G.R. No.

L-7664

August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of
P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of
their son Dominador Ong in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers
that his death was caused by his own negligence or by unavoidable accident. Defendant also avers
that it had exercised due diligence in the selection of, and supervision over, its employees and that it
had observed the diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint
without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because
the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman,
Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20
for children is charged. The main pool it between two small pools of oval shape known as the
"Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the depths of
the water at different parts are indicated by appropriate marks on the wall. The care and supervision
of the pools and the users thereof is entrusted to a recreational section composed of Simeon
Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-saving
course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons,
defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator.
There is also a sanitary inspector who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place certain rules and regulations
governing the use of the pools, one of which prohibits the swimming in the pool alone or without any
attendant. Although defendant does not maintain a full-time physician in the swimming pool
compound, it has however a nurse and a sanitary inspector ready to administer injections or operate
the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school
student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools.
This was not the first time that the three brothers had gone to said natatorium for they had already
been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying
the requisite admission fee, they immediately went to one of the small pools where the water was
shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in
an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the
bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the
pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abao and Mario Villanueva. The tour of duty of Abao was from 8:00
to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30
a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty

bathers inside the pool area and Manuel Abao was going around the pools to observe the bathers
in compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of
Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy
informed lifeguard Manuel Abao of the same happening and Abao immediately jumped into the
big swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom.
The body was placed at the edge of the pool and Abao immediately applied manual artificial
respiration. Soon after, male nurse Armando Rule came to render assistance, followed by sanitary
inspector Iluminado Vicente who, after being called by phone from the clinic by one of the security
guards, boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he
injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr.
Ayuyao from the University of the Philippines. Meanwhile, Abao continued the artificial manual
respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen
tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the
same became of no use because he found the boy already dead. The doctor ordered that the body
be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department
of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los
Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the
deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with
fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and
brownish fluid in the stomach. The death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The
first article provides that "whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damages done." Such fault or negligence is called quasi-delict.
Under the second article, this obligation is demandable not only for one's own acts or omissions but
also for those of persons for whom one is responsible. In addition, we may quote the following
authorities cited in the decision of the trial court:
"The rule is well settled that the owners of resorts to which people generally are expressly or
by implication invited are legally bound to exercise ordinary care and prudence in the
management and maintenance of such resorts, to the end of making them reasonably safe
for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of
ordinary care in providing for his safety, without the fault of the patron, he is not, however, in
any sense deemed to be the insurer of the safety of patrons. And the death of a patron within
his premises does not cast upon him the burden of excusing himself from any presumption of
negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co.,
161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could
be no recovery for the death by drowning of a fifteen-year boy in defendant's natatorium,
where it appeared merely that he was lastly seen alive in water at the shallow end of the

pool, and some ten or fifteen minutes later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.
Since the present action is one for damages founded on culpable negligence, the principle to be
observed is that the person claiming damages has the burden of proving that the damage is caused
by the fault or negligence of the person from whom the damage is claimed, or of one of his
employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question
then that arises is: Have appellants established by sufficient evidence the existence of fault or
negligence on the part of appellee so as to render it liable for damages for the death of Dominador
Ong?
There is no question that appellants had striven to prove that appellee failed to take the necessary
precaution to protect the lives of its patrons by not placing at the swimming pools efficient and
competent employees who may render help at a moment's notice, and they ascribed such
negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was
not available or was attending to something else with the result that his help came late. Thus,
appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big
swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abao did not immediately
respond to the alarm and it was only upon the third call that he threw away the magazine he was
reading and allowed three or four minutes to elapse before retrieving the body from the water. This
negligence of Abao, they contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard Abao, but is
belied by the written statements given by them in the investigation conducted by the Police
Department of Quezon City approximately three hours after the happening of the accident. Thus,
these two boys admitted in the investigation that they narrated in their statements everything they
knew of the accident, but, as found by the trial, nowhere in said statements do they state that the
lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a
comic magazine when the alarm was given for which reason he failed to immediately respond to the
alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the lifeguard
heard the shouts for help, the latter immediately dived into the pool to retrieve the person under
water who turned out to be his brother. For this reason, the trial court made this conclusion: "The
testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abao to
immediately respond to their callmay therefore be disregarded because they are belied by their
written statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has taken all necessary
precautions to avoid danger to the lives of its patrons or prevent accident which may cause their
death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy,
toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is
painted with black colors so as to insure clear visibility. There is on display in a conspicuous place
within the area certain rules and regulations governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in
such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a
male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are
security guards who are available always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the bottom of the pool,
the employees of appellee did everything possible to bring him back to life. Thus, after he was
placed at the edge of the pool, lifeguard Abao immediately gave him manual artificial respiration.

Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who
brought with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal,
the inspector immediately injected him with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until its contents were exhausted. And while
all these efforts were being made, they sent for Dr. Ayuyao from the University of the Philippines
who however came late because upon examining the body he found him to be already dead. All of
the foregoing shows that appellee has done what is humanly possible under the circumstances to
restore life to minor Ong and for that reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of appellee may not be of much help,
appellants now switch to the theory that even if it be assumed that the deceased is partly to be
blamed for the unfortunate incident, still appellee may be held liable under the doctrine of "last clear
chance" for the reason that, having the last opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the record does not show how minor
Ong came into the big swimming pool. The only thing the record discloses is that minor Ong
informed his elder brothers that he was going to the locker room to drink a bottle of coke but that
from that time on nobody knew what happened to him until his lifeless body was retrieved. The
doctrine of last clear chance simply means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears that the latter, by exercising reasonable
care and prudence, might have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is considered in law solely
responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself in 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 a person who has the last clear 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. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming pool and it being apparent that he
went there without any companion in violation of one of the regulations of appellee as regards the
use of the pools, and it appearing that lifeguard Aba__o responded to the call for help as soon as
his attention was called to it and immediately after retrieving the body all efforts at the disposal of
appellee had been put into play in order to bring him back to life, it is clear that there is no room for
the application of the doctrine now invoked by appellants to impute liability to appellee..
The last clear chance doctrine can never apply where the party charged is required to act
instantaneously, and if the injury cannot be avoided by the application of all means at hand
after the peril is or should have been discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have contributed to the injury. O'Mally vs.
Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the trial court, which we find supported
by the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by
both parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in

so doing he might have hit or bumped his forehead against the bottom of the pool, as a
consequence of which he was stunned, and which to his drowning. As a boy scout he must have
received instructions in swimming. He knew, or have known that it was dangerous for him to dive in
that part of the pool."
Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs.
G.R. No. L-51806 November 8, 1988
CIVIL AERONAUTICS ADMINISTRATION, petitioner,
vs.
COURT OF APPEALS and ERNEST E. SIMKE, respondents.
The Solicitor General for petitioner.
Ledesma, Guytingco, Veleasco & Associates for respondent Ernest E. Simke.

CORTES, J.:
Assailed in this petition for review on certiorari is the decision of the Court of Appeals affirming the
trial court decision which reads as follows:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff the
amount of P15,589.55 as full reimbursement of his actual medical and hospital
expenses, with interest at the legal rate from the commencement of the suit; the
amount of P20,200.00 as consequential damages; the amount of P30,000.00 as
moral damages; the amount of P40,000.00 as exemplary damages; the further
amount of P20,000.00 as attorney's fees and the costs [Rollo, p. 24].
The facts of the case are as follows:
Private respondent is a naturalized Filipino citizen and at the time of the incident was the Honorary
Consul Geileral of Israel in the Philippines.
In the afternoon of December 13, 1968, private respondent with several other persons went to the
Manila International Airport to meet his future son-in-law. In order to get a better view of the
incoming passengers, he and his group proceeded to the viewing deck or terrace of the airport.
While walking on the terrace, then filled with other people, private respondent slipped over an
elevation about four (4) inches high at the far end of the terrace. As a result, private respondent fell
on his back and broke his thigh bone.
The next day, December 14, 1968, private respondent was operated on for about three hours.
Private respondent then filed an action for damages based on quasi-delict with the Court of First
Instance of Rizal, Branch VII against petitioner Civil Aeronautics Administration or CAA as the entity
empowered "to administer, operate, manage, control, maintain and develop the Manila International
Airport ... ." [Sec. 32 (24), R.A. 776].

Said claim for damages included, aside from the medical and hospital bills, consequential damages
for the expenses of two lawyers who had to go abroad in private respondent's stead to finalize
certain business transactions and for the publication of notices announcing the postponement of
private respondent's daughter's wedding which had to be cancelled because of his accident [Record
on Appeal, p. 5].
Judgment was rendered in private respondent's favor prompting petitioner to appeal to the Court of
Appeals. The latter affirmed the trial court's decision. Petitioner then filed with the same court a
Motion for, Reconsideration but this was denied.
Petitioner now comes before this Court raising the following assignment of errors:
1. The Court of Appeals gravely erred in not holding that the present the CAA is
really a suit against the Republic of the Philippines which cannot be sued without its
consent, which was not given in this case.
2. The Court of Appeals gravely erred in finding that the injuries of respondent Ernest
E. Simke were due to petitioner's negligence although there was no substantial
evidence to support such finding; and that the inference that the hump or elevation
the surface of the floor area of the terrace of the fold) MIA building is dangerous just
because said respondent tripped over it is manifestly mistaken circumstances that
justify a review by this Honorable Court of the said finding of fact of respondent
appellate court (Garcia v. Court of Appeals, 33 SCRA 622; Ramos v. CA, 63 SCRA
331.)
3. The Court of Appeals gravely erred in ordering petitioner to pay actual,
consequential, moral and exemplary damages, as well as attorney's fees to
respondent Simke although there was no substantial and competent proof to
support said awards I Rollo, pp. 93-94 1.
I
Invoking the rule that the State cannot be sued without its consent, petitioner contends that being an
agency of the government, it cannot be made a party-defendant in this case.
This Court has already held otherwise in the case of National Airports Corporation v. Teodoro, Sr.
[91 Phil. 203 (1952)]. Petitioner contends that the said ruling does not apply in this case because:
First, in the Teodoro case, the CAA was sued only in a substituted capacity, the National Airports
Corporation being the original party. Second, in the Teodoro case, the cause of action was
contractual in nature while here, the cause of action is based on a quasi-delict. Third, there is no
specific provision in Republic Act No. 776, the law governing the CAA, which would justify the
conclusion that petitioner was organized for business and not for governmental purposes. [Rollo, pp.
94-97].
Such arguments are untenable.
First, the Teodoro case, far from stressing the point that the CAA was only substituted for the
National Airports Corporation, in fact treated the CAA as the real party in interest when it stated that:
xxx xxx xxx

... To all legal intents and practical purposes, the National Airports Corporation is
dead and the Civil Aeronautics Administration is its heir or legal representative,
acting by the law of its creation upon its own rights and in its own name. The better
practice there should have been to make the Civil Aeronautics Administration the
third party defendant instead of the National Airports Corporation. [National Airports
Corp. v. Teodoro, supra, p. 208.]
xxx xxx xxx
Second, the Teodoro case did not make any qualification or limitation as to whether or not the CAA's
power to sue and be sued applies only to contractual obligations. The Court in the Teodoro case
ruled that Sections 3 and 4 of Executive Order 365 confer upon the CAA, without any qualification,
the power to sue and be sued, albeit only by implication. Accordingly, this Court's pronouncement
that where such power to sue and be sued has been granted without any qualification, it can include
a claim based on tort or quasi-delict [Rayo v. Court of First Instance of Bulacan, G.R. Nos. 5527383, December 19,1981, 1 1 0 SCRA 4561 finds relevance and applicability to the present case.
Third, it has already been settled in the Teodoro case that the CAA as an agency is not immune
from suit, it being engaged in functions pertaining to a private entity.
xxx xxx xxx
The Civil Aeronautics Administration comes under the category of a private entity.
Although not a body corporate it was created, like the National Airports Corporation,
not to maintain a necessary function of government, but to run what is essentially a
business, even if revenues be not its prime objective but rather the promotion of
travel and the convenience of the travelling public. It is engaged in an enterprise
which, far from being the exclusive prerogative of state, may, more than the
construction of public roads, be undertaken by private concerns. [National Airports
Corp. v. Teodoro, supra, p. 207.]
xxx xxx xxx
True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order 365
(Reorganizing the Civil Aeronautics Administration and Abolishing the National Airports Corporation).
Republic Act No. 776 (Civil Aeronautics Act of the Philippines), subsequently enacted on June 20,
1952, did not alter the character of the CAA's objectives under Exec, Order 365. The pertinent
provisions cited in the Teodoro case, particularly Secs. 3 and 4 of Exec. Order 365, which led the
Court to consider the CAA in the category of a private entity were retained substantially in Republic
Act 776, Sec. 32 (24) and (25). Said Act provides:
<re|| an 1w>

Sec. 32. Powers and Duties of the Administrator. Subject to the general control
and supervision of the Department Head, the Administrator shall have among others,
the following powers and duties:
xxx xxx xxx
(24) To administer, operate, manage, control, maintain and develop the Manila
International Airport and all government-owned aerodromes except those controlled
or operated by the Armed Forces of the Philippines including such powers and duties
as: (a) to plan, design, construct, equip, expand, improve, repair or alter aerodromes
or such structures, improvement or air navigation facilities; (b) to enter into, make

and execute contracts of any kind with any person, firm, or public or private
corporation or entity; ... .
(25) To determine, fix, impose, collect and receive landing fees, parking space fees,
royalties on sales or deliveries, direct or indirect, to any aircraft for its use of aviation
gasoline, oil and lubricants, spare parts, accessories and supplies, tools, other
royalties, fees or rentals for the use of any of the property under its management and
control.
xxx xxx xxx
From the foregoing, it can be seen that the CAA is tasked with private or non-governmental functions
which operate to remove it from the purview of the rule on State immunity from suit. For the correct
rule as set forth in the Tedoro case states:
xxx xxx xxx
Not all government entities, whether corporate or non-corporate, are immune from
suits. Immunity functions suits is determined by the character of the objects for which
the entity was organized. The rule is thus stated in Corpus Juris:
Suits against State agencies with relation to matters in which they
have assumed to act in private or non-governmental capacity, and
various suits against certain corporations created by the state for
public purposes, but to engage in matters partaking more of the
nature of ordinary business rather than functions of a governmental
or political character, are not regarded as suits against the state. The
latter is true, although the state may own stock or property of such a
corporation for by engaging in business operations through a
corporation, the state divests itself so far of its sovereign character,
and by implication consents to suits against the corporation. (59 C.J.,
313) [National Airport Corporation v. Teodoro, supra, pp. 206-207;
Emphasis supplied.]
This doctrine has been reaffirmed in the recent case of Malong v. Philippine National Railways [G.R.
No. L-49930, August 7, 1985, 138 SCRA 631, where it was held that the Philippine National
Railways, although owned and operated by the government, was not immune from suit as it does not
exercise sovereign but purely proprietary and business functions. Accordingly, as the CAA was
created to undertake the management of airport operations which primarily involve proprietary
functions, it cannot avail of the immunity from suit accorded to government agencies performing
strictly governmental functions.
II
Petitioner tries to escape liability on the ground that there was no basis for a finding of negligence.
There can be no negligence on its part, it alleged, because the elevation in question "had a
legitimate purpose for being on the terrace and was never intended to trip down people and injure
them. It was there for no other purpose but to drain water on the floor area of the terrace" [Rollo, P.
99].
To determine whether or not the construction of the elevation was done in a negligent manner, the
trial court conducted an ocular inspection of the premises.

xxx xxx xxx

... This Court after its ocular inspection found the elevation shown in Exhs. A or 6-A
where plaintiff slipped to be a step, a dangerous sliding step, and the proximate
cause of plaintiffs injury...
xxx xxx xxx
This Court during its ocular inspection also observed the dangerous and defective
condition of the open terrace which has remained unrepaired through the years. It
has observed the lack of maintenance and upkeep of the MIA terrace, typical of
many government buildings and offices. Aside from the litter allowed to accumulate
in the terrace, pot holes cause by missing tiles remained unrepaired and unattented.
The several elevations shown in the exhibits presented were verified by this Court
during the ocular inspection it undertook. Among these elevations is the one (Exh. A)
where plaintiff slipped. This Court also observed the other hazard, the slanting or
sliding step (Exh. B) as one passes the entrance door leading to the terrace [Record
on Appeal, U.S., pp. 56 and 59; Emphasis supplied.]
The Court of Appeals further noted that:
The inclination itself is an architectural anomaly for as stated by the said witness, it is
neither a ramp because a ramp is an inclined surface in such a way that it will
prevent people or pedestrians from sliding. But if, it is a step then it will not serve its
purpose, for pedestrian purposes. (tsn, p. 35, Id.) [rollo, p. 29.]
These factual findings are binding and conclusive upon this Court. Hence, the CAA cannot disclaim
its liability for the negligent construction of the elevation since under Republic Act No. 776, it was
charged with the duty of planning, designing, constructing, equipping, expanding, improving,
repairing or altering aerodromes or such structures, improvements or air navigation facilities [Section
32, supra, R.A. 776]. In the discharge of this obligation, the CAA is duty-bound to exercise due
diligence in overseeing the construction and maintenance of the viewing deck or terrace of the
airport.
It must be borne in mind that pursuant to Article 1173 of the Civil Code, "(t)he fault or negligence of
the obligor consists in the omission of that diligence which is required by the nature of the obligation
and corresponds with the circumstances of the person, of the time and of the place." Here, the
obligation of the CAA in maintaining the viewing deck, a facility open to the public, requires that CAA
insure the safety of the viewers using it. As these people come to the viewing deck to watch the
planes and passengers, their tendency would be to look to where the planes and the incoming
passengers are and not to look down on the floor or pavement of the viewing deck. The CAA should
have thus made sure that no dangerous obstructions or elevations exist on the floor of the deck to
prevent any undue harm to the public.
The legal foundation of CAA's liability for quasi-delict can be found in Article 2176 of the Civil Code
which provides that "(w)hoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done... As the CAA knew of the existence of the
dangerous elevation which it claims though, was made precisely in accordance with the plans and
specifications of the building for proper drainage of the open terrace [See Record on Appeal, pp. 13
and 57; Rollo, p. 391, its failure to have it repaired or altered in order to eliminate the existing hazard
constitutes such negligence as to warrant a finding of liability based on quasi-delict upon CAA.

The Court finds the contention that private respondent was, at the very least, guilty of contributory
negligence, thus reducing the damages that plaintiff may recover, unmeritorious. Contributory
negligence under Article 2179 of the Civil Code contemplates a negligent act or omission on the part
of the plaintiff, which although not the proximate cause of his injury, contributed to his own damage,
the proximate cause of the plaintiffs own injury being the defendant's lack of due care. In the instant
case, no contributory negligence can be imputed to the private respondent, considering the following
test formulated in the early case of Picart v. Smith, 37 Phil. 809 (1918):
The test by which to determine the existence of negligence in a particular case may
be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent man 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 the 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.
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 be
here of much value but this much can be profitably said: Reasonable men-overn 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. 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
the ignoring of the suggestion born of this prevision, is always necessary before
negligence can be held to exist.... [Picart v. Smith, supra, p. 813; Emphasis
supplied.]
The private respondent, who was the plaintiff in the case before the lower court, could not have
reasonably foreseen the harm that would befall him, considering the attendant factual
circumstances. Even if the private respondent had been looking where he was going, the step in
question could not easily be noticed because of its construction. As the trial court found:
In connection with the incident testified to, a sketch, Exhibit O, shows a section of the
floorings oil which plaintiff had tripped, This sketch reveals two pavements adjoining
each other, one being elevated by four and one-fourth inches than the other. From
the architectural standpoint the higher, pavement is a step. However, unlike a step
commonly seen around, the edge of the elevated pavement slanted outward as one
walks to one interior of the terrace. The length of the inclination between the edges of
the two pavements is three inches. Obviously, plaintiff had stepped on the inclination
because had his foot landed on the lower pavement he would not have lost his
balance. The same sketch shows that both pavements including the inclined portion
are tiled in red cement, and as shown by the photograph Exhibit A, the lines of the
tilings are continuous. It would therefore be difficult for a pedestrian to see the
inclination especially where there are plenty of persons in the terrace as was the
situation when plaintiff fell down. There was no warning sign to direct one's attention
to the change in the elevation of the floorings. [Rollo, pp. 2829.]

III
Finally, petitioner appeals to this Court the award of damages to private respondent. The liability of
CAA to answer for damages, whether actual, moral or exemplary, cannot be seriously doubted in
view of one conferment of the power to sue and be sued upon it, which, as held in the case of Rayo
v. Court of First Instance, supra, includes liability on a claim for quasi-dilict. In the aforestated case,
the liability of the National Power Corporation to answer for damages resulting from its act of
sudden, precipitate and simultaneous opening of the Angat Dam, which caused the death of several
residents of the area and the destruction of properties, was upheld since the o,rant of the power to
sue and be sued upon it necessarily implies that it can be held answerable for its tortious acts or any
wrongful act for that matter.
With respect to actual or compensatory damages, the law mandates that the same be proven.
Art. 2199. Except as provided by law or by stipulation, one are entitled to an
adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual on compensatory damages [New
Civil Code].
Private respondent claims P15,589.55 representing medical and hospitalization bills. This Court
finds the same to have been duly proven through the testimony of Dr. Ambrosio Tangco, the
physician who attended to private respondent (Rollo, p. 26) and who Identified Exh. "H" which was
his bill for professional services [Rollo, p. 31].
Concerning the P20,200.00 alleged to have been spent for other expenses such as the
transportation of the two lawyers who had to represent private respondent abroad and the
publication of the postponement notices of the wedding, the Court holds that the same had also
been duly proven. Private respondent had adequately shown the existence of such losses and the
amount thereof in the testimonies before the trial court [CA decision, p. 81. At any rate, the findings
of the Court of Appeals with respect to this are findings of facts [One Heart Sporting Club, Inc. v.
Court of Appeals, G.R. Nos. 5379053972, Oct. 23, 1981, 108 SCRA 4161 which, as had been held
time and again, are, as a general rule, conclusive before this Court [Sese v. Intermediate Appellate
Court, G.R. No. 66186, July 31, 1987,152 SCRA 585].
With respect to the P30,000.00 awarded as moral damages, the Court holds private respondent
entitled thereto because of the physical suffering and physical injuries caused by the negligence of
the CAA [Arts. 2217 and 2219 (2), New Civil Code].
With respect to the award of exemplary damages, the Civil Code explicitly, states:
Art. 2229. Exemplary or corrective damages, are imposed, by way of example or
correction for the public good, in addition to the moral, liquidated or compensatory
Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant
acted with gross negligence.
Gross negligence which, according to the Court, is equivalent to the term "notorious negligence" and
consists in the failure to exercise even slight care [Caunan v. Compania General de Tabacos, 56
Phil. 542 (1932)] can be attributed to the CAA for its failure to remedy the dangerous condition of the
questioned elevation or to even post a warning sign directing the attention of the viewers to the
change in the elevation of the floorings notwithstanding its knowledge of the hazard posed by such
elevation [Rollo, pp. 28-29; Record oil Appeal, p. 57]. The wanton disregard by the CAA of the safety

of the people using the viewing deck, who are charged an admission fee, including the petitioner
who paid the entrance fees to get inside the vantage place [CA decision, p. 2; Rollo, p. 25] and are,
therefore, entitled to expect a facility that is properly and safely maintained justifies the award of
exemplary damages against the CAA, as a deterrent and by way of example or correction for the
public good. The award of P40,000.00 by the trial court as exemplary damages appropriately
underscores the point that as an entity changed with providing service to the public, the CAA. like all
other entities serving the public. has the obligation to provide the public with reasonably safe service.
Finally, the award of attorney's fees is also upheld considering that under Art. 2208 (1) of the Civil
Code, the same may be awarded whenever exemplary damages are awarded, as in this case,
and,at any rate, under Art. 2208 (11), the Court has the discretion to grant the same when it is just
and equitable.
However, since the Manila International Airport Authority (MIAA) has taken over the management
and operations of the Manila International Airport [renamed Ninoy Aquino International Airport under
Republic Act No. 6639] pursuant to Executive Order No. 778 as amended by executive Orders Nos.
903 (1983), 909 (1983) and 298 (1987) and under Section 24 of the said Exec. Order 778, the MIAA
has assumed all the debts, liabilities and obligations of the now defunct Civil Aeronautics
Administration (CAA), the liabilities of the CAA have now been transferred to the MIAA.
WHEREFORE, finding no reversible error, the Petition for review on certiorari is DENIED and the
decision of the Court of Appeals in CA-G.R. No. 51172-R is AFFIRMED.
SO ORDERED.
G.R. No. 119602

October 6, 2000

WILDVALLEY SHIPPING CO., LTD. petitioner,

vs.
COURT OF APPEALS and PHILIPPINE PRESIDENT LINES INC., respondents.
DECISION
BUENA, J.:
This is a petition for review on certiorari seeking to set aside the decision of the Court of Appeals
which reversed the decision of the lower court in CA-G.R. CV No. 36821, entitled "Wildvalley
Shipping Co., Ltd., plaintiff-appellant, versus Philippine President Lines, Inc., defendant-appellant."
The antecedent facts of the case are as follows:
Sometime in February 1988, the Philippine Roxas, a vessel owned by Philippine President Lines,
Inc., private respondent herein, arrived in Puerto Ordaz, Venezuela, to load iron ore. Upon the
completion of the loading and when the vessel was ready to leave port, Mr. Ezzar del Valle
Solarzano Vasquez, an official pilot of Venezuela, was designated by the harbour authorities in
Puerto Ordaz to navigate the Philippine Roxas through the Orinoco River.1 He was asked to pilot the
said vessel on February 11, 19882 boarding it that night at 11:00 p.m.3
The master (captain) of the Philippine Roxas, Captain Nicandro Colon, was at the bridge together
with the pilot (Vasquez), the vessel's third mate (then the officer on watch), and a helmsman when

the vessel left the port4 at 1:40 a.m. on February 12, 1988.5 Captain Colon left the bridge when the
vessel was under way.6
The Philippine Roxas experienced some vibrations when it entered the San Roque Channel at mile
172.7 The vessel proceeded on its way, with the pilot assuring the watch officer that the vibration was
a result of the shallowness of the channel.8
Between mile 158 and 157, the vessel again experienced some vibrations.9 These occurred at 4:12
a.m.10 It was then that the watch officer called the master to the bridge.11
The master (captain) checked the position of the vessel12 and verified that it was in the centre of the
channel.13He then went to confirm, or set down, the position of the vessel on the chart.14 He ordered
Simplicio A. Monis, Chief Officer of the President Roxas, to check all the double bottom tanks.15
At around 4:35 a.m., the Philippine Roxas ran aground in the Orinoco River,16 thus obstructing the
ingress and egress of vessels.
As a result of the blockage, the Malandrinon, a vessel owned by herein petitioner Wildvalley
Shipping Company, Ltd., was unable to sail out of Puerto Ordaz on that day.
Subsequently, Wildvalley Shipping Company, Ltd. filed a suit with the Regional Trial Court of Manila,
Branch III against Philippine President Lines, Inc. and Pioneer Insurance Company (the
underwriter/insurer of Philippine Roxas) for damages in the form of unearned profits, and interest
thereon amounting to US $400,000.00 plus attorney's fees, costs, and expenses of litigation. The
complaint against Pioneer Insurance Company was dismissed in an Order dated November 7,
1988.17
At the pre-trial conference, the parties agreed on the following facts:
"1. The jurisdictional facts, as specified in their respective pleadings;
"2. That defendant PPL was the owner of the vessel Philippine Roxas at the time of the
incident;
"3. That defendant Pioneer Insurance was the insurance underwriter for defendant PPL;
"4. That plaintiff Wildvalley Shipping Co., Inc. is the owner of the vessel Malandrinon, whose
passage was obstructed by the vessel Philippine Roxas at Puerto Ordaz, Venezuela, as
specified in par. 4, page 2 of the complaint;
"5. That on February 12, 1988, while the Philippine Roxas was navigating the channel at
Puerto Ordaz, the said vessel grounded and as a result, obstructed navigation at the
channel;
"6. That the Orinoco River in Puerto Ordaz is a compulsory pilotage channel;
"7. That at the time of the incident, the vessel, Philippine Roxas, was under the command of
the pilot Ezzar Solarzano, assigned by the government thereat, but plaintiff claims that it is
under the command of the master;
"8. The plaintiff filed a case in Middleburg, Holland which is related to the present case;

"9. The plaintiff caused the arrest of the Philippine Collier, a vessel owned by the defendant
PPL;
"10. The Orinoco River is 150 miles long and it takes approximately 12 hours to navigate out
of the said river;
"11. That no security for the plaintiff's claim was given until after the Philippine Collier was
arrested; and
"12. That a letter of guarantee, dated 12-May-88 was issued by the Steamship Mutual
Underwriters Ltd."18
The trial court rendered its decision on October 16, 1991 in favor of the petitioner, Wildvalley
Shipping Co., Ltd. The dispositive portion thereof reads as follows:
"WHEREFORE, judgment is rendered for the plaintiff, ordering defendant Philippine President Lines,
Inc. to pay to the plaintiff the sum of U.S. $259,243.43, as actual and compensatory damages, and
U.S. $162,031.53, as expenses incurred abroad for its foreign lawyers, plus additional sum of U.S.
$22,000.00, as and for attorney's fees of plaintiff's local lawyer, and to pay the cost of this suit.
"Defendant's counterclaim is dismissed for lack of merit.
"SO ORDERED."19
Both parties appealed: the petitioner appealing the non-award of interest with the private respondent
questioning the decision on the merits of the case.
After the requisite pleadings had been filed, the Court of Appeals came out with its questioned
decision dated June 14, 1994,20 the dispositive portion of which reads as follows:
"WHEREFORE, finding defendant-appellant's appeal to be meritorious, judgment is hereby rendered
reversing the Decision of the lower court. Plaintiff-appellant's Complaint is dismissed and it is
ordered to pay defendant-appellant the amount of Three Hundred Twenty-three Thousand, Forty-two
Pesos and Fifty-three Centavos (P323,042.53) as and for attorney's fees plus cost of suit. Plaintiffappellant's appeal is DISMISSED.
"SO ORDERED."21
Petitioner filed a motion for reconsideration22 but the same was denied for lack of merit in the
resolution dated March 29, 1995.23
Hence, this petition.
The petitioner assigns the following errors to the court a quo:
1. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT UNDER
PHILIPPINE LAW NO FAULT OR NEGLIGENCE CAN BE ATTRIBUTED TO THE MASTER
NOR THE OWNER OF THE "PHILIPPINE ROXAS" FOR THE GROUNDING OF SAID
VESSEL RESULTING IN THE BLOCKAGE OF THE RIO ORINOCO;

2. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN REVERSING THE

FINDINGS OF FACTS OF THE TRIAL COURT CONTRARY TO EVIDENCE;
3. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN FINDING THAT THE
"PHILIPPINE ROXAS" IS SEAWORTHY;
4. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DISREGARDING
VENEZUELAN LAW DESPITE THE FACT THAT THE SAME HAS BEEN SUBSTANTIALLY
PROVED IN THE TRIAL COURT WITHOUT ANY OBJECTION FROM PRIVATE
RESPONDENT, AND WHOSE OBJECTION WAS INTERPOSED BELATEDLY ON
APPEAL;
5. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN AWARDING
ATTORNEY'S FEES AND COSTS TO PRIVATE RESPONDENT WITHOUT ANY FAIR OR
REASONABLE BASIS WHATSOEVER;
6. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT FINDING THAT
PETITIONER'S CAUSE IS MERITORIOUS HENCE, PETITIONER SHOULD BE ENTITLED
TO ATTORNEY'S FEES, COSTS AND INTEREST.
The petition is without merit.
The primary issue to be determined is whether or not Venezuelan law is applicable to the case at
bar.
It is well-settled that foreign laws do not prove themselves in our jurisdiction and our courts are not
authorized to take judicial notice of them. Like any other fact, they must be alleged and proved.24
A distinction is to be made as to the manner of proving a written and an unwritten law. The former
falls under Section 24, Rule 132 of the Rules of Court, as amended, the entire provision of which is
quoted hereunder. Where the foreign law sought to be proved is "unwritten," the oral testimony of
expert witnesses is admissible, as are printed and published books of reports of decisions of the
courts of the country concerned if proved to be commonly admitted in such courts.25
Section 24 of Rule 132 of the Rules of Court, as amended, provides:
"Sec. 24. Proof of official record. -- The record of public documents referred to in paragraph (a) of
Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is in a foreign country, the certificate may be
made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the Philippines stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office." (Underscoring supplied)
The court has interpreted Section 25 (now Section 24) to include competent evidence like the
testimony of a witness to prove the existence of a written foreign law.26
In the noted case of Willamette Iron & Steel Works vs. Muzzal,27 it was held that:

" Mr. Arthur W. Bolton, an attorney-at-law of San Francisco, California, since the year 1918 under
oath, quoted verbatim section 322 of the California Civil Code and stated that said section was in
force at the time the obligations of defendant to the plaintiff were incurred, i.e. on November 5, 1928
and December 22, 1928. This evidence sufficiently established the fact that the section in question
was the law of the State of California on the above dates. A reading of sections 300 and 301 of our
Code of Civil Procedure will convince one that these sections do not exclude the presentation of
other competent evidence to prove the existence of a foreign law.
"`The foreign law is a matter of fact You ask the witness what the law is; he may, from his
recollection, or on producing and referring to books, say what it is.' (Lord Campbell concurring in an
opinion of Lord Chief Justice Denman in a well-known English case where a witness was called
upon to prove the Roman laws of marriage and was permitted to testify, though he referred to a book
containing the decrees of the Council of Trent as controlling, Jones on Evidence, Second Edition,
Volume 4, pages 3148-3152.) x x x."
We do not dispute the competency of Capt. Oscar Leon Monzon, the Assistant Harbor Master and
Chief of Pilots at Puerto Ordaz, Venezuela,28 to testify on the existence of the Reglamento General
de la Ley de Pilotaje(pilotage law of Venezuela)29 and the Reglamento Para la Zona de Pilotaje No 1
del Orinoco (rules governing the navigation of the Orinoco River). Captain Monzon has held the
aforementioned posts for eight years.30 As such he is in charge of designating the pilots for
maneuvering and navigating the Orinoco River. He is also in charge of the documents that come into
the office of the harbour masters.31
Nevertheless, we take note that these written laws were not proven in the manner provided by
Section 24 of Rule 132 of the Rules of Court.
The Reglamento General de la Ley de Pilotaje was published in the Gaceta Oficial32 of the Republic
of Venezuela. A photocopy of the Gaceta Oficial was presented in evidence as an official publication
of the Republic of Venezuela.
The Reglamento Para la Zona de Pilotaje No 1 del Orinoco is published in a book issued by
the Ministerio de Comunicaciones of Venezuela.33 Only a photocopy of the said rules was likewise
presented as evidence.
Both of these documents are considered in Philippine jurisprudence to be public documents for they
are the written official acts, or records of the official acts of the sovereign authority, official bodies
and tribunals, and public officers of Venezuela.34
For a copy of a foreign public document to be admissible, the following requisites are mandatory: (1)
It must be attested by the officer having legal custody of the records or by his deputy; and (2) It must
be accompanied by a certificate by a secretary of the embassy or legation, consul general, consul,
vice consular or consular agent or foreign service officer, and with the seal of his office.35 The latter
requirement is not a mere technicality but is intended to justify the giving of full faith and credit to the
genuineness of a document in a foreign country.36
It is not enough that the Gaceta Oficial, or a book published by the Ministerio de Comunicaciones of
Venezuela, was presented as evidence with Captain Monzon attesting it. It is also required by
Section 24 of Rule 132 of the Rules of Court that a certificate that Captain Monzon, who attested the
documents, is the officer who had legal custody of those records made by a secretary of the
embassy or legation, consul general, consul, vice consul or consular agent or by any officer in the
foreign service of the Philippines stationed in Venezuela, and authenticated by the seal of his office

accompanying the copy of the public document. No such certificate could be found in the records of
the case.
With respect to proof of written laws, parol proof is objectionable, for the written law itself is the best
evidence. According to the weight of authority, when a foreign statute is involved, the best evidence
rule requires that it be proved by a duly authenticated copy of the statute.37
At this juncture, we have to point out that the Venezuelan law was not pleaded before the lower
court.
A foreign law is considered to be pleaded if there is an allegation in the pleading about the existence
of the foreign law, its import and legal consequence on the event or transaction in issue.38
A review of the Complaint39 revealed that it was never alleged or invoked despite the fact that the
grounding of the M/V Philippine Roxas occurred within the territorial jurisdiction of Venezuela.
We reiterate that under the rules of private international law, a foreign law must be properly pleaded
and proved as a fact. In the absence of pleading and proof, the laws of a foreign country, or state,
will be presumed to be the same as our own local or domestic law and this is known as processual
presumption.40
Having cleared this point, we now proceed to a thorough study of the errors assigned by the
petitioner.
Petitioner alleges that there was negligence on the part of the private respondent that would warrant
the award of damages.
There being no contractual obligation, the private respondent is obliged to give only the diligence
required of a good father of a family in accordance with the provisions of Article 1173 of the New
Civil Code, thus:
"Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is
required by the nature of the obligation and corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and
2201, paragraph 2, shall apply.
"If the law or contract does not state the diligence which is to be observed in the performance, that
which is expected of a good father of a family shall be required."
The diligence of a good father of a family requires only that diligence which an ordinary prudent man
would exercise with regard to his own property. This we have found private respondent to have
exercised when the vessel sailed only after the "main engine, machineries, and other auxiliaries"
were checked and found to be in good running condition;41 when the master left a competent officer,
the officer on watch on the bridge with a pilot who is experienced in navigating the Orinoco River;
when the master ordered the inspection of the vessel's double bottom tanks when the vibrations
occurred anew.42
The Philippine rules on pilotage, embodied in Philippine Ports Authority Administrative Order No. 0385, otherwise known as the Rules and Regulations Governing Pilotage Services, the Conduct of
Pilots and Pilotage Fees in Philippine Ports enunciate the duties and responsibilities of a master of a
vessel and its pilot, among other things.

The pertinent provisions of the said administrative order governing these persons are quoted
hereunder:
"Sec. 11. Control of Vessels and Liability for Damage. -- On compulsory pilotage grounds, the
Harbor Pilot providing the service to a vessel shall be responsible for the damage caused to a vessel
or to life and property at ports due to his negligence or fault. He can be absolved from liability if the
accident is caused by force majeure or natural calamities provided he has exercised prudence and
extra diligence to prevent or minimize the damage.
"The Master shall retain overall command of the vessel even on pilotage grounds whereby he can
countermand or overrule the order or command of the Harbor Pilot on board. In such event, any
damage caused to a vessel or to life and property at ports by reason of the fault or negligence of the
Master shall be the responsibility and liability of the registered owner of the vessel concerned without
prejudice to recourse against said Master.
"Such liability of the owner or Master of the vessel or its pilots shall be determined by competent
authority in appropriate proceedings in the light of the facts and circumstances of each particular
case.
"x x x
"Sec. 32. Duties and Responsibilities of the Pilots or Pilots Association. -- The duties and
responsibilities of the Harbor Pilot shall be as follows:
"x x x
"f) A pilot shall be held responsible for the direction of a vessel from the time he assumes his work
as a pilot thereof until he leaves it anchored or berthed safely; Provided, however, that his
responsibility shall cease at the moment the Master neglects or refuses to carry out his order."
The Code of Commerce likewise provides for the obligations expected of a captain of a vessel, to
wit:
"Art. 612. The following obligations shall be inherent in the office of captain:
"x x x
"7. To be on deck on reaching land and to take command on entering and leaving ports, canals,
roadsteads, and rivers, unless there is a pilot on board discharging his duties. x x x."
The law is very explicit. The master remains the overall commander of the vessel even when there is
a pilot on board. He remains in control of the ship as he can still perform the duties conferred upon
him by law43 despite the presence of a pilot who is temporarily in charge of the vessel. It is not
required of him to be on the bridge while the vessel is being navigated by a pilot.
However, Section 8 of PPA Administrative Order No. 03-85, provides:
"Sec. 8. Compulsory Pilotage Service - For entering a harbor and anchoring thereat, or passing
through rivers or straits within a pilotage district, as well as docking and undocking at any pier/wharf,
or shifting from one berth or another, every vessel engaged in coastwise and foreign trade shall be
under compulsory pilotage.

"xxx."
The Orinoco River being a compulsory pilotage channel necessitated the engaging of a pilot who
was presumed to be knowledgeable of every shoal, bank, deep and shallow ends of the river. In his
deposition, pilot Ezzar Solarzano Vasquez testified that he is an official pilot in the Harbour at Port
Ordaz, Venezuela,44 and that he had been a pilot for twelve (12) years.45 He also had experience in
navigating the waters of the Orinoco River.46
The law does provide that the master can countermand or overrule the order or command of the
harbor pilot on board. The master of the Philippine Roxas deemed it best not to order him (the pilot)
to stop the vessel,47mayhap, because the latter had assured him that they were navigating normally
before the grounding of the vessel.48 Moreover, the pilot had admitted that on account of his
experience he was very familiar with the configuration of the river as well as the course headings,
and that he does not even refer to river charts when navigating the Orinoco River.49
Based on these declarations, it comes as no surprise to us that the master chose not to regain
control of the ship. Admitting his limited knowledge of the Orinoco River, Captain Colon relied on the
knowledge and experience of pilot Vasquez to guide the vessel safely.
"Licensed pilots, enjoying the emoluments of compulsory pilotage, are in a different class from
ordinary employees, for they assume to have a skill and a knowledge of navigation in the particular
waters over which their licenses extend superior to that of the master; pilots are bound to use due
diligence and reasonable care and skill. A pilot's ordinary skill is in proportion to the pilot's
responsibilities, and implies a knowledge and observance of the usual rules of navigation,
acquaintance with the waters piloted in their ordinary condition, and nautical skill in avoiding all
known obstructions. The character of the skill and knowledge required of a pilot in charge of a vessel
on the rivers of a country is very different from that which enables a navigator to carry a vessel
safely in the ocean. On the ocean, a knowledge of the rules of navigation, with charts that disclose
the places of hidden rocks, dangerous shores, or other dangers of the way, are the main elements of
a pilot's knowledge and skill. But the pilot of a river vessel, like the harbor pilot, is selected for the
individual's personal knowledge of the topography through which the vessel is steered."50
We find that the grounding of the vessel is attributable to the pilot. When the vibrations were first felt
the watch officer asked him what was going on, and pilot Vasquez replied that "(they) were in the
middle of the channel and that the vibration was as (sic) a result of the shallowness of the channel."51
Pilot Ezzar Solarzano Vasquez was assigned to pilot the vessel Philippine Roxas as well as other
vessels on the Orinoco River due to his knowledge of the same. In his experience as a pilot, he
should have been aware of the portions which are shallow and which are not. His failure to
determine the depth of the said river and his decision to plod on his set course, in all probability,
caused damage to the vessel. Thus, we hold him as negligent and liable for its grounding.
In the case of Homer Ramsdell Transportation Company vs. La Compagnie Generale
Transatlantique, 182 U.S. 406, it was held that:
"x x x The master of a ship, and the owner also, is liable for any injury done by the negligence of the
crew employed in the ship. The same doctrine will apply to the case of a pilot employed by the
master or owner, by whose negligence any injury happens to a third person or his property: as, for
example, by a collision with another ship, occasioned by his negligence. And it will make no
difference in the case that the pilot, if any is employed, is required to be a licensed pilot; provided the
master is at liberty to take a pilot, or not, at his pleasure, for in such a case the master acts
voluntarily, although he is necessarily required to select from a particular class. On the other hand, if

it is compulsive upon the master to take a pilot, and, a fortiori, if he is bound to do so under
penalty, then, and in such case, neither he nor the owner will be liable for injuries occasioned
by the negligence of the pilot; for in such a case the pilot cannot be deemed properly the servant
of the master or the owner, but is forced upon them, and the maxim Qui facit per alium facit per
se does not apply." (Underscoring supplied)
Anent the river passage plan, we find that, while there was none,52 the voyage has been sufficiently
planned and monitored as shown by the following actions undertaken by the pilot, Ezzar Solarzano
Vasquez, to wit: contacting the radio marina via VHF for information regarding the channel, river
traffic,53 soundings of the river, depth of the river, bulletin on the buoys.54 The officer on watch also
monitored the voyage.55
We, therefore, do not find the absence of a river passage plan to be the cause for the grounding of
the vessel.
The doctrine of res ipsa loquitur does not apply to the case at bar because the circumstances
surrounding the injury do not clearly indicate negligence on the part of the private respondent. For
the said doctrine to apply, the following conditions must be met: (1) the accident was of such
character as to warrant an inference that it would not have happened except for defendant's
negligence; (2) the accident must have been caused by an agency or instrumentality within the
exclusive management or control of the person charged with the negligence complained of; and (3)
the accident must not have been due to any voluntary action or contribution on the part of the person
injured.56
As has already been held above, there was a temporary shift of control over the ship from the
master of the vessel to the pilot on a compulsory pilotage channel. Thus, two of the requisites
necessary for the doctrine to apply, i.e., negligence and control, to render the respondent liable, are
absent.
As to the claim that the ship was unseaworthy, we hold that it is not.
The Lloyds Register of Shipping confirmed the vessels seaworthiness in a Confirmation of Class
issued on February 16, 1988 by finding that "the above named ship (Philippine Roxas) maintained
the class "+100A1 Strengthened for Ore Cargoes, Nos. 2 and 8 Holds may be empty (CC) and
+LMC" from 31/12/87 up until the time of casualty on or about 12/2/88."57 The same would not have
been issued had not the vessel been built according to the standards set by Lloyd's.
Samuel Lim, a marine surveyor, at Lloyd's Register of Shipping testified thus:
"Q Now, in your opinion, as a surveyor, did top side tank have any bearing at all to the
seaworthiness of the vessel?
"A Well, judging on this particular vessel, and also basing on the class record of the vessel, wherein
recommendations were made on the top side tank, and it was given sufficient time to be repaired, it
means that the vessel is fit to travel even with those defects on the ship.
"COURT
What do you mean by that? You explain. The vessel is fit to travel even with defects? Is that what
you mean? Explain.

"WITNESS
"A Yes, your Honor. Because the class society which register (sic) is the third party looking into the
condition of the vessel and as far as their record states, the vessel was class or maintained, and she
is fit to travel during that voyage."
"x x x
"ATTY. MISA
Before we proceed to other matter, will you kindly tell us what is (sic) the 'class +100A1
Strengthened for Ore Cargoes', mean?
"WITNESS
"A Plus 100A1 means that the vessel was built according to Lloyd's rules and she is capable of
carrying ore bulk cargoes, but she is particularly capable of carrying Ore Cargoes with No. 2 and No.
8 holds empty.
"x x x
"COURT
The vessel is classed, meaning?
"A Meaning she is fit to travel, your Honor, or seaworthy."58
It is not required that the vessel must be perfect. To be seaworthy, a ship must be reasonably fit to
perform the services, and to encounter the ordinary perils of the voyage, contemplated by the parties
to the policy.59
As further evidence that the vessel was seaworthy, we quote the deposition of pilot Vasquez:
"Q Was there any instance when your orders or directions were not complied with because of the
inability of the vessel to do so?
"A No.
"Q. Was the vessel able to respond to all your commands and orders?
"A. The vessel was navigating normally."60
Eduardo P. Mata, Second Engineer of the Philippine Roxas submitted an accident report wherein he
stated that on February 11, 1988, he checked and prepared the main engine, machineries and all
other auxiliaries and found them all to be in good running condition and ready for maneuvering. That
same day the main engine, bridge and engine telegraph and steering gear motor were also
tested.61 Engineer Mata also prepared the fuel for consumption for maneuvering and checked the
engine generators.62
Finally, we find the award of attorneys fee justified.

1wphi1

Article 2208 of the New Civil Code provides that:

"Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:
"x x x
"(11) In any other case where the court deems it just and equitable that attorney's fees and
expenses of litigation should be recovered.
"x x x"
Due to the unfounded filing of this case, the private respondent was unjustifiably forced to litigate,
thus the award of attorneys fees was proper.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED and the decision of the
Court of Appeals in CA G.R. CV No. 36821 is AFFIRMED.
SO ORDERED.

MA. LOURDES VALENZUELA, petitioner, vs. COURT OF APPEALS,

RICHARD
LI
and
ALEXANDER
COMMERCIAL,
INC., respondents.

[G.R. No. 117944. February 7, 1996]

RICHARD LI, petitioner, vs. COURT OF APPEALS and MA. LOURDES

VALENZUELA, respondents.
DECISION
KAPUNAN, J.:

These two petitions for review on certiorari under Rule 45 of the Revised
Rules of Court stem from an action to recover damages by petitioner Lourdes
Valenzuela in the Regional Trial Court of Quezon City for injuries sustained by
her in a vehicular accident in the early morning of June 24, 1990. The facts
found by the trial court are succinctly summarized by the Court of Appeals
below:

This is an action to recover damages based on quasi-delict, for serious physical

injuries sustained in a vehicular accident.
Plaintiffs version of the accident is as follows: At around 2:00 in the morning of June
24, 1990, plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with
Plate No. FFU 542 from her restaurant at Marcos highway to her home at Palanza
Street, Araneta Avenue. She was travelling along Aurora Blvd. with a companion,
Cecilia Ramon, heading towards the direction of Manila. Before reaching A. Lake
Street, she noticed something wrong with her tires; she stopped at a lighted place
where there were people, to verify whether she had a flat tire and to solicit help if
needed. Having been told by the people present that her rear right tire was flat and that
she cannot reach her home in that cars condition, she parked along the sidewalk,
about 1 feet away, put on her emergency lights, alighted from the car, and went to
the rear to open the trunk. She was standing at the left side of the rear of her car
pointing to the tools to a man who will help her fix the tire when she was suddenly
bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered
in the name of defendant Alexander Commercial, Inc. Because of the impact plaintiff
was thrown against the windshield of the car of the defendant, which was destroyed,
and then fell to the ground. She was pulled out from under defendants car. Plaintiffs
left leg was severed up to the middle of her thigh, with only some skin and sucle
connected to the rest of the body. She was brought to
the UERM Medical Memorial Center where she was found to have a traumatic
amputation, leg, left up to distal thigh (above knee). She was confined in the hospital
for twenty (20) days and was eventually fitted with an artificial leg. The expenses for
the hospital confinement (P 120,000.00) and the cost of the artificial leg (P27,000.00)
were paid by defendants from the car insurance.
In her complaint, plaintiff prayed for moral damages in the amount of P1 million,
exemplary damages in the amount of P100,000.00 and other medical and related
expenses amounting to a total of P180,000.00, including loss of expected earnings.
Defendant Richard Li denied that he was negligent. He was on his way home,
travelling at 55 kph; considering that it was raining, visibility was affected and the
road was wet. Traffic was light. He testified that he was driving along the inner
portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue,
when he was suddenly confronted, in the vicinity of A. Lake Street, San Juan, with a
car coming from the opposite direction, travelling at 80 kph, with full bright lights.
Temporarily blinded, he instinctively swerved to the right to avoid colliding with the
oncoming vehicle, and bumped plaintiffs car, which he did not see because it was
midnight blue in color, with no parking lights or early warning device, and the area
was poorly lighted. He alleged in his defense that the left rear portion of plaintiffs car
was protruding as it was then at a standstill diagonally on the outer portion of the

right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of
plaintiffs witness that after being bumped the car of the plaintiff swerved to the right
and hit another car parked on the sidewalk. Defendants counterclaimed for damages,
alleging that plaintiff was reckless or negligent, as she was not a licensed driver.
The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report
and the sketch of the three cars involved in the accident, testified that the plaintiffs
car was near the sidewalk; this witness did not remember whether the hazard lights
of plaintiffs car were on, and did not notice if there was an early warning device; there
was a street light at the corner of Aurora Blvd. and F. Roman, about 100 meters away.
It was not mostly dark, i.e. things can be seen (p. 16, tsn, Oct. 28, 1991).
A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted
from her car and opened the trunk compartment, defendants car came approaching
very fast ten meters from the scene; the car was zigzagging. The rear left side of
plaintiffs car was bumped by the front right portion of defendants car; as a
consequence, the plaintiffs car swerved to the right and hit the parked car on the
sidewalk. Plaintiff was thrown to the windshield of defendants car, which was
destroyed, and landed under the car. He stated that defendant was under the influence
of liquor as he could smell it very well (pp. 43, 79, tsn., June 17, 1991).
After trial, the lower court sustained the plaintiffs submissions and found
defendant Richard Li guilty of gross negligence and liable for damages under
Article 2176 of the Civil Code. The trial court likewise held Alexander
Commercial, Inc., Lis employer, jointly and severally liable for damages
pursuant to Article 2180. It ordered the defendants to jointly and severally pay
the following amounts:
1.
P41,840.00, as actual damages, representing the miscellaneous expenses of the
plaintiff as a result of her severed left leg;
2.
The sums of (a) P37,500.00, for the unrealized profits because of the stoppage
of plaintiffs Bistro La Conga restaurant three (3) weeks after the accident on June 24,
1990; (b) P20,000.00, a month, as unrealized profits of the plaintiff in her Bistro La
Conga restaurant, from August, 1990 until the date of this judgment; and (c)
P30,000.00, a month, for unrealized profits in plaintiffs two (2) beauty salons from
July, 1990 until the date of this decision;
3.

P1,000,000.00, in moral damages;

4.

P50,000.00, as exemplary damages,

5.

P60,000.00, as reasonable attorneys fees; and

6.

Costs.

As a result of the trial courts decision, defendants filed an Omnibus

Motion for New Trial and for Reconsideration, citing testimony in Criminal
Case O.C. No. 804367 (People vs. Richard Li), tending to show that the point
of impact, as depicted by the pieces of glass/debris from the parties cars,
appeared to be at the center of the right lane of Aurora Blvd. The trial court
denied the motion. Defendants forthwith filed an appeal with the respondent
Court of Appeals. In a Decision rendered March 30, 1994, the Court of
Appeals found that there was ample basis from the evidence of record for the
trial courts finding that the plaintiffs car was properly parked at the right,
beside the sidewalk when it was bumped by defendants car.[1] Dismissing
the defendants argument that the plaintiffs car was improperly parked, almost
at the center of the road, the respondent court noted that evidence which was
supposed to prove that the car was at or near center of the right lane was
never presented during the trial of the case.[2] The respondent court
furthermore observed that:
Defendant Lis testimony that he was driving at a safe speed of 55 km./hour is self
serving; it was not corroborated. It was in fact contradicted by eyewitness Rodriguez
who stated that he was outside his beerhouse located at Aurora Boulevard after A.
Lake Street, at or about 2:00 a.m. of June 24, 1990 when his attention was caught by a
beautiful lady (referring to the plaintiff) alighting from her car and opening the trunk
compartment; he noticed the car of Richard Li approaching very fast ten (10) meters
away from the scene; defendants car was zigzagging, although there were no holes
and hazards on the street, and bumped the leg of the plaintiff who was thrown
against the windshield of defendants car, causing its destruction. He came to the
rescue of the plaintiff, who was pulled out from under defendants car and was able to
say hurting words to Richard Li because he noticed that the latter was under the
influence of liquor, because he could smell it very well (p. 36, et. seq., tsn, June 17,
1991). He knew that plaintiff owned a beerhouse in Sta. Mesa in the 1970s, but did
not know either plaintiff or defendant Li before the accident.
In agreeing with the trial court that the defendant Li was liable for the
injuries sustained by the plaintiff, the Court of Appeals, in its decision,
however, absolved the Lis employer, Alexander Commercial, Inc. from any
liability towards petitioner Lourdes Valenzuela and reduced the amount of
moral damages to P500,000.00. Finding justification for exemplary damages,
the respondent court allowed an award of P50,000.00 for the same, in

addition to costs, attorneys fees and the other damages. The Court of
Appeals, likewise, dismissed the defendants counterclaims.[3]
Consequently, both parties assail the respondent courts decision by filing
two separate petitions before this Court. Richard Li, in G.R. No. 117944,
contends that he should not be held liable for damages because the
proximate cause of the accident was Ma. Lourdes Valenzuelas own
negligence. Alternatively, he argues that in the event that this Court finds him
negligent, such negligence ought to be mitigated by the contributory
negligence of Valenzuela.
On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails
the respondent courts decision insofar as it absolves Alexander Commercial,
Inc. from liability as the owner of the car driven by Richard Li and insofar as it
reduces the amount of the actual and moral damages awarded by the trial
court.[4]
As the issues are intimately related, both petitions are hereby
consolidated. It is plainly evident that the petition for review in G.R. No.
117944 raises no substantial questions of law. What it, in effect, attempts to
have this Court review are factual findings of the trial court, as sustained by
the Court of Appeals finding Richard Li grossly negligent in driving the
Mitsubishi Lancer provided by his company in the early morning hours of June
24, 1990. This we will not do. As a general rule, findings of fact of the Court of
Appeals are binding and conclusive upon us, and this Court will not normally
disturb such factual findings unless the findings of fact of the said court are
palpably unsupported by the evidence on record or unless the judgment itself
is based on a misapprehension of facts.[5]
In the first place, Valenzuelas version of the incident was fully
corroborated by an uninterested witness, Rogelio Rodriguez, the owneroperator of an establishment located just across the scene of the accident. On
trial, he testified that he observed a car being driven at a very fast speed,
racing towards the general direction of Araneta Avenue.[6] Rodriguez further
added that he was standing in front of his establishment, just ten to twenty
feet away from the scene of the accident, when he saw the car hit Valenzuela,
hurtling her against the windshield of the defendants Mitsubishi Lancer, from
where she eventually fell under the defendants car. Spontaneously reacting
to the incident, he crossed the street, noting that a man reeking with the smell
of liquor had alighted from the offending vehicle in order to survey the
incident.[7] Equally important, Rodriguez declared that he observed
Valenzuelas car parked parallel and very near the sidewalk,[8] contrary to Lis
allegation that Valenzuelas car was close to the center of the right lane. We

agree that as between Lis self-serving asseverations and the observations

of a witness who did not even know the accident victim personally and who
immediately gave a statement of the incident similar to his testimony to the
investigator immediately after the incident, the latters testimony deserves
greater weight. As the court emphasized:
The issue is one of credibility and from Our own examination of the transcript, We are
not prepared to set aside the trial courts reliance on the testimony of Rodriguez
negating defendants assertion that he was driving at a safe speed. While Rodriguez
drives only a motorcycle, his perception of speed is not necessarily impaired. He was
subjected to cross-examination and no attempt was made to question his competence
or the accuracy of his statement that defendant was driving very fast. This was the
same statement he gave to the police investigator after the incident, as told to a
newspaper report (Exh. P). We see no compelling basis for disregarding his
testimony.
The alleged inconsistencies in Rodriguez testimony are not borne out by an
examination of the testimony. Rodriguez testified that the scene of the accident was
across the street where his beerhouse is located about ten to twenty feet away (pp. 3536, tsn, June 17, 1991). He did not state that the accident transpired immediately in
front of his establishment. The ownership of the Lambingan sa Kambingan is not
material; the business is registered in the name of his mother, but he explained that he
owns the establishment (p. 5, tsn., June 20, 1991).
Moreover, the testimony that the streetlights on his side of Aurora
Boulevard were on the night the accident transpired (p. 8) is not necessarily
contradictory to the testimony of Pfc. Ramos that there was a streetlight at the
corner of Aurora Boulevard and F. Roman Street (p. 45, tsn., Oct. 20, 1991).
With respect to the weather condition, Rodriguez testified that there was only a
drizzle, not a heavy rain and the rain has stopped and he was outside his establishment
at the time the accident transpired (pp. 64-65, tsn., June 17, 1991). This was consistent
with plaintiffs testimony that it was no longer raining when she left Bistro La Conga
(pp. 10-11, tsn., April 29, 1991). It was defendant Li who stated that it was raining all
the way in an attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn.,
Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he arrived at the
scene only in response to a telephone call after the accident had transpired (pp. 9-10,
tsn, Oct. 28, 1991). We find no substantial inconsistencies in Rodriguezs testimony
that would impair the essential integrity of his testimony or reflect on his honesty. We
are compelled to affirm the trial courts acceptance of the testimony of said
eyewitness.

