56
Moreover, another problem with Mr. Reyess version of the story is that it is unsupported. It is a
basic rule in civil cases that he who alleges proves. Mr. Reyes, however, had not presented any
witness to back his story up. All his witnesses Danny Rodinas, Pepito Guerrero and Alexander Silva
- proved only that it was Dr. Filart who invited him to the party.57
Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not
invited, cannot be made liable to pay for damages under Articles 19 and 21 of the Civil Code.
Necessarily, neither can her employer, Hotel Nikko, be held liable as its liability springs from that of
its employee.58
Article 19, known to contain what is commonly referred to as the principle of abuse of rights,59 is
not a panacea for all human hurts and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith.1awphi1.nt
Elsewhere, we explained that when "a right is exercised in a manner which does not conform with
the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be responsible."60 The object of this article, therefore, is
to set certain standards which must be observed not only in the exercise of ones rights but also in
the performance of ones duties.61 These standards are the following: act with justice, give everyone
his due and observe honesty and good faith.62 Its antithesis, necessarily, is any act evincing bad faith
or intent to injure. Its elements are the following: (1) There is a legal right or duty; (2) which is
exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.63 When Article 19 is
violated, an action for damages is proper under Articles 20 or 21 of the Civil Code. Article 20
pertains to damages arising from a violation of law64 which does not obtain herein as Ms. Lim was
perfectly within her right to ask Mr. Reyes to leave. Article 21, on the other hand, states:
Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
Article 2165 refers to acts contra bonus mores and has the following elements: (1) There is an act
which is legal; (2) but which is contrary to morals, good custom, public order, or public policy; and
(3) it is done with intent to injure.66
A common theme runs through Articles 19 and 21,67 and that is, the act complained of must be
intentional.68
As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was driven
by animosity against him. These two people did not know each other personally before the evening
of 13 October 1994, thus, Mr. Reyes had nothing to offer for an explanation for Ms. Lims alleged
abusive conduct except the statement that Ms. Lim, being "single at 44 years old," had a "very
strong bias and prejudice against (Mr. Reyes) possibly influenced by her associates in her work at
the hotel with foreign businessmen."69 The lameness of this argument need not be belabored.
Suffice it to say that a complaint based on Articles 19 and 21 of the Civil Code must necessarily fail if
it has nothing to recommend it but innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable and
humane under the circumstances. In this regard, we cannot put our imprimatur on the appellate
courts declaration that Ms. Lims act of personally approaching Mr. Reyes (without first verifying
from Mrs. Filart if indeed she invited Mr. Reyes) gave rise to a cause of action "predicated upon
mere rudeness or lack of consideration of one person, which calls not only protection of human
dignity but respect of such dignity."70 Without proof of any ill-motive on her part, Ms. Lims act of

by-passing Mrs. Filart cannot amount to abusive conduct especially because she did inquire from
Mrs. Filarts companion who told her that Mrs. Filart did not invite Mr. Reyes.71 If at all, Ms. Lim is
guilty only of bad judgment which, if done with good intentions, cannot amount to bad faith.
Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko be
made answerable for exemplary damages72 especially for the reason stated by the Court of Appeals.
The Court of Appeals held
Not a few of the rich people treat the poor with contempt because of the latters lowly station in
life.l^vvphi1.net This has to be limited somewhere. In a democracy, such a limit must be
established. Social equality is not sought by the legal provisions under consideration, but due regard
for decency and propriety (Code Commission, pp. 33-34). And by way of example or correction for
public good and to avert further commission of such acts, exemplary damages should be imposed
upon appellees.73
The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of
the case and the evidence on hand.l^vvphi1.net It is not disputed that at the time of the incident in
question, Mr. Reyes was "an actor of long standing; a co-host of a radio program over DZRH; a
Board Member of the Music Singer Composer (MUSICO) chaired by popular singer Imelda Papin; a
showbiz Coordinator of Citizen Crime Watch; and 1992 official candidate of the KBL Party for
Governor of Bohol; and an awardee of a number of humanitarian organizations of the
Philippines."74 During his direct examination on rebuttal, Mr. Reyes stressed that he had
income75 and nowhere did he say otherwise. On the other hand, the records are bereft of any
information as to the social and economic standing of petitioner Ruby Lim. Consequently, the
conclusion reached by the appellate court cannot withstand scrutiny as it is without basis.
All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes might
have suffered through Ms. Lims exercise of a legitimate right done within the bounds of propriety
and good faith, must be his to bear alone.
WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila Garden is
GRANTED. The Decision of the Court of Appeals dated 26 November 2001 and its Resolution dated
09 July 2002 are hereby REVERSED and SET ASIDE. The Decision of the Regional Trial Court of
Quezon City, Branch 104, dated 26 April 1999 is hereby AFFIRMED. No costs.
SO ORDERED.
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, vs. HONORABLE COURT OF APPEALS, (First
Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and
PURISIMA JUAN, respondents.
Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First
Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the
following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby
defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory
damages of P50,000.00; exemplary damages of P10,000.00; attorney's fees of P3,000.00; plus the
costs of suit in both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the recognition of
their respective versions of the scenario from which the disputed claims originate. The respondent
Court of Appeals (CA) summarized the evidence of the parties as follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of
June 29, 1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte,
bringing heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29,
1967, after the typhoon had abated and when the floodwaters were beginning to recede the
deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house of her son-in-law,
Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towards the
direction of the Five Sisters Emporium, of which she was the owner and proprietress, to look after

the merchandise therein that might have been damaged. Wading in waist-deep flood on Guerrero,
the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the
deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly owned by
the deceased. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind
the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the water. The two girls
attempted to help, but fear dissuaded them from doing so because on the spot where the deceased
sank they saw an electric wire dangling from a post and moving in snake-like fashion in the water.
Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried
to go to the deceased, but at four meters away from her he turned back shouting that the water
was grounded. Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema
building which was four or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he
acted immediately. With his wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the
City Hall of Laoag to request the police to ask the people of defendant Ilocos Norte Electric
Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero
Street. The floodwater was receding and the lights inside the house were out indicating that the
electric current had been cut off in Guerrero. Yabes instructed his boys to fish for the body of the
deceased. The body was recovered about two meters from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan,
Power Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed
certain fluctuations in their electric meter which indicated such abnormalities as grounded or shortcircuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an
inspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from
the posts to the ground. Since he could not see any INELCO lineman, he decided to go to the INELCO
Office at the Life Theatre on Rizal Street by way of Guerrero. As he turned right at the intersection
of Guerrero and Rizal, he saw an electric wire about 30 meters long strung across the street "and
the other end was seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972)
Finding the Office of the INELCO still closed, and seeing no lineman therein, he returned to the NPC
Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having
learned of the death of Isabel Lao Juan, he passed by the house of the deceased at the corner of
Guerrero and M.H. del Pilar streets to which the body had been taken. Using the resuscitator which
was a standard equipment in his jeep and employing the skill he acquired from an in service training
on resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting
in. On the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO
Office, he met two linemen on the way. He told them about the grounded lines of the INELCO In the
afternoon of the same day, he went on a third inspection trip preparatory to the restoration of
power. The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer
there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the
deceased had been electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal
Health Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro
examined the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical
parlance, cyanotic, which indicated death by electrocution. On the left palm, the doctor found an
"electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the
base of the thumb on the left hand was a burned wound. (Exh. C-2, pp. 102-103, Ibid.) The
certificate of death prepared by Dr. Castro stated the cause of' death as ,'circulatory shock
electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its officers and employees,
namely, Conrado Asis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero,
lineman; and Julio Agcaoili, president-manager of INELCO Through the testimonies of these
witnesses, defendant sought to prove that on and even before June 29, 1967 the electric service
system of the INELCO in the whole franchise area, including Area No. 9 which covered the residence

of Antonio Yabes at No. 18 Guerrero Street, did not suffer from any defect that might constitute a
hazard to life and property. The service lines, devices and other INELCO equipment in Area No. 9
had been newly-installed prior to the date in question. As a public service operator and in line with
its business of supplying electric current to the public, defendant had installed safety devices to
prevent and avoid injuries to persons and damage to property in case of natural calamities such as
floods, typhoons, fire and others. Defendant had 12 linesmen charged with the duty of making a
round-the-clock check-up of the areas respectively assigned to them.
Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29,
1967, putting to streets of Laoag City under water, only a few known places in Laoag were reported
to have suffered damaged electric lines, namely, at the southern approach of the Marcos Bridge
which was washed away and where the INELCO lines and posts collapsed; in the eastern part near
the residence of the late Governor Simeon Mandac; in the far north near the defendant's power
plant at the corner of Segundo and Castro Streets, Laoag City and at the far northwest side, near the
premises of the Ilocos Norte National High School. Fabico Abijero, testified that in the early morning
before 6 o'clock on June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to
switch off the street lights in Area No. 9. He did not see any cut or broken wires in or near the
vicinity. What he saw were many people fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to show that the
deceased could not have died of electrocution Substantially, the testimony of the doctor is as
follows: Without an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert,
can speculate as to the real cause of death. Cyanosis could not have been found in the body of the
deceased three hours after her death, because cyanosis which means lack of oxygen circulating in
the blood and rendering the color of the skin purplish, appears only in a live person. The presence
of the elongated burn in the left palm of the deceased (Exhibits C-1 and C-2) is not sufficient to
establish her death by electrocution; since burns caused by electricity are more or less round in
shape and with points of entry and exit. Had the deceased held the lethal wire for a long time, the
laceration in her palm would have been bigger and the injury more massive. (CA Decision, pp. 1821, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the
deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55,
Rollo), petitioner advanced the theory, as a special defense, that the deceased could have died
simply either by drowning or by electrocution due to negligence attributable only to herself and not
to petitioner. In this regard, it was pointed out that the deceased, without petitioner's knowledge,
caused the installation of a burglar deterrent by connecting a wire from the main house to the iron
gate and fence of steel matting, thus, charging the latter with electric current whenever the switch
is on. Petitioner then conjectures that the switch to said burglar deterrent must have been left on,
hence, causing the deceased's electrocution when she tried to open her gate that early morning of
June 29, 1967. After due trial, the CFI found the facts in favor of petitioner and dismissed the
complaint but awarded to the latter P25,000 in moral damages and attorney's fees of P45,000. An
appeal was filed with the CA which issued the controverted decision.
In this petition for review the petitioner assigns the following errors committed by the respondent
CA:
1. The respondent Court of Appeals committed grave abuse of discretion and error in considering
the purely hearsay alleged declarations of Ernesto de la Cruz as part of theres gestae.
2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that
the strong typhoon "Gening" which struck Laoag City and Ilocos Norte on June 29, 1967 and the
flood and deluge it brought in its wake were not fortuitous events and did not exonerate petitionercompany from liability for the death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal
principle of "assumption of risk" in the present case to bar private respondents from collecting
damages from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused its discretion in completely
reversing the findings of fact of the trial court.

