LRT vs.

NAVIDAD
G.R. No. 145804. February 6, 2003

FACTS:
Navidad was drunk when he entered the boarding platform of the LRT. He got into an
altercation with the SG Escartin. They had a fistfight and Navidad fell onto the tracks and
was killed when a train came and ran over him.

The Heirs of Navidad filed a complaint for damages against Escartin, the train driver,
(Roman) the LRTA, the Metro Transit Organization and Prudent Security Agency (Prudent).
The trial court found Prudent and Escartin jointly and severally liable for damages to the
heirs. The CA exonerated Prudent and instead held the LRTA and the train driver Romero
jointly and severally liable as well as removing the award for compensatory damages and
replacing it with nominal damages.

The reasoning of the CA was that a contract of carriage already existed between Navidad
and LRTA (by virtue of his havA ing purchased train tickets and the liability was caused by
the mere fact of Navidad's death after being hit by the train being managed by the LRTA
and operated by Roman. The CA also blamed LRTA for not having presented expert
evidence showing that the emergency brakes could not have stopped the train on time.

ISSUES:

(1) Whether or not LRTA and/or Roman is liable for the death.
(2) Whether or not Escartin and/or Prudent are liable.
(3) Whether or not nominal damages may coexist with compensatory damages.

HELD:
(1) Yes. The foundation of LRTA's liability is the contract of carriage and its obligation to
indemnify the victim arising from the breach of that contract by reason of its failure to
exercise the high diligence required of a common carrier.
(2) Fault was not established. Liability will be based on Tort under Art. 2176 of the New Civil
Code.
(3) No. It is an established rule that nominal damages cannot co-exist with compensatory
damages.

RATIO:

Liability of LRTA – Read Arts. 1755,1756, 1759 and 1763 of the New Civil Code

A common carrier is required by these above statutory provisions to use utmost diligence in
carrying passengers with due regard for all circumstances. This obligation exists not only
during the course of the trip but for so long as the passengers are within its premises where
they ought to be in pursuance to then contract of carriage.

Art. 1763 renders a common carrier liable for death of or injury to passengers (a) through
the negligence or wilful acts of its employees or (b) on account of willful acts or negligence
of other passengers or of strangers if the common carrier’s employees through theexercise
of due diligence could have prevented or stopped the act or omission. In case of such death
or injury, a carrier is presumed to have been at fault or been negligent, and by simple proof
of injury, the passenger is relieved of the duty to still establish the fault or negligence of the
carrier or of its employees and the burden shifts upon the carrier to prove that the injury is
due to an unforeseen event or to force majeure.

Liability of Security Agency – If Prudent is to be held liable, it would be for a tort under
Art. 2176 in conjunction with Art. 2180. Once the fault of the employee Escartin is
established, the employer, Prudent, would be held liable on the presumption that it did not
exercise the diligence of a good father of the family in the selection and supervision of its
employees.

Relationship between contractual and non-contractual breach – How then must the
liability of the common carrier, on the one hand, and an independent contractor, on the
other hand, be described? It would be solidary. A contractual obligation can be breached by
tort and when the same act or omission causes the injury, one resulting in culpa
contractual and the other in culpa aquiliana, Article 2194 of the Civil Code can well apply. In
fine, a liability for tort may arise even under a contract, where tort is that which breaches
the contract. Stated differently, when an act which constitutes a breach of ontract would
have itself constituted the source of a quasi-delictual liability had no contract existed
between the parties, the contract can be said to have been breached by tort, thereby
allowing the rules on tort to apply.

Nominal Damages - The award of nominal damages in addition to actual damages

is untenable. Nominal damages are adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be vindicated or recognized, and not
for the purpose of indemnifying the plaintiff for any loss suffered by him. It is an established
rule that nominal damages cannot co-exist with compensatory damages. The award was
deleted/\.

Light Rail Transit Authority vs. Navidad

Same; Obligations; Tort; The premise, however, for the employer’s liability is negligence or fault on the
part of the employee.—Should Prudent be made likewise liable? If at all, that liability could only be for
tort under the provisions of Article 2176 and related provisions, in conjunction with Article 2180, of the
Civil Code. The premise, however, for the employer’s liability is negligence or fault on the part of the
employee. Once such fault is established, the employer can then be made liable on the basis of the
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
selection and supervision of its employees. The liability is primary and can only be negated by showing
due diligence in the selection and supervision of the employee, a factual matter that has not been
shown.