Against the unassailable testimony of witness Rodriguez we note that Lis

testimony was peppered with so many inconsistencies leading us to conclude
that his version of the accident was merely adroitly crafted to provide a
version, obviously self-serving, which would exculpate him from any and all
liability in the incident. Against Valenzuelas corroborated claims, his
allegations were neither backed up by other witnesses nor by the
circumstances proven in the course of trial. He claimed that he was driving
merely at a speed of 55 kph. when out of nowhere he saw a dark maroon
lancer right in front of him, which was (the) plaintiffs car. He alleged that
upon seeing this sudden apparition he put on his brakes to no avail as the
road was slippery.[9]
One will have to suspend disbelief in order to give credence to Lis
disingenuous and patently self-serving asseverations. The average motorist
alert to road conditions will have no difficulty applying the brakes to a car
traveling at the speed claimed by Li. Given a light rainfall, the visibility of the
street, and the road conditions on a principal metropolitan thoroughfare
like Aurora Boulevard, Li would have had ample time to react to the changing
conditions of the road if he were alert - as every driver should be - to those
conditions. Driving exacts a more than usual toll on the senses. Physiological
fight or flight[10] mechanisms are at work, provided such mechanisms were
not dulled by drugs, alcohol, exhaustion, drowsiness, etc.[11] Lis failure to react
in a manner which would have avoided the accident could therefore have
been only due to either or both of the two factors: 1) that he was driving at a
very fast speed as testified by Rodriquez; and 2) that he was under the
influence of alcohol.[12] Either factor working independently would have
diminished his responsiveness to road conditions, since normally he would
have slowed down prior to reaching Valenzuelas car, rather than be in a
situation forcing him to suddenly apply his brakes. As the trial court noted
(quoted with approval by respondent court):
Secondly, as narrated by defendant Richard Li to the San Juan Police immediately
after the incident, he said that while driving along Aurora Blvd., out of nowhere he
saw a dark maroon lancer right in front of him, which was plaintiffs car, indicating,
again, thereby that, indeed, he was driving very fast, oblivious of his surroundings and
the road ahead of him, because if he was not, then he could not have missed noticing
at a still far distance the parked car of the plaintiff at the right side near the sidewalk
which had its emergency lights on, thereby avoiding forcefully bumping at the
plaintiff who was then standing at the left rear edge of her car.
Since, according to him, in his narration to the San Juan Police, he put on his brakes
when he saw the plaintiffs car in front of him, but that it failed as the road was wet

and slippery, this goes to show again, that, contrary to his claim, he was, indeed,
running very fast. For, were it otherwise, he could have easily completely stopped his
car, thereby avoiding the bumping of the plaintiff, notwithstanding that the road was
wet and slippery. Verily, since, if, indeed, he was running slow, as he claimed, at only
about 55 kilometers per hour, then, inspite of the wet and slippery road, he could have
avoided hitting the plaintiff by the mere expedient or applying his brakes at the proper
time and distance.
It could not be true, therefore, as he now claims during his testimony, which is
contrary to what he told the police immediately after the accident and is, therefore,
more believable, that he did not actually step on his brakes, but simply swerved a little
to the right when he saw the on-coming car with glaring headlights, from the opposite
direction, in order to avoid it.
For, had this been what he did, he would not have bumped the car of the plaintiff
which was properly parked at the right beside the sidewalk. And, it was not even
necessary for him to swerve a little to the right in order to safely avoid a collision with
the on-coming car, considering that Aurora Blvd. is a double lane avenue separated at
the center by a dotted white paint, and there is plenty of space for both cars, since her
car was running at the right lane going towards Manila and the on-coming car was
also on its right lane going to Cubao.[13]
Having come to the conclusion that Li was negligent in driving his
company-issued Mitsubishi Lancer, the next question for us to determine is
whether or not Valenzuela was likewise guilty of contributory negligence in
parking her car alongside Aurora Boulevard, which entire area Li points out, is
a no parking zone.
We agree with the respondent court that Valenzuela was not guilty of
contributory negligence.
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 to which he is required to conform for his own
protection. [14] Based on the foregoing definition, the standard or act to which,
according to petitioner Li, Valenzuela ought to have conformed for her own
protection was not to park at all at any point of Aurora Boulevard, a no parking
zone. We cannot agree.
Courts have traditionally been compelled to recognize that an actor who is
confronted with an emergency is not to be held up to the standard of conduct
normally applied to an individual who is in no such situation. The law takes
stock of impulses of humanity when placed in threatening or dangerous

situations and does not require the same standard of thoughtful and reflective
care from persons confronted by unusual and oftentimes threatening
conditions.[15] Under the emergency rule adopted by this Court in Gan vs
Court of Appeals,[16] an individual who suddenly finds himself in a situation of
danger and is required to act without much time to consider the best means
that may be adopted to avoid the impending danger, is not guilty of negligence
if he fails to undertake what subsequently and upon reflection may appear to
be a better solution, unless the emergency was brought by his own
negligence.[17]
Applying this principle to a case in which the victims in a vehicular
accident swerved to the wrong lane to avoid hitting two children suddenly
darting into the street, we held, in Mc Kee vs. Intermediate Appellate
Court,[18] that the driver therein, Jose Koh, adopted the best means possible in
the given situation to avoid hitting the children. Using the emergency rule
the court concluded that Koh, in spite of the fact that he was in the wrong lane
when the collision with an oncoming truck occurred, was not guilty of
negligence.[19]
While the emergency rule applies to those cases in which reflective
thought, or the opportunity to adequately weigh a threatening situation is
absent, the conduct which is required of an individual in such cases is dictated
not exclusively by the suddenness of the event which absolutely negates
thoughtful care, but by the over-all nature of the circumstances. A woman
driving a vehicle suddenly crippled by a flat tire on a rainy night will not be
faulted for stopping at a point which is both convenient for her to do so and
which is not a hazard to other motorists. She is not expected to run the entire
boulevard in search for a parking zone or turn on a dark Street or alley where
she would likely find no one to help her. It would be hazardous for her not to
stop and assess the emergency (simply because the entire length of Aurora
Boulevard is a no-parking zone) because the hobbling vehicle would be both a
threat to her safety and to other motorists. In the instant case, Valenzuela,
upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed
that she had a flat tire. To avoid putting herself and other motorists in danger,
she did what was best under the situation. As narrated by respondent court:
She stopped at a lighted place where there were people, to verify whether she had a
flat tire and to solicit help if needed. Having been told by the people present that her
rear right tire was flat and that she cannot reach her home she parked along the
sidewalk, about 1 feet away, behind a Toyota Corona Car.[20] In fact, respondent
court noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed
that Valenzuelas car was parked very close to the sidewalk.[21] The sketch which he

prepared after the incident showed Valenzuelas car partly straddling the sidewalk,
clear and at a convenient distance from motorists passing the right lane ofAurora
Boulevard. This fact was itself corroborated by the testimony of witness Rodriguez.[22]
Under the circumstances described, Valenzuela did exercise the standard
reasonably dictated by the emergency and could not be considered to have
contributed to the unfortunate circumstances which eventually led to the
amputation of one of her lower extremities. The emergency which led her to
park her car on a sidewalk in Aurora Boulevard was not of her own making,
and it was evident that she had taken all reasonable precautions.
Obviously in the case at bench, the only negligence ascribable was the
negligence of Li on the night of the accident. Negligence, as it is commonly
understood is conduct which creates an undue risk of harm to others. [23] It is
the failure to observe that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.[24] We
stressed, in Corliss vs. Manila Railroad Company,[25] that negligence is the
want of care required by the circumstances.
The circumstances established by the evidence adduced in the court
below plainly demonstrate that Li was grossly negligent in driving his
Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at
about 2:00 A.M. after a heavy downpour had settled into a drizzle rendering
the street slippery. There is ample testimonial evidence on record to show that
he was under the influence of liquor. Under these conditions, his chances of
effectively dealing with changing conditions on the road were significantly
lessened. As Prosser and Keaton emphasize:
[U]nder present day traffic conditions, any driver of an automobile must be prepared
for the sudden appearance of obstacles and persons on the highway, and of other
vehicles at intersections, such as one who sees a child on the curb may be required to
anticipate its sudden dash into the street, and his failure to act properly when they
appear may be found to amount to negligence. [26]
Lis obvious unpreparedness to cope with the situation confronting him on
the night of the accident was clearly of his own making.
We now come to the question of the liability of Alexander Commercial, Inc.
Lis employer. In denying liability on the part of Alexander Commercial, the
respondent court held that:
There is no evidence, not even defendant Lis testimony, that the visit was in
connection with official matters. His functions as assistant manager sometimes

required him to perform work outside the office as he has to visit buyers and company
clients, but he admitted that on the night of the accident he came from BF Homes
Paraaque he did not have business from the company (pp. 25-26, tsn, Sept. 23,
1991). The use ofthe company car was partly required by the nature of his work, but
the privilege of using it for non-official business is a benefit, apparently referring to
the fringe benefits attaching to his position.
Under the civil law, an employer is liable for the negligence of his employees in the
discharge of their respective duties, the basis of which liability is not respondeat
superior, but the relationship of pater familias, which theory bases the liability of the
master ultimately on his own negligence and not on that of his servant
(Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an employer may be held
liable for the negligence of his employee, the act or omission which caused damage
must have occurred while an employee was in the actual performance of his assigned
tasks or duties (Francis High School vs. Court of Appeals, 194 SCRA 341). In
defining an employers liability for the acts done within the scope of the employees
assigned tasks, the Supreme Court has held that this includes any act done by an
employee, in furtherance of the interests of the employer or for the account of the
employer at the time of the infliction of the injury or damage (Filamer Christian
Institute vs. Intermediate Appellate Court, 212 SCRA 637). An employer is expected
to impose upon its employees the necessary discipline called for in the performance of
any act indispensable to the business and beneficial to their employer (at p. 645).
In light of the foregoing, We are unable to sustain the trial courts finding that since
defendant Li was authorized by the company to use the company car either officially
or socially or even bring it home, he can be considered as using the company car in
the service of his employer or on the occasion of his functions. Driving the company
car was not among his functions as assistant manager; using it for non-official
purposes would appear to be a fringe benefit, one of the perks attached to his position.
But to impose liability upon the employer under Article 2180 of the Civil Code,
earlier quoted, there must be a showing that the damage was caused by their
employees in the service of the employer or on the occasion of their functions. There
is no evidence that Richard Li was at the time of the accident performing any act in
furtherance of the companys business or its interests, or at least for its benefit. The
imposition of solidary liability against defendant Alexander Commercial Corporation
must therefore fail.[27]
We agree with the respondent court that the relationship in question is not
based on the principle of respondeat superior, which holds the master liable
for acts of the servant, but that of pater familias, in which the liability ultimately
falls upon the employer, for his failure to exercise the diligence of a good
father of the family in the selection and supervision of his employees. It is up

to this point, however, that our agreement with the respondent court ends.
Utilizing the bonus pater familias standard expressed in Article 2180 of the
Civil Code,[28] we are of the opinion that Lis employer, Alexander Commercial,
Inc. is jointly and solidarily liable for the damage caused by the accident
of June 24, 1990.
First, the case of St. Francis High School vs. Court of Appeals[29] upon
which respondent court has placed undue reliance, dealt with the subject of a
school and its teachers supervision of students during an extracurricular
activity. These cases now fall under the provision on special parental authority
found in Art. 218 of the Family Code which generally encompasses all
authorized school activities, whether inside or outside school premises.
Second, the employers primary liability under the concept of pater
familias embodied by Art. 2180 (in relation to Art. 2176) of the Civil Code is
quasi-delictual or tortious in character. His liability is relieved on a showing
that he exercised the diligence of a good father of the family in the selection
and supervision of its employees. Once evidence is introduced showing that
the employer exercised the required amount of care in selecting its
employees, half of the employers burden is overcome. The question of
diligent supervision, however, depends on the circumstances of employment.
Ordinarily, evidence demonstrating that the employer has exercised
diligent supervision of its employee during the performance of the latters
assigned tasks would be enough to relieve him of the liability imposed by
Article 2180 in relation to Article 2176 of the Civil Code. The employer is not
expected to exercise supervision over either the employees private activities
or during the performance of tasks either unsanctioned by the former or
unrelated to the employees tasks. The case at bench presents a situation of a
different character, involving a practice utilized by large companies with either
their employees of managerial rank or their representatives.
It is customary for large companies to provide certain classes of their
employees with courtesy vehicles. These company cars are either wholly
owned and maintained by the company itself or are subject to various plans
through which employees eventually acquire their vehicles after a given period
of service, or after paying a token amount. Many companies provide liberal
car plans to enable their managerial or other employees of rank to purchase
cars, which, given the cost of vehicles these days, they would not otherwise
be able to purchase on their own.
Under the first example, the company actually owns and maintains the car
up to the point of turnover of ownership to the employee; in the second
example, the car is really owned and maintained by the employee himself. In

furnishing vehicles to such employees, are companies totally absolved of

responsibility when an accident involving a company-issued car occurs during
private use after normal office hours?
Most pharmaceutical companies, for instance, which provide cars under
the first plan, require rigorous tests of road worthiness from their agents prior
to turning over the car (subject of company maintenance) to their
representatives. In other words, like a good father of a family, they entrust the
company vehicle only after they are satisfied that the employee to whom the
car has been given full use of the said company car for company or private
purposes will not be a threat or menace to himself, the company or to others.
When a company gives full use and enjoyment of a company car to its
employee, it in effect guarantees that it is, like every good father, satisfied that
its employee will use the privilege reasonably and responsively.
In the ordinary course of business, not all company employees are given
the privilege of using a company-issued car. For large companies other than
those cited in the example of the preceding paragraph, the privilege serves
important business purposes either related to the image of success an entity
intends to present to its clients and to the public in general, or for practical and
utilitarian reasons - to enable its managerial and other employees of rank or
its sales agents to reach clients conveniently. In most cases, providing a
company car serves both purposes. Since important business transactions
and decisions may occur at all hours in all sorts of situations and under all
kinds of guises, the provision for the unlimited use of a company car
thereforeprincipally serves the business and goodwill of a company and only
incidentally the private purposes of the individual who actually uses the car,
the managerial employee or company sales agent. As such, in providing for a
company car for business use and/or for the purpose of furthering the
companys image, a company owes a responsibility to the public to see to it
that the managerial or other employees to whom it entrusts virtually unlimited
use of a company issued car are able to use the company issue capably and
responsibly.
In the instant case, Li was an Assistant Manager of Alexander
Commercial, Inc. In his testimony before the trial court, he admitted that his
functions as Assistant Manager did not require him to scrupulously keep
normal office hours as he was required quite often to perform work outside the
office, visiting prospective buyers and contacting and meeting with company
clients.[30] These meetings, clearly, were not strictly confined to routine hours
because, as a managerial employee tasked with the job of representing his
company with its clients, meetings with clients were both social as well as
work-related functions. The service car assigned to Li by Alexander

Commercial, Inc. therefore enabled both Li - as well as the corporation - to put

up the front of a highly successful entity, increasing the latters goodwill before
its clientele. It also facilitated meeting between Li and its clients by providing
the former with a convenient mode of travel.
Moreover, Lis claim that he happened to be on the road on the night of
the accident because he was coming from a social visit with an officemate in
Paraaque was a bare allegation which was never corroborated in the court
below. It was obviously self-serving. Assuming he really came from his
officemates place, the same could give rise to speculation that he and his
officemate had just been from a work-related function, or they were together
to discuss sales and other work related strategies.
In fine, Alexander Commercial, Inc. has not demonstrated, to our
satisfaction, that it exercised the care and diligence of a good father of the
family in entrusting its company car to Li. No allegations were made as to
whether or not the company took the steps necessary to determine or
ascertain the driving proficiency and history of Li, to whom it gave full and
unlimited use of a company car.[31] Not having been able to overcome the
burden of demonstrating that it should be absolved of liability for entrusting its
company car to Li, said company, based on the principle ofbonus pater
familias, ought to be jointly and severally liable with the former for the injuries
sustained by Ma. Lourdes Valenzuela during the accident.
Finally, we find no reason to overturn the amount of damages awarded by
the respondent court, except as to the amount of moral damages. In the case
of moral damages, while the said damages are not intended to enrich the
plaintiff at the expense of a defendant, the award should nonetheless be
commensurate to the suffering inflicted. In the instant case we are of the
opinion that the reduction in moral damages from an amount of P
1,000,000.00 to P500,000.00 by the Court of Appeals was not justified
considering
the
nature
of
the
resulting
damage
and
the
predictable sequelae of the injury.
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
amputation of her left lower extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be deprived of the full
ambulatory functions of her left extremity, even with the use of state of the art
prosthetic technology. Well beyond the period of hospitalization (which was
paid for by Li), she will be required to undergo adjustments in her prosthetic
devise due to the shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months of
physical and occupational rehabilitation and therapy. During her lifetime, the

prosthetic devise will have to be replaced and re-adjusted to changes in the

size of her lower limb effected by the biological changes of middle-age,
menopause and aging. Assuming she reaches menopause, for example, the
prosthetic will have to be adjusted to respond to the changes in bone resulting
from a precipitate decrease in calcium levels observed in the bones of all
post-menopausal women. In other words, the damage done to her would not
only be permanent and lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body would normally undergo
through the years. The replacements, changes, and adjustments will require
corresponding adjustive physical and occupational therapy. All of these
adjustments, it has been documented, are painful.
The foregoing discussion does not even scratch the surface of the nature
of the resulting damage because it would be highly speculative to estimate the
amount of psychological pain, damage and injury which goes with the sudden
severing of a vital portion of the human body. A prosthetic device, however
technologically advanced, will only allow a reasonable amount of functional
restoration of the motor functions of the lower limb. The sensory functions are
forever lost. The resultant anxiety, sleeplessness, psychological injury, mental
and physical pain are inestimable.
As the amount of moral damages are subject to this Courts discretion, we
are of the opinion that the amount of P1,000,000.00 granted by the trial court
is in greater accord with the extent and nature of the injury -. physical and
psychological - suffered by Valenzuela as a result of Lis grossly negligent
driving of his Mitsubishi Lancer in the early morning hours of the accident.
WHEREFORE, PREMISES CONSIDERED, the decision of the court of
Appeals is modified with the effect of REINSTATING the judgment of the
Regional Trial Court.
SO ORDERED.

G.R. No. 153591

February 23, 2004

PEOPLE OF THE PHILIPPINES, appellee

vs.
RENATO GARCIA y ROMANO, appellant.
DECISION
YNARES-SANTIAGO, J.:
Appellant Renato Garcia y Romano was charged with Murder before the Regional Trial Court of
Quezon City, Branch 87, in Criminal Case No. Q-98-79961 in an Information1 which reads:
That on or about the 22nd day of May, 1998, in Quezon City, Philippines, the said accused, being
then the driver and/or person in charge of an Isuzu Jitney bearing Plate No. NPJ-948 did then and
there unlawfully and feloniously drive, manage and operate the same along Zabarte Road in said
City, in a careless, reckless, negligent and impudent manner, by then and there making the said
vehicle run at a speed greater than was reasonable and proper without taking the necessary
precaution to avoid accident to person/s of the traffic at said place at the time, causing as
consequence of his said carelessness, negligence, impudence and lack of precaution, the said
vehicle so driven, managed and operated by him to hit and bump, as in fact it hit and bumped Sanily
Billon y Trinidad, a pedestrian, thereafter, with intent to kill, qualified by evident premeditation and
use of motor vehicle, did then and there willfully, unlawfully and feloniously ran said vehicle over the
victim thereby causing her serious and mortal wounds which were the direct and immediate cause of
her untimely death, to the damage and prejudice of the heirs of the said Sanily Billon y Trinidad.
CONTRARY TO LAW.
On arraignment, appellant pleaded "not guilty". Thereafter, trial on the merits followed.
The prosecution alleged that at around 12:00 noon of May 22, 1998, Bentley Billon and his younger
sister, Sanily, boarded a passenger jeepney on their way to Sacred Heart School in Barangay
Kaligayahan, Novaliches, Quezon City to attend remedial classes. They alighted on Zabarte Road in
front of the school. Bentley crossed the street and waited on the center island for Sanily to cross.
While Sanily was crossing the street, a passenger jeepney driven by appellant, coming from
Camarin and heading towards Quirino Highway, hit her on the left side of the body. Sanily fell and
was thrown to the ground a meter away from the vehicle. The jeepney stopped. But as Bentley was
running towards his sister, the vehicle suddenly accelerated with its front tire running over Sanilys
stomach. Bentley and appellant pulled Sanily, who was writhing in excruciating pain, from
underneath the vehicle and brought her to the Sta. Lucia Hospital but due to lack of medical
facilities, she was transferred to the Quezon City General Hospital (QCGH) where she was
operated. However, she died four days later.
Dr. Emmanuel Reyes,2 Medico-legal of the Southern Police District, Fort Bonifacio, testified that the
attending physician, Dr. Santiago C. Sagad, noted lacerations in Sanilys liver and spleen which was
caused by a blunt/strong force on the victims body, resulting to her death due to internal bleeding.
He opined that the blunt force may have also caused lacerations in the victims intestine and the
abrasions on the arm, from the elbow to the shoulder could be the result of the skins contact with a
rough surface.
Appellant admitted having ran over the victim, but claimed that it was an accident. He narrated that
at around noon on May 22, 1998, while driving his passenger jeepney along Zabarte Road, he saw a

boy crossing the street followed by the victim. While the vehicle was running, he heard a thud. He
immediately applied his breaks and alighted to check what it was. He saw to his horror a girl
sprawled underneath his vehicle between the front and the rear tires. He and the victims brother
rushed the girl to the Sta. Lucia Hospital, but they transferred her to the Quezon City General
Hospital which has better facilities. A week later, he learned that the victim died.
On May 2, 2002, the trial court rendered judgment,3 finding appellant guilty beyond reasonable doubt
of Murder and sentenced him to suffer the penalty of reclusion perpetua, the dispositive portion of
which reads:4
WHEREFORE, judgment is hereby rendered finding accused guilty beyond reasonable doubt of the
crime of Murder, for which, said RENATO GARCIA y ROMANO is hereby sentenced to suffer the
penalty of reclusion perpetua and to indemnify the heirs of Sanily Billon the sum of One Hundred
and Twenty Three Thousand and Five Hundred Pesos (P123,500.00) as actual damages including
attorneys fees; Fifty Thousand Pesos (P50,000.00) as civil indemnity for the death of Sanily and
Five Hundred Thousand Pesos (P500,000.00) as moral damages.
Cost against the accused.
SO ORDERED.
The trial court held that appellant is guilty of murder qualified by evident premeditation because he
deliberately ran over the slumped body of the victim.
Hence this appeal, raising the following errors, to wit:
I
THE TRIAL COURT GRAVELY ERRED IN APPRECIATING AGAINST ACCUSED-APPELLANT
THE QUALIFYING CIRCUMSTANCE OF EVIDENT PREMEDITAION
II
THE TRIAL COURT GRAVELY ERRED IN FINDING ACCUSED GUILTY BEYOND REASONABLE
BEYOND REASONABLE DOUBT OF THE CRIME OF MURDER AS CHARGED.
The issue to be resolved is whether or not appellant is guilty of murder or reckless imprudence
resulting in homicide.
Appellant argues that the trial court gravely erred in finding that the qualifying circumstance of
evident premeditation attended the commission of the offense. He contends that the mere allegation
by the prosecution that he bumped the victim and intentionally ran over her body is not sufficient to
establish evident premeditation. He claims that he did not intentionally run over the victim when his
vehicle bumped her because he was rattled and was no longer aware of what he was doing.
We find from a careful review of the facts on record that the unfortunate incident was more the result
of reckless imprudence than of malicious intent. Therefore, the trial court erred in convicting
appellant of the crime of murder qualified by evident premeditation.
The elements of evident premeditation are: (1) a previous decision by the appellant to commit the
crime; (2) an overt act/acts manifestly indicating that the appellant clung to his determination; and (3)

a lapse of time between the decision to commit the crime and its actual execution sufficient to allow
appellant to reflect upon the consequences of his acts.
The victims brother, Bentley, testified that the vehicle stopped after it bumped the victim, but it
moved forward and ran over the prostrate body of her sister. From his narration, we find that no
sufficient time elapsed for appellant to decide to commit the crime and reflect on its consequences.
Moreover, there was no showing that appellant performed other overt acts to show that he was
determined to commit murder. The essence of evident premeditation is that the execution of the
criminal act must be preceded by cool thought and reflection upon the resolution to carry out the
criminal intent, during the space of time sufficient to arrive at a calm judgment.5 These circumstances
do not obtain in the case at bar.
Appellant could have reacted on instinct and relied on sheer impulse to respond to the situation at
hand. While it is possible that appellant deliberately ran over the victim, it is equally possible, if not
more probable, that the vehicle moved forward because appellant failed to control its momentum.
Indeed, this is more consistent with the unrebutted evidence that the jeepney, which had no
handbrake, was moving fast and that appellant became confused when the accident occurred.
Furthermore, appellants act of bringing the victim to the hospital despite numerous opportunities to
flee from the scene is more compatible with a state of mind devoid of criminal intent.
In view of the gravity of the offense involved, the trial court should have been more circumspect in
weighing the evidence of both parties. Our own evaluation of the evidence reveals that appellant had
no intention to kill the victim. As such, he cannot be held liable for an intentional felony. All
reasonable doubt intended to demonstrate negligence, and not criminal intent, must be resolved in
favor of appellant.6
Thus, appellant is guilty of reckless imprudence resulting in homicide defined in Article 365 of the
Revised Penal Code, as amended. In U.S. v. Maleza,7 we explained the rationale behind this crime
as follows:
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 incurring 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, all
those of his fellow-beings, would ever be exposed to all manner of danger and injury.
In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally
penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care
or foresight, the imprudencia punible.8 Article 365 of the Revised Penal Code, as amended, states
that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the person
performing such act. Compared to intentional felonies, such as homicide or murder, what takes the
place of the element of malice or intention to commit a wrong or evil is the failure of the offender to
take precautions due to lack of skill taking into account his employment, or occupation, degree of
intelligence, physical condition, and other circumstances regarding persons, time, and place.9
Appellant showed an inexcusable lack of precaution when he disregarded a traffic sign cautioning
motorists to slow down10 and drove his vehicle in full speed despite being aware that he was
traversing a school zone and pedestrians were crossing the street. He should have observed due
diligence of a reasonably prudent man by slackening his speed and proceeding cautiously while
passing the area.

The imposable penalty, under Art. 365 (2)11 of the Revised Penal Code, homicide resulting from
reckless imprudence in the use of motor vehicle is prision correccional in its medium and maximum
periods, which ranges from two (2) years, four (4) months and one (1) day to six (6) years. Under
Article 65 of the Revised Penal Code, the penalty shall be divided into three equal portions of time,
each of which shall form one period. There being no aggravating or mitigating circumstance, the
proper penalty shall be within the medium period, which is three (3) years, six (6) months and
twenty-one (21) days to four (4) years, nine (9) months and ten (10) days. Applying the provisions of
the Indeterminate Sentence Law, appellant is entitled to a minimum term to be taken from the
penalty next lower in degree, which is arresto mayor, maximum to prision correccional, minimum.
Accordingly, appellant should be sentenced to an indeterminate penalty of four (4) months and one
(1) day of arresto mayor, as minimum, to four (4) years and two (2) months of prision correccional,
as maximum.12
The trial court correctly awarded P50,000.00 as civil indemnity. However, the award of moral
damages in the amount of P500,000.00 should be reduced to P50,000.00.13 The award of
P30,000.00 as actual damages must likewise be modified. The mother of the victim presented
receipts that they, in fact, spent P58,257.9014 for hospital bills and funeral expenses. The fact that
she received P40,000.00 from insurance will not affect the award of actual damages.15 The award of
exemplary damages is deleted for lack of factual basis.
WHEREFORE, in view of the foregoing, the Decision of the Regional Trial Court of Quezon City,
Branch 87, in Civil Case No. Q-98-79961, convicting appellant of the crime of murder is REVERSED
and SET ASIDE. Appellant Renato Garcia y Romano is found guilty beyond reasonable doubt of the
crime reckless imprudence resulting in homicide, and he is sentenced to suffer an indeterminate
prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years and
two (2) months of prision correccional, as maximum. Appellant is ordered to pay the heirs of the
victim, P50,000.00 as civil indemnity, P58,257.90 as actual damages and P50,000.00 as moral
damages.
Costs de oficio.
SO ORDERED.