5. The findings of fact of the respondent Court of Appeals are reversible under the recognized
exceptions.
6. The trial court did not err in awarding moral damages and attorney's fees to defendant
corporation, now petitioner company.
7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel
Lao Juan, the damages granted by respondent Court of Appeals are improper and exhorbitant.
(Petitioners Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2)
whether or not petitioner may be held liable for the deceased's death; and (3) whether or not the
respondent CA's substitution of the trial court's factual findings for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative. By a
preponderance of evidence, private respondents were able to show that the deceased died of
electrocution, a conclusion which can be primarily derived from the photographed burnt wounds
(Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the
fact that the deceased had clutched a live wire of the petitioner. This was corroborated by the
testimony of Dr. Jovencio Castro who actually examined the body of the deceased a few hours after
the death and described the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11,
1972) and that they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore,
witnesses Linda Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and
sank into the water, they tried to render some help but were overcome with fear by the sight of an
electric wire dangling from an electric post, moving in the water in a snake-like fashion (supra). The
foregoing therefore justifies the respondent CA in concluding that "(t)he nature of the wounds as
described by the witnesses who saw them can lead to no other conclusion than that they were
"burns," and there was nothing else in the street where the victim was wading thru which could
cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased was
electrocuted, if such was really the case when she tried to open her steel gate, which was
electrically charged by an electric wire she herself caused to install to serve as a burglar deterrent.
Petitioner suggests that the switch to said burglar alarm was left on. But this is mere speculation,
not backed up with evidence. As required by the Rules, "each party must prove his own affirmative
allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly noted that "during the trial, this
theory was abandoned" by the petitioner (CA Decision, p. 23, Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during
that fateful morning of June 29, 1967. This Court has not been offered any sufficient reason to
discredit the testimonies of these two young ladies. They were one in the affirmation that the
deceased, while wading in the waist-deep flood on Guerrero Street five or six meters ahead of
them, suddenly screamed "Ay" and quickly sank into the water. When they approached the
deceased to help, they were stopped by the sight of an electric wire dangling from a post and
moving in snake-like fashion in the water. Ernesto dela Cruz also tried to approach the deceased,
but he turned back shouting that the water was grounded. These bits of evidence carry much
weight. For the subject of the testimonies was a startling occurrence, and the declarations may be
considered part of the res gestae. (CA Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be present: (1) that
the principal act, the res gestae, be a startling occurrence; (2) that the statements were made
before the declarant had time to contrive or devise; (3) that the statements made must concern the
occurrence in question and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151;
People vs. Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in view of
the satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence precisely as an
exception to the hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness"
because the statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity"
because such natural and spontaneous utterances are more convincing than the testimony of the

same person on the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant,
Ernesto de la Cruz, was not presented to testify does not make the testimony of Linda Alonzo
Estavillo and Aida Bulong hearsay since the said declaration is part of the res gestae. Similarly, We
considered part of the res gestae a conversation between two accused immediately after
commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo),
Ernesto de la Cruz was not an actual witness to the instant when the deceased sank into the waistdeep water, he acted upon the call of help of Aida Bulong and Linda Alonzo Estavillo with the
knowledge of, and immediately after, the sinking of the deceased. In fact the startling event had not
yet ceased when Ernesto de la Cruz entered the scene considering that the victim remained
submerged. Under such a circumstance, it is undeniable that a state of mind characterized by
nervous excitement had been triggered in Ernesto de la Cruz's being as anybody under the same
contingency could have experienced. As such, We cannot honestly exclude his shouts that the water
was grounded from the res gestae just because he did not actually see the sinking of the deceased
nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We
concede to the submission that the statement must be one of facts rather than opinion, We cannot
agree to the proposition that the one made by him was a mere opinion. On the contrary, his shout
was a translation of an actuality as perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the
private respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131.
For the application of said Rule as against a party to a case, it is necessary that the evidence alleged
to be suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil.
953). The presumption does not operate if the evidence in question is equally available to both
parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records
that petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely, was Linda
Alonzo Estavillo's suggestion to petitioner's counsel when she testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)
The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la
Cruz which, if truly adverse to private respondent, would have helped its case. However, due to
reasons known only to petitioner, the opportunity was not taken.
Coming now to the second issue, We tip the scales in the private respondents' favor. The
respondent CA acted correctly in disposing the argument that petitioner be exonerated from
liability since typhoons and floods are fortuitous events. While it is true that typhoons and floods
are considered Acts of God for which no person may be held responsible, it was not said eventuality
which directly caused the victim's death. It was through the intervention of petitioner's negligence
that death took place. We subscribe to the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the electrocution and consequent
death of the late Isabel Lao Juan, defendant called to the witness-stand its electrical engineer, chief
lineman, and lineman to show exercise of extraordinary diligence and to negate the charge of
negligence. The witnesses testified in a general way about their duties and the measures which
defendant usually adopts to prevent hazards to life and limb. From these testimonies, the lower
court found "that the electric lines and other equipment of defendant corporation were properly
maintained by a well-trained team of lineman, technicians and engineers working around the clock
to insure that these equipments were in excellent condition at all times." (P. 40, Record on Appeal)
The finding of the lower court, however, was based on what the defendant's employees were
supposed to do, not on what they actually did or failed to do on the date in question, and not on the
occasion of theemergency situation brought about by the typhoon.
The lower court made a mistake in assuming that defendant's employees worked around the clock
during the occurrence of the typhoon on the night of June 28 and until the early morning of June
29, 1967, Engr. Antonio Juan of the National Power Corporation affirmed that when he first set out
on an inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and

disconnected electric lines of the defendant but he saw no INELCO lineman. The INELCO Office at
the Life theatre on Rizal Street was still closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of
defendant contradict the finding of the lower court. Conrado Asis, defendant's electrical engineer,
testified that he conducted a general inspection of the franchise area of the INELCO only on June 30,
1967, the day following the typhoon. The reason he gave for the delay was that all their vehicles
were submerged. (p. 337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M.
onJune 30 and after briefing his men on what to do they started out. (p. 338, lbid) One or two days
after the typhoon, the INELCO people heard "rumors that someone was electrocuted" so he sent
one of his men to the place but his man reported back that there was no damaged wire. (p. 385, Id.)
Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He testified that at about 8:00
A.M. on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO people to inspect
their lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00 noon. (pp.
460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on
June 29, 1967 the typhoon ceased. At that time, he was at the main building of the Divine Word
College of Laoag where he had taken his family for refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the
early hours of June 29, 1967, extraordinary diligence requires a supplier of electricity to be
inconstant vigil to prevent or avoid any probable incident that might imperil life or limb. The
evidence does not show that defendant did that. On the contrary, evidence discloses that there
were no men (linemen or otherwise) policing the area, nor even manning its office. (CA Decision,
pp. 24-25, Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is
done to the general public"... considering that electricity is an agency, subtle and deadly, the
measure of care required of electric companies must be commensurate with or proportionate to
the danger. The duty of exercising this high degree of diligence and care extends to every place
where persons have a right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of
petitioner having been shown, it may not now absolve itself from liability by arguing that the
victim's death was solely due to a fortuitous event. "When an act of God combines or concurs with
the negligence of the defendant to produce an injury, the defendant is liable if the injury would not
have resulted but for his own negligent conduct or omission" (38 Am. Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the
case at bar. It is imperative to note the surrounding circumstances which impelled the deceased to
leave the comforts of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo
(see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased,
accompanied by the former two, were on their way to the latter's grocery store "to see to it that
the goods were not flooded." As such, shall We punish her for exercising her right to protect her
property from the floods by imputing upon her the unfavorable presumption that she assumed the
risk of personal injury? Definitely not. For it has been held that a person is excused from the force of
the rule, that when he voluntarily assents to a known danger he must abide by the consequences, if
an emergency is found to exist or if the life or property of another is in peril (65A C.S.C.
Negligence(174(5), p. 301), or when he seeks to rescue his endangered property (Harper and James,
"The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as
the deceased's property, a source of her livelihood, was faced with an impending loss. Furthermore,
the deceased, at the time the fatal incident occurred, was at a place where she had a right to be
without regard to petitioner's consent as she was on her way to protect her merchandise. Hence,
private respondents, as heirs, may not be barred from recovering damages as a result of the death
caused by petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely reversing the trial court's
findings of fact, pointing to the testimonies of three of its employees its electrical engineer,
collector-inspector, lineman, and president-manager to the effect that it had exercised the degree
of diligence required of it in keeping its electric lines free from defects that may imperil life and
limb. Likewise, the said employees of petitioner categorically disowned the fatal wires as they
appear in two photographs taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting

that said wires were just hooked to the electric post (petitioner's Memorandum, p. 170, Rollo).
However, as the CA properly held, "(t)he finding of the lower court ... was based on what the
defendant's employees were supposed to do, not on what they actually did or failed to do on the
date in question, and not on the occasion of the emergency situation brought about by the
typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have already reiterated
above, petitioner was in fact negligent. In a like manner, petitioner's denial of ownership of the
several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature
of the wounds as described by the witnesses who saw them can lead to no other conclusion than
that they were 'burns', and there was nothing else in the street where the victim was wading thru
which could cause a burn except the dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to
discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when
Engineer Antonio Juan of the National Power Corporation set out in the early morning of June 29,
1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts to the
ground but did not see any INELCO lineman either in the streets or at the INELCO office (vide, CA
Decision, supra). The foregoing shows that petitioner's duty to exercise extraordinary diligence
under the circumstance was not observed, confirming the negligence of petitioner. To aggravate
matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about the impending typhoon,
through radio announcements. Even the fire department of the city announced the coming of the
big flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO irregularities in the flow of electric
current were noted because "amperes of the switch volts were moving". And yet, despite these
danger signals, INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but
the harm was done. Asked why the delay, Loreto Abijero answered that he "was not the machine
tender of the electric plant to switch off the current." (pp. 467-468, Ibid.) How very characteristic of
gross inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's
findings but tediously considered the factual circumstances at hand pursuant to its power to review
questions of fact raised from the decision of the Regional Trial Court, formerly the Court of First
Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in private
respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and
P18,229.45 for funeral expenses); P50,000 in compensatory damages, computed in accordance with
the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as average
annual income of the deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs
of suit. Except for the award of P12,000 as compensation for the victim's death, We affirm the
respondent CA's award for damages and attorney's fees. Pusuant to recent jurisprudence (People
vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA 381), We increase the said award of
P12,000 to P30,000, thus, increasing the total actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was properly made
by the respondent CA, the charge of malice and bad faith on the part of respondents in instituting
his case being a mere product of wishful thinking and speculation. Award of damages and attorney's
fees is unwarranted where the action was filed in good faith; there should be no penalty on the
right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising his legal
rights, it is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight modification that
actual damages be increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.
G.R. No. 122039 May 31, 2000
VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31,
1991, reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and
awarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action for
breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a
college freshman majoring in Physical Education at the Siliman University, took a passenger jeepney
owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of
the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As
she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she
was doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped the
left rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the
"distal third of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of
the fracture, long leg circular casting, and case wedging were done under sedation. Her
confinement in the hospital lasted from August 23 to September 7, 1989. Her attending physician,
Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of
three months and would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the
contract of carriage by the former in failing to exercise the diligence required of him as a common
carrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the owner
of the Isuzu truck.
The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of
liability, holding that it was the driver of the Isuzu truck who was responsible for the accident. It
took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for
quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena jointly liable to
Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that
Sunga's cause of action was based on a contract of carriage, not quasi-delict, and that the common
carrier failed to exercise the diligence required under the Civil Code. The appellate court dismissed
the third-party complaint against Salva and adjudged Calalas liable for damages to Sunga. The
dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is
entered ordering defendant-appellee Vicente Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorney's fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of
Verena was the proximate cause of the accident negates his liability and that to rule otherwise
would be to make the common carrier an insurer of the safety of its passengers. He contends that
the bumping of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner further
assails the award of moral damages to Sunga on the ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the
owner of the truck liable for quasi-delict ignores the fact that she was never a party to that case
and, therefore, the principle ofres judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case
No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage

caused to petitioner's jeepney. On the other hand, the issue in this case is whether petitioner is
liable on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra
contractual, has as its source the negligence of the tortfeasor. The second, breach of contract
or culpa contractual, is premised upon the negligence in the performance of a contractual
obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the
basis of the action, whereas in breach of contract, the action can be prosecuted merely by proving
the existence of the contract and the fact that the obligor, in this case the common carrier, failed to
transport his passenger safely to his destination.2 In case of death or injuries to passengers, Art.
1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have
acted negligently unless they prove that they observed extraordinary diligence as defined in Arts.
1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the burden of
proof.
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his
driver Verena liable for the damage to petitioner's jeepney, should be binding on Sunga. It is
immaterial that the proximate cause of the collision between the jeepney and the truck was the
negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for
quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability
to a person where there is no relation between him and another party. In such a case, the
obligation is created by law itself. But, where there is a pre-existing contractual relation between
the parties, it is the parties themselves who create the obligation, and the function of the law is
merely to regulate the relation thus created. Insofar as contracts of carriage are concerned, some
aspects regulated by the Civil Code are those respecting the diligence required of common carriers
with regard to the safety of passengers as well as the presumption of negligence in cases of death
or injury to passengers. It provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734,
1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers
is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with due regard for all
the circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been
at fault or to have acted negligently, unless they prove that they observed extraordinary diligence
as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence at once
arose, and it became the duty of petitioner to prove that he had to observe extraordinary diligence
in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide,
using the utmost diligence of very cautious persons, with due regard for all the circumstances" as
required by Art. 1755? We do not think so. Several factors militate against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being
exposed about two meters from the broad shoulders of the highway, and facing the middle of the
highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land
Transportation and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. No person shall drive his motor vehicle in such a manner as to
obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating
capacity of the jeepney, a violation of 32(a) of the same law. It provides:

