DEFENSE AGAINST CHARGE OF NEGLIGENCE: PLAINTIFF’S NEGLIGENCE IS

PROXIMATE

EN BANC

[G.R. No. L-8328. May 18, 1956.]

MANILA ELECTRIC COMPANY, Petitioner, vs. SOTERO REMOQUILLO, in his own behalf
and as guardian of the minors MANUEL, BENJAMIN, NESTOR, MILAGROS, CORAZON,
CLEMENTE and AURORA, all surnamed MAGNO, SALUD MAGNO, and the COURT OF
APPEALS (Second Division), Respondents.

DECISION

MONTEMAYOR, J.:

On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, his
stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a “media agua” said
to be in a leaking condition. The “media agua” was just below the window of the third
story. Standing on said “media agua”, Magno received from his son thru that window a 3’
X 6’ galvanized iron sheet to cover the leaking portion, turned around and in doing so
the lower end of the iron sheet came into contact with the electric wire of the Manila
Electric Company (later referred to as the Company) strung parallel to the edge of the
“media agua” and 2 1/2 feet from it, causing his death by electrocution. His widow and
children fled suit to recover damages from the company. After hearing, the trial court
rendered judgment in their favor — P10,000 as compensatory damages; chan
roblesvirtualawlibraryP784 as actual damages; chan roblesvirtualawlibraryP2,000 as moral
and exemplary damages; chan roblesvirtualawlibraryand P3,000 as attorney’s fees, with
costs. On appeal to the Court of Appeals, the latter affirmed the judgment with slight
modification by reducing the attorney’s fees from P3,000 to P1,000 with costs. The
electric company has appealed said decision to us.

The findings of fact made by the Court of Appeals which are conclusive are stated in the
following portions of its decision which we reproduce below:chanroblesvirtuallawlibrary

“The electric wire in question was an exposed, uninsulated primary wire stretched
between poles on the street and carrying a charge of 3,600 volts. It was installed there
some two years before Peñaloza’s house was constructed. The record shows that during
the construction of said house a similar incident took place, although fortunate]y with
much less tragic consequences. A piece of wood which a carpenter was holding
happened to come in contact with the same wire, producing some sparks. The owner of
the house forthwith complained to Defendant about the danger which the wire
presented, and as a result Defendant moved one end of the wire farther from the house
by means of a brace, but left the other end where it was.

“At any rate, as revealed by the ocular inspection of the premises ordered by the trial
court, the distance from the electric wire to the edge of the ‘media agua’ on which the
deceased was making repairs was only 30 inches or 2 1/2 feet. Regulations of the City of
Manila required that ‘all wires be kept three feet from the building.’ Appellant contends
that in applying said regulations to the case at bar the reckoning should not be from the
edge of the ‘media agua’ but from the side of the house and that, thus measured, the
distance was almost 7 feet, or more then the minimum prescribed. This contention is
manifestly groundless, for not only is a ‘media agua’ an integral part of the building to
which it is attached but to exclude it in measuring the distance would defeat the purpose
of the regulation. Appellant points out, nevertheless, that even assuming that the
distance, within the meaning of the city regulations, should be measured from the edge
of the ‘media agua’, the fact that in the case of the house involved herein such distance
was actually less than 3 feet was due to the fault of the owner of said house, because the
city authorities gave him a permit to construct a ‘media agua’ only one meter or 39 1/2
inches wide, but instead he built one having a width of 65 3/4 inches, 17 3/8 inches more
than the width permitted by the authorities, thereby reducing the distance to the electric
wire to less than the prescribed minimum of 3 feet.

“It is a fact that the owner of the house exceeded the limit fixed in the permit given to
him by the city authorities for the construction of the ‘media agua’, and that if he had not
done so Appellants wire would have been 11 3/8 (inches) more than the required
distance of three feet from the edge of the ‘media agua’. It is also a fact, however, that
after the ‘media agua’ was constructed the owner was given a final permit of occupancy
of the house cralaw .