G.R. No. 160795

June 27, 2008

CORINTHIAN GARDENS ASSOCIATION, INC., petitioner,

vs.
SPOUSES REYNALDO and MARIA LUISA TANJANGCO, and SPOUSES FRANK and
TERESITA CUASO,respondent.
DECISION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Rules of Civil Procedure
seeking the reversal of the Court of Appeals (CA) Decision2 dated January 31, 2003 in CA-G.R. CV
No. 43217, which reversed and set aside the Decision3 of the Regional Trial Court (RTC) of Quezon
City, dated March 30, 1993.

The Antecedents:
Respondents-spouses Reynaldo and Maria Luisa Tanjangco (the Tanjangcos) own Lots 68 and 69
covered by Transfer Certificates of Title (TCT) No. 2422454 and 2829615 respectively, located at
Corinthian Gardens Subdivision, Quezon City, which is managed by petitioner Corinthian Gardens
Association, Inc. (Corinthian). On the other hand, respondents-spouses Frank and Teresita Cuaso
(the Cuasos) own Lot 65 which is adjacent to the Tanjangcos lots.
Before the Cuasos constructed their house on Lot 65, a relocation survey was necessary. As
Geodetic Engineer Democrito De Dios (Engr. De Dios), operating under the business name D.M. De
Dios Realty and Surveying, conducted all the previous surveys for the subdivision's developer,
Corinthian referred Engr. De Dios to the Cuasos. Before, during and after the construction of the
said house, Corinthian conducted periodic ocular inspections in order to determine compliance with
the approved plans pursuant to the Manual of Rules and Regulations of Corinthian.6 Unfortunately,
after the Cuasos constructed their house employing the services of C.B. Paraz & Construction Co.,
Inc. (C.B. Paraz) as builder, their perimeter fence encroached on the Tanjangcos Lot 69 by 87
square meters.
No amicable settlement was reached between the parties. Thus, the Tanjangcos demanded that the
Cuasos demolish the perimeter fence but the latter failed and refused, prompting the Tanjangcos to
file with the RTC a suit against the Cuasos for Recovery of Possession with Damages.7
Eventually, the Cuasos filed a Third-Party Complaint8 against Corinthian, C.B. Paraz and Engr. De
Dios. The Cuasos ascribed negligence to C.B. Paraz for its failure to ascertain the proper
specifications of their house, and to Engr. De Dios for his failure to undertake an accurate relocation
survey, thereby, exposing them to litigation. The Cuasos also faulted Corinthian for approving their
relocation survey and building plans without verifying their accuracy and in making representations
as to Engr. De Dios' integrity and competence. The Cuasos alleged that had Corinthian exercised
diligence in performing its duty, they would not have been involved in a boundary dispute with the
Tanjangcos. Thus, the Cuasos opined that Corinthian should also be held answerable for any
damages that they might incur as a result of such construction.
On March 30, 1993, the RTC rendered a Decision in favor of the Tanjangcos. It ruled that the
Cuasos perimeter wall encroached on the land of the Tanjangos by 87 square meters. It, however,
ruled that the Cuasos were builders in good faith, and gave the Tanjangcos the option to sell and the
Cuasos the option to buy the encroaching portion of the land, at a price to be agreed upon by the
parties within sixty (60) days from receipt of the said Decision. In the event that the Cuasos were
unable and unwilling to purchase the said portion, the perimeter wall should be demolished at the
latters expense. The RTC also ordered the Cuasos to pay monthly rentals of P2,000.00
commencing from the time of the filing of the complaint. The RTC likewise held that C.B. Paraz was
grossly negligent in not taking into account the correct boundaries of Cuasos lot when it constructed
the house. It, thus, ordered C.B. Paraz to pay moral and exemplary damages as well as attorneys
fees to the Tanjangcos and the Cuasos. The third-party complaint against Corinthian and Engr. De
Dios, on the other hand, was dismissed for lack of cause of action.
The Tanjangcos filed a Motion for Reconsideration9 of the said RTC Decision which the RTC,
however, denied in its Order10 dated June 28, 1993.
Dissatisfied with the RTC ruling, the Tanjangcos, the Cuasos, and C.B. Paraz all appealed to the
CA.

On appeal, the CA reversed and set aside the RTC Decision. It held that the Cuasos acted in bad
faith in land-grabbing the 87 square meter-portion of Lot 69 as of April 5, 1989. Correlatively, the CA
allowed the Tanjangcos to exercise the rights granted under Articles 449, 450, 451 and 549 of the
New Civil Code, which include the right to demand the demolition of the offending perimeter wall
after reimbursing the Cuasos the necessary expenses for the preservation of the encroached area.
The Cuasos were ordered to pay monthly rentals of P10,000.00 for the use, enjoyment and
occupancy of the lot from 1989 up to the time they vacate the property considering the location and
category of the same. They were, likewise, ordered to pay the Tanjangcos P100,000.00, as moral
damages, P50,000.00 as exemplary damages, and P150,000.00 as attorneys fees. The CA also
imposed six percent (6%) interest per annum on all the awards. The Cuasos appeal against the
Tanjangcos, on the other hand, was dismissed for lack of merit. On the third-party complaints,
Corinthian, C.B. Paraz and Engr. De Dios were all found negligent in performing their respective
duties and so they were ordered to contribute five percent (5%) each, or a total of fifteen percent
(15%) to all judgment sums and amounts that the Cuasos shall eventually pay under the decision,
also with interest of six percent (6%) per annum.
Only Corinthian filed a Motion for Reconsideration11 of the CA Decision within the 15-day
reglementary period. No motion for reconsideration was filed by the Cuasos, C.B. Paraz and/or
Engr. De Dios.
About six (6) months later, or on August 12, 2003, the Cuasos filed a
Comment/Manifestation12 praying that they be allowed to adopt Corinthians Motion for
Reconsideration.
In its Resolution13 dated November 14, 2003, the CA denied Corinthians Motion for Reconsideration.
Hence, Corinthian filed the instant Petition for Review on Certiorari assailing the CA Decision and
Resolution, and impleading the Cuasos as one of the respondents being the third-party plaintiffs in
the RTC.
This Court gave due course to Corinthians petition and required the parties to submit their
respective memorandum.14 In compliance, the Cuasos submitted their Memorandum15 and
Supplement to Memorandum,16which were both noted by this Court in its Resolutions dated January
10, 200517 and February 2, 2005, 18respectively.
In the meantime, the Tanjangcos moved for partial entry of judgment of the CA Decision which was
granted by the CA in its Resolution19 dated May 26, 2006, directing the issuance of an Entry of
Judgment and a Certification that its Decision dated January 31 2003 has become final and
executory with respect to the Cuasos, C.B. Paraz and Engr. De Dios for their failure to file an appeal
assailing the said Decision before this Court.
The Tanjangcos then moved for the execution of the judgment against the Cuasos, specifically the
demolition of the perimeter fence,20 which was also granted by the RTC in its Order21 dated
December 18, 2006.
Other than the filing of an Opposition22 and a Motion for Reconsideration23 before the RTC, the
Cuasos prayed for the issuance of a temporary restraining order (TRO) and/or preliminary injunction
before this Court to enjoin the demolition of the perimeter fence. They averred that the premature
demolition of the alleged encroaching perimeter wall and other improvements will cause grave and
irreparable damage to them, because what is sought to be demolished is part of their residence.
They claimed that no amount of money will compensate for the damage they stand to suffer should
any demolition subsequently prove to be wrongful. They argued that before any execution can be

carried out, it is necessary to first determine whether or not Corinthian was negligent in approving
the building plan and whether or not it acted in good faith in doing so. Such determination, according
to the Cuasos, will in turn determine whether or not they were in good faith in constructing the
house.24
The Tanjangcos opposed the Cuasos' application for TRO. They countered that the only pending
matter with this Court is the appeal by Corinthian; hence, the implementation of the January 31,
2003 Decision of the CA against the Cuasos will not preempt the outcome of the said pending
incidents. Also, any action taken by this Court on Corinthians petition would not benefit the Cuasos
for they did not appeal the adverse decision against them. Accordingly, they cannot obtain
affirmative relief from this Court by reason or on account of the appeal taken by Corinthian. The
appeal, they added, is personal to Corinthian. Finally, they argued that the Cuasos are now
estopped from questioning the enforcement of the CA Decision since they issued a managers check
to pay the money judgment.25
In this Court's Resolution dated July 18, 2007, we denied the Cuasos' application for TRO and/or
writ of preliminary injunction for lack of merit.
The denial was based on sound legal principles. It is axiomatic that to be entitled to the injunctive
writ, one must show that there exists a right to be protected which is directly threatened by the act
sought to be enjoined. Furthermore, there must be a showing that the invasion of the right is material
and substantial, that the right of complainant is clear and unmistakable, and that there is an urgent
and paramount necessity for the writ to issue in order to prevent serious damage.26
In the Cuasos case, their right to injunctive relief had not been clearly and unmistakably
demonstrated. They failed to show proof that there is material and substantial invasion of their right
to warrant the issuance of an injunctive writ. Indeed, the enforcement of the writ of execution, which
would demolish the Cuasos perimeter fence, is manifestly prejudicial to their interest. However, they
possess no clear and unmistakable legal right that merits protection through the writ of preliminary
injunction.27 Their right to maintain the said fence had been declared inferior to the Tanjangcos right
to the demolition of the fence, after the CA judgment had become final and executory as to the
Cuasos.
It bears stressing that the Cuasos failed to appeal the ruling of the CA. This failure to contest the CA
decision before this Court was fatal to their cause. It had the effect of an admission that they indeed
acted in bad faith, as they accepted the CA ruling. The decision of the CA, therefore, became
binding and final as to them.28 As a matter of fact, the CA already issued a partial entry of judgment
against the Cuasos.
An injunction to stay a final and executory decision is unavailing except only after a showing that
facts and circumstances exist which would render execution unjust or inequitable, or that a change
in the situation of the parties occurred. Here, no such exception exists as shown by the facts earlier
narrated.29
While it is true that this Court noted the Memorandum and Supplemental Memorandum filed by the
Cuasos, such notation was made only insofar as Corinthian made them respondents in this petition.
This Court cannot grant to the Cuasos any affirmative relief as they did not file a petition questioning
the CA ruling. Consequently, the Decision of the CA holding that the Cuasos acted in bad faith and
that the perimeter fence may now be demolished cannot be put in issue by the Cuasos. It is a
fundamental principle that a party who does not appeal, or file a petition for certiorari, is not entitled
to any affirmative relief.30 An appellee who is not an appellant may assign errors in his brief where
his purpose is to maintain the judgment, but he cannot seek modification or reversal of the judgment

or claim affirmative relief unless he has also appealed.31 This applies to C.B. Paraz and Engr. De
Dios who likewise failed to assail the aforementioned CA Decision.
With this matter put to rest, we now go to the main issues raised by Corinthian, the sole petitioner in
this case, to wit:
a) Whether or not there is legal basis for the Court of Appeals to hold petitioner Corinthian
Gardens Association, Inc. liable to pay 5% of the judgment money to Sps. Tanjangco on
account of the encroachment made by Sps. Cuaso[; and]
b) Whether or not the Court of Appeals has legal basis to increase unilaterally and without
proof the amount prayed for in the Complaint, i.e., P2,000.00, as reasonable compensation
for the use and enjoyment of the portion of the lot encroached upon, to P10,000.00.32
Corinthian claims that the approval of the building plan of the Cuasos was not tainted with
negligence as it did not approve the survey relocation plan but merely the architectural, structural
and sanitary plans for Cuasos' house; that the purpose of the said approval is not to ensure that the
house to be erected on a particular lot is constructed within its boundaries but only to ensure
compliance with the Manual of Rules and Regulations; that while Corinthian conducts actual site
inspections, the inspection and approval of the building plans are limited to "table inspection" only;
that the survey relocation plan was never submitted for Corinthian's approval; that the acceptance of
the builder's bond did not make Corinthian automatically liable for the encroachment and for
damages; and that Corinthian approved the building plan with the good faith and due diligence
required under the circumstances. It, thus, concludes that it cannot be held liable to pay five
percent (5%) of the money judgment to the Tanjangcos on account of the encroachment made by
the Cuasos. Likewise, it finds no legal basis for the CA to unilaterally increase the amount of the
adjudged rent from P2,000.00 to P10,000.00 which was not prayed for by the Tanjangcos in their
complaint and in the absence of evidence adduced by the parties.33
On the other hand, the Tanjangcos stand by the ruling of the CA and opine that Corinthian was
negligent in approving the building plan of the Cuasos. They submit that Corinthian's claim that it
merely conducts "table inspections" of buildings further bolsters their argument that Corinthian was
negligent in conveniently and unilaterally restricting and limiting the coverage of its approval,
contrary to its own Manual of Rules and Regulations; that the acceptance of a builder's bond does
not automatically make Corinthian liable but the same affirms the fact that a homeowner can hold it
liable for the consequences of the approval of a building plan; and that Corinthian, by regularly
demanding and accepting membership dues, must be wary of its responsibility to protect the rights
and interests of its members. Lastly, the Tanjangcos contend that a court can take judicial notice of
the general increase in the rentals of real estate, as in this case, where the CA considered the value
of their lot in the "posh-and-swank" Corinthian Gardens Subdivision and the fact that they were
deprived of it for almost two decades. The Tanjangcos pray that this Court sustain the ruling of the
CA.34
The instant case is obviously one for tort, as governed by Article 2176 of the Civil Code, which
provides:
ART. 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 is no
pre-existing contractual relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.

In every tort case filed under this provision, plaintiff has to prove by a preponderance of evidence:
(1) the damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other
person for whose act he must respond; and (3) the connection of cause and effect between the fault
or negligence and the damages incurred.35
Undeniably, the perimeter fence of the Cuasos encroached on Lot 69 owned by the Tanjangcos by
87 square meters as duly found by both the RTC and the CA in accordance with the evidence on
record. As a result, the Tanjangcos suffered damage in having been deprived of the use of that
portion of their lot encroached upon. Thus, the primordial issue to be resolved in this case is whether
Corinthian was negligent under the circumstances and, if so, whether such negligence contributed to
the injury suffered by the Tanjangcos.
A negligent act is an inadvertent act; it may be merely carelessly done from a lack of ordinary
prudence and may be one which creates a situation involving an unreasonable risk to another
because of the expectable action of the other, a third person, an animal, or a force of nature. A
negligent act is one from which an ordinary prudent person in the actor's position, in the same or
similar circumstances, would foresee such an appreciable risk of harm to others as to cause him not
to do the act or to do it in a more careful manner.36
The test to determine the existence of negligence in a particular case may be stated as follows: Did
the defendant in committing the alleged negligent act use that reasonable care and caution which an
ordinary person would have used in the same situation? If not, then he is guilty of negligence. The
law, in effect, adopts the standard supplied by the imaginary conduct of the discreet paterfamilias in
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 a man of ordinary intelligence and prudence, and determines
liability according to that standard.37
By this test, we find Corinthian negligent.
While the issue of Corinthian's alleged negligence is factual in character,38 a review by this Court is
proper because the CA's factual findings differ from those of the RTC's.39 Thus, after a meticulous
review of the evidence on record, we hold that the CA committed no reversible error when it deviated
from the findings of fact of the RTC. The CA's findings and conclusions are substantiated by the
evidence on record and are more in accord with law and reason. Indeed, it is clear that Corinthian
failed to exercise the requisite diligence in insuring that the Cuasos abide by its Manual of Rules and
Regulations, thereby resulting in the encroachment on the Tanjangcos property.
We agree with the CA when it aptly held:
Corinthian cannot and should not be allowed to justify or excuse its negligence by claiming
that its approval of the Cuasos building plans was only limited to a so-called "table
inspection;" and not actual site measurement. To accept some such postulate is to put a
premium on negligence. Corinthian was not organized solely for the defendants Cuasos. It is
also the subdivision of the plaintiffs-spouses Tanjangcos - and of all others who have their
dwelling units or abodes therein. Pertinently, its Manual of Rules and Regulations stipulates
in Section 3 thereof (under the heading Construction), thus:
A. Rules and Regulations
No new construction can be started unless the building plans are approved by
the Associationand the appropriate Builders cash bond and pre-construction fees

are paid. The Association will not allow the entry of construction materials and
process identification cards for workers if the above conditions are not complied with.
Likewise, all renovations, repairs, additions and improvements to a finished house
except electrical wiring, will have to be approved by the Association. Water service
connection of a homeowner who undertakes construction work without prior approval
of the Association will be cut-off in addition to the sanctions previously mentioned.
It goes without saying that this Manual of Rules and Regulations applies to all - or it does not
apply at all. To borrow a popular expression, what is sauce for the gander is sauce for the
goose - or ought to be. To put it matter-of-factly and bluntly, thus, its so-called "table
inspection" approval of the Cuasos building plans is no less of an approval, as approvals
come and go. And since it is an approval tainted with negligence, the necessary and
inevitable consequences which law and justice attach to such negligence must, as a matter
of law and justice, also necessarily attach to Corinthian.
And then again third party defendant-appellee Corinthian Garden required the posting of a
builders cash bond (Exh. 5-Corinthian) from the defendants-appellants Cuasos and the
third-party defendant C.B. Paraz Construction to secure the performance of their
undertaking. Surely, Corinthian does not imply that while it may take the benefits from the
Builders cash bond, it may, Pilate-like, wash its hands of any responsibility or liability that
would or might arise from the construction or building of the structure for which the cash
bond was in the first place posted. That is not only unjust and immoral, but downright
unchristian and iniquitous.
Under the same parity of reasoning, the payment by the appellants-Cuasos to the appellee
Corinthian of pre-construction and membership fees in the Association must necessarily
entail the creation of certain obligations on the part of Corinthian. For duties and
responsibilities always go hand in hand with rights and privileges. That is the law of life - and
that is the law of every civilized society. It is an axiom of equity that he who receives the
benefits must share the burdens.40
By its Manual of Rules and Regulations, it is reasonable to assume that Corinthian, through its
representative, in the approval of building plans, and in the conduct of periodic inspections of ongoing construction projects within the subdivision, is responsible in insuring compliance with the
approved plans, inclusive of the construction of perimeter walls, which in this case is the subject of
dispute between the Tanjangcos and the Cuasos.41 It is not just or equitable to relieve Corinthian of
any liability when, by its very own rules, it imposes its authority over all its members to the end that
"no new construction can be started unless the plans are approved by the Association and the
appropriate cash bond and pre-construction fees are paid." Moreover, Corinthian can impose
sanctions for violating these rules. Thus, the proposition that the inspection is merely a "table
inspection" and, therefore, should exempt Corinthian from liability, is unacceptable. After all, if the
supposed inspection is merely a "table inspection" and the approval granted to every member is a
mere formality, then the purpose of the rules would be defeated. Compliance therewith would not be
mandatory, and sanctions imposed for violations could be disregarded. Corinthian's imprimatur on
the construction of the Cuasos' perimeter wall over the property of the Tanjangcos assured the
Cuasos that everything was in order.
In sum, Corinthians failure to prevent the encroachment of the Cuasos perimeter wall into
Tanjangcos property despite the inspection conducted constitutes negligence and, at the very
least, contributed to the injury suffered by the Tanjangcos.
On the second issue, our ruling in Spouses Badillo v. Tayag42 is instructive:

Citing Sia v. Court of Appeals [272 SCRA 141, May 5, 1997], petitioners argue that the MTC
may take judicial notice of the reasonable rental or the general price increase of land in order
to determine the amount of rent that may be awarded to them. In that case, however, this
Court relied on the CA's factual findings, which were based on the evidence presented
before the trial court. In determining reasonable rent,
the RTC therein took account of the following factors: 1) the realty assessment of the land, 2)
the increase in realty taxes, and 3) the prevailing rate of rentals in the vicinity. Clearly, the
trial court relied, not on mere judicial notice, but on the evidence presented before it.
Indeed, courts may fix the reasonable amount of rent for the use and occupation of a
disputed property. However, petitioners herein erred in assuming that courts, in determining
the amount of rent, could simply rely on their own appreciation of land values without
considering any evidence. As we have said earlier, a court may fix the reasonable amount of
rent, but it must still base its action on the evidence adduced by the parties.
In Herrera v. Bollos [G.R. No. 138258, January 18, 2002], the trial court awarded rent to the
defendants in a forcible entry case. Reversing the RTC, this Court declared that the
reasonable amount of rent could be determined not by mere judicial notice, but by supporting
evidence:
x x x A court cannot take judicial notice of a factual matter in controversy. The court
may take judicial notice of matters of public knowledge, or which are capable of
unquestionable demonstration, or ought to be known to judges because of their
judicial functions. Before taking such judicial notice, the court must "allow the parties
to be heard thereon." Hence, there can be no judicial notice on the rental value of the
premises in question without supporting evidence.
Truly, mere judicial notice is inadequate, because evidence is required for a court to determine the
proper rental value. But contrary to Corinthian's arguments, both the RTC and the CA found that
indeed rent was due the Tanjangcos because they were deprived of possession and use of their
property. This uniform factual finding of the RTC and the CA was based on the evidence presented
below. Moreover, in Spouses Catungal v. Hao,43 we considered the increase in the award of rentals
as reasonable given the particular circumstances of each case. We noted therein that the
respondent denied the petitioners the benefits, including rightful possession, of their property for
almost a decade.
Similarly, in the instant case, the Tanjangcos were deprived of possession and use of their property
for more than two decades through no fault of their own. Thus, we find no cogent reason to disturb
the monthly rental fixed by the CA.
All told, the CA committed no reversible error.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals is AFFIRMED. Costs
against petitioner.
SO ORDERED.

G.R. No. L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an electric
light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the
Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be
reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the
island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent
some time in wandering about the company's premises. The visit was made on a Sunday afternoon,
and it does not appear that they saw or spoke to anyone after leaving the power house where they
had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps
scattered on the ground. These caps are approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires by means of which it may be discharged
by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite,
and have in themselves a considerable explosive power. After some discussion as to the ownership
of the caps, and their right to take them, the boys picked up all they could find, hung them on stick,
of which each took end, and carried them home. After crossing the footbridge, they met a little girl
named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife,
and finding that it was filled with a yellowish substance they got matches, and David held the cap
while Manuel applied a lighted match to the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of
the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had
his hand burned and wounded, and David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the
surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the defendant's plant, detonating caps
of the same size and kind as those found by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also appears that at or about the time when these
caps were found, similarly caps were in use in the construction of an extension of defendant's street
car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to
have been lying for a considerable time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the defendant
company's premises, although it must be assumed that the company or its employees were aware of
the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical
draftsman and continued in that employment for six months at a salary of P2.50 a day; and it
appears that he was a boy of more than average intelligence, taller and more mature both mentally
and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them exposed on its premises at the
point where they were found.
The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that
plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on
the McKinley extension of the defendant company's track; that some of these caps were used in
blasting a well on the company's premises a few months before the accident; that not far from the
place where the caps were found the company has a storehouse for the materials, supplies and so
forth, used by it in its operations as a street railway and a purveyor of electric light; and that the
place, in the neighborhood of which the caps were found, was being used by the company as a sort
of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the average citizen,
and under all the circumstances, and in the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on
defendant's premises fairly justifies the inference that the defendant company was either the owner
of the caps in question or had the caps under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectation that they would

be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they
being old and perhaps defective; and, however this may be, we are satisfied that the evidence is
sufficient to sustain a finding that the company or some of its employees either willfully or through an
oversight left them exposed at a point on its premises which the general public, including children at
play, where not prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively proven,
however, that while the workman employed in blasting the well was regularly employed by J. G.
White and Co., a firm of contractors, he did the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen, and there is no proof whatever in
the record that the blasting on the McKinley extension was done by independent contractors. Only
one witness testified upon this point, and while he stated that he understood that a part of this work
was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and
conditions of the alleged contract, or of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps were more or less extensively
employed on work done by the defendant company's directions and on its behalf, we think that the
company should have introduced the necessary evidence to support its contention if it wished to
avoid the not unreasonable inference that it was the owner of the material used in these operations
and that it was responsible for tortious or negligent acts of the agents employed therein, on the
ground that this work had been intrusted to independent contractors as to whose acts the
maxim respondent superior should not be applied. If the company did not in fact own or make use of
caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it
to prove that fact, and in the absence of such proof we think that the other evidence in the record
sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that
the caps found on its premises were its property, and were left where they were found by the
company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon
the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of
that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused
by their employees in the service of the branches in which the latter may be employed or on
account of their duties.

xxx

xxx

xxx

The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused
1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions of
these articles, and since we agree with this view of the case, it is not necessary for us to consider
the various questions as to form and the right of action (analogous to those raised in the case of
Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a
decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
These proposition are, of course, elementary, and do not admit of discussion, the real difficulty
arising in the application of these principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the fulminating caps been left exposed
at the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his
own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be
the direct result of defendant's negligence in leaving the caps exposed at the place where they were
found by the plaintiff, and this latter the proximate cause of the accident which occasioned the
injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts
of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and
the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a place where the railroad company
knew, or had good reason to suppose, children would be likely to come, and there found explosive
signal torpedoes left unexposed by the railroad company's employees, one of which when carried
away by the visitor, exploded and injured him; or where such infant found upon the premises a
dangerous machine, such as a turntable, left in such condition as to make it probable that children in
playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer
injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was
whether a railroad company was liable for in injury received by an infant while upon its premises,
from idle curiosity, or for purposes of amusement, if such injury was, under circumstances,
attributable to the negligence of the company), the principles on which these cases turn are that
"while a railroad company is not bound to the same degree of care in regard to mere strangers who
are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from
responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and
that "the conduct of an infant of tender years is not to be judged by the same rule which governs that
of adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an
injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases,
especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in
the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for
injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule
exists in favor of children who are injured by dangerous machinery naturally calculated to attract
them to the premises; (3) that an invitation or license to cross the premises of another can not be
predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that
there is no difference between children and adults as to the circumstances that will warrant the
inference of an invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the
courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349).
And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in
other States.
On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29,
35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company vs.
Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by

Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine
laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many
of the adjudged cases, both English and American, formally declared that it adhered "to the
principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited
the defendant's premises, without defendant's express permission or invitation, and while there, was
by accident injured by falling into a burning slack pile of whose existence he had no knowledge, but
which had been left by defendant on its premises without any fence around it or anything to give
warning of its dangerous condition, although defendant knew or had reason the interest or curiosity
of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere
trespasser, for whose safety and protection while on the premises in question, against the unseen
danger referred to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved to
the facts in that case, because what is said there is strikingly applicable in the case at bar, and
would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser,
the defendant company owed him no duty, and in no case could be held liable for injuries which
would not have resulted but for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case
now before us, they require us to hold that the defendant was guilty of negligence in leaving
unguarded the slack pile, made by it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit
its mine, and witness its operation. It knew that the usual approach to the mine was by a
narrow path skirting its slack pit, close to its depot building, at which the people of the village,
old and young, would often assemble. It knew that children were in the habit of frequenting
that locality and playing around the shaft house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would have suggested that they were in
danger from being so near a pit, beneath the surface of which was concealed (except when
snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally
fall and be burned to death. Under all the circumstances, the railroad company ought not to
be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the
vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it
was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited
with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises, would probably be attracted
by their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of
his instinct which he can not resist, and putting him there by manual force?" What difference,
in reason we may observe in this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied
license, resulting from the habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case
of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1,
page 305, note, well says: "It would be a barbarous rule of law that would make the owner of
land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog
attracted by his natural instinct, might run into it and be killed, and which would exempt him

from liability for the consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle
with it by instincts equally strong, might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs.
Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit
the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license might
sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to gather for that purpose, may be
equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away
upon his premises, near the common way, things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases
of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less
cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here
are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the
restless spirit of youth, boys here as well as there will usually be found whenever the public is
permitted to congregate. The movement of machinery, and indeed anything which arouses the
attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does
the magnet draw the iron which comes within the range of its magnetic influence. The owners of
premises, therefore, whereon things attractive to children are exposed, or upon which the public are
expressly or impliedly permitted to enter or upon which the owner knows or ought to know children
are likely to roam about for pastime and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be heard to say that because the
child has entered upon his premises without his express permission he is a trespasser to whom the
owner owes no duty or obligation whatever. The owner's failure to take reasonable precautions to
prevent the child from entering his premises at a place where he knows or ought to know that
children are accustomed to roam about of to which their childish instincts and impulses are likely to
attract them is at least equivalent to an implied license to enter, and where the child does enter
under such conditions the owner's failure to take reasonable precautions to guard the child against
injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a
breach of duty, responsible, if the child is actually injured, without other fault on its part than that it
had entered on the premises of a stranger without his express invitation or permission. To hold
otherwise would be expose all the children in the community to unknown perils and unnecessary
danger at the whim of the owners or occupants of land upon which they might naturally and
reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man
has a right to do what will with his own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the premises of others is of sufficient

weight to put in doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and
except as to infants of very tender years it would be absurd and unreasonable in a community
organized as is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover in such cases a point which we
neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's
express invitation or permission would not have relieved defendant from responsibility for injuries
incurred there by plaintiff, without other fault on his part, if such injury were attributable to the
negligence of the defendant, we are of opinion that under all the circumstances of this case the
negligence of the defendant in leaving the caps exposed on its premises was not the proximate
cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable
to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in
cutting open the detonating cap and putting match to its contents was the proximate cause of the
explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is
not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co.
vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself have been
free from fault, such is not the rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and this is to be determined in each
case by the circumstances of the case." As we think we have shown, under the reasoning on which
rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of
responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown
boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express
permission or invitation' but it is wholly different question whether such youth can be said to have
been free from fault when he willfully and deliberately cut open the detonating cap, and placed a
match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion.
On this point, which must be determined by "the particular circumstances of this case," the doctrine
laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of
observation that in all of the "Torpedo" and analogous cases which our attention has been directed,
the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such
tender years that they were held not to have the capacity to understand the nature or character of
the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature
both mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred;
and the record discloses throughout that he was exceptionally well qualified to take care of himself.
The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he
well knew the explosive character of the cap with which he was amusing himself. The series of
experiments made by him in his attempt to produce an explosion, as described by the little girl who
was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity,

followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors
brought about by the application of a match to the contents of the caps, show clearly that he knew
what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the
explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within
him at the time when he put the match to the contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate
the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion
might be expected from his act, and yet he willfully, recklessly, and knowingly produced the
explosion. It would be going far to say that "according to his maturity and capacity" he exercised
such and "care and caution" as might reasonably be required of him, or that defendant or anyone
else should be held civilly responsible for injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of
things the question of negligence necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at which a minor can be said to have
such ability will necessarily depends of his own acts and their consequences; and at the age at
which a minor can be said to have such ability will necessarily vary in accordance with the varying
nature of the infinite variety of acts which may be done by him. But some idea of the presumed
capacity of infants under the laws in force in these Islands may be gathered from an examination of
the varying ages fixed by our laws at which minors are conclusively presumed to be capable of
exercising certain rights and incurring certain responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases such as that at bar, except so far as they
illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the Penal Code a minor over fifteen
years of age is presumed to be capable of committing a crime and is to held criminally responsible
therefore, although the fact that he is less than eighteen years of age will be taken into consideration
as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec.
771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse
to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal
marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents of the
cap; that he was sui juris in the sense that his age and his experience qualified him to understand
and appreciate the necessity for the exercise of that degree of caution which would have avoided the
injury which resulted from his own deliberate act; and that the injury incurred by him must be held to
have been the direct and immediate result of his own willful and reckless act, so that while it may be
true that these injuries would not have been incurred but for the negligence act of the defendant in
leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and
principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire.
(Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts the grievance
should be against himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf
and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover
damages from the defendant, in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391),
is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a
source of obligation when between such negligence and the injury there exists the relation of
cause and effect; but if the injury produced should not be the result of acts or omissions of a
third party, the latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in
his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between
it and the damage there exists the relation of cause and effect; but if the damage caused
does not arise from the acts or omissions of a third person, there is no obligation to make
good upon the latter, even though such acts or omissions be imprudent or illegal, and much
less so when it is shown that the immediate cause of the damage has been the recklessness
of the injured party himself.
And again
In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary points of
the proof, which are two: An act or omission on the part of the person who is to be charged
with the liability, and the production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect between the act
or omission and the damage; the latter must be the direct result of one of the first two. As the
decision of March 22, 1881, said, it is necessary that the damages result immediately and

directly from an act performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in
this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury cases) was exonerated," on the
ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of
the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of
that year); none of the cases decided by the supreme court of Spain "define the effect to be given
the negligence of its causes, though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries;" and in such cases we declared that law in this jurisdiction
to require the application of "the principle of proportional damages," but expressly and definitely
denied the right of recovery when the acts of the injured party were the immediate causes of the
accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between the event itself, without which there could have
been no accident, and those acts of the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the cause of the accident under review was
the displacement of the crosspiece or the failure to replace it. This produces the event giving
occasion for damagesthat is, the sinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute, although it
was an element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its determining factors, he can
not recover. Where, in conjunction with the occurrence, he contributes only to his own injury,
he may recover the amount that the defendant responsible for the event should pay for such
injury, less a sum deemed a suitable equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion,
the accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents
of the cap, and that having "contributed to the principal occurrence, as one of its determining factors,
he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps exposed
on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps.
Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years
would have no effect in relieving defendant of responsibility, but whether in view of the well-known
fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the
age and maturity of plaintiff should be deemed without fault in picking up the caps in question under
all the circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed without day. So ordered.
G.R. No. L-10126

October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by
its owner defendant Mariano Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same
morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and
turned turtle. Some of the passengers managed to leave the bus the best way they could, others had
to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of
the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans
and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they
could not get out of the bus. There is nothing in the evidence to show whether or not the passengers
already free from the wreck, including the driver and the conductor, made any attempt to pull out or
extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about ten men, one of them
carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost immediately, a fierce fire started,
burning and all but consuming the bus, including the four passengers trapped inside it. It would
appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the
side of the chassis, spreading over and permeating the body of the bus and the ground under and
around it, and that the lighted torch brought by one of the men who answered the call for help set it
on fire.
That same day, the charred bodies of the four deemed passengers inside the bus were removed
and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600
as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim
in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:
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 1745, Nos. 5, 6, and 7, while the extra ordinary 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 a 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 in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common carriers.
This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his
agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point where one of the front tires
burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of
Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself
and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though
he must have suffered physical injuries, perhaps serious, was still alive, and so damages were
awarded, not for his death, but for the physical injuries suffered by him. We disagree. 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 ordinary 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.
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case under the circumstances
obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the
bus, this for the reason that when the vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it was dark (about
2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural
area where lanterns and flashlights were not available; and what was more natural than that said
rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its passengers and the call for
outside help. What is more, the burning of the bus can also in part be attributed to the negligence of
the carrier, through is driver and its conductor. According to the witness, the driver and the conductor
were on the road walking back and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither
the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier
come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial
court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them,
the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us. According to the evidence,
one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in
the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the
bus changed immediately because they were already old, and that as a matter of fact, he had been
telling the driver to change the said tires, but that the driver did not follow his instructions. If this be
true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in front,

with new ones, as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was banking to support the complaint,
either failed or appear or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect
of the said driver was negligent. In the public interest the prosecution of said erring driver should be
pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on
public utility buses. Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.

G.R. No. L-13541

January 28, 1961

EDUARDO TUASON, plaintiff-appellant,

vs.
LUZON STEVEDORING; CO., INC. and JULIAN RAMOS, defendants-appellees.
Early in the morning of April 13, 1953, Eduardo Tuason left Baguio City in a 1952 model Packard
car, with three passengers, namely, Olivia de Leon, Francisco de Leon and Manuel de Leon. He
passed the Kennon Road Checkpoint at 3:00 o'clock and winged on his way passing the National
Toll Road, Camp 6 Toll Gate, 24 minutes later. After paying the toll, he continued slashing through
the early morning air so that by 5: 00 o'clock of that same morning he arrived at a town in Tarlac.
There he stopped at a gasoline station to fill up his car's gasoline tank. This took about 15 to 20
minutes. Thereafter, he continued his drive for Manila.
At about the same time Eduardo Tuason left Baguio City, Julian Ramos, an employee of the Luzon
Stevedoring Co., Inc., together with a mechanic, Graciano Bautista, and a laborer, Zoilo Tolentino,
left the company's compound at Guagua, Pampanga, driving one of its truck-trailers for Manaoag,
Pangasinan. They passed through the towns of Bacolor, San Fernando, Angeles, Mabalacat, of the
province of Pampanga. When they reached the municipality of Bamban, Tarlac, the truck developed
some engine trouble. The mechanic, Graciano Bautista, had to clean the carburetor and the gasoline
line, which took him about 25 to 30 minutes to finish. Afterwards, they proceeded on their way.
At around 5:10 o'clock that same morning at about 75 meters south of the bridge at barrio Cut-Cut of
the municipality of Capas, Tarlac, the Packard car driven by Eduardo Tuason and the truck-trailer
driven by Julian Ramos collided. As a result of the collision, Eduardo Tuason's left leg was pinned
down by the door of his car. After he was extricated from his seat, he was taken to the clinic of Dr.
Pineda at Capas, and later, on that same day, brought to the National Orthopedic Hospital in Manila.
His companions in the car, who were also injured were, likewise, taken to the clinic at Capas.
On February 22, 1956, or after almost three years from the date of the collision, Eduardo Tuason
filed with the Court of First Instance of Manila a complaint against the Luzon Stevedoring Co., Inc.,
and Julian Ramos for the recovery of damages suffered by him as a result of the collision above

referred to. The complaint alleges, among other things, that plaintiff was driving at a moderate speed
35 to 40 kilometers per hour with headlights on, when the truck-trailer driven by the defendant
Julian Ramos struck his car; that the collision completely wrecked plaintiff's car and caused serious
physical injuries to him and his companions; and that defendant Julian Ramos was then driving
recklessly and negligently at a high rate of speed. Plaintiff, therefore, claims and prays for actual and
compensatory damages in the sum of P200,000, moral damages in the amount of P25,000, and
exemplary or corrective damages in the sum of P25,000, plus attorney's fees.
The defendants, in their separate answers, denied any liability for damages, alleging by way of
special defenses that the truck trailer driven by the defendant Julian Ramos was traveling at lowspeed, with lights on, along the right side of the road when it was hit by the Packard car driven by
plaintiff recklessly and negligently at a high speed; that after the accident, both plaintiff and
defendant Julian Ramos were charged criminally before the Justice of the Peace Court of Capas,
Tarlac, and upon the case being forwarded to the Court of First Instance of the same province, the
information as against the defendant Julian Ramos was dismissed; and that the collision was due to
the fault and negligence of plaintiff as defendant Julian Ramos exercised due care and diligence in
the performance of his duties as driver of the truck-trailer. The defendant company, in addition,
alleged that it exercised the care and diligence of a good father of a family in the selection and
supervision of Julian Ramos as its driver.
At the trial, both parties presented testimonial and documentary evidence. Finding the evidence
adduced by plaintiff and his witnesses to he contradictory and unworthy of belief, and holding that
plaintiff was traveling at a very high speed and on the wrong side of the road, that it to say, on the
left lane facing south, while the truck-trailer driven by the defendant Julian Ramos was traveling at a
moderate speed and was almost at a stop before the collision, the trial court, on January 9, 1958,
rendered decision, the dispositive part of which reads:
"WHEREFORE, the court finds the plaintiff Eduardo Tuason, solely and wholly responsible
for the collision which occurred on April 13, 1953, subject matter of the present case, and
absolves the defendants Julian Ramos and Luzon Stevedoring Co., Inc., from any liability or
responsibility in connection therewith. The court hereby orders plaintiffs claims against the
defendants dismissed with costs against the plaintiff."
From this decision, the plaintiff appealed directly to this Court.
After going over the record, we find no reason for rejecting the findings of fact below, justifying the
dismissal of plaintiff's claim for damages. The issue being one of credibility, the question of which
testimony should be given more credence is best left to the trial judge, who had the advantage of
hearing the parties testify and of observing their demeanor on the witness stand.
Briefly stated, plaintiff's version is that while he was driving his new Packard car along the right lane
of the road, with lights on and blowing his horn, at a curve, about 75 meters south of the bridge in
Barrio Cut-Cut, of the municipality of Capas, Tarlac, his car collided with the truck-trailer of the Luzon
Stevedoring Company driven without any lights by defendant Julian Ramos; that the collision took
place at the middle of the road; that as a result thereof, the two vehicles became attached to and
entangled with one another; that the people who were attracted to the scene of the collision had to
separate the automobile from the truck-trailer before they could extricate plaintiff from the driver's
seat of his car; and that to separate the two vehicles the truck-trailer had to move backwards, with
the use of its own power, dragging the automobile, which after being separated from the truck-trailer,
was also moved backwards.

In support of his complaint, plaintiff himself testified. He contradicted himself, however, in some
particulars, admitted that he was in extreme pain after the collision and, indeed, must have been
unconscious so that he could not have observed the details of the accident. Considering the other
circumstances of the case, which shall hereafter be discussed, we think the trial court was justified in
resolving his testimony against him.
Manuel de Leon, one of plaintiff's companions in the car, in an effort to corroborate plaintiff's version
and theory of the case, also took the witness stand. The lower court, however, noted from his
testimony and demeanor that he was not at all clear about the special circumstances and important
details of the accident which an eyewitness would normally notice, recall and remember. He could
not, for instance, tell "who moved the trailer nor whether it was moved on its own power or pushed
by the people around; he could not even tell or recall on what part of the road the Packard car was.
Moreover, this witness could not even recall how wide Cut-Cut bridge is or whether two vehicles
could meet and pass each other, safely, over the bridge; he could, likewise, not recall whether there
were shoulders and ditches on both sides of the road at the scene of the collision." Explaining his
unreliability as a witness, the trial court made the following observations:
"In the mind of the court, this witness was in a state of shock and light-headed after he
recovered consciousness and, as he admitted that he was unconscious for 30 minutes after
the collision, he could not have seen anything that was done during his state of
unconsciousness nor afterwards. The court is convinced that Manuel de Leon was merely
accommodating the plaintiff, his friend, when he testified for the reason that he was neither
clear nor positive as to his testimony."
Alberto Yandan, a resident of Barrio Cut-Cut, Capas, Tarlac, at the time of the accident, testifying for
the plaintiff, claims that he saw the collision. He declared, among other things, that he ordered the
truck to be moved backward; and that it took thirty minutes to take plaintiff out of the car. He
disclaimed knowledge, however, of the identity of the person who moved the truck. It also appears
that he was investigated by the police of Capas at 10:00 a.m. of the day of the collision in the
presence of the chief of police and the Justice of the Peace. In that investigation, which was later
reduced to writing, sworn to and signed by him before the Justice of the Peace, he declared
contrary to his testimony in court that he was in his house when he heard a crash; that he
immediately went downstairs and found that the crash was caused by a collision between a truck
and a car; that the driver of the car was badly injured; and its three occupants suffered minor
injuries; that the car was wrecked while the truck was only slightly damaged; and that he brought
one of the injured to the clinic of Dr. Pineda at Capas. He was asked three times in the course of the
investigation whether or not he had anything more to say in connection with the collision and in like
number of times the answered, "no more, sir." For this reason, the trial court found it difficult to
believe his testimony and opines that his participation in the matter of the collision was merely to
bring one of the injured to the clinic of Dr. Pineda at Capas and nothing else. We are inclined to
agree with the lower court, for it has not been explained why he did not, at the time he was
investigated, tell the matters he testified to in court, when he admittedly was aware that he was
being investigated to bring out everything that he knew of the accident.
Pedro Mallari, another resident of Barrio Cut-Cut, Capas, likewise, testified for plaintiff. This witness
admitted on direct and cross-examination that he stayed at the scene of the accident only for five
minutes, yet he sought to convince the court of facts which could not have happened, and which he
could not have seen, during that period. Thus, he said that when he arrived at the scene of the
collision, He saw Alberto Yandan, carrying plaintiff Eduardo Tuason while the three car passengers
were still inside the automobile. This statement is contrary to the testimonies of plaintiff's other
witnesses, namely, Alberto Yandan and Manuel de Leon, who declared that, the last person taken
out of the car was plaintiff and that it took them some 30 minutes to extricate him from the driver's
seat. Witness Mallari also declared that plaintiff's left leg was pinned down by the left bumper of the

truck and that when the truck was moved back, the leg was still pinned by the bumper. If such were
the case, plaintiff's leg would have been crushed or severed and he would not now have possession
and use of both legs. Considering these contradictions and observing that the witness, while
testifying, was restless, nervous and uncomfortable and that he was shifting around and could not
keep his eyes fixed, the trial court entertained grave doubts concerning the veracity of his testimony.
The lower court, we think, was justified in doing so. Evidence, to be worthy of credit, must not only
proceed from a credible source, but must, in addition, be credible itself. And by this is meant that it
shall be natural, reasonable and probable as to make it easy to believe.
Examining further Pedro Mallari's testimony, we find that there is, indeed, good reason to believe this
witness was never at the scene of the collision. He stated that he returned from work around 12
noon to take his lunch; that thereafter he went to the police station of Capas and when he peeped
inside he saw the police investigating Alberto Yandan; that he did not listen to the investigation but
he knew that it concerned the accident which occurred in Barrio Cut-Cut, Capas, that morning; that
he did not volunteer to testify nor made known his presence at the scene of the collision. His
declarations are directly contradicted by those of Alberto Yandan who testified that he was
investigated at 10:00 a.m. and that he (Mallari) was inside the police station and present during the
investigation. And had Mallari really been present then, whether inside or outside the police station,
he would certainly have volunteered his testimony, having taken the trouble of going to the police
station at the town proper and knowing as he did the subject matter of the police investigation. But
he did not do this and instead admitted that he testified in this case after he was approached by
Alberto Yandan to do so for plaintiff.
Salvador Baun, chief of police of the municipality of Capas another witness for the plaintiff. The trial
court, however, from his demeanor on the witness stand and from the long delayed and often
evasive answers, he gave, was convinced that he was suppressing and hiding the true facts of the
case. He admitted that he conducted an investigation of the collision and he testified that in the
course of that investigation, he saw evidence that the Packard car driven by plaintiff swerved from
the middle of the road to the left lane facing south, thus hitting the truck-trailer. He made such
statement in his official report of the accident (Exh. "I"), and the proof of the swerving of the car as
reported by him were the skid marks of the tires of the car at the scene of the collision. The record
also shows that it was on the basis of his report that the criminal case for physical injuries and
damage to property thru reckless imprudence filed against both plaintiff and defendant Julian Ramos
was dismissed as against the latter. The dismissal was made upon motion of the Provincial Fiscal on
the ground that "during a reinvestigation of the case, and as can be seen from the sketch attached to
the record prepared by the Chief of Police of Capas, Tarlac, the driver of the truck-trailer, Julian
Ramos, the accused, tried his best to avoid the incident; that it is the other driver, Eduardo Tuason,
who was at fault in causing the collision; and that the prosecution has no evidence to sustain any
criminal action against Julian Ramos." .
The evidence for the defendants, on the other hand, showed that the truck-trailer driven by Julian
Ramos covered the distance of 50.89 kilometers between Guagua, Pampanga, and Cut-Cut bridge,
Capas, Tarlac, in 2 hours and 10 minutes. Subtracting the 30 minutes consumed in fixing the engine
trouble that developed on the way, the traveling time was, therefore, 1 hour and 40 minutes. This
shows that the truck-trailer ran at an average speed of 30 kilometers per hour on the national
highway from Guagua, Pampanga, to Cut-Cut bridge, Capas, Tarlac. Upon the other hand, plaintiff
drove his car from Baguio City to Cut-Cut bridge in Capas, a distance of 144.22 kilometers, in 2
hours and 10 minutes. Deducting the maximum of 20 minutes it took him to load up gasoline, that
leaves a traveling time of 1 hour and 50 minutes. As correctly found by the court below, it is evident
from the above facts, which are not disputed, that plaintiff drove his car at great speed and in excess
of the speed limits along the national highway.

Plaintiff claims that the truck-trailer, which weighed 10 tons, was traveling at the rate of 60 kilometers
per hour when the collision occurred, but if such were the case, the car he was driving would have
been sent flying, or, at least, carried and pushed back by virtue of the truck's momentum and weight.
There were, however, no indications on the surface of the road at the scene of the collision showing
that the Packard car was carried and dragged by the truck-trailer. Indeed, none of the witnesses
testified to this fact. On the contrary, Salvador Baun, chief of police, and Jesus Baluyot, patrolman,
both of Capas, and other witnesses for the defendants testified that the skid marks present at the
scene of the collision were those made by the tires of the Packard car. No skid marks made by the
tires of the truck-trailer existed or were present at the scene of the collision.
The evidence for the defendants also showed that at the time of the collision, the truck-trailer was on
the right lane of the road facing north with the right front wheel of the truck on the shoulder of the
road about six inches from the ditch on the right side and that the Packard car was on the left lane of
the road going south towards Pampanga. These facts were testified to by the defendant Julian
Ramos, his mechanic, Graciano Bautista, Jesus Baluyot and Pagano Atienza, both members of the
police force of Capas, Mariano Nacpil, a farmer and civilian guard residing in Barrio Cut-Cut, and
others. Policeman Jesus Baluyot, at the time of the collision, drew a sketch (Exh. 1.A) showing the
relative positions of the vehicles, which piece of evidence became the basis of the chief of police's
report but which he tried to suppress at the trial of the case. Regarding the testimony of defendants'
witnesses, the trial court said..
"The court has observed the conduct and demeanor of the witnesses, for the defendants,
and noted that they testified in a straight-forward manner indicating that they know the
subject matter of their testimonies and that they were testifying on facts and circumstances
of their own personal knowledge. Defendant Julian was lengthily cross-examined and there
was no divergence in his, testimony. Likewise, the mechanic, Graciano Bautista, was clear
and explicit in his narration of facts. The witnesses for the defendants, Jesus Baluyot and
Paciano Atienza are members of the police force of the Municipality of Capas and they
testified on facts and circumstances surrounding the collision between the two vehicles,
which they gathered in the course of their official investigation. There is no reason for the
court to doubt the testimony of these police officers considering the official positions and the
fact that they testified on matters gathered in the performance of their official duties.
Moreover, they submitted a report of their investigation to their Chief of Police. Arturo
Cabrera, another witness for the defendants is a government employee who testified in
regard to his own personal knowledge of the collision in question. He stated that after
viewing the scene of the collision and noting that the Packard car involved therein was a
hazard to traffic, he telephoned a report to his superior, the District Engineer of Tarlac that he
was able to talk to Mr. Epifanio Panopio, Maintenance Engineer who personally viewed the
scene of the collision; that after the investigation being conducted by the Police was through
he caused the Packard car to be removed upon the instruction of Engineer Panopio. Again,
there is no reason for the court to doubt the testimony of this witness. Mariano Nacpil is an
old man and a farmer. His demeanor in court was that of a witness testifying to the truth. As
a matter of fact, Mariano Nacpil signed a sworn statement, Exh. '8' before the Chief of Police
and Justice of the Peace of Capas, Tarlac, on the same day, April 13, 1953, when the
collision occurred. His testimony during the trial conforms with his sworn statement
appearing on Exhibit '8'."
Plaintiff claims that the truck-trailer and the Packard car were linked together and in order to give
room to take plaintiff out of the car, the truck-trailer was moved back, on its own power, across the
line at the center of the road and stopped on the right lane facing north carrying the car along with it.
The trial court, however, after a close scrutiny of the evidence adduced, rejected the claim,
defendant shaving shown to its satisfaction that the truck's battery and front axle were damaged, the
U-bolt broken, and mudguard stuck to the left front wheel. The truck-trailer's weight of ten tons

eliminated the possibility of its having been pushed by the people gathered at the scene of the
collision, so that the trial court believed that it was the Packard car which was moved back about
three feet in order to extricate plaintiff from his seat, some persons stepping on the bumper of the
automobile while others pushed it away. The defendant Julian Ramos, whose testimony was found
by the court to be credible and straight forward, testified in this regard. This testimony of defendant
Julian Ramos, contrary to plaintiff's claim, does not necessarily contradict those of policemen Jesus
Baluyot and Pagano Atienza, who declared that the vehicles were not moved during their
investigation. Apparently, the vehicles were disengaged before the arrival of the aforenamed
policeman, who had to come yet from the town proper. It would certainly have been unnatural and
cruel for the people who were there to have waited for them or other authorities before doing
anything, considering that plaintiff was painfully pinned by the door of his car and could not be
extricated without disconnecting the vehicles.
It might not be amiss to mention here that plaintiff's complaint was filed only after the lapse of almost
three years from the date of the accident. This, in itself, is indicative of the weakness of plaintiff's
cause of action. And considering the established fact that said plaintiff was really the proximate
cause of the accident, we find no valid reason to disturb the decision complained of denying his
claim for damages.
IN VIEW OF THE FOREGOING, the decision appealed from is hereby affirmed, with costs against
plaintiff-appellant.

.R. No. 72827 July 18, 1989

LUCIA EUROPA (Mother of Deceased Lucrecia Europa), petitioner,
vs.
HUNTER GARMENTS MFG. (PHIL.) INC. and INTERMEDIATE APPELLATE
COURT, respondents.
This is a petition for certiorari to annul the Court of Appeals decision which set aside the order of
default and judgment by default rendered by the Court of First Instance of Rizal Branch XIII in Civil
Case No. 37848 for Damages.
The facts of the case are briefly as follows:
In 1973, the petitioner's daughter, Lucrecia Europa, was employed as sample maker by the private
respondent Hunter Garments Manufacturing (Philippines) Incorporated. Sometime during the course
of her employment, or on March 9, 1978, Lucrecia got electrocuted by the high speed sewing
machine which had been assigned to her by the private respondent.
Thus, on July 18, 1980, the petitioner filed an action for damages against private respondent based
on quasi-delict.
Summons, together with a copy of the complaint, was served on its production manager, Mr.
Simplicio A. Garcia.
No answer to the complaint was ever filed. Thus, private respondent was declared in default and the
petitioner was allowed to present evidence ex parte.

On April 8, 1981, the trial court rendered judgment, the dispositive portion of which reads;
WHEREFORE, the plaintiff having established her cause of action, judgment is
rendered against the defendant corporation ordering the latter to pay the plaintiff the
following:
a) for the death of Lucrecia, the sum of P12,000.00;
b) for actual expenses for the wake, the funeral and burial expenses and other
miscellaneous expenses, the sum of P5,580.00;
c) for loss of income, the sum of P30,000.00;
d) for moral damages, the sum of P10,000.00;
e) for attorney's fees, the sum of P5,000.00; and pay the costs. (p. 39, Rollo)
Private respondent filed a motion for reconsideration of the aforesaid decision and a motion to admit
answer, alleging its failure to seasonably file an answer was due to the excusable negligence of Ms.
Lilia Jimenez, the production manager's secretary, who failed to forward the summons and the copy
of the complaint to the company president, despite instructions to do so by her superior. The trial
court denied both motions.
Thus, private respondent appealed to the Court of Appeals, assigning the following errors:
The Honorable Court, a quo, erred in not ruling that defendant-appellant's failure to
seasonably file its Answer was due to excusable negligence;
The Honorable Court, a quo, erred in declaring defendant-appellant in default and in
allowing plaintiff-appellee to present her evidence ex parte despite the fact that
summons had not been properly served; and
Assuming, arguendo, that the Honorable Court, a quo, had validly acquired
jurisdiction over the person of defendant-appellant, it erred in rendering a decision
which is not supported by law and the facts of the case. (p. 42, Rollo)
Finding that the trial court never acquired jurisdiction over the person of private respondent as
summons was improperly served (the production manager not being the same "manager" referred to
in Section 13 Rule 14 of the Revised Rules of Court for purposes of service of summons upon a
domestic private corporation), the Court of Appeals set aside the default order and judgment by
default and directed the trial court to conduct further proceedings for the adjudication of the case. (p.
22, Rollo)
The petitioner filed a motion for reconsideration of the aforesaid decision but the same was denied.
Hence, the instant petition for certiorari.
There is merit in this petition. Assuming arguendo that the court below originally did not acquire
jurisdiction over the private respondent, the latter certainly submitted to it when private respondent
filed a motion for reconsideration of the judgment by default and a motion to admit answer on the

ground of excusable negligence. Therefore, the lower court's denial of both motions is binding on
private respondent. (Soriano vs. Palacio, 12 SCRA 449).
Private respondent likewise appealed from the judgment by default, thus, We shall proceed to review
the evidence presented and the propriety of damages awarded by the lower court.
The evidence on record discloses that on March 9, 1978, Lucrecia Europa was electrocuted by the
sewing machine owned by private respondent. The autopsy conducted by Dr. Nieto M. Salvador
confirmed that Lucrecia died from "shock probably secondary to electrocution" (Annex "A" of the
complaint).
The facts and circumstances of the case point to the reasonableness of the damages awarded.
There is an express finding of gross negligence on the part of private respondent in the judgment of
the lower court, thus:
... There are at least two incidents, according to De la Cruz, where high speed
sewing machines of the defendant corporation were grounded. These incidents were
brought to the attention of the management of the defendant corporation. Apparently,
nothing was done by way of checking these grounded machines.
At one time, Fornoza claimed that when her machine was grounded and she
complained about it, she was told by the management to get out of there.' The
defendant corporation does not employ a duly-licensed electrical engineer but only
has three (3) electricians whose services clearly proved inadequate for maintaining
the safety of the machines in the factory.
There is no indication that the management had ever shown any serious concern for
the safety of those operating said machines. As it was, the defendant corporation
even tended to be apathetic to the plight of its employees manning the factory
sewing machines....
If the machines were frequently and regularly checked or properly maintained, the
death of Lucrecia by electrocution would surely not have come to pass, ... (p. 2,
Decision).
In actions based on quasi-delict as in this case, all damages for the natural and probable
consequences of the act or omission complained of are recoverable. (Article 2202 of the New Civil
Code).
WHEREFORE, the decision of the Court of Appeals is hereby set aside and the decision of the lower
court is hereby reinstated except that the indemnity for the death itself is increased to Thirty
Thousand (P30,000.00) Pesos.
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 thirdparty 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. L-39309