Exceeding registered capacity. No person operating any motor vehicle shall allow more
passengers or more freight or cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to
which the other passengers were exposed. Therefore, not only was petitioner unable to overcome
the presumption of negligence imposed on him for the injury sustained by Sunga, but also, the
evidence shows he was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension
seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries to the many
victims of the tragedies in our seas should not be compensated merely because those passengers
assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioner's
contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito.
A caso fortuito is an event which could not be foreseen, or which, though foreseen, was
inevitable.3 This requires that the following requirements be present: (a) the cause of the breach is
independent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is such
as to render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the
debtor
did
not
take
part
in
causing
the
injury
to
the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body
protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is excessive and without
basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college student in that school year
1989-1990 at the Silliman University, majoring in Physical Education. Because of the injury, she was
not able to enroll in the second semester of that school year. She testified that she had no more
intention of continuing with her schooling, because she could not walk and decided not to pursue
her degree, major in Physical Education "because of my leg which has a defect already."
Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain
because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified that
she has "residual bowing of the fracture side." She likewise decided not to further pursue Physical
Education as her major subject, because "my left leg . . . has a defect already."
Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she
suffered. Under Article 2219 of the Civil Code, she is entitled to recover moral damages in the sum
of P50,000.00, which is fair, just and reasonable.
As a general rule, moral damages are not recoverable in actions for damages predicated on a
breach of contract for it is not one of the items enumerated under Art. 2219 of the Civil Code. 5 As
an exception, such damages are recoverable: (1) in cases in which the mishap results in the death of
a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the
cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral damages since there was no factual finding by
the appellate court that petitioner acted in bad faith in the performance of the contract of carriage.
Sunga's contention that petitioner's admission in open court that the driver of the jeepney failed to
assist her in going to a nearby hospital cannot be construed as an admission of bad faith. The fact
that it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner
was utterly indifferent to the plight of his injured passenger. If at all, it is merely implied recognition
by Verena that he was the one at fault for the accident.
WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated
September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral damages is
DELETED. SO ORDERED.
G.R. No. 70493 May 18, 1989
GLAN PEOPLE'S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELIX LIM and PAUL
ZACARIAS y INFANTE, petitioners, vs. INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA.
DE CALIBO, Minors ROYCE STEPHEN, JOYCE JOAN, JANISE MARIE, JACQUELINE BRIGITTE JOCELINE

CORAZON, JULIET GERALDINE, JENNIFER JILL, all surnamed CALIBO, represented by their mother,
CECILIA A. VDA. DE CALIBO,respondents.
There is a two-fold message in this judgment that bears stating at the outset. The first, an obvious
one, is that it is the objective facts established by proofs presented in a controversy that determine
the verdict, not the plight of the persons involved, no matter how deserving of sympathy and
commiseration because, for example, an accident of which they are the innocent victims has
brought them to. reduced circumstances or otherwise tragically altered their lives. The second is
that the doctrine laid done many, many years ago in Picart vs. Smith 1continues to be good law to
this day.
The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the Trial
Court as follows: 2
Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the jeep owned by the
Bacnotan Consolidated Industries, Inc., with Calibo at the wheel, as it approached from the South
Lizada Bridge going towards the direction of Davao City at about 1:45 in the afternoon of July
4,1979. At about that time, the cargo track, loaded with cement bags, GI sheets, plywood, driven by
defendant Paul Zacarias y Infants, coming from the opposite direction of Davao City and bound for
Glan, South Cotabato, had just crossed said bridge. At about 59 yards after crossing the bridge, the
cargo truck and the jeep collided as a consequence of which Engineer Calibo died while Roranes and
Patos sustained physical injuries. Zacarias was unhurt. As a result of the impact, the left side of the
truck was slightly damaged while the left side of the jeep, including its fender and hood, was
extensively damaged. After the impact, the jeep fell and rested on its right side on the asphalted
road a few meters to the rear of the truck, while the truck stopped on its wheels on the road.
On November 27, 1979, the instant case for damages was filed by the surviving spouse and children
of the late Engineer Calibo who are residents of Tagbilaran City against the driver and owners of the
cargo truck.
For failure to file its answer to the third party complaint, third party defendant, which insured the
cargo truck involved, was declared in default.
The case filed by the heirs of Engineer Calibo his widow and minor children, private respondents
herein was docketed as
Civil Case No. 3283 of the Court of First Instance of Bohol. 3 Named defendants in the complaint
were "Felix S. Agad, George Lim and Felix Lim . . . (who) appear to be the co-owners of the Glan
People's Lumber and Hardware . . . (and) Paul Zacarias y Infante." 4 The defendants' answer
however alleged that the lumber and hardware business was exclusively owned by George Y. Lim,
this being evidenced by the Certificate of Registration issued by the Bureau of Domestic Trade;
Fabio S. Agad was not a co-owner thereof but "merely employed by . . . George Y. Lim as
bookkeeper"; and Felix Lim had no connection whatever with said business, "he being a child only
eight (8) years of age." 5
"After (trial, and) a careful evaluation of the evidence, both testimonial and documentary," the
Court reached the conclusion "that the plaintiffs failed to establish by preponderance of evidence
the negligence, and thus the liability, of the defendants." Accordingly, the Court dismissed the
complaint (and defendants' counterclaim) "for insufficiency of evidence." Likewise dismissed was
third-party complaint presented by the defendants against the insurer of the truck. The
circumstances leading to the Court's conclusion just mentioned, are detailed in the Court's decision,
as follows:
1. Moments before its collission with the truck being operated by Zacarias, the jeep of the deceased
Calibo was "zigzagging." 6
2. Unlike Zacarias who readily submitted himself to investigation by the police, Calibo's companions,
Roranes (an accountant), and Patos, who suffered injuries on account of the collision, refused to be
so investigated or give statements to the police officers. This, plus Roranes' waiver of the right to
institute criminal proceedings against Zacarias, and the fact that indeed no criminal case was ever
instituted in Court against Zacarias, were "telling indications that they did not attribute the
happening to defendant Zacarias' negligence or fault." 7

3. Roranes' testimony, given in plaintiffs' behalf, was "not as clear and detailed as that of . . .
Zacarias," and was "uncertain and even contradicted by the physical facts and the police
investigators Dimaano and Esparcia." 8
4. That there were skid marks left by the truck's tires at the scene, and none by the jeep,
demonstrates that the driver of the truck had applied the brakes and the jeep's driver had not; and
that the jeep had on impact fallen on its right side is indication that it was running at high speed.
Under the circumstances, according to the Court, given "the curvature of the road and the
descending grade of the jeep's lane, it was negligence on the part of the driver of the jeep, Engr.
Calibo, for not reducing his speed upon sight of the truck and failing to apply the brakes as he got
within collision range with the truck."
5. Even if it be considered that there was some antecedent negligence on the part of Zacarias
shortly before the collision, in that he had caused his truck to run some 25 centimeters to the left of
the center of the road, Engr. Calibo had the last clear chance of avoiding the accident because he
still had ample room in his own lane to steer clear of the truck, or he could simply have braked to a
full stop.
The Court of Appeals saw things differently. It rendered judgment 9 on the plaintiffs'
appeal, l0 reversing the decision of the Trial Court. It found Zacarias to be negligent on the basis of
the following circumstances, to wit:
1) "the truck driven by defendant Zacarias occupied the lane of the jeep when the collision
occurred,' and although Zacarias saw the jeep from a distance of about 150 meters, he "did not
drive his truck back to his lane in order to avoid collision with the oncoming jeep . . .;" 11 what is
worse, "the truck driver suddenly applied his brakes even as he knew that he was still within the
lane of the jeep;" 12 had both vehicles stayed in their respective lanes, the collision would never
have occurred, they would have passed "along side each other safely;" 13
2) Zacarias had no license at the time; what he handed to Pfc. Esparcia, on the latter's demand, was
the 'driver's license of his co-driver Leonardo Baricuatro;" 14
3) the waiver of the right to file criminal charges against Zacarias should not be taken against
"plaintiffs" Roranes and Patos who had the right, under the law, to opt merely to bring a civil suit. 15
The Appellate Court opined that Zacarias' negligence "gave rise to the presumption of negligence on
the part of his employer, and their liability is both primary and solidary." It therefore ordered "the
defendants jointly and solidarily to indemnify the plaintiffs the following amounts:
(1) P30,000.00 for the death of Orlando Calibo;
(2) P378,000.00 for the loss of earning capacity of the deceased
(3) P15,000.00 for attorney's fees;
(4) Cost of suit. 16
The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have appealed to this Court
on certiorariand pray for a reversal of the judgment of the Intermediate Appellate Court which, it is
claimed, ignored or ran counter to the established facts. A review of the record confirms the merit
of this assertion and persuades this Court that said judgment indeed disregarded facts clearly and
undisputably demonstrated by the proofs. The appealed judgment, consequently, will have to be
reversed.
The finding that "the truck driven by defendant Paul Zacarias occupied the lane of the jeep when
the collision occurred" is a loose one, based on nothing more than the showing that at the time of
the accident, the truck driven by Zacarias had edged over the painted center line of the road into
the opposite lane by a width of twenty-five (25) centimeters. It ignores the fact that by the
uncontradicted evidence, the actual center line of the road was not that indicated by the painted
stripe but, according to measurements made and testified by Patrolman Juanita Dimaano, one of
the two officers who investigated the accident, correctly lay thirty-six (36) centimeters farther to
the left of the truck's side of said stripe.
The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is to the
effect that the jeep's lane was three (3) meters and seventy-five (75) centimeters wide, and that of
the truck three (3) meters and three (3) centimeters, measured from the center stripe to the
corresponding side lines or outer edges of the road. 17 The total width of the road being, therefore,

six (6) meters and seventy-eight (78) centimeters, the true center line equidistant from both side
lines would divide the road into two lanes each three (meters) and thirty-nine (39) centimeters
wide. Thus, although it was not disputed that the truck overrode the painted stripe by twenty-five
(25) centimeters, it was still at least eleven (11) centimeters away from its side of the true center
line of the road and well inside its own lane when the accident occurred. By this same reckoning,
since it was unquestionably the jeep that rammed into the stopped truck, it may also be deduced
that it (the jeep) was at the time travelling beyond its own lane and intruding into the lane of the
truck by at least the same 11-centimeter width of space.
Not only was the truck's lane, measured from the incorrectly located center stripe uncomfortably
narrow, given that vehicle's width of two (2) meters and forty-six (46) centimeters; the adjacent
road shoulder was also virtually impassable, being about three (3) inches lower than the paved
surface of the road and "soft--not firm enough to offer traction for safe passage besides which, it
sloped gradually down to a three foot-deep ravine with a river below. 18 The truck's lane as
erroneously demarcated by the center stripe gave said vehicle barely half a meter of clearance from
the edge of the road and the dangerous shoulder and little room for maneuver, in case this was
made necessary by traffic contingencies or road conditions, if it always kept to said lane. It being
also shown that the accident happened at or near the point of the truck's approach to a
curve, 19 which called for extra precautions against driving too near the shoulder, it could hardly be
accounted negligent on the part of its driver to intrude temporarily, and by only as small as a
twenty-five centimeter wide space (less than ten inches), into the opposite lane in order to insure
his vehicle's safety. This, even supposing that said maneuver was in fact an intrusion into the
opposite lane, which was not the case at all as just pointed out.
Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in
applying his brakes instead of getting back inside his lane upon qqqespying the approaching jeep.
Being well within his own lane, as has already been explained, he had no duty to swerve out of the
jeep's way as said Court would have had him do. And even supposing that he was in fact partly
inside the opposite lane, coming to a full stop with the jeep still thirty (30) meters away cannot be
considered an unsafe or imprudent action, there also being uncontradicted evidence that the jeep
was "zigzagging" 20 and hence no way of telling in which direction it would go as it approached the
truck.
Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no
driver's license at the time. The traffic accident report attests to the proven fact that Zacarias
voluntarily surrendered to the investigating officers his driver's license, valid for 1979, that had
been renewed just the day before the accident, on July 3, 1979. 21 The Court was apparently misled
by the circumstance that when said driver was first asked to show his license by the investigators at
the scene of the collision, he had first inadvertently produced the license of a fellow driver,
Leonardo Baricuatro, who had left said license in Davao City and had asked Zacarias to bring it back
to him in Glan, Cotabato. 22
The evidence not only acquits Zacarias of any negligence in the matter; there are also quite a few
significant indicators that it was rather Engineer Calibo's negligence that was the proximate cause of
the accident. Zacarias had told Patrolman Dimaano at the scene of the collision and later confirmed
in his written statement at the police headquarters 23 that the jeep had been "zigzagging," which is
to say that it was travelling or being driven erratically at the time. The other investigator, Patrolman
Jose Esparcia, also testified that eyewitnesses to the accident had remarked on the jeep's
"zigzagging." 24 There is moreover more than a suggestion that Calibo had been drinking shortly
before the accident. The decision of the Trial Court adverts to further testimony of Esparcia to the
effect that three of Calibo's companions at the beach party he was driving home from when the
collision occurred, who, having left ahead of him went to the scene when they heard about the
accident, had said that there had been a drinking spree at the party and, referring to Calibo, had
remarked: "Sabi na huag nang mag drive . . . . pumipilit," (loosely translated, "He was advised not to
drive, but he insisted.")
It was Calibo whose driver's license could not be found on his person at the scene of the accident,
and was reported by his companions in the jeep as having been lost with his wallet at said scene,