“ cralaw The wire was an exposed, high tension wire carrying a load of 3,600 volts. There
was, according to Appellant, no insulation that could have rendered it safe, first, because
there is no insulation material in commercial use for such kind of wire; chan
roblesvirtualawlibraryand secondly, because the only insulation material that may be
effective is still in the experimental stage of development and, anyway, its costs would be
prohibitive… ”

The theory followed by the appellate court in finding for the Plaintiff is that although the
owner of the house in constructing the “media agua” in question exceeded the limits
fixed in the permit, still, after making that “media agua”, its construction though illegal,
was finally approved because he was given a final permit to occupy the house; chan
roblesvirtualawlibrarythat it was the company that was at fault and was guilty of
negligence because although the electric wire in question had been installed long before
the construction of the house and in accordance with the ordinance fixing a minimum of
3 feet, mere compliance with the regulations does not satisfy the requirement of due
diligence nor avoid the need for adopting such other precautionary measures as may be
warranted; chan roblesvirtualawlibrarythat negligence cannot be determined by a simple
matter of inches; chan roblesvirtualawlibrarythat all that the city did was to prescribe
certain minimum conditions and that just because the ordinance required that primary
electric wires should be not less than 3 feet from any house, the obligation of due
diligence is not fulfilled by placing such wires at a distance of 3 feet and one inch,
regardless of other factors. The appellate court, however, refrained from stating or
suggesting what other precautionary measures could and should have been adopted.

After a careful study and discussion of the case and the circumstances surrounding the
same, we are inclined to agree to the contention of Petitioner Company that the death of
Magno was primarily caused by his own negligence and in some measure by the too
close proximity of the “media agua” or rather its edge to the electric wire of the company
by reason of the violation of the original permit given by the city and the subsequent
approval of said illegal construction of the “media agua”. We fail to see how the
Company could be held guilty of negligence or as lacking in due diligence. Although the
city ordinance called for a distance of 3 feet of its wires from any building, there was
actually a distance of 7 feet and 2 3/4 inches of the wires from the side of the house of
Peñaloza. Even considering said regulation distance of 3 feet as referring not to the side
of a building, but to any projecting part thereof, such as a “media agua”, had the house
owner followed the terms of the permit given him by the city for the construction of his
“media agua”, namely, one meter or 39 3/8 inches wide, the distance from the wires to
the edge of said “media agua” would have been 3 feet and 11 3/8 inches. In fixing said
one meter width for the “media agua” the city authorities must have wanted to preserve
the distance of at least 3 feet between the wires and any portion of a building.
Unfortunately, however, the house owner disregarding the permit, exceeded the one
meter fixed by the same by 17 3/8 inches and leaving only a distance of 2 1/2 feet
between the “Media agua” as illegally constructed and the electric wires. And added to
this violation of the permit by the house owner, was its approval by the city through its
agent, possibly an inspector. Surely we cannot lay these serious violations of a city
ordinance and permit at the door of the Company, guiltless of breach of any ordinance
or regulation. The Company cannot be expected to be always on the lookout for any
illegal construction which reduces the distance between its wires and said construction,
and after finding that said distance of 3 feet had been reduced, to change the stringing
or installation of its wires so as to preserve said distance. It would be much easier for the
City, or rather it is its duty, to be ever on the alert and to see to it that its ordinances are
strictly followed by house owners and to condemn or disapprove all illegal constructions.
Of course, in the present case, the violation of the permit for the construction of the
“media agua” was not the direct cause of the accident. It merely contributed to it. Had
said “media agua” been only one meter wide as allowed by the permit, Magno standing
on it, would instinctively have stayed closer to or hugged the side of the house in order
to keep a safe margin between the edge of the “media agua” and the yawning 2-story
distance or height from the ground, and possibly if not probably avoided the fatal
contact between the lower end of the iron sheet and the wires.