November 24, 1933

TEH LE KIM, plaintiff-appellant,

vs.
PHILIPPINE AERIAL TAXI CO., INC., defendant-appellee.
This is an appeal taken by the plaintiff Teh Le Kim from the judgment rendered by the Court of First
Instance of Manila, absolving the defendant Philippine Aerial Taxi Co., Inc., from the complaint,
which was dismissed, without special pronouncement as to costs.
In support of his appeal, the appellant assigns five alleged errors as committed by the trail court,
which we shall discuss in the course of this decision.
The following facts have been proven by a preponderance of evidence presented during the trial, to
wit:
On the Morning of September 4, 1931, the plaintiff herein bought, in Manila, a passenger ticket for a
flight to Iloilo in one of the defendant company's hydroplanes starting from Madrigal Field in Pasay.
Inasmuch as the engine of the plane Mabuhay, in which he was to take the flight, was not working
satisfactorily, the said plaintiff had to wait for some time. While the engine was being tested, the
plaintiff saw how it was started by turning the propeller repeatedly and how the man who did it ran
away from it each time in order not to be caught by the said propeller. Before the
plane Mabuhay was put in condition for the flight, the plane Taal arrived and it was decided to have
the plaintiff make the flight therein. The plaintiff and his companion were carefully carried from the
beach to the plane, entering the same by the rear or tail end, and were placed in their seats to which
they were strapped. Later, they were shown how the straps could be tightened or loosened in case
of accident and were instructed further not to touch anything in the plane. After an uneventful flight,
the plane landed on the waters of Guimaras Strait, in front of Iloilo, and taxied toward the beach until
its pontoons struck bottom, when the plane stopped. the pilot shut off the gasoline feed pipe,
permitting the engine, however, to continue to function until all the gasoline was drained from the

feed pipe and carburetor. This operation was necessary in accordance with the established practice
of aviation in order to avoid danger of fire which would exist if the pipes and carburetor remained full
of gasoline, and to prevent the sudden cooling of the engine which might cause serious damage,
especially to the valves.
When the pilot observed that a banca was approaching rapidly on the right hand side of the plane,
he arose signalled and shouted to the boatman to keep his banca at a distance from the plane,
inasmuch as there were waves and quite a strong current, and he feared that the banca, which had
a high prow, might collide with the plane and damage either the wing or the pontoon thereof. While
he was doing this, he heard the propeller strike something. He immediately turned off the switch and,
looking on the other side, he saw Bohn picking up the plaintiff out of the water.
What really happened was that at the moment the pontoons touched bottom and while the pilot was
signalling to the banca, the plaintiff unfastened the straps around him and, not even waiting to put on
his hat, climbed over the door to the lower wing, went down the ladder to the pontoon and walked
along the pontoon toward the revolving propeller. The propeller first grazed his forehead and, as he
threw up his arm, it was caught by the revolving blades thereof and so injured that it had be
amputated.
lawphil.net

Bohn and Garrett of Warner, Barnes & Co., consignees of the defendant in Iloilo, were on the beach
to meet the plane and to make arrangements for the disembarking of the passengers. Upon seeing
the plaintiff walking toward the propeller, they shouted frantically and motioned to him to keep away
from it, but the said plaintiff took no heed of them.
The usual procedure in discharging passengers from a hydroplane is to wait until the propeller stops,
then turn the plane around by hand so as to have the rear or tail and thereof towards the beach, and
then take the passengers to shore in a banca. The pilot in charge of the plane has had fourteen
years experience, having first learned to fly during the World War. He is duly licensed by the
Department of Commerce of the United States and by the Department of Commerce and
Communications of the Government of the Philippine Islands.
The only question to decide in this appeal, which is raised in the first assignment of error, is whether
or not the defendant entity has complied with its contractual obligation to carry the plaintiff-appellant
Teh Le Kim safe and sound to his destination.
The contract entered into by the plaintiff Teh Le Kim and the defendant entity Philippine Aerial Taxi
Co., Inc., was that upon payment of the price of the passage, which the carrier had received, the
latter would carry the former by air in one of its hydroplanes and put him, safe and sound, on the
beach at Iloilo. After an uneventful flight, the hydroplane, which carried the plaintiff and his
companion, arrived at the Iloilo beach, as usual, with nothing more left to do but to take the plaintiff
and his companion, safe and sound, ashore. In order to do this, it was necessary to wait for the
propeller to stop, turn the rear or tail end of the plane towards the shore, take the passengers out by
the aforesaid rear or tail end thereof, place them in a banca and take them ashore. By sheer
common sense, the plaintiff ought to know that a propeller, be it that of a ship or of an aeroplane, is
dangerous while in motion and that to approach it is to run the risk of being caught and injured
thereby. He ought to know furthermore that inasmuch as the plane was on the water, he had to wait
for a banca to take him ashore. Notwithstanding the shouts and warning signals given him from the
shore by the representatives of the consignee firm, the plaintiff herein, not being a man of ordinary
prudence, hastily left the cabin of the plane, walked along one of the pontoons and directly into the
revolving propeller, while the banca which was to take him ashore was still some distance away and
the pilot was instructing the boatman to keep it at a safe distance from the plane. Under such
circumstances, it is not difficult to understand that the plaintiff-appellant acted with reckless

negligence in approaching the propeller while it was still in motion, and when the banca was not yet
in a position to take him. That the plaintiff-appellant's negligence alone was the direct cause of the
accident, is so clear that it is not necessary to cite authoritative opinions to support the conclusion
that the injury to his right arm and the subsequent amputation thereof were due entirely and
exclusively to his own imprudence and not to the slightest negligence attributable to the defendant
entity or to its agents. Therefore, he alone should suffer the consequences of his act.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the
costs against the appellant. So ordered.
G.R. No. 128607 January 31, 2000
ALFREDO MALLARI, SR. and ALFREDO MALLARI, JR., petitioners,
vs.
COURT OF APPEALS and BULLETIN PUBLISHING CORPORATION, respondents.
ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review on certiorari seek
to set aside the Decision of the Court of Appeals1 which reversed the court a quo and adjudged
petitioners to be liable for damages due to negligence as a common carrier resulting in the death of
a passenger.
On 14 October 1987, at about 5:00 o'clock in the morning, the passenger jeepney driven by
petitioner Alfredo Mallari Jr. and owned by his co-petitioner Alfredo Mallari Sr. collided with the
delivery van of respondent Bulletin Publishing Corp. (BULLETIN, for brevity) along the National
Highway in Barangay San Pablo, Dinalupihan, Bataan. Petitioner Mallari Jr. testified that he went to
the left lane of the highway and overtook a Fiera which had stopped on the right lane. Before he
passed by the Fiera, he saw the van of respondent BULLETIN coming from the opposite direction. It
was driven by one Felix Angeles. The sketch of the accident showed that the collision occurred after
Mallari Jr. overtook the Fiera while negotiating a curve in the highway. The points of collision were
the and the left rear portion of the passenger jeepney and the left front side of the delivery van of
BULLETIN. The two (2) right wheels of the delivery van were on the right shoulder of the road and
pieces of debris from the accident were found scattered along the shoulder of the road up to a
certain portion of the lane travelled by the passenger jeepney. The impact caused the jeepney to
turn around and fall on its left side resulting in injuries to its passengers one of whom was Israel
Reyes who eventually died due to the gravity of his injuries.
1wphi1.nt

On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a complaint for
damages with the Regional Trial Court of Olongapo City against Alfredo Mallari Sr. and Alfredo
Mallari Jr., and also against BULLETIN, its driver Felix Angeles, and the N.V. Netherlands Insurance
Company. The complaint alleged that the collision which resulted in the death of Israel Reyes was
caused by the fault and negligence of both drivers of the passenger jeepney and the Bulletin Isuzu
delivery van. The complaint also prayed that the defendants be ordered jointly and severally to pay
plaintiff P1,006,777.40 in compensatory damages, P40,000.00 for hospital and medical expenses,
P18,270.00 for burial expenses plus such amounts as may be fixed by the trial court for exemplary
damages and attorney's fees.
The trial court found that the proximate cause of the collision was the negligence of Felix Angeles,
driver of the Bulletin delivery van, considering the fact that the left front portion of the delivery truck
driven by Felix Angeles hit and bumped the left rear portion of the passenger jeepney driven by
Alfredo Mallari Jr. Hence, the trial court ordered BULLETIN and Felix Angeles to pay jointly and
severally Claudia G. Reyes, widow of the deceased victim, the sums of P42,106.93 for medical
expenses; P8,600.00 for funeral and burial expenses; P1,006,777.40 for loss of earning capacity;

P5,000.00 for moral damages and P10,000.00 for attorney's fees. The trial court also ordered N.V.
Netherlands Insurance Company to indemnify Claudia G. Reyes P12,000.00 as death indemnity and
P2,500.00 for funeral expenses which when paid should be deducted from the liabilities of
respondent BULLETIN and its driver Felix Angeles to the plaintiff. It also dismissed the complaint
against the other defendants Alfredo Mallari Sr. and Alfredo Mallari Jr.
On appeal the Court of Appeals modified the decision of the trial court and found no negligence on
the part of Angeles and consequently of his employer, respondent BULLETIN. Instead, the appellate
court ruled that the collision was caused by the sole negligence of petitioner Alfredo Mallari Jr. who
admitted that immediately before the collision and after he rounded a curve on the highway, he
overtook a Fiera which had stopped on his lane and that he had seen the van driven by Angeles
before overtaking the Fiera. The Court of Appeals ordered petitioners Mallari Jr. and Mallari Sr. to
compensate Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as indemnity
for death and P10,000.00 for attorney's fees. It absolved from any liability respondent BULLETIN,
Felix Angeles and N.V. Netherlands Insurance Company. Hence this petition.
Petitioners contend that there is no evidence to show that petitioner Mallari Jr. overtook a vehicle at
a curve on the road at the time of the accident and that the testimony of Angeles on the overtaking
made by Mallari Jr. was not credible and unreliable. Petitioner also submits that the trial court was in
a better position than the Court of Appeals to assess the evidence and observe the witnesses as
well as determine their credibility; hence, its finding that the proximate cause of the collision was the
negligence of respondent Angeles, driver of the delivery van owned by respondent BULLETIN,
should be given more weight and consideration.
We cannot sustain petitioners. Contrary to their allegation that there was no evidence whatsoever
that petitioner Mallari Jr. overtook a vehicle at a curve on the road at the time of or before the
accident, the same petitioner himself testified that such fact indeed did occur
Q: And what was that accident all about?
A: Well, what happened, sir, is that at about that time 5:00 o'clock in that morning of October
14 while I was negotiating on the highway at San Pablo, Dinalupihan, Bataan, I was then
following a blue Ford Fierra and my distance behind was about twenty (20) feet and then I
passed that blue Ford Fierra. I overtook and when I was almost on the right lane of the
highway towards Olongapo City there was an oncoming delivery van of the Bulletin
Publishing Corporation which bumped the left rear portion of the jeepney which I was driving
and as a result of which the jeepney . . . turned around and fell on its left side and as a result
of which some of my passengers including me were injured, sir . . . .
Q: Before you overtook the Ford Fierra jeepney did you look . . . whether there was any
vehicle coming towards you?
A: Yes, sir.
Q: Did you see the Bulletin van or the Press van coming towards you?
A: Yes, sir.
Q: At the moment the Ford Fierra . . . stop(ped) and in overtaking the Fierra, did you not
have an option to stop and not to overtake the Ford Fierra?

A: Well, at the time when the Ford Fierra stopped in front of me I slowed down with the
intention of applying the brake, however, when I saw the oncoming vehicle which is the
Press van is very far. . . which is 100 feet distance, . . . it is sufficient to overtake the Ford
Fierra so I overt(ook) it . . . .
Q: You said that you took into consideration the speed of the oncoming Press van but you
also could not estimate the speed of the press van because it was dark at that time, which of
these statements are true?
A: What I wanted to say, I took into consideration the speed of the oncoming vehicle, the
Press van, although at the moment I could not estimate the speed of the oncoming vehicle . .
. .2
The Court of Appeals correctly found, based on the sketch and spot report of the police authorities
which were not disputed by petitioners, that the collision occurred immediately after petitioner Mallari
Jr. overtook a vehicle in front of it while traversing a curve on the highway.3 This act of overtaking
was in clear violation of Sec. 41, pars. (a) and (b), of RA 4136 as amended, otherwise known as The
Land Transportation and Traffic Code which provides:
Sec. 41. Restrictions on overtaking and passing. (a) The driver of a vehicle shall not drive
to the left side of the center line of a highway in overtaking or passing another vehicle
proceeding in the same direction, unless such left side is clearly visible and is free of
oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be
made in safety.
(b) The driver of a vehicle shall not overtake or pass another vehicle proceeding in the same
direction when approaching the crest of a grade, nor upon a curve in the highway, where the
driver's view along the highway is obstructed within a distance of five hundred feet ahead
except on a highway having two or more lanes for movement of traffic in one direction where
the driver of a vehicle may overtake or pass another vehicle: Provided That on a highway,
within a business or residential district, having two or more lanes for movement of traffic in
one direction, the driver of a vehicle may overtake or pass another vehicle on the right.
The rule is settled that a driver abandoning his proper lane for the purpose of overtaking another
vehicle in an ordinary situation has the duty to see to it that the road is clear and not to proceed if he
cannot do so in safety.4When a motor vehicle is approaching or rounding a curve, there is special
necessity for keeping to the right side of the road and the driver does not have the right to drive on
the left hand side relying upon having time to turn to the right if a car approaching from the opposite
direction comes into view.5
In the instant case, by his own admission, petitioner Mallari Jr. already saw that the BULLETIN
delivery van was coming from the opposite direction and failing to consider the speed thereof since it
was still dark at 5:00 o'clock in the morning mindlessly occupied the left lane and overtook two (2)
vehicles in front of it at a curve in the highway. Clearly, the proximate cause of the collision resulting
in the death of Israel Reyes, a passenger of the jeepney, was the sole negligence of the driver of the
passenger jeepney, petitioner Alfredo Mallari Jr., who recklessly operated and drove his jeepney in a
lane where overtaking was not allowed by traffic rules. Under Art. 2185 of the Civil Code, unless
there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent
if at the time of the mishap he was violating a traffic regulation. As found by the appellate court,
petitioners failed to present satisfactory evidence to overcome this legal presumption.

The negligence and recklessness of the driver of the passenger jeepney is binding against petitioner
Mallari Sr., who admittedly was the owner of the passenger jeepney engaged as a common carrier,
considering the fact that in an action based on contract of carriage, the court need not make an
express finding of fault or negligence on the part of the carrier in order to hold it responsible for the
payment of damages sought by the passenger. Under Art. 1755 of the Civil Code, 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. Moreover, under
Art. 1756 of the Civil Code, in case of death or injuries to passengers, a common carrier is presumed
to have been at fault or to have acted negligently, unless it proves that it observed extraordinary
diligence. Further, pursuant to Art. 1759 of the same Code, it is liable for the death of or injuries to
passengers through the negligence or willful acts of the former's employees. This liability of the
common carrier does not cease upon proof that it exercised all the diligence of a good father of a
family in the selection of its employees. Clearly, by the contract of carriage, the carrier jeepney
owned by Mallari Sr. assumed the express obligation to transport the passengers to their destination
safely and to observe extraordinary diligence with due regard for all the circumstances, and any
injury or death that might be suffered by its passengers is right away attributable to the fault or
negligence of the carrier.
The monetary award ordered by the appellate court to be paid by petitioners to the widow of the
deceased passenger Israel M. Reyes of P1,006,777.50 for loss of earning capacity, P50,000.00 as
civil indemnity for death, and P10,000.00 for attorney's fees, all of which were not disputed by
petitioners, is a factual matter binding and conclusive upon this Court.
1w phi 1.nt

WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals dated 20
September 1995 reversing the decision of the trial court being in accord with law and evidence is
AFFIRMED. Consequently, petitioners are ordered jointly and severally to pay Claudia G. Reyes
P1,006,777.50 for loss of earning capacity, P50,000.00 as civil indemnity for death, and P10,000.00
for attorney's fees. Costs against petitioners.
SO ORDERED.
G.R. No. 125018

April 6, 2000

REMMAN ENTERPRISES, INC., petitioner,

vs.
COURT OF APPEALS and CRISPIN E. LAT, respondents.
REMMAN ENTERPRISES, INC. (REMMAN), and CRISPIN E. LAT are adjoining landowners in
Barangay Bugtong Na Pulo, Lipa City. The land of Lat containing an area of 1.8 hectares is
agricultural and planted mostly with fruit trees while REMMAN occupies a land area of fifteen (15)
hectares six (6) hectares of which are devoted to its piggery business. REMMAN's land is one and a
half (1 1/2) meters higher in elevation than that of respondent Lat.
Sometime in July 1984 Lat noticed that REMMAN's waste disposal lagoon was already overflowing
and inundating one-fourth (1/4) of Lat's plantation. He made several representations with REMMAN
but they fell on deaf ears. On 14 March 1985, after almost one (1) hectare of Lat's plantation was
already inundated with water containing pig manure, as a result of which the trees growing on the
flooded portion started to wither and die, Lat filed a complaint for damages with preliminary
mandatory injunction against REMMAN. Lat alleged that the acidity of the soil in his plantation
increased because of the overflow of the water heavy with pig manure from REMMAN's piggery
farm.

REMMAN denied all the allegations of Lat and raised as an affirmative defense that measures such
as the construction of additional lagoons were already adopted to contain the waste water coming
from its piggery to prevent any damage to the adjoining estates.
After conducting an ocular inspection and evaluating the evidence of both parties the Regional Trial
Court found that indeed REMMANs waste disposal lagoon overflowed with the contaminated water
flooding one (1) hectare of Lat's plantation. The waste water was ankle-deep and caused death and
destruction to one (1) jackfruit tree, fifteen (15) coconut trees, one hundred twenty-two (122) coffee
trees, and an unspecified number of mango trees, bananas and vegetables. As a consequence, the
trial court ordered REMMAN to indemnify Lat P186,975.00 for lost profits for three (3) crop years and
P30,000.00 as attorney's fees.1
The decision of the court a quo was affirmed in toto by the Court of Appeals.2
In this Petition for Review on Certiorari REMMAN prays that we pass upon the findings of the trial
court as well as of the appellate court. REMMAN insists that factual findings of lower courts may be
passed upon, reviewed and reversed: (a) when the conclusion is a finding grounded entirely on
speculation, surmises or conjectures; (b) when the inference made is manifestly mistaken, absurd or
impossible; (c) when there is grave abuse of discretion; (d) when the judgment is based on a
misapprehension of facts; (e) when the Court of Appeals manifestly overlooked certain relevant facts
not disputed by the parties and which, if properly considered, would justify a different conclusion; (f)
when the conclusions of the Court of Appeals are not supported by the evidence on record; (g) when
facts of substance were overlooked which, if correctly considered, might have changed the outcome
of the case; and, (h) when the findings of the Court of Appeals are not in accord with what
reasonable men would readily accept are the correct inferences from the evidence extant in the
records.3
Indeed, in the abovementioned instances, the factual milieu of a particular case may be passed
upon, reversed or modified by this Court. But examination of the record reveals that all the above
instances are unavailing. From this point of view alone the instant petition is dismissible.
Nevertheless, we shall discuss them hereunder to dispose finally of the contentions of REMMAN.
First, REMMAN argues that its liability for the damages suffered by Lat was not clearly established.
We disagree. During the ocular inspection conducted by the lower court where representatives of
both parties were present, it was established that the waste water containing pig manure was
continuously flowing from REMMAN's piggery farm to Lat's plantation. The water was ankle-deep
and flooded one (1) hectare of Lat's plantation. The overflow of the "acidic, malodorous and polluted
water" continued from June 1984 to March 1985 thus destroying one (1) jackfruit tree, fifteen (15)
coconut trees, one hundred an twenty-two (122) coffee trees, and an unspecified number of mango
trees, bananas and vegetables.4
In addition, the appellate court found that there was indeed negligence on the part of REMMAN
which directly caused the damage to the plantation of Lat. Thus
. . . Negligence was clearly established. It is uncontroverted that the land of appellee was
flooded on account of the overflow of acidic, malodorous and polluted water coming from the
adjacent piggery farm of appellant sometime in May 1984. This resulted in the impairment of
the productivity of appellee's land as well as the eventual destruction and death of several
fruit trees, such as coconuts, coffee, jackfruits, bananas and other plants . . . . Appellant
cannot avoid liability because their negligence was the proximate cause of the damage.
Appellee's property was practically made a catch-basin of polluted water and other noxious

substances emptying from appellant's piggery which could have been prevented had it not
been for the negligence of appellant arising from its: (a) failure to monitor the increases in the
level of water in the lagoons before, during and after the heavy downpours which occurred
during the rainy months of 1984; (b) failure to augment the existing lagoons prior to the
incident, notwithstanding the fact that at the time of the flooding, the piggery had grown to a
capacity of 11,000 heads, and considering that it was reasonably forseeable that the existing
waste disposal facilities were no longer adequate to accomodate the increasing volume of
waste matters in such a big farm; and more importantly, (c) the repeated failure to comply
with their promise to appellee.5
Second, REMMAN argues that the trial court as well as the Court of Appeals should not have
rejected its request for the production of Lat's income tax returns. According to REMMAN had Lat's
income tax returns been produced, the issue of the alleged damages suffered by Lat would have
been settled.
This argument is moot, if not trite. For this matter has been laid to rest when we affirmed the Court of
Appeals' decision in an earlier case involving the same parties.6 In sustaining the trial court's quashal
of the subpoenaduces tecum previously issued compelling Lat to produce his income tax returns for
the years 1982-1986, the appellate court explained that the production of the income tax returns
would not necessarily serve to prove the special and affirmative defenses set up by REMMAN nor
rebut Lat's testimony regarding the losses he sustained due to the piggery. The tax returns per
se could not reflect the total amount of damages suffered by Lat, as income losses from a portion of
the plantation could be offset by any profit derived from the rest of the plantation or from other
sources of income. Conversely, losses incurred from other sources of income would be totally
unrelated to the income from the particular portion of the plantation flooded with waste matter
coming from REMMAN's piggery.7
Third, REMMAN contends that the damages allegedly sustained by Lat have not been satisfactorily
established.
1wphi1

We a not convinced. The factual findings of the court a quo rightly support its conclusions on this
respect
Coming now to the issue of damages, We find appellant's allegations not well-taken.
Appellant contends that actual and compensatory damages require evidentiary proof, and
there being no evidence presented as to the necessity of the award for damages, it was
erroneous for the lower court to have made such award. It must be remembered that after
the ocular inspection, the court a quo rendered an inventory of dead and rotten trees and
plants found in appellee's property. Appellee also testified on the approximate annual
harvest and fair market value thereof. Significantly, no opposition or controverting evidence
was presented by appellant on the matter. Hence, appellant is bound thereby and cannot
now be heard to complain. As correctly held by the court a quo:
An ocular inspection has been conducted by the trial court. The inventory of the trees
damaged and the itemized valuation placed therein by private respondent after the
ocular inspection which is not rebutted by the petitioner, is the more accurate
indicator of the said amount prayed for as damages. If the valuation is indeed
unreasonable, petitioner should present controverting evidence of the fair market
value of the crops involved. The trial court held that the private respondent himself
had been subjected to extensive cross and re-cross examination by the counsel for
the petitioner on the amount of damages.8

Finally, REMMAN complains that the damages, if any, were due to a fortuitous event.
Again, we cannot agree with petitioner. We defer instead to the findings opinions expressed by the
lower courts
Even assuming that the heavy rains constituted an act of God, by reason of their negligence,
the fortuitous event became humanized, rendering appellants liable for the ensuing
damages. In National Power Corporation v. Court of Appeals, 233 SCRA 649 (1993), the
Supreme Court held:
Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to
escape liability for the loss or damage sustained by private respondents since they,
the petitioners, were guilty of negligence. This event then was not occasioned
exclusively by an act of God or force majeure; a human factor negligence or
imprudence had intervened. The effect then of the force majeure in question may
be deemed to have, even if only partly, resulted from the participation of man. Thus,
the whole occurrence was thereby humanized, as it were, and removed from the
rules applicable to acts of God.
As regards the alleged natural easement imposed upon the property of appellee, resort to
pertinent provisions of applicable law is imperative. Under the Civil Code, it is provided:
Art. 637. Lower estates are obliged to receive the waters which naturally and without
the intervention of man descend from the higher estates, as well as the stones or
earth which they carry with them.
The owner of the lower estate cannot construct works which will impede this
easement; neither can the owner of the higher estate make works which will increase
the burden.
A similar provision is found in the Water Code of the Philippines (P.D. No. 1067), which
provides:
Art. 50. Lower estates are obliged to receive the water which naturally and without
the intervention of man flow from the higher estates, as well as the stone or earth
which they carry with them.
The owner of the lower estate cannot construct works which will impede this natural
flow, unless he provides an alternative method of drainage; neither can the owner of
the higher estate make works which will increase this natural flow.
As worded, the two (2) aforecited provisions impose a natural easement upon the lower
estate to receive the waters which naturally and without the intervention of man descend
from higher states. However, where the waters which flow from a higher state are those
which are artificially collected in man-made lagoons, any damage occasioned thereby
entitles the owner of the lower or servient estate to compensation.9
On the basis of the foregoing discussion, it is crystal clear that REMMAN is directly accountable to
Lat for the damages sustained by him. The negligence of REMMAN in maintaining the level of waste
water in its lagoons has been satisfactorily established. The extent of damages suffered by Lat
remains unrebutted; in fact, has been proved.

WHEREFORE, the petition is DENIED. The 19 October 1995 Decision of the Court of Appeals
affirming that of the Regional Trial Court-Br. 16, Lipa City, holding petitioner Remman Enterprises,
Inc. (REMMAN) liable to private respondent Crispin E. Lat for damages and to indemnify the latter
P186,975.00 for lost profits for three (3) crop years and P30,000.00 as attorneys fees, is
AFFIRMED. Costs against petitioner.
1w phi 1.nt

SO ORDERED.
G.R. No. 112392

February 29, 2000

BANK OF THE PHILIPPINE ISLANDS, petitioner,

vs.
COURT OF APPEALS and BENJAMIN C. NAPIZA, respo
This is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CV No.
37392 affirming in toto that of the Regional Trial Court of Makati, Branch 139,2 which dismissed the
complaint filed by petitioner Bank of the Philippine Islands against private respondent Benjamin C.
Napiza for sum of money.
On September 3, 1987, private respondent deposited in Foreign Currency Deposit Unit (FCDU)
Savings Account No. 028-1873 which he maintained in petitioner bank's Buendia Avenue Extension
Branch, Continental Bank Manager's Check No. 000147574 dated August 17, 1984, payable to
"cash" in the amount of Two Thousand Five Hundred Dollars ($2,500.00) and duly endorsed by
private respondent on its dorsal side.5 It appears that the check belonged to a certain Henry who
went to the office of private respondent and requested him to deposit the check in his dollar account
by way of accommodation and for the purpose of clearing the same. Private respondent acceded,
and agreed to deliver to Chan a signed blank withdrawal slip, with the understanding that as soon as
the check is cleared, both of them would go to the bank to withdraw the amount of the check upon
private respondent's presentation to the bank of his passbook.
Using the blank withdrawal slip given by private respondent to Chan, on October 23, 1984, one
Ruben Gayon, Jr. was able to withdraw the amount of $2,541.67 from FCDU Savings Account No.
028-187. Notably, the withdrawal slip shows that the amount was payable to Ramon A. de Guzman
and Agnes C. de Guzman and was duly initialed by the branch assistant manager, Teresita Lindo.6
On November 20, 1984, petitioner received communication from the Wells Fargo Bank International
of New York that the said check deposited by private respondent was a counterfeit check7 because it
was "not of the type or style of checks issued by Continental Bank International."8 Consequently, Mr.
Ariel Reyes, the manager of petitioner's Buendia Avenue Extension Branch, instructed one of its
employees, Benjamin D. Napiza IV, who is private respondent's son, to inform his father that the
check bounced.9 Reyes himself sent a telegram to private respondent regarding the dishonor of the
check. In turn, private respondent's son wrote to Reyes stating that the check been assigned "for
encashment" to Ramon A. de Guzman and/or Agnes C. de Guzman after it shall have been cleared
upon instruction of Chan. He also said that upon learning of the dishonor of the check, his father
immediately tried to contact Chan but the latter was out of town.10
Private respondent's son undertook to return the amount of $2,500.00 to petitioner bank. On
December 18, 1984, Reyes reminded private respondent of his son's promise and warned that
should he fail to return that amount within seven (7) days, the matter would be referred to the bank's
lawyers for appropriate action to protect the bank's interest.11 This was followed by a letter of the
bank's lawyer dated April 8, 1985 demanding the return of the $2,500.00.12

In reply, private respondent wrote petitioner's counsel on April 20, 198513 stating that he deposited
the check "for clearing purposes" only to accommodate Chan. He added:
Further, please take notice that said check was deposited on September 3, 1984 and
withdrawn on October 23, 1984, or a total period of fifty (50) days had elapsed at the time of
withdrawal. Also, it may not be amiss to mention here that I merely signed an authority to
withdraw said deposit subject to its clearing, the reason why the transaction is not reflected
in the passbook of the account. Besides, I did not receive its proceeds as may be gleaned
from the withdrawal slip under the captioned signature of recipient.
1wphi1.nt

If at all, my obligation on the transaction is moral in nature, which (sic) I have been and is
(sic) still exerting utmost and maximum efforts to collect from Mr. Henry Chan who is directly
liable under the circumstances.
xxx

xxx

xxx

On August 12, 1986, petitioner filed a complaint against private respondent, praying for the return of
the amount of $2,500.00 or the prevailing peso equivalent plus legal interest from date of demand to
date of full payment, a sum equivalent to 20% of the total amount due as attorney's fees, and
litigation and/or costs of suit.
Private respondent filed his answer, admitting that he indeed signed a "blank" withdrawal slip with
the understanding that the amount deposited would be withdrawn only after the check in question
has been cleared. He likewise alleged that he instructed the party to whom he issued the signed
blank withdrawal slip to return it to him after the bank draft's clearance so that he could lend that
party his passbook for the purpose of withdrawing the amount of $2,500.00. However, without his
knowledge, said party was able to withdraw the amount of $2,541.67 from his dollar savings account
through collusion with one of petitioner's employees. Private respondent added that he had "given
the Plaintiff fifty one (51) days with which to clear the bank draft in question." Petitioner should have
disallowed the withdrawal because his passbook was not presented. He claimed that petitioner had
no one to blame except itself "for being grossly negligent;" in fact, it had allegedly admitted having
paid the amount in the check "by mistake" . . . "if not altogether due to collusion and/or bad faith on
the part of (its) employees." Charging petitioner with "apparent ignorance of routine bank
procedures," by way of counterclaim, private respondent prayed for moral damages of P100,000.00,
exemplary damages of P50,000.00 and attorney's fees of 30% of whatever amount that would be
awarded to him plus an honorarium of P500.00 per appearance in court.
Private respondent also filed a motion for admission of a third party complaint against Chan. He
alleged that "thru strategem and/or manipulation," Chan was able to withdraw the amount of
$2,500.00 even without private respondent's passbook. Thus, private respondent prayed that third
party defendant Chan be made to refund to him the amount withdrawn and to pay attorney's fees of
P5,000.00 plus P300.00 honorarium per appearance.
Petitioner filed a comment on the motion for leave of court to admit the third party complaint,
whenever it asserted that per paragraph 2 of the Rules and Regulations governing BPI savings
accounts, private respondent alone was liable "for the value of the credit given on account of the
draft or check deposited." It contended that private respondent was estopped from disclaiming
liability because he himself authorized the withdrawal of the amount by signing the withdrawal slip.
Petitioner prayed for the denial of the said motion so as not to unduly delay the disposition of the
main case asserting that private respondent's claim could be ventilated in another case.