according to the traffic accident report, Exhibit "J". Said license unexplainedly found its way into the
record some two years later.
Reference has already been made to the finding of the Trial Court that while Zacarias readily
submitted to interrogation and gave a detailed statement to the police investigators immediately
after the accident, Calibo's two companions in the jeep and supposed eyewitnesses, Agripino
Roranes and Maximo Patos, refused to give any statements. Furthermore, Roranes who, together
with Patos, had sustained injuries as a result of the collision, waived his right to file a criminal case
against Zacarias. 25
Even, however, ignoring these telltale indicia of negligence on the part of Calibo, and assuming
some antecedent negligence on the part of Zacarias in failing to keep within his designated lane,
incorrectly demarcated as it was, the physical facts, either expressly found by the Intermediate
Appellate Court or which may be deemed conceded for lack of any dispute, would still absolve the
latter of any actionable responsibility for the accident under the rule of the last clear chance.
Both drivers, as the Appellate Court found, had had a full view of each other's vehicle from a
distance of one hundred fifty meters. Both vehicles were travelling at a speed of approximately
thirty kilometers per hour. 26 The private respondents have admitted that the truck was already at a
full stop when the jeep plowed into it. And they have not seen fit to deny or impugn petitioners'
imputation that they also admitted the truck had been brought to a stop while the jeep was still
thirty meters away. 27 From these facts the logical conclusion emerges that the driver of the jeep
had what judicial doctrine has appropriately called the last clear chance to avoid the accident, while
still at that distance of thirty meters from the truck, by stopping in his turn or swerving his jeep
away from the truck, either of which he had sufficient time to do while running at a speed of only
thirty kilometers per hour. In those circumstances, his duty was to seize that opportunity of
avoidance, not merely rely on a supposed right to expect, as the Appellate Court would have it, the
truck to swerve and leave him a clear path.
The doctrine of the last clear chance provides as valid and complete a defense to accident liability
today as it did when invoked and applied in the 1918 case of Picart vs. Smith, supra, which involved
a similar state of facts. Of those facts, which should be familiar to every student of law, it is only
necessary to recall the summary made in the syllabus of this Court's decision that:
(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead he improperly pulled his
horse over to the railing on the right. The driver of the automobile, however guided his car toward
the plaintiff without diminution of speed until he was only few feet away. He then turned to the
right but passed so closely to the horse that the latter being frightened, jumped around and was
killed by the passing car. . . . .
Plaintiff Picart was thrown off his horse and suffered contusions which required several days of
medical attention. He sued the defendant Smith for the value of his animal, medical expenses and
damage to his apparel and obtained judgment from this Court which, while finding that there was
negligence on the part of both parties, held that that of the defendant was the immediate and
determining cause of the accident and that of the plaintiff ". . . the more remote factor in the case":
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the problem always is to discover which
agent is immediately and directly responsible. It will be noted that the negligent acts of the two
parties were not contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the
person who has the last fair chance to avoid the impending harm and fails to do so is chargeable
with the consequences, without reference to the prior negligence of the other party.
Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and copetitioner) George Lim, an inquiry into whether or not the evidence supports the latter's additional
defense of due diligence in the selection and supervision of said driver is no longer necessary and
wig not be undertaken. The fact is that there is such evidence in the record which has not been
controverted.

It must be pointed out, however, that the Intermediate Appellate Court also seriously erred in
holding the petitioners Pablo S. Agad and Felix Lim solidarily liable for the damages awarded in its
appealed decision, as alleged owners, with petitioner George Lim, of Glan People's Lumber and
Hardware, employer of petitioner Zacarias. This manifestly disregarded, not only the certificate of
registration issued by the Bureau of Domestic Trade identifying Glan People's Lumber and Hardware
as a business name registered by George Lim, 28 but also unimpugned allegations into the
petitioners' answer to the complaint that Pablo S. Agad was only an employee of George Lim and
that Felix Lim, then a child of only eight (8) years, was in no way connected with the business.
In conclusion, it must also be stated that there is no doubt of this Court's power to review the
assailed decision of the Intermediate Appellate Court under the authority of precedents recognizing
exceptions to the familiar rule binding it to observe and respect the latter's findings of fact. Many of
those exceptions may be cited to support the review here undertaken, but only the most obvious
that said findings directly conflict with those of the Trial Court will suffice. 29 In the opinion of this
Court and after a careful review of the record, the evidence singularly fails to support the findings of
the Intermediate Appellate Court which, for all that appears, seem to have been prompted rather
by sympathy for the heirs of the deceased Engineer Calibo than by an objective appraisal of the
proofs and a correct application of the law to the established facts. Compassion for the plight of
those whom an accident has robbed of the love and support of a husband and father is an entirely
natural and understandable sentiment. It should not, however, be allowed to stand in the way of,
much less to influence, a just verdict in a suit at law.
WHEREFORE, the appealed judgment of the Intermediate Appellate Court is hereby REVERSED, and
the complaint against herein petitioners in Civil Case No. 3283 of the Court of First Instance of
Bohol, Branch IV, is DISMISSED. No pronouncement as to costs.
SO ORDERED.

G.R. No. 138060

September 1, 2004
WILLIAM TIU, doing business under the name and style of "D Rough Riders," and VIRGILIO TE LAS
PIAS petitioners, vs. PEDRO A. ARRIESGADO, BENJAMIN CONDOR, SERGIO PEDRANO and
PHILIPPINE PHOENIX SURETY AND INSURANCE, INC., respondents.
This is a petition for review on certiorari under Rule 45 of the Rules of Court from the Decision 1 of
the Court of Appeals in CA-G.R. CV No. 54354 affirming with modification the Decision 2 of the
Regional Trial Court, 7th Judicial Region, Cebu City, Branch 20, in Civil Case No. CEB-5963 for breach
of contract of carriage, damages and attorneys fees, and the Resolution dated February 26, 1999
denying the motion for reconsideration thereof.
The following facts are undisputed:
At about 10:00 p.m. of March 15, 1987, the cargo truck marked "Condor Hollow Blocks and General
Merchandise" bearing plate number GBP-675 was loaded with firewood in Bogo, Cebu and left for
Cebu City. Upon reaching Sitio Aggies, Poblacion, Compostela, Cebu, just as the truck passed over a
bridge, one of its rear tires exploded. The driver, Sergio Pedrano, then parked along the right side of
the national highway and removed the damaged tire to have it vulcanized at a nearby shop, about
700 meters away.3Pedrano left his helper, Jose Mitante, Jr. to keep watch over the stalled vehicle,
and instructed the latter to place a spare tire six fathoms away4 behind the stalled truck to serve as
a warning for oncoming vehicles. The trucks tail lights were also left on. It was about 12:00 a.m.,
March 16, 1987.
At about 4:45 a.m., D Rough Riders passenger bus with plate number PBP-724 driven by Virgilio Te
Laspias was cruising along the national highway of Sitio Aggies, Poblacion, Compostela, Cebu. The
passenger bus was also bound for Cebu City, and had come from Maya, Daanbantayan, Cebu.
Among its passengers were the Spouses Pedro A. Arriesgado and Felisa Pepito Arriesgado, who
were seated at the right side of the bus, about three (3) or four (4) places from the front seat.
As the bus was approaching the bridge, Laspias saw the stalled truck, which was then about 25
meters away.5He applied the breaks and tried to swerve to the left to avoid hitting the truck. But it

was too late; the bus rammed into the trucks left rear. The impact damaged the right side of the
bus and left several passengers injured. Pedro Arriesgado lost consciousness and suffered a fracture
in his right colles.6 His wife, Felisa, was brought to the Danao City Hospital. She was later transferred
to the Southern Island Medical Center where she died shortly thereafter.7
Respondent Pedro A. Arriesgado then filed a complaint for breach of contract of carriage, damages
and attorneys fees before the Regional Trial Court of Cebu City, Branch 20, against the petitioners,
D Rough Riders bus operator William Tiu and his driver, Virgilio Te Laspias on May 27, 1987. The
respondent alleged that the passenger bus in question was cruising at a fast and high speed along
the national road, and that petitioner Laspias did not take precautionary measures to avoid the
accident.8 Thus:
6. That the accident resulted to the death of the plaintiffs wife, Felisa Pepito Arriesgado, as
evidenced by a Certificate of Death, a xerox copy of which is hereto attached as integral part hereof
and marked as ANNEX "A", and physical injuries to several of its passengers, including plaintiff
himself who suffered a "COLLES FRACTURE RIGHT," per Medical Certificate, a xerox copy of which is
hereto attached as integral part hereof and marked as ANNEX "B" hereof.
7. That due to the reckless and imprudent driving by defendant Virgilio Te Laspias of the said
Rough Riders passenger bus, plaintiff and his wife, Felisa Pepito Arriesgado, failed to safely reach
their destination which was Cebu City, the proximate cause of which was defendant-drivers failure
to observe utmost diligence required of a very cautious person under all circumstances.
8. That defendant William Tiu, being the owner and operator of the said Rough Riders passenger
bus which figured in the said accident, wherein plaintiff and his wife were riding at the time of the
accident, is therefore directly liable for the breach of contract of carriage for his failure to transport
plaintiff and his wife safely to their place of destination which was Cebu City, and which failure in
his obligation to transport safely his passengers was due to and in consequence of his failure to
exercise the diligence of a good father of the family in the selection and supervision of his
employees, particularly defendant-driver Virgilio Te Laspias.9
The respondent prayed that judgment be rendered in his favor and that the petitioners be
condemned to pay the following damages:
1). To pay to plaintiff, jointly and severally, the amount of P30,000.00 for the death and untimely
demise of plaintiffs wife, Felisa Pepito Arriesgado;
2). To pay to plaintiff, jointly and severally, the amount of P38,441.50, representing actual expenses
incurred by the plaintiff in connection with the death/burial of plaintiffs wife;
3). To pay to plaintiff, jointly and severally, the amount of P1,113.80, representing
medical/hospitalization expenses incurred by plaintiff for the injuries sustained by him;
4). To pay to plaintiff, jointly and severally, the amount of P50,000.00 for moral damages;
5). To pay to plaintiff, jointly and severally, the amount of P50,000.00 by way of exemplary
damages;
6). To pay to plaintiff, jointly and severally, the amount of P20,000.00 for attorneys fees;
7). To pay to plaintiff, jointly and severally, the amount of P5,000.00 for litigation expenses.
PLAINTIFF FURTHER PRAYS FOR SUCH OTHER RELIEFS AND REMEDIES IN LAW AND EQUITY.10
The petitioners, for their part, filed a Third-Party Complaint11 on August 21, 1987 against the
following: respondent Philippine Phoenix Surety and Insurance, Inc. (PPSII), petitioner Tius insurer;
respondent Benjamin Condor, the registered owner of the cargo truck; and respondent Sergio
Pedrano, the driver of the truck. They alleged that petitioner Laspias was negotiating the uphill
climb along the national highway of Sitio Aggies, Poblacion, Compostela, in a moderate and normal
speed. It was further alleged that the truck was parked in a slanted manner, its rear portion almost
in the middle of the highway, and that no early warning device was displayed. Petitioner Laspias
promptly applied the brakes and swerved to the left to avoid hitting the truck head-on, but despite
his efforts to avoid damage to property and physical injuries on the passengers, the right side
portion of the bus hit the cargo trucks left rear. The petitioners further alleged, thus:
5. That the cargo truck mentioned in the aforequoted paragraph is owned and registered in the
name of the third-party defendant Benjamin Condor and was left unattended by its driver Sergio
Pedrano, one of the third-party defendants, at the time of the incident;