We realize that the presence of the wires in question quite close to the house or its
“media agua” was always a source of danger considering their high voltage and
uninsulated as they were, but the claim of the company and the reasons given by it for
not insulating said wires were unrefuted as we gather from the findings of the Court of
Appeals, and so we have to accept them as satisfactory. Consequently, we may not hold
said company as guilty of negligence or wanting in due diligence in failing to insulate
said wires. As to their proximity to the house it is to be supposed that distance of 3 feet
was considered sufficiently safe by the technical men of the city such as its electrician or
engineer. Of course, a greater distance of say 6 feet or 12 feet would have increased the
margin of safety but other factors had to be considered such as that the wires could not
be strung or the posts supporting them could not be located too far toward the middle
of the street. Thus, the real cause of the accident or death was the reckless or negligent
act of Magno himself. When he was called by his stepbrother to repair the “media agua”
just below the third story window, it is to be presumed that due to his age and
experience he was qualified to do so. Perhaps he was a tinsmith or carpenter and had
training and experience for the job. So, he could not have been entirely a stranger to
electric wires and the danger lurking in them. But unfortunately, in the instant care, his
training and experience failed him, and forgetting where he was standing, holding the 6-
feet iron sheet with both hands and at arms length, evidently without looking, and
throwing all prudence and discretion to the winds, he turned around swinging his arms
with the motion of his body, thereby causing his own electrocution.

In support of its theory and holding that Defendant-Appellant was liable for damages the
Court of Appeals cites the case of Astudillo vs. Manila Electric Co., 55 Phil., 427. We do
not think the case is exactly applicable. There, the premises involved was that elevated
portion or top of the walls of Intramuros, Manila, just above the Sta. Lucia Gate. In the
words of the Court, it was “a public place where persons come to stroll, to rest and to
enjoy themselves”. The electric company was clearly negligent in placing its wires so near
the place that without much difficulty or exertion, a person by stretching his hand out
could touch them. A boy named Astudillo, placing one foot on a projection, reached out
and actually grasped the electric wire and was electrocuted. The person electrocuted in
said case was a boy who was in no position to realize the danger. In the present case,
however, the wires were well high over the street where there was no possible danger to
pedestrians. The only possible danger was to persons standing on the “media agua”, but
a “media agua” can hardly be considered a public place where persons usually gather.
Moreover, a person standing on the “media agua” could not have reached the wires with
his hands alone. It was necessary as was done by Magno to hold something long enough
to reach the wire. Furthermore, Magno was not a boy or a person immature but the
father of a family, supposedly a tinsmith trained and experienced in the repair of
galvanized iron roofs and “media agua”. Moreover, in that very case of Astudillo vs.
Manila Electric Co., supra, the court said that although it is a well- established rule that
the liability of electric companies for damages or personal injuries is governed by the
rules of negligence, nevertheless such companies are not insurers of the safety of the
public.

But even assuming for a moment that under the facts of the present case
the Defendant electric company could be considered negligent in installing its electric
wires so close to the house and “media agua” in question, and in failing to properly
insulate those wires (although according to the unrefuted claim of said company it was
impossible to make the insulation of that kind of wire), nevertheless to hold
the Defendant liable in damages for the death of Magno, such supposed negligence of
the company must have been the proximate and principal cause of the accident, because
if the act of Magno in turning around and swinging the galvanized iron sheet with his
hands was the proximate and principal cause of the electrocution, then his heirs may not
recover. Such was the holding of this Court in the case of Taylor vs. Manila Electric
Railroad and Light Company, 16 Phil., 8. In that case, the electric company was found
negligent in leaving scattered on its premises fulminating caps which Taylor, a 15- year
old boy found and carried home. In the course of experimenting with said fulminating
caps, he opened one of them, held it out with his hands while another boy applied a
lighted match to it, causing it to explode and injure one of his eyes eventually causing
blindness in said eye. Said this Tribunal in denying recovery for the
injury:chanroblesvirtuallawlibrary

“ cralaw, so that while it may be true that these injuries would not have been incurred but
for the negligent 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.”