Private respondent replied that for the parties to obtain complete relief and to avoid multiplicity of
suits, the motion to admit third party complaint should be granted. Meanwhile, the trial court issued
orders on August 25, 1987 and October 28, 1987 directing private respondent to actively participate
in locating Chan. After private respondent failed to comply, the trial court, on May 18, 1988,
dismissed the third party complaint without prejudice.
On November 4, 1991, a decision was rendered dismissing the complaint. The lower court held that
petitioner could not hold private respondent liable based on the check's face value alone. To so hold
him liable "would render inutile the requirement of "clearance" from the drawee bank before the
value of a particular foreign check or draft can be credited to the account of a depositor making such
deposit." The lower court further held that "it was incumbent upon the petitioner to credit the value of
the check in question to the account of the private respondent only upon receipt of the notice of final
payment and should not have authorized the withdrawal from the latter's account of the value or
proceeds of the check." Having admitted that it committed a "mistake" in not waiting for the
clearance of the check before authorizing the withdrawal of its value or proceeds, petitioner should
suffer the resultant loss.
On appeal, the Court of Appeals affirmed the lower court's decision. The appellate court held that
petitioner committed "clears gross negligence" in allowing Ruben Gayon, Jr. to withdraw the money
without presenting private respondent's passbook and, before the check was cleared and in crediting
the amount indicated therein in private respondent's account. It stressed that the mere deposit of a
check in private respondent's account did not mean that the check was already private respondent's
property. The check still had to be cleared and its proceeds can only be withdrawn upon
presentation of a passbook in accordance with the bank's rules and regulations. Furthermore,
petitioner's contention that private respondent warranted the check's genuineness by endorsing it is
untenable for it would render useless the clearance requirement. Likewise, the requirement of
presentation of a passbook to ascertain the propriety of the accounting reflected would be a
meaningless exercise. After all, these requirements are designed to protect the bank from deception
or fraud.
The Court of Appeals cited the case of Roman Catholic Bishop of Malolos, Inc. v. IAC,14 where this
Court stated that a personal check is not legal tender or money, and held that the check deposited in
this case must be cleared before its value could be properly transferred to private respondent's
account.
Without filing a motion for the reconsideration of the Court of Appeals' Decision, petitioner filed this
petition for review on certiorari, raising the following issues:
1. WHETHER OR NOT RESPONDENT NAPIZA IS LIABLE UNDER HIS WARRANTIES AS
A GENERAL INDORSER.
2. WHETHER OR NOT A CONTRACT OF AGENCY WAS CREATED BETWEEN
RESPONDENT NAPIZA AND RUBEN GAYON.
3. WHETHER OR NOT PETITIONER WAS GROSSLY NEGLIGENT IN ALLOWING THE
WITHDRAWAL.
Petitioner claims that private respondent, having affixed his signature at the dorsal side of the check,
should be liable for the amount stated therein in accordance with the following provision of the
Negotiable Instruments Law (Act No. 2031):

Sec. 66. Liability of general indorser. Every indorser who indorses without qualification,
warrants to all subsequent holders in due course
(a) The matters and things mentioned in subdivisions (a), (b), and (c) of the next preceding
section; and
(b) That the instrument is at the time of his indorsement, valid and subsisting.
And, in addition, he engages that on due presentment, it shall be accepted or paid, or both,
as the case may be, according to its tenor, and that if it be dishonored, and the necessary
proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to
any subsequent indorser who may be compelled to pay it.
Sec. 65, on the other hand, provides for the following warranties of a person negotiating an
instrument by delivery or by qualified indorsement: (a) that the instrument is genuine and in all
respects what it purports to be; (b) that he has a good title to it, and (c) that all prior parties had
capacity to contract.15 In People v. Maniego,16 this Court described the liabilities of an indorser as
follows:
Appellant's contention that as mere indorser, she may not be liable on account of the
dishonor of the checks indorsed by her, is likewise untenable. Under the law, the holder or
last indorsee of a negotiable instrument has the right "to enforce payment of the instrument
for the full amount thereof against all parties liable thereon. Among the "parties liable
thereon." Is an indorser of the instrument, i.e., "a person placing his signature upon an
instrument otherwise than as a maker, drawer or acceptor * * unless he clearly indicated by
appropriate words his intention to be bound in some other capacity." Such an indorser "who
indorses without qualification," inter alia "engages that on due presentment, * * (the
instrument) shall be accepted or paid, or both, as the case may be, according to its tenor,
and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he
will pay the amount thereof to the holder, or any subsequent indorser who may be compelled
to pay it." Maniego may also be deemed an "accommodation party" in the light of the
facts, i.e., a person "who has signed the instrument as maker, drawer, acceptor, or indorser,
without receiving value thereof, and for the purpose of lending his name to some other
person." As such, she is under the law "liable on the instrument to a holder for value,
notwithstanding such holder at the time of taking the instrument knew * * (her) to be only an
accommodation party," although she has the right, after paying the holder, to obtain
reimbursement from the party accommodated, "since the relation between them is in effect
that of principal and surety, the accommodation party being the surety.
It is thus clear that ordinarily private respondent may be held liable as an indorser of the check or
even as an accommodation party.17 However, to hold private respondent liable for the amount of the
check he deposited by the strict application of the law and without considering the attending
circumstances in the case would result in an injustice and in the erosion of the public trust in the
banking system. The interest of justice thus demands looking into the events that led to the
encashment of the check.
Petitioner asserts that by signing the withdrawal slip, private respondent "presented the opportunity
for the withdrawal of the amount in question." Petitioner relied "on the genuine signature on the
withdrawal slip, the personality of private respondent's son and the lapse of more than fifty (50) days
from date of deposit of the Continental Bank draft, without the same being returned yet."18 We hold,
however, that the propriety of the withdrawal should be gauged by compliance with the rules thereon
that both petitioner bank and its depositors are duty-bound to observe.

In the passbook that petitioner issued to private respondent, the following rules on withdrawal of
deposits appear:
4. Withdrawals must be made by the depositor personally but in some exceptional
circumstances, the Bank may allow withdrawal by another upon the depositor's written
authority duly authenticated; and neither a deposit nor a withdrawal will be permitted except
upon the presentation of the depositor's savings passbook, in which the amount deposited
withdrawn shall be entered only by the Bank.
5. Withdrawals may be made by draft, mail or telegraphic transfer in currency of the account
at the request of the depositor in writing on the withdrawal slip or by authenticated cable.
Such request must indicate the name of the payee/s, amount and the place where the funds
are to be paid. Any stamp, transmission and other charges related to such withdrawals shall
be for the account of the depositor and shall be paid by him/her upon demand. Withdrawals
may also be made in the form of travellers checks and in pesos. Withdrawals in the form of
notes/bills are allowed subject however, to their (availability).
6. Deposits shall not be subject to withdrawal by check, and may be withdrawal only in the
manner above provided, upon presentation of the depositor's savings passbook and with the
withdrawal form supplied by the Bank at the counter.19
Under these rules, to be able to withdraw from the savings account deposit under the Philippine
foreign currency deposit system, two requisites must be presented to petitioner bank by the person
withdrawing an amount: (a) a duly filled-up withdrawal slip, and (b) the depositor's passbook. Private
respondent admits he signed a blank withdrawal slip ostensibly in violation of Rule No. 6 requiring
that the request for withdrawal must name the payee, the amount to be withdrawn and the place
where such withdrawal should be made. That the withdrawal slip was in fact a blank one with only
private respondent's two signatures affixed on the proper spaces is buttressed by petitioner's
allegation in the instant petition that had private respondent indicated therein the person authorized
to receive the money, then Ruben Gayon, Jr. could not have withdrawn any amount. Petitioner
contends that "(I)n failing to do so (i.e., naming his authorized agent), he practically authorized any
possessor thereof to write any amount and to collect the same."20
Such contention would have been valid if not for the fact that the withdrawal slip itself indicates a
special instruction that the amount is payable to "Ramon A. de Guzman &/or Agnes C. de Guzman."
Such being the case, petitioner's personnel should have been duly warned that Gayon, who was
also employed in petitioner's Buendia Ave. Extension branch,21 was not the proper payee of the
proceeds of the check. Otherwise, either Ramon or Agnes de Guzman should have issued another
authority to Gayon for such withdrawal. Of course, at the dorsal side of the withdrawal slip is an
"authority to withdraw" naming Gayon the person who can withdraw the amount indicated in the
check. Private respondent does not deny having signed such authority. However, considering
petitioner's clear admission that the withdrawal slip was a blank one except for private respondent's
signature, the unavoidable conclusion is that the typewritten name of "Ruben C. Gayon, Jr." was
intercalated and thereafter it was signed by Gayon or whoever was allowed by petitioner to withdraw
the amount. Under these facts, there could not have been a principal-agent relationship between
private respondent and Gayon so as to render the former liable for the amount withdrawn.
Moreover, the withdrawal slip contains a boxed warning that states: "This receipt must be signed and
presented with the corresponding foreign currency savings passbook by the depositor in person. For
withdrawals thru a representative, depositor should accomplish the authority at the back." The
requirement of presentation of the passbook when withdrawing an amount cannot be given mere lip
service even though the person making the withdrawal is authorized by the depositor to do so. This

is clear from Rule No. 6 set out by petitioner so that, for the protection of the bank's interest and as a
reminder to the depositor, the withdrawal shall be entered in the depositor's passbook. The fact that
private respondent's passbook was not presented during the withdrawal is evidenced by the entries
therein showing that the last transaction that he made with the bank was on September 3, 1984, the
date he deposited the controversial check in the amount of $2,500.00.22
In allowing the withdrawal, petitioner likewise overlooked another rule that is printed in the passbook.
Thus:
2. All deposits will be received as current funds and will be repaid in the same
manner; provided, however, that deposits of drafts, checks, money orders, etc. will be
accented as subject to collection only and credited to the account only upon receipt of the
notice of final payment. Collection charges by the Bank's foreign correspondent in effecting
such collection shall be for the account of the depositor. If the account has sufficient balance,
the collection shall be debited by the Bank against the account. If, for any reason, the
proceeds of the deposited checks, drafts, money orders, etc., cannot be collected or if the
Bank is required to return such proceeds, the provisional entry therefor made by the Bank in
the savings passbook and its records shall be deemed automatically cancelled regardless of
the time that has elapsed, and whether or not the defective items can be returned to the
depositor; and the Bank is hereby authorized to execute immediately the necessary
corrections, amendments or changes in its record, as well as on the savings passbook at the
first opportunity to reflect such cancellation. (Emphasis and underlining supplied.)
As correctly held by the Court of Appeals, in depositing the check in his name, private respondent
did not become the outright owner of the amount stated therein. Under the above rule, by depositing
the check with petitioner, private respondent was, in a way, merely designating petitioner as the
collecting bank. This is in consonance with the rule that a negotiable instrument, such as a check,
whether a manager's check or ordinary check, is not legal tender.23 As such, after receiving the
deposit, under its own rules, petitioner shall credit the amount in private respondent's account or
infuse value thereon only after the drawee bank shall have paid the amount of the check or the
check has been cleared for deposit. Again, this is in accordance with ordinary banking practices and
with this Court's pronouncement that "the collecting bank or last endorser generally suffers the loss
because has the duty to ascertain the genuineness of all prior endorsements considering that the act
of presenting the check for payment to the drawee is an assertion that the party making the
presentment has done its duty to ascertain the genuineness of the endorsements."24 The rule finds
more meaning in this case where the check involved is drawn on a foreign bank and therefore
collection is more difficult than when the drawee bank is a local one even though the check in
question is a manager's check.25
In Banco Atlantico v. Auditor General,26 Banco Atlantico, a commercial bank in Madrid, Spain, paid
the amounts represented in three (3) checks to Virginia Boncan, the finance officer of the Philippine
Embassy in Madrid. The bank did so without previously clearing the checks with the drawee bank,
the Philippine National Bank in New York, on account of the "special treatment" that Boncan
received from the personnel of Banco Atlantico's foreign department. The Court held that the
encashment of the checks without prior clearance is "contrary to normal or ordinary banking practice
specially so where the drawee bank is a foreign bank and the amounts involved were large."
Accordingly, the Court approved the Auditor General's denial of Banco Atlantico's claim for payment
of the value of the checks that was withdrawn by Boncan.
Said ruling brings to light the fact that the banking business is affected with public interest. By the
nature of its functions, a bank is under obligation to treat the accounts of its depositors "with
meticulous care, always having in mind the fiduciary nature of their relationship."27 As such, in

dealing with its depositors, a bank should exercise its functions not only with the diligence of a good
father of a family but it should do so with the highest degree of care.28
In the case at bar, petitioner, in allowing the withdrawal of private respondent's deposit, failed to
exercise the diligence of a good father of a family. In total disregard of its own rules, petitioner's
personnel negligently handled private respondent's account to petitioner's detriment. As this Court
once said on this matter:
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. The seventy-eight (78)-yearold, yet still relevant, case of Picart v. Smith, provides that test by which to determine the
existence of negligence in a particular case which may be stated as follows: 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 pater-familias 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.29
Petitioner violated its own rules by allowing the withdrawal of an amount that is definitely over and
above the aggregate amount of private respondent's dollar deposits that had yet to be cleared. The
bank's ledger on private respondent's account shows that before he deposited $2,500.00, private
respondent had a balance of only $750.00.30 Upon private respondent's deposit of $2,500.00 on
September 3, 1984, that amount was credited in his ledger as a deposit resulting in the
corresponding total balance of $3,250.00.31 On September 10, 1984, the amount of $600.00 and the
additional charges of $10.00 were indicated therein as withdrawn thereby leaving a balance
$2,640.00. On September 30, 1984, an interest of $11.59 was reflected in the ledger and on October
23, 1984, the amount of $2,541.67 was entered as withdrawn with a balance of $109.92.32 On
November 19, 1984 the word "hold" was written beside the balance of $109.92.33 That must have
been the time when Reyes, petitioner's branch manager, was informed unofficially of the fact that the
check deposited was a counterfeit, but petitioner's Buendia Ave. Extension Branch received a copy
of the communication thereon from Wells Fargo Bank International in New York the following day,
November 20, 1984.34 According to Reyes, Wells Fargo Bank International handled the clearing of
checks drawn against U.S. banks that were deposited with petitioner.35
From these facts on record, it is at once apparent that petitioner's personnel allowed the withdrawal
of an amount bigger than the original deposit of $750.00 and the value of the check deposited in the
amount of $2,500.00 although they had not yet received notice from the clearing bank in the United
States on whether or not the check was funded. Reyes' contention that after the lapse of the 35-day
period the amount of a deposited check could be withdrawn even in the absence of a clearance
thereon, otherwise it could take a long time before a depositor could make a withdrawal,36 is
untenable. Said practice amounts to a disregard of the clearance requirement of the banking system.
While it is true that private respondent's having signed a blank withdrawal slip set in motion the
events that resulted in the withdrawal and encashment of the counterfeit check, the negligence of
petitioner's personnel was the proximate cause of the loss that petitioner sustained. Proximate
cause, which is determined by a mixed consideration of logic, common sense, policy and precedent,
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."37 The proximate
cause of the withdrawal and eventual loss of the amount of $2,500.00 on petitioner's part was its

personnel's negligence in allowing such withdrawal in disregard of its own rules and the clearing
requirement in the banking system. In so doing, petitioner assumed the risk of incurring a loss on
account of a forged or counterfeit foreign check and hence, it should suffer the resulting damage.

1wphi 1.nt

WHEREFORE, the petition for review on certiorari is DENIED. The Decision of the Court of Appeals
in CA-G.R. CV No. 37392 is AFFIRMED.
SO ORDERED.
G.R. No. 1719

January 23, 1907

M. H., RAKES, plaintiff-appellee,

vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment
of the defendant, was at work transporting iron rails from a barge in the harbor to the company's yard
near the malecon in Manila. Plaintiff claims that but one hand car was used in this work. The
defendant has proved that there were two immediately following one another, upon which were piled
lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay upon two
crosspieces or sills secured to the cars, but without side pieces or guards to prevent them from
slipping off. According to the testimony of the plaintiff, the men were either in the rear of the car or at
its sides. According to that defendant, some of them were also in front, hauling by a rope. At a
certain spot at or near the water's edge the track sagged, the tie broke, the car either canted or
upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards amputated at
about the knee.
This first point for the plaintiff to establish was that the accident happened through the negligence of
the defendant. The detailed description by the defendant's witnesses of the construction and quality
of the track proves that if was up to the general stranded of tramways of that character, the
foundation consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to 10
feet long laid, on the surface of the ground, upon which at a right angle rested stringers of the same
thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the blocks
were the ties to which the tracks were fastened. After the road reached the water's edge, the blocks
or crosspieces were replaced with pilling, capped by timbers extending from one side to the other.
The tracks were each about 2 feet wide and the two inside rails of the parallel tracks about 18 inches
apart. It was admitted that there were no side pieces or guards on the car; that where no ends of the
rails of the track met each other and also where the stringers joined, there were no fish plates. the
defendant has not effectually overcome the plaintiff's proof that the joints between the rails were
immediately above the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is admitted in
the briefs and in the argument to have been the dislodging of the crosspiece or piling under the
stringer by the water of the bay raised by a recent typhoon. The superintendent of the company
attributed it to the giving way of the block laid in the sand. No effort was made to repair the injury at
the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying from
one half inch to one inch and a half, was therafter apparent to the eye, and a fellow workman of the
plaintiff swears that the day before the accident he called the attention of McKenna, the foreman, to
it and asked by simply straightening out the crosspiece, resetting the block under the stringer and
renewing the tie, but otherwise leaving the very same timbers as before. It has not proven that the
company inspected the track after the typhoon or had any proper system of inspection.

In order to charge the defendant with negligence, it was necessary to show a breach of duty on its
part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully build
the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the roadway as
soon as the depression in it became visible. It is upon the failure of the defendant to repair the
weakened track, after notice of its condition, that the judge below based his judgment.
This case presents many important matters for our decision, and first among them is the standard of
duty which we shall establish in our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to enact designed to
put these relations on a fair basis in the form of compensation or liability laws or the institution of
insurance. In the absence of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions
of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice would
constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction of
regulations, shall cause an injury which, had malice intervened, would have constituted a
crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants
and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary conclusion from
these collated laws is that the remedy for injuries through negligence lies only in a criminal action in
which the official criminally responsible must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the tract, and on his prosecution a
suitable fine should have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject to
the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
SEC. 1903. The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity, the mother, is liable for the damages caused by
the minors who live with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be
employed or in the performance of their duties.
xxx

xxx

xxx

The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damages.
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls under
civil rather than criminal jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these articles of effect, would shut out litigants
their will from the civil courts, would make the assertion of their rights dependent upon the selection
for prosecution of the proper criminal offender, and render recovery doubtful by reason of the strict
rules of proof prevailing in criminal actions. Even if these articles had always stood alone, such a
construction would be unnecessary, but clear light is thrown upon their meaning by the provisions of
the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though n ever in
actual force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111
of this law, both classes of action, civil and criminal, might be prosecuted jointly or separately, but
while the penal action was pending the civil was suspended. According to article 112, the penal
action once started, the civil remedy should be sought therewith, unless it had been waived by the
party injured or been expressly reserved by him for civil proceedings for the future. If the civil action
alone was prosecuted, arising out of a crime that could be enforced by only on private complaint, the
penal action thereunder should be extinguished. These provisions are in harmony with those of
articles 23 and 133 of our Penal Code on the same subject.
An examination of this topic might be carried much further, but the citations of these articles suffices
to show that the civil liability was not intended to be merged in the criminal nor even to be
suspended thereby, except as expressly provided by law. Where an individual is civilly liable for a
negligent act or omission, it is not required that the inured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to the enforcement of the civil
right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary
in respect of criminal actions against his employees only while they are process of prosecution, or in
so far as they determinate the existence of the criminal act from which liability arises, and his
obligation under the civil law and its enforcement in the civil courts is not barred thereby unless by
election of the injured person. Inasmuch as no criminal in question, the provisions of the Penal Code
can not affect this action. This construction renders it unnecessary to finally determine here whether
this subsidiary civil liability in penal actions survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not

punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of
the Penal Code. It has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence punished by the law,
within the meaning of articles 1092 and 1093. More than this, however, it can not be said to fall
within the class of acts unpunished by the law, the consequences of which are regulated by articles
1902 and 1903 of the Civil Code. The acts to which these articles are applicable are understood to
be those and growing out of preexisting duties of the parties to one another. But were relations
already formed give rise to duties, whether springing from contract or quasi contract, then breaches
of those duties are subject to articles 1101, 1103, and 1104, of the same code. A typical application
of the distinction may be found in the consequences of a railway accident due to defective
machinery supplied by the employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage. while that to that injured
bystander would originate in the negligent act itself. This distinction is thus clearly set forth by
Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be understood in
two difference senses; either as culpa, substantive and independent, which on account of its
origin arises in an obligation between two persons not formerly bound by any other
obligation; or as an incident in the performance of an obligation; or as already existed, which
can not be presumed to exist without the other, and which increases the liability arising from
the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of this
book of the code is devoted to it, it is logical to presume that the reference contained in
article 1093 is limited thereto and that it does not extend to those provisions relating to the
other species of culpa (negligence), the nature of which we will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species of negligence may
be somewhat inexactly described as contractual and extra-contractual, the letter being the culpa
aquiliana of the Roman law and not entailing so strict an obligation as the former. This terminology is
unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No.
12), and the principle stated is supported be decisions of the supreme court of Spain, among them
those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate. (March 10, 1897,
81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the principles
common to the law of both countries, which are lucidly discussed by the leading French
commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon articles
1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of
the Spanish Code, soon yielded to the principle that the true basis is the contractual obligation of the
employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led to the
discovery of a third basis for liability in an article of he French Code making the possessor of any
object answerable for damage done by it while in his charge. Our law having no counterpart of this
article, applicable to every kind of object, we need consider neither the theory growing out of it nor

that of "professional risk" more recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, find a rule for this case in the contractual obligation.
This contractual obligation, implied from the relation and perhaps so inherent in its nature to be
invariable by the parties, binds the employer to provide safe appliances for the use of the employee,
thus closely corresponding to English and American Law. On these principles it was the duty of the
defendant to build and to maintain its track in reasonably sound condition, so as to protect its
workingmen from unnecessary danger. It is plain that in one respect or the other it failed in its duty,
otherwise the accident could not have occurred; consequently the negligence of the defendant is
established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused
upon the ground that the negligence leading to the accident was that of a fellow-servant of the
injured man. It is not apparent to us that the intervention of a third person can relieve the defendant
from the performance of its duty nor impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-servant, rule," we
are not disposed to introduce into our jurisprudence. Adopted in England by Lord Abinger in the case
of Prescottvs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by
"the Employers' Liability Acts" and the "Compensation Law." The American States which applied it
appear to be gradually getting rid of it; for instance, the New York State legislature of 1906 did away
with it in respect to railroad companies, and had in hand a scheme for its total abolition. It has never
found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630,
and vol. 15, 1895, same title, 804. Also more recent instances in Fuzier-Herman, Title Responsibilite
Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28,
1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing to
the accident, to what extent it existed in fact and what legal effect is to be given it. In two particulars
is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the boards,
either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference from
the testimony. While the method of construction may have been known to the men who had helped
build the road, it was otherwise with the plaintiff who had worked at this job less than two days. A
man may easily walk along a railway without perceiving a displacement of the underlying timbers.
The foreman testified that he knew the state of the track on the day of the accident and that it was
then in good condition, and one Danridge, a witness for the defendant, working on the same job,
swore that he never noticed the depression in the track and never saw any bad place in it. The
sagging of the track this plaintiff did perceive, but that was reported in his hearing to the foreman
who neither promised nor refused to repair it. His lack of caution in continuing at his work after
noticing the slight depression of the rail was not of so gross a nature as to constitute negligence,

barring his recovery under the severe American rule. On this point we accept the conclusion of the
trial judge who found as facts that "the plaintiff did not know the cause of the one rail being lower
than then other" and "it does not appear in this case that the plaintiff knew before the accident
occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section 497,
paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United
States in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction given
by the defendant to its employees to walk only upon the planks, nor upon the necessity of the
plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore the
findings of the judge below leave the conduct of the plaintiff in walking along the side of the loaded
car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this
way, but were expressly directed by the foreman to do so, both the officers of the company and
three of the workmen testify that there was a general prohibition frequently made known to all the
gang against walking by the side of the car, and the foreman swears that he repeated the prohibition
before the starting of this particular load. On this contradiction of proof we think that the
preponderance is in favor of the defendant's contention to the extent of the general order being
made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger
contributed in some degree to the injury as a proximate, although not as its primary cause. This
conclusion presents sharply the question, What effect is to be given such an act of contributory
negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only in
reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his injury,
provided his negligence was slight as compared with that of the defendant, and some others have
accepted the theory of proportional damages, reducing the award to a plaintiff in proportion to his
responsibility for the accident, yet the overwhelming weight of adjudication establishes the principle
in American jurisprudence that any negligence, however slight, on the part of the person injured
which is one of the causes proximately contributing to his injury, bars his recovery. (English and
American Encyclopedia of law, Titles "Comparative Negligence" and Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the
United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in the
person injured; subject to this qualification, which has grown up in recent years (having been
first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory negligence of the
party injured will not defeat the action if it be shown that the defendant might, by the exercise

of reasonable care and prudence, have avoided the consequences of the injured party's
negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent or
that the negligence of the plaintiff was the immediate cause of the casualty or that the accident was
due to casus fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia
Criminal, No. 70), in which a railway employee, standing on a car, was thrown therefrom and killed
by the shock following the backing up of the engine. It was held that the management of the train
and engine being in conformity with proper rules of the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th of
June, 1888 (64Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by the logs
of the defendant impelled against it by the Tajo River, was held due to a freshet as a fortuitous
cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the common
obligation imposed by the police law of maintaining a guard at the road crossing; the other, because
the act of the deceased in driving over level ground with unobstructed view in front of a train running
at speed, with the engine whistle blowing was the determining cause of the accident. It is plain that
the train was doing nothing but what it had a right to do and that the only fault lay with the injured
man. His negligence was not contributory, it was sole, and was of such an efficient nature that
without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining
damages was not free from contributory negligence; for instance, the decision of the 14th of
December, 1894 (76Jurisprudencia Civil, No. 134), in which the owner of a building was held liable
for not furnishing protection to workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed to
his injury as one of its causes, though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the
carelessness of the victim did not civilly relieve the person without whose fault the accident could not
have happened, but that the contributory negligence of the injured man had the effect only of
reducing the damages. The same principle was applied in the case of Recullet, November 10, 1888.
and that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411,
412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law, now
embodied in a code following the Code Napoleon, a practice in accord with that of France is laid
down in many cases collected in the annotations to article 1053 of the code edited by Beauchamps,
1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page
90, in which the court of Kings bench, otherwise known as the court of appeals, the highest authority
in the Dominion of Canada on points of French law, held that contributory negligence did not
exonerate the defendants whose fault had been the immediate cause of the accident, but entitled
him to a reduction of damages. Other similar cases in the provincial courts have been overruled by

appellate tribunals made up of common law judges drawn from other provinces, who have preferred
to impose uniformally throughout the Dominion the English theory of contributory negligence. Such
decisions throw no light upon the doctrines of the civil law. Elsewhere we find this practice embodied
in legislation; for instance, section 2 of article 2398 of the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured or in
the part of some one else, the indemnification shall be reduced in the first case, and in the
second case it shall be appropriated in proportion to such fault or negligence as provided in
paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the
accident shall stand his damages in proportion to his fault, but when that proportion is incapable of
ascertainment, he shall share the liability equally with the person principally responsible. The
principle of proportional damages appears to be also adopted in article 51 of the Swiss Code. Even
in the United States in admirality jurisdictions, whose principles are derived from the civil law,
common fault in cases of collision have been disposed of not on the ground of contradictor
negligence, but on that of equal loss, the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in favor
of the vessel sustaining the greater loss against the other for the excess of her damages over onehalf of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of
Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of the
principle of contributory negligence as understood in American Law, with which, indeed, it has little in
common. This is a plain from other articles of the same code; for instance, article 829, referring to
articles 826, 827, and 828, which provides: "In the cases above mentioned the civil action of the
owner against the person liable for the damage is reserved, as well as the criminal liability which
may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a nice
balancing of responsibilities and which demanded an inflexible standard as a safeguard against too
ready symphaty for the injured. It was assumed that an exact measure of several concurring faults
was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain an
action against the other, is, not the wrong of the one is set off against the wrong of the other;
it that the law can not measure how much of the damage suffered is attributable to the
plaintiff's own fault. If he were allowed to recover, it might be that he would obtain from the
other party compensation for hiss own misconduct. (Heil vs.Glanding, 42 Penn. St. Rep.,
493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law has no
scales to determine in such cases whose wrongdoing weighed most in the compound that
occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review to relax the
vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, through
the device of granting new trials, unless reduced damages are stipulated for, amounting to a partial

revision of damages by the courts. It appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits
of the litigants through the practice of offsetting their respective responsibilities. In the civil law
system the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress
and counter stress of novel schemers of legislation, we find the theory of damages laid down in the
judgment the most consistent with the history and the principals of our law in these Islands and with
its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be between the accident and
the injury, between the event itself, without which there could have been no accident, and those acts
of the victim not entering into it, independent of it, but contributing under review was the
displacement of the crosspiece or the failure to replace it. this produced the event giving occasion for
damages that is, the shinking of the track and the sliding of the iron rails. To this event, the act of
the plaintiff in walking by the side of the car did not contribute, although it was an element of the
damage which came to himself. Had the crosspiece been out of place wholly or partly thorough his
act of omission of duty, the last would have been one of the determining causes of the event or
accident, for which he would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the
occurrence, he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his
own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by
the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct
therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be
entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and
ten days hereafter let the case be remanded to the court below for proper action. So ordered.