6. That third-party defendant Sergio Pedrano, as driver of the cargo truck with marked (sic) "Condor
Hollow Blocks & General Merchandise," with Plate No. GBP-675 which was recklessly and
imprudently parked along the national highway of Compostela, Cebu during the vehicular accident
in question, and third-party defendant Benjamin Condor, as the registered owner of the cargo truck
who failed to exercise due diligence in the selection and supervision of third-party defendant Sergio
Pedrano, are jointly and severally liable to the third-party plaintiffs for whatever liability that may
be adjudged against said third-party plaintiffs or are directly liable of (sic) the alleged death of
plaintiffs wife;
7. That in addition to all that are stated above and in the answer which are intended to show
reckless imprudence on the part of the third-party defendants, the third-party plaintiffs hereby
declare that during the vehicular accident in question, third-party defendant was clearly violating
Section 34, par. (g) of the Land Transportation and Traffic Code

10. That the aforesaid passenger bus, owned and operated by third-party plaintiff William Tiu, is
covered by a common carrier liability insurance with Certificate of Cover No. 054940 issued by
Philippine Phoenix Surety and Insurance, Inc., Cebu City Branch, in favor of third-party plaintiff
William Tiu which covers the period from July 22, 1986 to July 22, 1987 and that the said insurance
coverage was valid, binding and subsisting during the time of the aforementioned incident (Annex
"A" as part hereof);
11. That after the aforesaid alleged incident, third-party plaintiff notified third-party defendant
Philippine Phoenix Surety and Insurance, Inc., of the alleged incident hereto mentioned, but to no
avail;
12. That granting, et arguendo et arguendi, if herein third-party plaintiffs will be adversely
adjudged, they stand to pay damages sought by the plaintiff and therefore could also look up to the
Philippine Phoenix Surety and Insurance, Inc., for contribution, indemnification and/or
reimbursement of any liability or obligation that they might [be] adjudged per insurance coverage
duly entered into by and between third-party plaintiff William Tiu and third-party defendant
Philippine Phoenix Surety and Insurance, Inc.;12
The respondent PPSII, for its part, admitted that it had an existing contract with petitioner Tiu, but
averred that it had already attended to and settled the claims of those who were injured during the
incident.13 It could not accede to the claim of respondent Arriesgado, as such claim was way beyond
the scheduled indemnity as contained in the contract of insurance.14
After the parties presented their respective evidence, the trial court ruled in favor of respondent
Arriesgado. The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of plaintiff as against
defendant William Tiu ordering the latter to pay the plaintiff the following amounts:
1 - The sum of FIFTY THOUSAND PESOS (P50,000.00) as moral damages;
2 - The sum of FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages;
3 - The sum of THIRTY-EIGHT THOUSAND FOUR HUNDRED FORTY-ONE PESOS (P38,441.00) as actual
damages;
4 - The sum of TWENTY THOUSAND PESOS (P20,000.00) as attorneys fees;
5 - The sum of FIVE THOUSAND PESOS (P5,000.00) as costs of suit;
SO ORDERED.15
According to the trial court, there was no dispute that petitioner William Tiu was engaged in
business as a common carrier, in view of his admission that D Rough Rider passenger bus which
figured in the accident was owned by him; that he had been engaged in the transportation business
for 25 years with a sole proprietorship; and that he owned 34 buses. The trial court ruled that if
petitioner Laspias had not been driving at a fast pace, he could have easily swerved to the left to
avoid hitting the truck, thus, averting the unfortunate incident. It then concluded that petitioner
Laspias was negligent.
The trial court also ruled that the absence of an early warning device near the place where the truck
was parked was not sufficient to impute negligence on the part of respondent Pedrano, since the
tail lights of the truck were fully on, and the vicinity was well lighted by street lamps.16 It also found

that the testimony of petitioner Tiu, that he based the selection of his driver Laspias on efficiency
and in-service training, and that the latter had been so far an efficient and good driver for the past
six years of his employment, was insufficient to prove that he observed the diligence of a good
father of a family in the selection and supervision of his employees.
After the petitioners motion for reconsideration of the said decision was denied, the petitioners
elevated the case to the Court of Appeals on the following issues:
I WHETHER THIRD PARTY DEFENDANT SERGIO PEDRANO WAS RECKLESS AND IMPRUDENT WHEN
HE PARKED THE CARGO TRUCK IN AN OBLIQUE MANNER;
II WHETHER THE THIRD PARTY DEFENDANTS ARE JOINTLY AND SEVERALLY LIABLE DIRECTLY TO
PLAINTIFF-APPELLEE OR TO DEFENDANTS-APPELLANTS FOR WHATEVER LIABILITY THAT MAY BE
ADJUDGED TO THE SAID DEFENDANTS-APPELLANTS;
III WHETHER DEFENDANT-APPELLANT VIRGILIO TE LASPIAS WAS GUILTY OF GROSS NEGLIGENCE;
IV WHETHER DEFENDANT-APPELLANT WILLIAM TIU HAD EXERCISED THE DUE DILIGENCE OF A
GOOD FATHER OF A FAMILY IN THE SELECTION AND SUPERVISION OF HIS DRIVERS;
V GRANTING FOR THE SAKE OF ARGUMENT THAT DEFENDANT-APPELLANT WILLIAM TIU IS LIABLE
TO PLAINTIFF-APPELLEE, WHETHER THERE IS LEGAL AND FACTUAL BASIS IN AWARDING EXCESSIVE
MORAL DAMAGES, EX*E+MPLARY DAMAGES, ATTORNEYS FEES AND LITIGATION EXPENSES TO
PLAINTIFF-APPELLEE;
VI WHETHER THIRD PARTY DEFENDANT PHILIPPINE PHOENIX SURETY AND INSURANCE, INC. IS
LIABLE TO DEFENDANT- APPELLANT WILLIAM TIU.17
The appellate court rendered judgment affirming the trial courts decision with the modification
that the awards for moral and exemplary damages were reduced to P25,000. The dispositive
portion reads:
WHEREFORE, the appealed Decision dated November 6, 1995 is hereby MODIFIED such that the
awards for moral and exemplary damages are each reduced to P25,000.00 or a total of P50,000.00
for both. The judgment is AFFIRMED in all other respects.
SO ORDERED.18
According to the appellate court, the action of respondent Arriesgado was based not on quasi-delict
but on breach of contract of carriage. As a common carrier, it was incumbent upon petitioner Tiu to
prove that extraordinary diligence was observed in ensuring the safety of passengers during
transportation. Since the latter failed to do so, he should be held liable for respondent Arriesgados
claim. The CA also ruled that no evidence was presented against the respondent PPSII, and as such,
it could not be held liable for respondent Arriesgados claim, nor for contribution, indemnification
and/or reimbursement in case the petitioners were adjudged liable.
The petitioners now come to this Court and ascribe the following errors committed by the appellate
court:
I. THE HONORABLE COURT OF APPEALS ERRED IN NOT DECLARING RESPONDENTS BENJAMIN
CONDOR AND SERGIO PEDRANO GUILTY OF NEGLIGENCE AND HENCE, LIABLE TO RESPONDENT
PEDRO A. ARRIESGADO OR TO PETITIONERS FOR WHATEVER LIABILITY THAT MAY BE ADJUDGED
AGAINST THEM.
II. THE HONORABLE COURT OF APPEALS ERRED IN FINDING PETITIONERS GUILTY OF NEGLIGENCE
AND HENCE, LIABLE TO RESPONDENT PEDRO A. ARRIESGADO.
III. THE HONORABLE COURT OF APPEALS ERRED IN FINDING PETITIONER WILLIAM TIU LIABLE FOR
EXEMPLARY DAMAGES, ATTORNEYS FEES AND LITIGATION EXPENSES.
IV. THE HONORABLE COURT OF APPEALS ERRED IN NOT FINDING RESPONDENT PHILIPPINE PHOENIX
SURETY AND INSURANCE, INC. LIABLE TO RESPONDENT PEDRO A. ARRIESGADO OR TO PETITIONER
WILLIAM TIU.19
According to the petitioners, the appellate court erred in failing to appreciate the absence of an
early warning device and/or built-in reflectors at the front and back of the cargo truck, in clear
violation of Section 34, par. (g) of the Land Transportation and Traffic Code. They aver that such
violation is only a proof of respondent Pedranos negligence, as provided under Article 2185 of the
New Civil Code. They also question the appellate courts failure to take into account that the truck
was parked in an oblique manner, its rear portion almost at the center of the road. As such, the

proximate cause of the incident was the gross recklessness and imprudence of respondent Pedrano,
creating the presumption of negligence on the part of respondent Condor in supervising his
employees, which presumption was not rebutted. The petitioners then contend that respondents
Condor and Pedrano should be held jointly and severally liable to respondent Arriesgado for the
payment of the latters claim.
The petitioners, likewise, aver that expert evidence should have been presented to prove that
petitioner Laspias was driving at a very fast speed, and that the CA could not reach such conclusion
by merely considering the damages on the cargo truck. It was also pointed out that petitioner Tiu
presented evidence that he had exercised the diligence of a good father of a family in the selection
and supervision of his drivers.
The petitioners further allege that there is no legal and factual basis to require petitioner Tiu to pay
exemplary damages as no evidence was presented to show that the latter acted in a fraudulent,
reckless and oppressive manner, or that he had an active participation in the negligent act of
petitioner Laspias.
Finally, the petitioners contend that respondent PPSII admitted in its answer that while it had
attended to and settled the claims of the other injured passengers, respondent Arriesgados claim
remained unsettled as it was beyond the scheduled indemnity under the insurance contract. The
petitioners argue that said respondent PPSII should have settled the said claim in accordance with
the scheduled indemnity instead of just denying the same.
On the other hand, respondent Arriesgado argues that two of the issues raised by the petitioners
involved questions of fact, not reviewable by the Supreme Court: the finding of negligence on the
part of the petitioners and their liability to him; and the award of exemplary damages, attorneys
fees and litigation expenses in his favor. Invoking the principle of equity and justice, respondent
Arriesgado pointed out that if there was an error to be reviewed in the CA decision, it should be
geared towards the restoration of the moral and exemplary damages toP50,000 each, or a total
of P100,000 which was reduced by the Court of Appeals to P25,000 each, or a total of only P50,000.
Respondent Arriesgado also alleged that respondents Condor and Pedrano, and respondent
Phoenix Surety, are parties with whom he had no contract of carriage, and had no cause of action
against. It was pointed out that only the petitioners needed to be sued, as driver and operator of
the ill-fated bus, on account of their failure to bring the Arriesgado Spouses to their place of
destination as agreed upon in the contract of carriage, using the utmost diligence of very cautious
persons with due regard for all circumstances.
Respondents Condor and Pedrano point out that, as correctly ruled by the Court of Appeals, the
proximate cause of the unfortunate incident was the fast speed at which petitioner Laspias was
driving the bus owned by petitioner Tiu. According to the respondents, the allegation that the truck
was not equipped with an early warning device could not in any way have prevented the incident
from happening. It was also pointed out that respondent Condor had always exercised the due
diligence required in the selection and supervision of his employees, and that he was not a party to
the contract of carriage between the petitioners and respondent Arriesgado.
Respondent PPSII, for its part, alleges that contrary to the allegation of petitioner Tiu, it settled all
the claims of those injured in accordance with the insurance contract. It further avers that it did not
deny respondent Arriesgados claim, and emphasizes that its liability should be within the scheduled
limits of indemnity under the said contract. The respondent concludes that while it is true that
insurance contracts are contracts of indemnity, the measure of the insurers liability is determined
by the insureds compliance with the terms thereof.
The Courts Ruling
At the outset, it must be stressed that this Court is not a trier of facts.20 Factual findings of the Court
of Appeals are final and may not be reviewed on appeal by this Court, except when the lower court
and the CA arrived at diverse factual findings.21 The petitioners in this case assail the finding of both
the trial and the appellate courts that petitioner Laspias was driving at a very fast speed before the
bus owned by petitioner Tiu collided with respondent Condors stalled truck. This is clearly one of
fact, not reviewable by the Court in a petition for review under Rule 45.22
On this ground alone, the petition is destined to fail.