To us it is clear that the principal and proximate cause of the electrocution was not the
electric wire, evidently a remote cause, but rather the reckless and negligent act of
Magno in turning around and swinging the galvanized iron sheet without taking any
precaution, such as looking back toward the street and at the wire to avoid its contacting
said iron sheet, considering the latter’s length of 6 feet. For a better understanding of the
rule on remote and proximate cause with respect to injuries, we find the following
citation helpful:chanroblesvirtuallawlibrary

“A prior and remote cause cannot be made the basis of an action if such remote cause
did nothing more than furnish the condition or give rise to the occasion by which the
injury was made possible, if there intervened between such prior or remote cause and
the injury a distinct, successive, unrelated, and efficient cause of the injury, even though
such injury would not have happened but for such condition or occasion. If no danger
existed in the condition except because of the independent cause, such condition was
not the proximate cause. And if an independent negligent act or defective condition sets
into operation the circumstances which result in injury because of the prior defective
condition, such subsequent act or condition is the proximate cause.” (45 C.J. pp. 931-
332.).

We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and
so close to houses is a constant source of danger, even death, especially to persons who
having occasion to be near said wires, do not adopt the necessary precautions. But may
be, the City of Manila authorities and the electric company could get together and devise
means of minimizing this danger to the public. Just as the establishment of pedestrian
lanes in city thoroughfares may greatly minimize danger to pedestrians because drivers
of motor vehicles may expect danger and slow down or even stop and take other
necessary precaution upon approaching said lanes, so, a similar way may possibly be
found. Since these high voltage wires cannot be properly insulated and at reasonable
cost, they might perhaps be strung only up to the outskirts of the city where there are
few houses and few pedestrians and there step-down to a voltage where the wires
carrying the same to the city could be properly insulated for the better protection of the
public.

In view of all the foregoing, the appealed decision of the Court of Appeals is hereby
reversed and the complaint filed against the Company is hereby dismissed. No costs.

Paras, C.J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion,
Reyes, J.B.L., and Endencia, JJ., concur.

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.
REGALADO, J.:

This case had its inception in an action for damages instituted in the former Court of First
Instance of Negros Occidental 1 by private respondent spouses against petitioner
Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and
fell into an open trench, an excavation allegedly undertaken by PLDT for the installation
of its underground conduit system. The complaint alleged that respondent Antonio
Esteban failed to notice the open trench which was left uncovered because of the
creeping darkness and the lack of any warning light or signs. As a result of the accident,
respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving
a permanent scar on her cheek, while the respondent husband suffered cut lips. In
addition, the windshield of the jeep was shattered. 2

PLDT, in its answer, denies liability on the contention that the injuries sustained by
respondent spouses were the result of their own negligence and that the entity which
should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an
independent contractor which undertook the construction of the manhole and the
conduit system. 3 Accordingly, PLDT filed a third-party complaint against Barte alleging
that, under the terms of their agreement, PLDT should in no manner be answerable for
any accident or injuries arising from the negligence or carelessness of Barte or any of its
employees. 4 In answer thereto, Barte claimed that it was not aware nor was it notified of
the accident involving respondent spouses and that it had complied with the terms of its
contract with PLDT by installing the necessary and appropriate standard signs in the
vicinity of the work site, with barricades at both ends of the excavation and with red
lights at night along the excavated area to warn the traveling public of the presence of
excavations. 5

On October 1, 1974, the trial court rendered a decision in favor of private respondents,
the decretal part of which reads:

IN VIEW OF THE FOREGOING considerations the defendant Philippine

Long Distance Telephone Company is hereby ordered (A) to pay the
plaintiff Gloria Esteban the sum of P20,000.00 as moral damages and
P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of
P2,000.00 as moral damages and P500.00 as exemplary damages, with
legal rate of interest from the date of the filing of the complaint until fully
paid. The defendant is hereby ordered to pay the plaintiff the sum of
P3,000.00 as attorney's fees.
 (B) The third-party defendant is hereby ordered to reimburse whatever
amount the defendant-third party plaintiff has paid to the plaintiff. With
costs against the defendant. 6