G.R. No. L-65295 March 10, 1987

PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.
In the early morning of 15 November 1975 at about 1:30 a.m. private respondent Leonardo
Dionisio was on his way home he lived in 1214-B Zamora Street, Bangkal, Makati from a
cocktails-and-dinner meeting with his boss, the general manager of a marketing corporation. During
the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving
his Volkswagen car and had just crossed the intersection of General Lacuna and General Santos
Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna Street,
when his car headlights (in his allegation) suddenly failed. He switched his headlights on "bright" and
thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump
truck, owned by and registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was
parked on the right hand side of General Lacuna Street (i.e., on the right hand side of a person
facing in the same direction toward which Dionisio's car was proceeding), facing the oncoming
traffic. The dump truck was parked askew (not parallel to the street curb) in such a manner as to
stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any so-

called "early warning" reflector devices set anywhere near the dump truck, front or rear. The dump
truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its regular
driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out early
the following morning, Dionisio claimed that he tried to avoid a collision by swerving his car to the left
but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio
suffered some physical injuries including some permanent facial scars, a "nervous breakdown" and
loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his injuries was the negligent manner in which
Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and
Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his own
recklessness in driving fast at the time of the accident, while under the influence of liquor, without his
headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due
rare in the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and
ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and
the replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected
income for plaintiff brought about the accident in controversy and which is the result
of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages
for the unexpected and sudden withdrawal of plaintiff from his lifetime career as a
marketing man; mental anguish, wounded feeling, serious anxiety, social humiliation,
besmirched reputation, feeling of economic insecurity, and the untold sorrows and
frustration in life experienced by plaintiff and his family since the accident in
controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the
wanton disregard of defendants to settle amicably this case with the plaintiff before
the filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for
attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No.
65476 affirmed the decision of the trial court but modified the award of damages to the following
extent:
1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate court
found the plaintiff to have proved as actually sustained by him;

2. The award of P150,000.00 as loss of expected income was

reduced to P100,000.00,basically because Dionisio had voluntarily
resigned his job such that, in the opinion of the appellate court, his
loss of income "was not solely attributable to the accident in
question;" and
3. The award of P100,000.00 as moral damages was held by the
appellate court as excessive and unconscionable and hence reduced
to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the
manner in which the dump truck was parked along General Lacuna Street on the basis of which both
courts drew the inference that there was negligence on the part of Carbonel, the dump truck driver,
and that this negligence was the proximate cause of the accident and Dionisio's injuries. We note,
however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the
true legal and proximate cause of the accident was not the way in which the dump truck had been
parked but rather the reckless way in which Dionisio had driven his car that night when he smashed
into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded
that Dionisio was "in some way, negligent" but apparently failed to see the relevance of Dionisio's
negligence and made no further mention of it. We have examined the record both before the trial
court and the Intermediate Appellate Court and we find that both parties had placed into the record
sufficient evidence on the basis of which the trial court and the appellate court could have and
should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his
car that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the
manner in which the dump truck was parked, that negligence was merely a "passive and static
condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient
cause determinative of the accident and the injuries he sustained. The need to administer
substantial justice as between the parties in this case, without having to remand it back to the trial
court after eleven years, compels us to address directly the contention put forward by the petitioners
and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear
upon the liability, or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent
Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was
driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was
intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the
person of Dionisio immediately after the accident nor was any found in his car. Phoenix's evidence
here consisted of the testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the
Makati Medical Center for emergency treatment immediately after the accident. At the Makati
Medical Center, a nurse took off Dionisio's clothes and examined them along with the contents of
pockets together with Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce any curfew pass during the
trial. Instead, he offered the explanation that his family may have misplaced his curfew pass. He also offered a certification (dated two years
after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando,
Pampanga, which was said to have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that

private respondent Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of
effectivity of the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew pass
during the night of the accident and that the preponderance of evidence shows that he did not have such a pass during that night. The
relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues: whether
Dionisio was speeding home and whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and
possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass.

On the second issue whether or not Dionisio was speeding home that night both the trial court
and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene
of the accident almost immediately after it occurred, the police station where he was based being
barely 200 meters away. Patrolman Cuyno testified that people who had gathered at the scene of
the accident told him that Dionisio's car was "moving fast" and did not have its headlights
on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30 kilometers per
hour and had just crossed the intersection of General Santos and General Lacuna Streets and had
started to accelerate when his headlights failed just before the collision took place. 3

Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag
within any of the recognized exceptions to the hearsay rule since the facts he testified to were not
acquired by him through official information and had not been given by the informants pursuant to
any duty to do so. Private respondent's objection fails to take account of the fact that the testimony
of Patrolman Cuyno is admissible not under the official records exception to the hearsay rule 4 but
rather as part of the res gestae. 5 Testimonial evidence under this exception to the hearsay rule consists
of excited utterances made on the occasion of an occurrence or event sufficiently startling in nature so as
to render inoperative the normal reflective thought processes of the observer and hence made as a
spontaneous reaction to the occurrence or event, and not the result of reflective thought. 6

We think that an automobile speeding down a street and suddenly smashing into a stationary object
in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than reflective,
reactions from observers who happened to be around at that time. The testimony of Patrolman
Cuyno was therefore admissible as part of theres gestae and should have been considered by the
trial court. Clearly, substantial weight should have been ascribed to such testimony, even though it
did not, as it could not, have purported to describe quantitatively the precise velocity at winch
Dionisio was travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights, or whether his
headlights accidentally malfunctioned, just moments before the accident. The Intermediate Appellate
Court expressly found that the headlights of Dionisio's car went off as he crossed the intersection but
was non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut
off his headlights even before he reached the intersection so as not to be detected by the police in
the police precinct which he (being a resident in the area) knew was not far away from the
intersection. We believe that the petitioners' theory is a more credible explanation than that offered
by private respondent Dionisio i.e., that he had his headlights on but that, at the crucial moment,
these had in some mysterious if convenient way malfunctioned and gone off, although he succeeded
in switching his lights on again at "bright" split seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The
evidence here consisted of the testimony of Patrolman Cuyno to the effect that private respondent
Dionisio smelled of liquor at the time he was taken from his smashed car and brought to the Makati
Medical Center in an unconscious condition. 7 This testimony has to be taken in conjunction with the
admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We
do not believe that this evidence is sufficient to show that Dionisio was so heavily under the influence of
liquor as to constitute his driving a motor vehicle per se an act of reckless imprudence. 8 There simply is

not enough evidence to show how much liquor he had in fact taken and the effects of that upon his
physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of
hard liquor may affect different people differently.

The conclusion we draw from the factual circumstances outlined above is that private respondent
Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster
than he should have been. Worse, he extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus did not see the dump truck that was parked
askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the
legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent
manner in which the dump truck was parked in other words, the negligence of petitioner Carbonel.
That there was a reasonable relationship between petitioner Carbonel's negligence on the one hand
and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different
manner, the collision of Dionisio's car with the dump truck was a natural and foreseeable
consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and static
condition" and that private respondent Dionisio's negligence was an "efficient intervening cause and
that consequently Dionisio's negligence must be regarded as the legal and proximate cause of the
accident rather than the earlier negligence of Carbonel. We note that the petitioners' arguments are
drawn from a reading of some of the older cases in various jurisdictions in the United States but we
are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We
note, firstly, that even in the United States, the distinctions between "cause" and "condition" which
the 'petitioners would have us adopt have already been "almost entirely discredited." Professors and
Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish between the active
"cause" of the harm and the existing "conditions" upon which that cause operated. If
the defendant has created only a passive static condition which made the damage
possible, the defendant is said not to be liable. But so far as the fact of causation is
concerned, in the sense of necessary antecedents which have played an important
part in producing the result it is quite impossible to distinguish between active forces
and passive situations, particularly since, as is invariably the case, the latter are the
result of other active forces which have gone before. The defendant who spills
gasoline about the premises creates a "condition," but the act may be culpable
because of the danger of fire. When a spark ignites the gasoline, the condition has
done quite as much to bring about the fire as the spark; and since that is the very risk
which the defendant has created, the defendant will not escape responsibility. Even
the lapse of a considerable time during which the "condition" remains static will not
necessarily affect liability; one who digs a trench in the highway may still be liable to
another who fans into it a month afterward. "Cause" and "condition" still find
occasional mention in the decisions; but the distinction is now almost entirely
discredited. So far as it has any validity at all, it must refer to the type of case where
the forces set in operation by the defendant have come to rest in a position of
apparent safety, and some new force intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is important but the nature of the
risk and the character of the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from being a "passive and static
condition" was rather an indispensable and efficient cause. The collision between the dump truck
and the private respondent's car would in an probability not have occurred had the dump truck not

been parked askew without any warning lights or reflector devices. The improper parking of the
dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street
and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio's
negligence, although later in point of time than the truck driver's 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 consequent manner 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. Dionisio's negligence was not 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. It is helpful to quote once more from Professor
and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in ordinary
human experience is reasonably to be anticipated or one which the defendant has
reason to anticipate under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard against it; or the
defendant may be negligent only for that reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual and customary wind arising later wig
spread it beyond the defendant's own property, and therefore to take precautions to
prevent that event. The person who leaves the combustible or explosive material
exposed in a public place may foresee the risk of fire from some independent source.
... In all of these cases there is an intervening cause combining with the defendant's
conduct to produce the result and in each case the defendant's negligence consists
in failure to protect the plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or a
substantial and important part of the risk, to which the defendant has subjected the
plaintiff has indeed come to pass. Foreseeable intervening forces are within the
scope original risk, and hence of the defendant's negligence. The courts are quite
generally agreed that intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the usual
weather of the vicinity, including all ordinary forces of nature such as usual wind or
rain, or snow or frost or fog or even lightning; that one who leaves an obstruction on
the road or a railroad track should foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the foreseeable
negligence of others. ... [The standard of reasonable conduct may require the
defendant to protect the plaintiff against 'that occasional negligence which is one of
the ordinary incidents of human life, and therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk and forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently driven; and one who
parks an automobile on the highway without lights at night is not relieved of
responsibility when another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate
and proximate cause" of the injury remained the truck driver's "lack of due care" and that
consequently respondent Dionisio may recover damages though such damages are subject to
mitigation by the courts (Article 2179, Civil Code of the Philippines).

Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory
here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio
had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having
failed to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine
of the common law was imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether,
or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory
negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as
compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant
recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to
do so. 14 Accordingly, it is difficult to see what role, if any, the common law 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 of the Philippines. 15

Is there perhaps a general concept of "last clear chance" that may be extracted from its common law
matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do
not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose
negligence the plaintiff's or the defendant's was the legal or proximate cause of the injury. That
task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to
imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the
continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the
relevant factors that may be taken into account. Of more fundamental importance are the nature of
the negligent act or omission of each party and the character and gravity of the risks created by such
act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore
his employer) should be absolved from responsibility for his own prior negligence because the
unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid
the peril precisely created by the truck driver's own wrongful act or omission. To accept this
proposition is to come too close to wiping out the fundamental principle of law that a man must
respond for the forseeable consequences of his own negligent act or omission. Our law on quasidelicts seeks to reduce the risks and burdens of living in society and to allocate them among the
members of society. To accept the petitioners' pro-position must tend to weaken the very bonds of
society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his
employer Phoenix16 in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly
in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck
driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to
show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an
affirmative showing of culpa in vigilando on the part of Phoenix.

Turning to the award of damages and taking into account the comparative negligence of private
respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages
awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and
costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who
shall be solidarity liable therefor to the former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by
the petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the reduced
award of damages made by the respondent appellate court.

WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate
amount of compensatory damages, loss of expected income and moral damages private respondent
Dionisio is entitled to by 20% of such amount. Costs against the petitioners.
SO ORDERED.

G.R. No. L-35283

November 5, 1932

JULIAN DEL ROSARIO, plaintiff-appellant,

vs.
MANILA ELECTRIC COMPANY, defendant-appellee.
This action was instituted by Julian del Rosario for the purpose of recovering damages from the
Manila Electric Company for the death of his son, Alberto del Rosario, resulting from a shock from a
wire used by the defendant for the transmission of electricity. The accident occurred on Dimas-Alang
Street, in the municipality of Caloocan, Province of Rizal. Damages are claimed in the complaint in
the amount of P30,000. Upon hearing the cause the trial court absolved the defendant, and the
plaintiff appealed.
Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble developed in a wire used by the
defendant on Dimas-Alang Street for the purpose of conducting electricity used in lighting the City of
Manila and its suburbs. Jose Noguera, who had charge of a tienda nearby, first noticed that the wire
was burning and its connections smoking. In a short while the wire parted and one of the ends of the
wire fell to the ground among some shrubbery close to the way. As soon as Noguera took
cognizance of the trouble, he stepped into a garage which was located nearby and asked Jose
Soco, the timekeeper, to telephone the Malabon station of the Manila Electric Company that an
electrical wire was burning at that place. Soco transmitted the message at 2.25 p.m. and received
answer from the station to the effect that they would send an inspector. From the testimony of the
two witnesses mentioned we are justified in the conclusion that information to the effect that the
electric wire at the point mentioned had developed trouble was received by the company's servant at
the time stated. At the time that message was sent the wire had not yet parted, but from the
testimony of Demetrio Bingao, one of the witnesses for the defense, it is clear that the end of the
wire was on the ground shortly after 3 p.m.
At 4 p. m. the neighborhood school was dismissed and the children went home. Among these was
Alberto del Rosario, of the age of 9 years, who was a few paces ahead of two other boys, all
members of the second grade in the public school. These other two boys were Jose Salvador, of the
age of 8, and Saturnino Endrina, of the age of 10. As the three neared the place where the wire was
down, Saturnino made a motion as if it touch it. His companion, Jose Salvador, happened to be the
son of an electrician and his father had cautioned him never to touch a broken electrical wire, as it
might have a current. Jose therefore stopped Saturnino, telling him that the wire might be charged.
Saturnino yielded to this admonition and desisted from his design, but Alberto del Rosario, who was
somewhat ahead, said, I have for some time been in the habit of touching wires ("Yo desde hace
tiempo cojo alambres"). Jose Salvador rejoined that he should into touch wires as they carry a
current, but Alberto, no doubt feeling that he was challenged in the matter, put out his index finger
and touch the wire. He immediately fell face downwards, exclaiming "Ay! madre". The end of the
wire remained in contact with his body which fell near the post. A crowd soon collected, and some
one cut the wire and disengaged the body. Upon being taken to St. Luke's Hospital the child was
pronounced dead.
The wire was an ordinary number 6 triple braid weather proof wire, such as is commonly used by the
defendant company for the purpose of conducting electricity for lighting. The wire was cased in the
usual covering, but this had been burned off for some distance from the point where the wire parted.
The engineer of the company says that it was customary for the company to make a special
inspection of these wires at least once in six months, and that all of the company's inspectors were
required in their daily rounds to keep a lookout for trouble of this kind. There is nothing in the record
indicating any particular cause for the parting of the wire.
lawphil.net

We are of the opinion that the presumption of negligence on the part of the company from the
breakage of this wire has not been overcome, and the defendant is in our opinion responsible for the
accident. Furthermore, when notice was received at the Malabon station at 2.25 p. m., somebody
should have been dispatched to the scene of the trouble at once, or other measures taken to guard
the point of danger; but more than an hour and a half passed before anyone representing the
company appeared on the scene, and in the meantime this child had been claimed as a victim.
It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to his
immature years and the natural curiosity which a child would feel to do something out of the
ordinary, and the mere fact that the deceased ignored the caution of a companion of the age of 8
years does not, in our opinion, alter the case. But even supposing that contributory negligence could
in some measure be properly imputed to the deceased, a proposition upon which the members of
the court do not all agree, yet such negligence would not be wholly fatal to the right of action in
this case, not having been the determining cause of the accident. (Rakes vs. Atlantic, Gulf and
Pacific Co., 7 Phil., 359.)
With respect to the amount of damages recoverable the majority of the members of this court are of
the opinion that the plaintiff is entitled to recover P250 for expenses incurred in connection with the
death and burial of the boy. For the rest, in accordance with the precedents cited in Astudillo vs.
Manila Electric Company (55 Phil., 427), the majority of the court are of the opinion that the plaintiff
should recover the sum of P1,000 as general damages for loss of service.
The judgment appealed from is therefore reversed and the plaintiff will recover of the defendant the
sum of P1,250, with costs of both instances. So ordered.

G.R. No. 83491 August 27, 1990

MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO ARANETA, petitioners,
vs.
HON. COURT OF APPEALS and HERMINIA FAMOSO, respondents.
To say the least, the Court views with regret the adamant refusal of petitioner Ma-ao Sugar Central
to recompense the private respondent for the death of Julio Famoso, their main source of support,
who was killed in line of duty while in its employ. It is not only a matter of law but also of compassion
on which we are called upon to rule today. We shall state at the outset that on both counts the
petition must fail.
On March 22, 1980, Famoso was riding with a co-employee in the caboose or "carbonera" of
Plymouth No. 12, a cargo train of the petitioner, when the locomotive was suddenly derailed. He and
his companion jumped off to escape injury, but the train fell on its side, caught his legs by its wheels
and pinned him down. He was declared dead on the spot. 1
The claims for death and other benefits having been denied by the petitioner, the herein private
respondent filed suit in the Regional Trial Court of Bago City. Judge Marietta Hobilla-Alinio ruled in
her favor but deducted from the total damages awarded 25% thereof for the decedent's contributory
negligence and the total pension of P41,367.60 private respondent and her children would be
receiving from the SSS for the next five years. The dispositive portion of the decision read:

WHEREFORE, in view of the foregoing facts and circumstances present in this case,
the Court order, as it does hereby order the defendant Ma-ao Sugar Central thru its
Manager Mr. Guillermo Y. Araneta to pay plaintiff the following amount:
P30,000.00 for the death of plaintiff's husband, the late
Julio Famoso
P30,000.00 for actual, exemplary and moral damages
P10,000.00 loss of earnings for twenty (20) years
P3,000.00 funeral expenses

P73,000.00 Total Damages

Less: P18,250.00 25% for the deceased's contributory
negligence
Less: P41,367.60 pension plaintiff and her minor children would

be receiving for five (5) years from the SSS

Pl3,382.40
Plus: P3,000.00 Attorney's fees and cost of this suit

Pl6,382.40 Total amount payable to the plaintiff.

SO ORDERED.
The widow appealed, claiming that the deductions were illegal. So did the petitioner, but on the
ground that it was not negligent and therefore not liable at all.
In its own decision, the Court of Appeals 2 sustained the rulings of the trial court except as to the
contributory negligence of the deceased and disallowed the deductions protested by the private
respondent. Thus, the respondent court declared:

WHEREFORE, the decision appealed from is MODIFIED by ordering the defendantappellant to pay the plaintiff-appellee the following amounts:
P30,000.00, for the death of Julio Famoso
P30,000.00, for actual, exemplary and moral damages

P10,000.00, for loss of earnings for twenty (20) years

P3,000.00, for funeral expenses
P3,000.00, for attorney's fees

P76,000.00 Total Amount

========
In this petition, the respondent court is faulted for finding the petitioner guilty of negligence
notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for disallowing
the deductions made by the trial court.
Investigation of the accident revealed that the derailment of the locomotive was caused by
protruding rails which had come loose because they were not connected and fixed in place by fish
plates. Fish plates are described as strips of iron 8" to 12" long and 3 1/2" thick which are attached
to the rails by 4 bolts, two on each side, to keep the rails aligned. Although they could be removed
only with special equipment, the fish plates that should have kept the rails aligned could not be found
at the scene of the accident.
There is no question that the maintenance of the rails, for the purpose inter alia of preventing
derailments, was the responsibility of the petitioner, and that this responsibility was not discharged.
According to Jose Treyes, its own witness, who was in charge of the control and supervision of its
train operations, cases of derailment in the milling district were frequent and there were even times
when such derailments were reported every hour. 3 The petitioner should therefore have taken more
prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its
negligence.

The argument that no one had been hurt before because of such derailments is of course not
acceptable. And neither are we impressed by the claim that the brakemen and the conductors were
required to report any defect in the condition of the railways and to fill out prescribed forms for the
purpose. For what is important is that the petitioner should act on these reports and not merely
receive and file them. The fact that it is not easy to detect if the fish plates are missing is no excuse
either. Indeed, it should stress all the more the need for the responsible employees of the petitioner
to make periodic checks and actually go down to the railroad tracks and see if the fish plates were in
place.
It is argued that the locomotive that was derailed was on its way back and that it had passed the
same rails earlier without accident. The suggestion is that the rails were properly aligned then, but
that does not necessarily mean they were still aligned afterwards. It is possible that the fish plates
were loosened and detached during its first trip and the rails were as a result already mis-aligned
during the return trip. But the Court feels that even this was unlikely, for, as earlier noted, the fish
plates were supposed to have been bolted to the rails and could be removed only with special tools.
The fact that the fish plates were not found later at the scene of the mishap may show they were
never there at all to begin with or had been removed long before.
At any rate, the absence of the fish plates whatever the cause or reason is by itself alone proof
of the negligence of the petitioner. Res ipsa loquitur. The doctrine was described recently in Layugan
v. Intermediate Appellate Court, 4 thus:

Where the thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things does not
happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose
from want of care.
The petitioner also disclaims liability on the ground of Article 2176 of the Civil Code, contending it
has exercised due diligence in the selection and supervision of its employees. The Court cannot
agree. The record shows it was in fact lax in requiring them to exercise the necessary vigilance in
maintaining the rails in good condition to prevent the derailments that sometimes happened "every
hour." Obviously, merely ordering the brakemen and conductors to fill out prescribed forms reporting
derailments-which reports have not been acted upon as shown by the hourly derailments is-not the
kind of supervision envisioned by the Civil Code.
We also do not see how the decedent can be held guilty of contributory negligence from the mere
fact that he was not at his assigned station when the train was derailed. That might have been a
violation of company rules but could not have directly contributed to his injury, as the petitioner
suggests. It is pure speculation to suppose that he would not have been injured if he had stayed in
the front car rather than at the back and that he had been killed because he chose to ride in the
caboose.
Contributory negligence has been defined as "the act or omission amounting to want of ordinary care
on the part of the person injured which, concurring with the defendant's negligence, is the proximate
cause of the
injury." 5 It has been held that "to hold a person as having contributed to his injuries, it must be shown
that he performed an act that brought about his injuries in disregard of warnings or signs of an impending
danger to health and body." 6 There is no showing that the caboose where Famoso was riding was a
dangerous place and that he recklessly dared to stay there despite warnings or signs of impending
danger.

The last point raised by the petitioner is easily resolved. Citing the case of Floresca v. Philex Mining
Corporation, 7it argues that the respondent court erred in disauthorizing the deduction from the total
damages awarded the private respondent of the amount of P41,367.60, representing the pension to be
received by the private respondent from the Social Security System for a period of five years. The
argument is that such deduction was quite proper because of Art. 173 of the Labor Code, as amended.
This article provides that any amount received by the heirs of a deceased employee from the Employees
Compensation Commission, whose funds are administered by the SSS, shall be exclusive of all other
amounts that may otherwise be claimed under the Civil Code and other pertinent laws.

The amount to be paid by the SSS represents the usual pension received by the heirs of a deceased
employee who was a member of the SSS at the time of his death and had regularly contributed his
premiums as required by the System. The pension is the benefit derivable from such contributions. It
does not represent the death benefits payable under the Workmen's Compensation Act to an
employee who dies as a result of a work-connected injury. Indeed, the certification from the
SSS 8 submitted by the petitioner is simply to the effect that:
TO WHOM IT MAY CONCERN:
This is to certify that Mrs. Herminia Vda. de Famoso is a recipient of a monthly
pension from the Social Security System arising from the death of her late husband,
Julio Famoso, an SSS member with SSS No. 07-018173-1.

This certification is issued to Ma-ao Sugar Central for whatever legal purpose it may
serve best.
Issued this 8th day of April 1983 in Bacolod City, Philippines.
GODOFREDO
S. SISON
Regional
Manager
By: (SGD.)
COSME Q.
BERMEO, JR.
Chief, Benefits
Branch
It does not indicate that the pension is to be taken from the funds of the ECC. The certification would
have said so if the pension represented the death benefits accruing to the heirs under the
Workmen's Compensation Act.
This conclusion is supported by the express provision of Art. 173 as amended, which categorically
states that:
Art. 173. Exclusiveness of liability. Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall not bar the recovery of benefits as
provided for in Section 699 of the Revised Administrative Code, Republic Act
Numbered Eleven hundred sixty-one, as amended, Commonwealth Act Numbered
One hundred eighty-six, as amended, Republic Act Numbered Six hundred ten, as
amended, Republic Act Numbered Forty-eight hundred sixty-four, as amended and
other laws whose benefits are administered by the System or by other agencies of
the government. (Emphasis supplied).
Rep. Act No. 1161, as amended, is the Social Security Law.
As observed by Justice J.B.L. Reyes in the case of Valencia v. Manila Yacht Club, 9 which is still
controlling:

. . . By their nature and purpose, the sickness or disability benefits to which a

member of the System may be entitled under the Social Security law (Rep. Act No.
1161, as amended by Rep. Acts Nos. 1792 and 2658) are not the same as the
compensation that may be claimed against the employer under the Workmen's
Compensation Act or the Civil Code, so that payment to the member employee of
social security benefits would not wipe out or extinguish the employer's liability for the
injury or illness contracted by his employee in the course of or during the
employment. It must be realized that, under the Workmen's Compensation Act (or
the Civil Code, in a proper case), the employer is required to compensate the

employee for the sickness or injury arising in the course of the employment because
the industry is supposed to be responsible therefore; whereas, under the Social
Security Act, payment is being made because the hazard specifically covered by the
membership, and for which the employee had put up his own money, had taken
place. As this Court had said:
. . . To deny payment of social security benefits because the death or
injury or confinement is compensable under the Workmen's
Compensation Act would be to deprive the employees members of
the System of the statutory benefits bought and paid for by them,
since they contributed their money to the general common fund out of
which benefits are paid. In other words, the benefits provided for in
the Workmen's Compensation Act accrues to the employees
concerned due to the hazards involved in their employment and is
made a burden on the employment itself However, social security
benefits are paid to the System's members, by reason of their
membership therein for which they contribute their money to a
general common fund . . . .
It may be added that whereas social security benefits are intended to
provide insurance or protection against the hazards or risks for which
they are established, e.g., disability, sickness, old age or death,
irrespective of whether they arose from or in the course of the
employment or not, the compensation receivable under the
Workmen's Compensation law is in the nature of indemnity for the
injury or damage suffered by the employee or his dependents on
account of the employment. (Rural Transit Employees Asso. vs.
Bachrach Trans. Co., 21 SCRA 1263 [19671])
And according to Justice Jesus G. Barrera in Benguet Consolidated, Inc. v. Social Security
System:" 10
The philosophy underlying the Workmen's Compensation Act is to make the payment
of the benefits provided for therein as a responsibility of the industry, on the ground
that it is industry which should bear the resulting death or injury to employees
engaged in the said industry. On the other hand, social security sickness benefits are
not paid as a burden on the industry, but are paid to the members of the System as a
matter of right, whenever the hazards provided for in the law occurs. To deny
payment of social security benefits because the death or injury or confinement is
compensable under the Workmen's Compensation Act would be to deprive the
employees-members of the System of the statutory benefits bought and paid for by
them, since they contribute their money to the general common fund out of which
benefits are paid. In other words, the benefits provided for in the Workmen's
Compensation Act accrues to the employees concerned, due to the hazards involved
in their employment and is made a burden on the employment itself However, social
security benefits are paid to the System's members, by reason of their membership
therein for which they contributed their money to a general common fund.
Famoso's widow and nine minor children have since his death sought to recover the just
recompense they need for their support. Instead of lending a sympathetic hand, the petitioner has
sought to frustrate their efforts and has even come to this Court to seek our assistance in defeating
their claim. That relief-and we are happy to say this must be withheld.

WHEREFORE, the appealed decision is AFFIRMED in toto. The petition is DENIED, with costs
against the petitioner.
SO ORDERED.