However, considering that novel questions of law are likewise involved, the Court resolves to
examine and rule on the merits of the case.
Petitioner
Laspias
Was
negligent
in
driving
The Ill-fated bus
In his testimony before the trial court, petitioner Laspias claimed that he was traversing the twolane road at Compostela, Cebu at a speed of only forty (40) to fifty (50) kilometers per hour before
the incident occurred.23 He also admitted that he saw the truck which was parked in an "oblique
position" at about 25 meters before impact,24and tried to avoid hitting it by swerving to the left.
However, even in the absence of expert evidence, the damage sustained by the truck25 itself
supports the finding of both the trial court and the appellate court, that the D Rough Rider bus
driven by petitioner Laspias was traveling at a fast pace. Since he saw the stalled truck at a
distance of 25 meters, petitioner Laspias had more than enough time to swerve to his left to avoid
hitting it; that is, if the speed of the bus was only 40 to 50 kilometers per hour as he claimed. As
found by the Court of Appeals, it is easier to believe that petitioner Laspias was driving at a very
fast speed, since at 4:45 a.m., the hour of the accident, there were no oncoming vehicles at the
opposite direction. Petitioner Laspias could have swerved to the left lane with proper clearance,
and, thus, could have avoided the truck.26 Instinct, at the very least, would have prompted him to
apply the breaks to avert the impending disaster which he must have foreseen when he caught
sight of the stalled truck. As we had occasion to reiterate:
A man must use common sense, and exercise due reflection in all his acts; it is his duty to be
cautious, careful and prudent, if not from instinct, then through fear of recurring punishment. He is
responsible for such results as anyone might foresee and for acts which no one would have
performed except through culpable abandon. Otherwise, his own person, rights and property, and
those of his fellow beings, would ever be exposed to all manner of danger and injury.27
We agree with the following findings of the trial court, which were affirmed by the CA on appeal:
A close study and evaluation of the testimonies and the documentary proofs submitted by the
parties which have direct bearing on the issue of negligence, this Court as shown by preponderance
of evidence that defendant Virgilio Te Laspias failed to observe extraordinary diligence as a driver
of the common carrier in this case. It is quite hard to accept his version of the incident that he did
not see at a reasonable distance ahead the cargo truck that was parked when the Rough Rider [Bus]
just came out of the bridge which is on an (sic) [more] elevated position than the place where the
cargo truck was parked. With its headlights fully on, defendant driver of the Rough Rider was in a
vantage position to see the cargo truck ahead which was parked and he could just easily have
avoided hitting and bumping the same by maneuvering to the left without hitting the said cargo
truck. Besides, it is (sic) shown that there was still much room or space for the Rough Rider to pass
at the left lane of the said national highway even if the cargo truck had occupied the entire right
lane thereof. It is not true that if the Rough Rider would proceed to pass through the left lane it
would fall into a canal considering that there was much space for it to pass without hitting and
bumping the cargo truck at the left lane of said national highway. The records, further, showed that
there was no incoming vehicle at the opposite lane of the national highway which would have
prevented the Rough Rider from not swerving to its left in order to avoid hitting and bumping the
parked cargo truck. But the evidence showed that the Rough Rider instead of swerving to the still
spacious left lane of the national highway plowed directly into the parked cargo truck hitting the
latter at its rear portion; and thus, the (sic) causing damages not only to herein plaintiff but to the
cargo truck as well.28
Indeed, petitioner Laspias negligence in driving the bus is apparent in the records. By his own
admission, he had just passed a bridge and was traversing the highway of Compostela, Cebu at a
speed of 40 to 50 kilometers per hour before the collision occurred. The maximum speed allowed
by law on a bridge is only 30 kilometers per hour.29 And, as correctly pointed out by the trial court,
petitioner Laspias also violated Section 35 of the Land Transportation and Traffic Code, Republic
Act No. 4136, as amended:1avvphil.net

Sec. 35. Restriction as to speed. (a) Any person driving a motor vehicle on a highway shall drive the
same at a careful and prudent speed, not greater nor less than is reasonable and proper, having due
regard for the traffic, the width of the highway, and or any other condition then and there existing;
and no person shall drive any motor vehicle upon a highway at such speed as to endanger the life,
limb and property of any person, nor at a speed greater than will permit him to bring the vehicle to
a stop within the assured clear distance ahead.30
Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time
of the mishap, he was violating any traffic regulation.31
Petitioner
Tiu
failed
to
Overcome
the
presumption
Of
negligence
against
him
as
One
engaged
in
the
business
Of common carriage
The rules which common carriers should observe as to the safety of their passengers are set forth in
the Civil Code, Articles 1733,32 175533 and 1756.34 In this case, respondent Arriesgado and his
deceased wife contracted with petitioner Tiu, as owner and operator of D Rough Riders bus service,
for transportation from Maya, Daanbantayan, Cebu, to Cebu City for the price of P18.00.35 It is
undisputed that the respondent and his wife were not safely transported to the destination agreed
upon. In actions for breach of contract, only the existence of such contract, and the fact that the
obligor, in this case the common carrier, failed to transport his passenger safely to his destination
are the matters that need to be proved.36 This is because under the said contract of carriage, the
petitioners assumed the express obligation to transport the respondent and his wife to their
destination safely and to observe extraordinary diligence with due regard for all
circumstances.37 Any injury suffered by the passengers in the course thereof is immediately
attributable to the negligence of the carrier.38Upon the happening of the accident, the presumption
of negligence at once arises, and it becomes the duty of a common carrier to prove that he
observed extraordinary diligence in the care of his passengers.39 It must be stressed that in requiring
the highest possible degree of diligence from common carriers and in creating a presumption of
negligence against them, the law compels them to curb the recklessness of their drivers.40
While evidence may be submitted to overcome such presumption of negligence, it must be shown
that the carrier observed the required extraordinary diligence, which means that the carrier must
show the utmost diligence of very cautious persons as far as human care and foresight can provide,
or that the accident was caused by fortuitous event.41 As correctly found by the trial court,
petitioner Tiu failed to conclusively rebut such presumption. The negligence of petitioner Laspias
as driver of the passenger bus is, thus, binding against petitioner Tiu, as the owner of the passenger
bus engaged as a common carrier.42
The
Doctrine
of
Last
Clear
Chance
Is
Inapplicable
in
the
Case at Bar
Contrary to the petitioners contention, the principle of last clear chance is inapplicable in the
instant case, as it only applies in a suit between the owners and drivers of two colliding vehicles. It
does not arise where a passenger demands responsibility from the carrier to enforce its contractual
obligations, for it would be inequitable to exempt the negligent driver and its owner on the ground
that the other driver was likewise guilty of negligence.43 The common law notion of last clear
chance permitted courts to grant recovery to a plaintiff who has also been negligent provided that
the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is
difficult to see what role, if any, the common law of last clear chance doctrine has to play in a
jurisdiction where the common law concept of contributory negligence as an absolute bar to
recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code.44
Thus, petitioner Tiu cannot escape liability for the death of respondent Arriesgados wife due to the
negligence of petitioner Laspias, his employee, on this score.

Respondents
Pedrano
and
Condor
were
likewise
Negligent
In Phoenix Construction, Inc. v. Intermediate Appellate Court,45 where therein respondent Dionisio
sustained injuries when his vehicle rammed against a dump truck parked askew, the Court ruled
that the improper parking of a dump truck without any warning lights or reflector devices created
an unreasonable risk for anyone driving within the vicinity, and for having created such risk, the
truck driver must be held responsible. In ruling against the petitioner therein, the Court elucidated,
thus:
In our view, Dionisios negligence, although later in point of time than the truck drivers
negligence, and therefore closer to the accident, was not an efficient intervening or independent
cause. What the petitioners describe as an "intervening cause" was no more than a foreseeable
consequence of the risk created by the negligent manner in which the truck driver had parked the
dump truck. In other words, the petitioner truck driver owed a duty to private respondent Dionisio
and others similarly situated not to impose upon them the very risk the truck driver had created.
Dionisios negligence was not that of an independent and overpowering nature as to cut, as it were,
the chain of causation in fact between the improper parking of the dump truck and the accident,
nor to sever the juris vinculum of liability.

We hold that private respondent Dionisios negligence was "only contributory," that the
"immediate and proximate cause" of the injury remained the truck drivers "lack of due care."46
In this case, both the trial and the appellate courts failed to consider that respondent Pedrano was
also negligent in leaving the truck parked askew without any warning lights or reflector devices to
alert oncoming vehicles, and that such failure created the presumption of negligence on the part of
his employer, respondent Condor, in supervising his employees properly and adequately. As we
ruled in Poblete v. Fabros:47
It is such a firmly established principle, as to have virtually formed part of the law itself, that the
negligence of the employee gives rise to the presumption of negligence on the part of the
employer. This is the presumed negligence in the selection and supervision of employee. The theory
of presumed negligence, in contrast with the American doctrine of respondeat superior, where the
negligence of the employee is conclusively presumed to be the negligence of the employer, is
clearly deducible from the last paragraph of Article 2180 of the Civil Code which provides that the
responsibility therein mentioned shall cease if the employers prove that they observed all the
diligence of a good father of a family to prevent damages. 48
The petitioners were correct in invoking respondent Pedranos failure to observe Article IV, Section
34(g) of the Rep. Act No. 4136, which provides:1avvphil.net
(g) Lights when parked or disabled. Appropriate parking lights or flares visible one hundred meters
away shall be displayed at a corner of the vehicle whenever such vehicle is parked on highways or in
places that are not well-lighted or is placed in such manner as to endanger passing traffic.
The manner in which the truck was parked clearly endangered oncoming traffic on both sides,
considering that the tire blowout which stalled the truck in the first place occurred in the wee hours
of the morning. The Court can only now surmise that the unfortunate incident could have been
averted had respondent Condor, the owner of the truck, equipped the said vehicle with lights,
flares, or, at the very least, an early warning device.49 Hence, we cannot subscribe to respondents
Condor and Pedranos claim that they should be absolved from liability because, as found by the
trial and appellate courts, the proximate cause of the collision was the fast speed at which
petitioner Laspias drove the bus. To accept this proposition would be to come too close to wiping
out the fundamental principle of law that a man must respond for the foreseeable consequences of
his own negligent act or omission. Indeed, our law on quasi-delicts seeks to reduce the risks and
burdens of living in society and to allocate them among its members. To accept this proposition
would be to weaken the very bonds of society.50

The
Liability
of
Respondent
PPSII
as Insurer
The trial court in this case did not rule on the liability of respondent PPSII, while the appellate court
ruled that, as no evidence was presented against it, the insurance company is not liable.
A perusal of the records will show that when the petitioners filed the Third-Party Complaint against
respondent PPSII, they failed to attach a copy of the terms of the insurance contract itself. Only
Certificate of Cover No. 05494051 issued in favor of "Mr. William Tiu, Lahug, Cebu City" signed by
Cosme H. Boniel was appended to the third-party complaint. The date of issuance, July 22, 1986,
the period of insurance, from July 22, 1986 to July 22, 1987, as well as the following items, were
also indicated therein:
SCHEDULED VEHICLE
MODEL

MAKE
Isuzu Forward

TYPE
BODY
Bus

PLATE
NO.
PBP-724

SERIAL/CHASSIS
NO.
SER450-1584124

SECTION 1/11

OF

COLOR
blue mixed

BLT FILE NO.

MOTOR NO.
677836

AUTHORIZED
CAPACITY
50

UNLADEN
WEIGHT
6 Cyls. Kgs.