From this decision both PLDT and private respondents appealed, the latter appealing
only as to the amount of damages. Third-party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a
decision in said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing
the decision of the lower court and dismissing the complaint of respondent spouses. It
held that respondent Esteban spouses were negligent and consequently absolved
petitioner PLDT from the claim for damages. 7 A copy of this decision was received by
private respondents on October 10, 1979. 8 On October 25, 1979, said respondents filed a
motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special
Ninth Division of the Court of Appeals denied said motion for reconsideration.10 This
resolution was received by respondent spouses on February 22, 1980. 11

On February 29, 1980, respondent Court of Appeals received private respondents'

motion for leave of court to file a second motion for reconsideration, dated February 27,
1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by Justice
Agrava, allowed respondents to file a second motion for reconsideration, within ten (10)
days from notice thereof. 13 Said resolution was received by private respondents on April
1, 1980 but prior thereto, private respondents had already filed their second motion for
reconsideration on March 7, 1980. 14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said
second motion for reconsideration. 15 The Court of Appeals, in view of the divergent
opinions on the resolution of the second motion for reconsideration, designated two
additional justices to form a division of five. 16 On September 3, 1980, said division of five
promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the decision
dated September 25, 1979, as well as the resolution dated, January 24,1980, and
affirming in toto the decision of the lower court. 17

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for
reconsideration of the resolution of September 3, 1980, contending that the second
motion for reconsideration of private respondent spouses was filed out of time and that
the decision of September 25, 1979 penned by Justice Agrava was already final. It further
submitted therein that the relationship of Barte and petitioner PLDT should be viewed in
the light of the contract between them and, under the independent contractor rule, PLDT
is not liable for the acts of an independent contractor. 18 On May 11, 1981, respondent
Court of Appeals promulgated its resolution denying said motion to set aside and/or for
reconsideration and affirming in toto the decision of the lower court dated October 1,
1974. 19

Coming to this Court on a petition for review on certiorari, petitioner assigns the
following errors:

1. Respondent Court of Appeals erred in not denying private respondents' second

motion for reconsideration on the ground that the decision of the Special Second
Division, dated September 25, 1979, and the resolution of the Special Ninth Division,
dated January 24, 1980, are already final, and on the additional ground that said second
motion for reconsideration is pro forma.

2. Respondent court erred in reversing the aforesaid decision and resolution and in
misapplying the independent contractor rule in holding PLDT liable to respondent
Esteban spouses.

A convenient resume of the relevant proceedings in the respondent court, as shown by

the records and admitted by both parties, may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals
with Justice Agrava as ponente;

(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 S

september 25,1979, is hereby REINSTATED and AFFIRMED.

G.R. No. L-9308 December 23, 1914

JUAN BERNARDO, plaintiff-appellant,

vs.
M. B. LEGASPI, defendant-appellee.

Roman de Jesus for appellant.

No appearance for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the city of Manila
dismissing the complaint on the merits filed in an action to recover damages for injuries
sustained by plaintiff's automobile by reason of defendant's negligence in causing a
collision between his automobile and that of plaintiff. The court in its judgment also
dismissed a cross-complaint filed by the defendant, praying for damages against the
plaintiff on the ground that the injuries sustained by the defendant's automobile in the
collision referred to, as well as those to plaintiff's machine, were caused by the
negligence of the plaintiff in handling his automobile.

The court found upon the evidence that both the plaintiff and the defendant were
negligent in handling their automobiles and that said negligence was of such a character
and extent on the part of both as to prevent either from recovering.1awphil.net

Upon the facts, as they appear of record, the judgment must be affirmed, as the
evidence clearly supports the decision of the trial court. The law applicable to the facts
also requires an affirmance of the judgment appealed from. Where the plaintiff in a
negligence action, by his own carelessness contributes to the principal occurrence, that
is, to the accident, as one of the determining causes thereof, he cannot recover. This is
equally true of the defendant; and as both of them, by their negligent acts, contributed
to the determining cause of the accident, neither can recover.

The judgment appealed from is affirmed, with costs against the appellanT