*LIMITS
P50,000.00

OF

LIABILITY

PREMIUMS
PAID
P540.0052

Per Person
P12,000.00

Per
P50,000

Accident

A. THIRD PARTY LIABILITY

B. PASSENGER LIABILITY

In its Answer53 to the Third-Party Complaint, the respondent PPSII admitted the existence of the
contract of insurance, in view of its failure to specifically deny the same as required under then
Section 8(a), Rule 8 of the Rules of Court,54 which reads:
Sec. 8. How to contest genuineness of such documents. When an action or defense is founded upon
a written instrument copied in or attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of the instrument shall be deemed admitted
unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be
the facts; but the requirement of an oath does not apply when the adverse party does not appear
to be a party to the instrument or when compliance with an order for inspection of the original
instrument is refused.
In fact, respondent PPSII did not dispute the existence of such contract, and admitted that it was
liable thereon. It claimed, however, that it had attended to and settled the claims of those injured
during the incident, and set up the following as special affirmative defenses:
Third party defendant Philippine Phoenix Surety and Insurance, Inc. hereby reiterates and
incorporates by way of reference the preceding paragraphs and further states THAT:8. It has attended to the claims of Vincent Canales, Asuncion Batiancila and Neptali Palces who
sustained injuries during the incident in question. In fact, it settled financially their claims per
vouchers duly signed by them and they duly executed Affidavit[s] of Desistance to that effect, xerox
copies of which are hereto attached as Annexes 1, 2, 3, 4, 5, and 6 respectively;
9. With respect to the claim of plaintiff, herein answering third party defendant through its
authorized insurance adjuster attended to said claim. In fact, there were negotiations to that effect.
Only that it cannot accede to the demand of said claimant considering that the claim was way
beyond the scheduled indemnity as per contract entered into with third party plaintiff William Tiu
and third party defendant (Philippine Phoenix Surety and Insurance, Inc.). Third party Plaintiff

William Tiu knew all along the limitation as earlier stated, he being an old hand in the
transportation business;55
Considering the admissions made by respondent PPSII, the existence of the insurance contract and
the salient terms thereof cannot be dispatched. It must be noted that after filing its answer,
respondent PPSII no longer objected to the presentation of evidence by respondent Arriesgado and
the insured petitioner Tiu. Even in its Memorandum56 before the Court, respondent PPSII admitted
the existence of the contract, but averred as follows:
Petitioner Tiu is insisting that PPSII is liable to him for contribution, indemnification and/or
reimbursement. This has no basis under the contract. Under the contract, PPSII will pay all sums
necessary to discharge liability of the insured subject to the limits of liability but not to exceed the
limits of liability as so stated in the contract. Also, it is stated in the contract that in the event of
accident involving indemnity to more than one person, the limits of liability shall not exceed the
aggregate amount so specified by law to all persons to be indemnified.57
As can be gleaned from the Certificate of Cover, such insurance contract was issued pursuant to the
Compulsory Motor Vehicle Liability Insurance Law. It was expressly provided therein that the limit
of the insurers liability for each person was P12,000, while the limit per accident was pegged
at P50,000. An insurer in an indemnity contract for third party liability is directly liable to the injured
party up to the extent specified in the agreement but it cannot be held solidarily liable beyond that
amount.58 The respondent PPSII could not then just deny petitioner Tius claim; it should have
paid P12,000 for the death of Felisa Arriesgado,59 and respondent Arriesgados hospitalization
expenses of P1,113.80, which the trial court found to have been duly supported by receipts. The
total amount of the claims, even when added to that of the other injured passengers which the
respondent PPSII claimed to have settled,60 would not exceed the P50,000 limit under the insurance
agreement.
Indeed, the nature of Compulsory Motor Vehicle Liability Insurance is such that it is primarily
intended to provide compensation for the death or bodily injuries suffered by innocent third parties
or passengers as a result of the negligent operation and use of motor vehicles. The victims and/or
their dependents are assured of immediate financial assistance, regardless of the financial capacity
of motor vehicle owners.61 As the Court, speaking through Associate Justice Leonardo A.
Quisumbing, explained in Government Service Insurance System v. Court of Appeals:62
However, although the victim may proceed directly against the insurer for indemnity, the third
party liability is only up to the extent of the insurance policy and those required by law. While it is
true that where the insurance contract provides for indemnity against liability to third persons, and
such persons can directly sue the insurer, the direct liability of the insurer under indemnity
contracts against third party liability does not mean that the insurer can be held liable in solidum
with the insured and/or the other parties found at fault. For the liability of the insurer is based on
contract; that of the insured carrier or vehicle owner is based on tort.
Obviously, the insurer could be held liable only up to the extent of what was provided for by the
contract of insurance, in accordance with the CMVLI law. At the time of the incident, the schedule
of indemnities for death and bodily injuries, professional fees and other charges payable under a
CMVLI coverage was provided for under the Insurance Memorandum Circular (IMC) No. 5-78 which
was approved on November 10, 1978. As therein provided, the maximum indemnity for death was
twelve thousand (P12,000.00) pesos per victim. The schedules for medical expenses were also
provided by said IMC, specifically in paragraphs (C) to (G).63
Damages
to
be
Awarded
The trial court correctly awarded moral damages in the amount of P50,000 in favor of respondent
Arriesgado. The award of exemplary damages by way of example or correction of the public
good,64 is likewise in order. As the Court ratiocinated in Kapalaran Bus Line v. Coronado:65
While the immediate beneficiaries of the standard of extraordinary diligence are, of course, the
passengers and owners of cargo carried by a common carrier, they are not the only persons that the
law seeks to benefit. For if common carriers carefully observed the statutory standard of
extraordinary diligence in respect of their own passengers, they cannot help but simultaneously

benefit pedestrians and the passengers of other vehicles who are equally entitled to the safe and
convenient use of our roads and highways. The law seeks to stop and prevent the slaughter and
maiming of people (whether passengers or not) on our highways and buses, the very size and
power of which seem to inflame the minds of their drivers. Article 2231 of the Civil Code explicitly
authorizes the imposition of exemplary damages in cases of quasi-delicts "if the defendant acted
with gross negligence."66
The respondent Pedro A. Arriesgado, as the surviving spouse and heir of Felisa Arriesgado, is
entitled to indemnity in the amount of P50,000.00.67
The petitioners, as well as the respondents Benjamin Condor and Sergio Pedrano are jointly and
severally liable for said amount, conformably with the following pronouncement of the Court in
Fabre, Jr. vs. Court of Appeals:68
The same rule of liability was applied in situations where the negligence of the driver of the bus on
which plaintiff was riding concurred with the negligence of a third party who was the driver of
another vehicle, thus causing an accident. In Anuran v. Buo, Batangas Laguna Tayabas Bus Co. v.
Intermediate Appellate Court, and Metro Manila Transit Corporation v. Court of Appeals, the bus
company, its driver, the operator of the other vehicle and the driver of the vehicle were jointly and
severally held liable to the injured passenger or the latters heirs. The basis of this allocation of
liability was explained in Viluan v. Court of Appeals, thus:
"Nor should it make difference that the liability of petitioner [bus owner] springs from contract
while that of respondents [owner and driver of other vehicle] arises from quasi-delict. As early as
1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a passenger
due to the negligence of the driver of the bus on which he was riding and of the driver of another
vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for
damages. Some members of the Court, though, are of the view that under the circumstances they
are liable on quasi-delict."69
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The Decision of the Court of
Appeals is AFFIRMED with MODIFICATIONS:
(1) Respondent Philippine Phoenix Surety and Insurance, Inc. and petitioner William Tiu are
ORDERED to pay, jointly and severally, respondent Pedro A. Arriesgado the total amount
of P13,113.80;
(2) The petitioners and the respondents Benjamin Condor and Sergio Pedrano are ORDERED to pay,
jointly and severally, respondent Pedro A. Arriesgado P50,000.00 as indemnity; P26,441.50 as actual
damages; P50,000.00 as moral damages; P50,000.00 as exemplary damages; and P20,000.00 as
attorneys fees.
SO ORDERED.
G.R. No. 190022
February 15, 2012
PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and BEN
SAGA, Petitioners, vs. PURIFICACION VIZCARA, MARIVIC VIZCARA, CRESENCIA A. NATIVIDAD,
HECTOR VIZCARA, JOEL VIZCARA and DOMINADOR ANTONIO, Respondents.
Nature of the Petition
Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, seeking to annul and set aside the Decision1 dated July 21, 2009 of the Court of Appeals
(CA) in CA-G.R. CV No. 90021, which affirmed with modification the Decision2 dated March 20, 2007
of the Regional Trial Court (RTC), Branch 40, Palayan City, and Resolution3 dated October 26, 2009,
which denied the petitioners motion for reconsideration.
The Antecedent Facts
On May 14, 2004, at about three oclock in the morning, Reynaldo Vizcara (Reynaldo) was driving a
passenger jeepney headed towards Bicol to deliver onion crops, with his companions, namely,
Cresencio Vizcara (Cresencio), Crispin Natividad (Crispin), Samuel Natividad (Samuel), Dominador
Antonio (Dominador) and Joel Vizcara (Joel). While crossing the railroad track in Tiaong, Quezon, a
Philippine National Railways (PNR) train, then being operated by respondent Japhet Estranas

(Estranas), suddenly turned up and rammed the passenger jeepney. The collision resulted to the
instantaneous death of Reynaldo, Cresencio, Crispin, and Samuel. On the other hand, Dominador
and Joel, sustained serious physical injuries.4
At the time of the accident, there was no level crossing installed at the railroad crossing.
Additionally, the "Stop, Look and Listen" signage was poorly maintained. The "Stop" signage was
already faded while the "Listen" signage was partly blocked by another signboard.5
On September 15, 2004, the survivors of the mishap, Joel and Dominador, together with the heirs of
the deceased victims, namely, Purificacion Vizcara, Marivic Vizcara, Cresencia Natividad and Hector
Vizcara, filed an action for damages against PNR, Estranas and Ben Saga, the alternate driver of the
train, before the RTC of Palayan City. The case was raffled to Branch 40 and was docketed as Civil
Case No. 0365-P. In their complaint, the respondents alleged that the proximate cause of the
fatalities and serious physical injuries sustained by the victims of the accident was the petitioners
gross negligence in not providing adequate safety measures to prevent injury to persons and
properties. They pointed out that in the railroad track of Tiaong, Quezon where the accident
happened, there was no level crossing bar, lighting equipment or bell installed to warn motorists of
the existence of the track and of the approaching train. They concluded their complaint with a
prayer for actual, moral and compensatory damages, as well as attorneys fees.6
For their part, the petitioners claimed that they exercised due diligence in operating the train and
monitoring its roadworthiness. They asseverate that right before the collision, Estranas was driving
the train at a moderate speed. Four hundred (400) meters away from the railroad crossing, he
started blowing his horn to warn motorists of the approaching train. When the train was only fifty
(50) meters away from the intersection, respondent Estranas noticed that all vehicles on both sides
of the track were already at a full stop. Thus, he carefully proceeded at a speed of twenty-five (25)
kilometers per hour, still blowing the trains horn. However, when the train was already ten (10)
meters away from the intersection, the passenger jeepney being driven by Reynaldo suddenly
crossed the tracks. Estranas immediately stepped on the brakes to avoid hitting the jeepney but due
to the sheer weight of the train, it did not instantly come to a complete stop until the jeepney was
dragged 20 to 30 meters away from the point of collision.7
The Ruling of the Trial Court
After trial on the merits, the RTC rendered its Decision8 dated March 20, 2007, ruling in favor of the
respondents, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered ordering defendants Philippine
National Railways Corporation (PNR), Japhet Estranas and Ben Saga to, jointly and severally pay the
following amounts to:
1. a) PURIFICACION VIZCARA:
1) P50,000.00, as indemnity for the death of Reynaldo Vizcara;
2) P35,000.00, for funeral expenses;
3) P5,000.00 for re-embalming expenses;
4) P40,000.00 for wake/interment expenses;
5) P300,000.00 as reimbursement for the value of the jeepney with license plate no. DTW-387;
6) P200,000.00 as moral damages;
7) P100,000.00 as exemplary damages; and
8) P20,000.00 for Attorneys fees.
b) MARIVIC VIZCARA:
1) P50,000.00, as indemnity for the death of Cresencio Vizcara;
2) P200,000.00 as moral damages;
3) P100,000.00 as exemplary damages; and
4) P20,000.00 for Attorneys fees.
c) HECTOR VIZCARA:
1) P50,000.00 as indemnity for the death of Samuel Vizcara;
2) P200,000.00 as moral damages;
3) P100,000.00 as exemplary damages; and
4) P20,000.00 for Attorneys fees.

d) CRESENCIA NATIVIDAD:
1) P50,000.00 as indemnity for the death of Crispin Natividad;
2) P200,000.00 as moral damages;
3) P100,000.00 as exemplary damages; and
4) P20,000.00 for Attorneys fees.
e) JOEL VIZCARA
1) P9,870.00 as reimbursement for his actual expenses;
2) P50,000.00 as moral damages;
3) P25,000.00 as exemplary damages; and
4) P10,000.00 for Attorneys fees.
f) DOMINADOR ANTONIO
1) P63,427.00 as reimbursement for his actual expenses;
2) P50,000.00 as moral damages;
3) P25,000.00 as exemplary damages; and
4) P10,000.00 for Attorneys fees.
and
2. Costs of suit.
SO ORDERED.9
The Ruling of the CA
Unyielding, the petitioners appealed the RTC decision to the CA. Subsequently, on July 21, 2009, the
CA rendered the assailed decision, affirming the RTC decision with modification with respect to the
amount of damages awarded to the respondents. The CA disposed, thus:
WHEREFORE, instant appeal is PARTIALLY GRANTED. The assailed Decision is AFFIRMED WITH
MODIFICATION, as follows:
(1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for wake/interment
expenses to PURIFICACION VIZCARA is deleted. In lieu thereof, P25,000.00 as temperate damages is
awarded;
(2) The award of moral damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA
and CRESENCIA NATIVIDAD is hereby reduced from P200,000.00 to P100,000.00 each while moral
damages awarded to JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from
P50,000.00 to P25,000.00;
(3) The award of exemplary damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR
VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P100,000.00 to P50,000.00 each while
exemplary damages awarded to JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced
from P25,000.00 to P12,500.00; and
(4) The award for attorneys fees in favor of the Appellees as well as the award of P300,000.00 to
Appellee PURIFICACION as reimbursement for the value of the jeepney is DELETED.
SO ORDERED.10
In the assailed decision, the CA affirmed the RTCs finding of negligence on the part of the
petitioners. It concurred with the trial court's conclusion that petitioner PNR's failure to install
sufficient safety devices in the area, such as flagbars or safety railroad bars and signage, was the
proximate cause of the accident. Nonetheless, in order to conform with established jurisprudence,
it modified the monetary awards to the victims and the heirs of those who perished due to the
collision.
The petitioners filed a Motion for Reconsideration11 of the decision of the CA. However, in a
Resolution12 dated October 26, 2009, the CA denied the same.
Aggrieved, the petitioners filed the present petition for review on certiorari, raising the following
grounds:
I
THE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE
OF THE PETITIONERS;
II

THE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST CLEAR CHANCE FINDS NO APPLICATION IN
THE INSTANT CASE;
III
THE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF THE PETITIONERS OR ERRED IN NOT
FINDING AT THE LEAST, CONTRIBUTORY NEGLIGENCE ON THE PART OF THE RESPONDENTS.13
The petitioners maintain that the proximate cause of the collision was the negligence and
recklessness of the driver of the jeepney. They argue that as a professional driver, Reynaldo is
presumed to be familiar with traffic rules and regulations, including the right of way accorded to
trains at railroad crossing and the precautionary measures to observe in traversing the same.
However, in utter disregard of the right of way enjoyed by PNR trains, he failed to bring his jeepney
to a full stop before crossing the railroad track and thoughtlessly followed the ten-wheeler truck
ahead of them. His failure to maintain a safe distance between the jeepney he was driving and the
truck ahead of the same prevented him from seeing the PNR signage displayed along the crossing.14
In their Comment,15 the respondents reiterate the findings of the RTC and the CA that the
petitioners' negligence in maintaining adequate and necessary public safety devices in the area of
the accident was the proximate cause of the mishap. They asseverate that if there was only a level
crossing bar, warning light or sound, or flagman in the intersection, the accident would not have
happened. Thus, there is no other party to blame but the petitioners for their failure to ensure that
adequate warning devices are installed along the railroad crossing.16
This Courts Ruling
The petition lacks merit.
The petitioners negligence was the proximate cause of the accident.
Article 2176 of the New Civil Code prescribes a civil liability for damages caused by a person's act or
omission constituting fault or negligence. It states:
Article 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there was no preexisting contractual relation between the parties, is called quasi-delict and is governed by the
provisions of this chapter.
In Layugan v. Intermediate Appellate Court,17 negligence was defined as the omission to do
something which a reasonable man, guided by considerations which ordinarily regulate the conduct
of human affairs, would do, or the doing of something which a prudent and reasonable man would
not do. It is 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.18 To determine the existence of negligence, the time-honored test was: Did
the defendant in doing the alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case
is not determined by reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.19
In the instant petition, this Court is called upon to determine whose negligence occasioned the illfated incident. The records however reveal that this issue had been rigorously discussed by both the
RTC and the CA. To emphasize, the RTC ruled that it was the petitioners failure to install adequate
safety devices at the railroad crossing which proximately caused the collision. This finding was
affirmed by the CA in its July 21, 2009 Decision. It is a well-established rule that factual findings by
the CA are conclusive on the parties and are not reviewable by this Court. They are entitled to great
weight and respect, even finality, especially when, as in this case, the CA affirmed the factual
findings arrived at by the trial court.20
Furthermore, in petitions for review on certiorari, only questions of law may be put into issue.
Questions of fact cannot be entertained.21 To distinguish one from the other, a question of
law exists when the doubt or difference centers on what the law is on a certain state of facts.
A question of fact, on the other hand, exists if the doubt centers on the truth or falsity of the alleged

facts.22 Certainly, the finding of negligence by the RTC, which was affirmed by the CA, is a question
of fact which this Court cannot pass upon as this would entail going into the factual matters on
which the negligence was based.23 Moreover, it was not shown that the present case falls under any
of the recognized exceptions24 to the oft repeated principle according great weight and respect to
the factual findings of the trial court and the CA.
At any rate, the records bear out that the factual circumstances of the case were meticulously
scrutinized by both the RTC and the CA before arriving at the same finding of negligence on the part
of the petitioners, and we found no compelling reason to disturb the same. Both courts ruled that
the petitioners fell short of the diligence expected of it, taking into consideration the nature of its
business, to forestall any untoward incident. In particular, the petitioners failed to install safety
railroad bars to prevent motorists from crossing the tracks in order to give way to an approaching
train. Aside from the absence of a crossing bar, the "Stop, Look and Listen" signage installed in the
area was poorly maintained, hence, inadequate to alert the public of the impending danger. A
reliable signaling device in good condition, not just a dilapidated "Stop, Look and Listen" signage, is
needed to give notice to the public. It is the responsibility of the railroad company to use
reasonable care to keep the signal devices in working order. Failure to do so would be an indication
of negligence.25 Having established the fact of negligence on the part of the petitioners, they were
rightfully held liable for damages.
There was no contributory negligence on the part of the respondents.
As to whether there was contributory negligence on the part of the respondents, this court rule in
the negative. Contributory negligence is conduct on the part of the injured party, contributing as a
legal cause to the harm he has suffered, which falls below the standard which he is required to
conform for his own protection. It is an act or omission amounting to want of ordinary care on the
part of the person injured which, concurring with the defendants negligence, is the proximate
cause of the injury.26 Here, we cannot see how the respondents could have contributed to their
injury when they were not even aware of the forthcoming danger. It was established during the trial
that the jeepney carrying the respondents was following a ten-wheeler truck which was only about
three to five meters ahead. When the truck proceeded to traverse the railroad track, Reynaldo, the
driver of the jeepney, simply followed through. He did so under the impression that it was safe to
proceed. It bears noting that the prevailing circumstances immediately before the collision did not
manifest even the slightest indication of an imminent harm. To begin with, the truck they were
trailing was able to safely cross the track. Likewise, there was no crossing bar to prevent them from
proceeding or, at least, a stoplight or signage to forewarn them of the approaching peril. Thus,
relying on his faculties of sight and hearing, Reynaldo had no reason to anticipate the impending
danger.27 He proceeded to cross the track and, all of a sudden, his jeepney was rammed by the train
being operated by the petitioners. Even then, the circumstances before the collision negate the
imputation of contributory negligence on the part of the respondents. What clearly appears is that
the accident would not have happened had the petitioners installed reliable and adequate safety
devices along the crossing to ensure the safety of all those who may utilize the same.
At this age of modern transportation, it behooves the PNR to exert serious efforts to catch up with
the trend, including the contemporary standards in railroad safety. As an institution established to
alleviate public transportation, it is the duty of the PNR to promote the safety and security of the
general riding public and provide for their convenience, which to a considerable degree may be
accomplished by the installation of precautionary warning devices. Every railroad crossing must be
installed with barriers on each side of the track to block the full width of the road until after the
train runs past the crossing. To even draw closer attention, the railroad crossing may be equipped
with a device which rings a bell or turns on a signal light to signify the danger or risk of crossing. It is
similarly beneficial to mount advance warning signs at the railroad crossing, such as a reflectorized
crossbuck sign to inform motorists of the existence of the track, and a stop, look and listen signage
to prompt the public to take caution. These warning signs must be erected in a place where they
will have ample lighting and unobstructed visibility both day and night. If only these safety devices
were installed at the Tiaong railroad crossing and the accident nevertheless occurred, we could
have reached a different disposition in the extent of the petitioners liability.

The exacting nature of the responsibility of railroad companies to secure public safety by the
installation of warning devices was emphasized in Philippine National Railways v. Court of
Appeals,28 thus:
[I]t may broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad crossings, which duties
pertain both to the operation of trains and to the maintenance of the crossings. Moreover, every
corporation constructing or operating a railway shall make and construct at all points where such
railway crosses any public road, good, sufficient, and safe crossings, and erect at such points, at
sufficient elevation from such road as to admit a free passage of vehicles of every kind, a sign with
large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn
persons of the necessity of looking out for trains. The failure of the PNR to put a cross bar, or signal
light, flagman or switchman, or semaphore is evidence of negligence and disregard of the safety of
the public, even if there is no law or ordinance requiring it, because public safety demands that said
device or equipment be installed.29
The responsibility of the PNR to secure public safety does not end with the installation of safety
equipment and signages but, with equal measure of accountability, with the upkeep and repair of
the same. Thus, in Cusi v. Philippine National Railways,30 we held:
Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling
public has the right to rely on such warning devices to put them on their guard and take the
necessary precautions before crossing the tracks. A need, therefore, exists for the railroad company
to use reasonable care to keep such devices in good condition and in working order, or to give
notice that they are not operating, since if such a signal is misunderstood it is a menace. Thus, it has
been held that if a railroad company maintains a signalling device at a crossing to give warning of
the approach of a train, the failure of the device to operate is generally held to be evidence of
negligence, which maybe considered with all the circumstances of the case in determining whether
the railroad company was negligent as a matter of fact. 31
The maintenance of safety equipment and warning signals at railroad crossings is equally important
as their installation since poorly maintained safety warning devices court as much danger as when
none was installed at all. The presence of safety warning signals at railroad crossing carries with it
the presumption that they are in good working condition and that the public may depend on them
for assistance. If they happen to be neglected and inoperative, the public may be misled into relying
on the impression of safety they normally convey and eventually bring injury to themselves in doing
so.
The doctrine of last clear chance is not applicable.
Finally, the CA correctly ruled that the doctrine of last clear chance is not applicable in the instant
case. The doctrine of last clear chance provides that where both parties are negligent but the
negligent act of one is appreciably later in point of time than that of the other, or where it is
impossible to determine whose fault or negligence brought about the occurrence of the incident,
the one who had the last clear opportunity to avoid the impending harm but failed to do so, is
chargeable with the consequences arising therefrom. Stated differently, the rule is that the
antecedent negligence of a person does not preclude recovery of damages caused by the
supervening negligence of the latter, who had the last fair chance to prevent the impending harm
by the exercise of due diligence.32 To reiterate, the proximate cause of the collision was the
petitioners negligence in ensuring that motorists and pedestrians alike may safely cross the railroad
track. The unsuspecting driver and passengers of the jeepney did not have any participation in the
occurrence of the unfortunate incident which befell them. Likewise, they did not exhibit any overt
act manifesting disregard for their own safety. Thus, absent preceding negligence on the part of the
respondents, the doctrine of last clear chance cannot be applied.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals
dated July 21, 2009 in CA-G.R. CV No. 90021 is hereby AFFIRMED.
SO ORDERED.