Same; Same; Same; In fine, a liability for tort may arise even under a contract, where tort is that which
breaches the contract.—A contractual obligation can be breached by tort and when the same act or
omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article
2194 of the Civil Code can well apply. In fine, a liability for tort may arise even under a contract, where
tort is that which breaches the contract. Stated differently, when an act which constitutes a breach of
contract would have itself constituted the source of a quasi-delictual liability had no contract existed
between the parties, the contract can be said to have been breached by tort, thereby allowing the rules
on tort to apply.
Same; Damages; Nominal Damages; It is an established rule that nominal damages cannot co-exist with
compensatory damages.—The award of nominal damages in addition to actual damages is untenable.
Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him. It is an established rule that nominal damages cannot co-exist with
compensatory damages.

Phoenix Construction, Inc. vs. Internediate Appellate Court (148 SCRA 353) Facts: Leonardo Dionisio was
on his way from a cocktails-and-dinner meeting with his boss. Dionisio was driving his Volkswagen car
not far from his home 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 Phoenix Construction Inc. ("Phoenix"),
was parked on the right hand side facing the oncoming traffic. The dump truck was parked 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.
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.
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 the driver had
parked the dump truck entrusted to him by his employer Phoenix. Phoenix and the driver, 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. Issue: Whether or Not Phoenix and the dump truck driver may be
held liable for the injuries sustained by Dionisio. Held: 68 Phoenix construction and its driver is liable.

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. As to the second, the testimony of
the patrolman present immediately after the accident was given credence by the court, hence leading to
the conclusion that the volkswagon was “moving fast.” As to the third issue, the court believes that the
petitioners' theory is a more credible explanation than that offered by private respondent Dionisio.
Finally, as to the fourth issue, the court finds 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. The conclusion we draw from the factual circumstances outlined above is that private
respondent Dionisio was negligent the night of the accident. Nonetheless, the supreme court agrees
with 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. The collision of Dionisio's car with the dump truck was a natural and
foreseeable consequence of the truck driver's negligence. 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). Phoenix also ask us to apply what
they refer to as the "last clear chance" doctrine. 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.
_________________________________-

FACTS:

Plaintiff shipped at Maconcon Port, Isabela 940 round logs on board M/V Seven Ambassador, a vessel owned by
defendant Seven Brothers Shipping Corporation. Plaintiff insured the logs against loss and/or damage with defendant
South Sea Surety and Insurance Co., Inc. for P2M and the latter issued its Marine Cargo Insurance Policy on said
date. In the meantime, the M/V Seven Ambassador sank resulting in the loss of the plaintiff’s insured logs.

Plaintiff demanded from defendant South Sea Surety and Insurance Co., Inc. the payment of the proceeds of the
policy but the latter denied liability under the policy. Plaintiff likewise filed a formal claim with defendant Seven
Brothers Shipping Corporation for the value of the lost logs but the latter denied the claim.

Court of Appeals affirmed in part the RTC judgment by sustaining the liability of South Sea Surety and Insurance
Company (“South Sea”), but modified it by holding that Seven Brothers Shipping Corporation (“Seven Brothers”) was
not liable for the lost cargo.

ISSUE:

Whether defendants shipping corporation and the surety company are liable to the plaintiff for the latter’s lost logs.

HELD:

The charter party between the petitioner and private respondent stipulated that the “(o)wners shall not be
responsible for loss, split, short-landing, breakages and any kind of damages to the cargo” –VALID

There is no dispute between the parties that the proximate cause of the sinking of M/V Seven Ambassadors resulting
in the loss of its cargo was the “snapping of the iron chains and the subsequent rolling of the logs to the portside due
to the negligence of the captain in stowing and securing the logs on board the vessel and not due to fortuitous
event.” Likewise undisputed is the status of Private Respondent Seven Brothers as a private carrier when it
contracted to transport the cargo of Petitioner Valenzuela. Even the latter admits this in its petition.
Private respondent had acted as a private carrier in transporting petitioner’s lauan logs. Thus, Article 1745 and other
Civil Code provisions on common carriers which were cited by petitioner may not be applied unless expressly
stipulated by the parties in their charter party.

In a contract of private carriage, the parties may validly stipulate that responsibility for the cargo rests solely on the
charterer, exempting the shipowner from liability for loss of or damage to the cargo caused even by the negligence
of the ship captain. Pursuant to Article 1306 of the Civil Code, such stipulation is valid because it is freely entered
into by the parties and the same is not contrary to law, morals, good customs, public order, or public policy. Indeed,
their contract of private carriage is not even a contract of adhesion. We stress that in a contract of private carriage,
the parties may freely stipulate their duties and obligations which perforce would be binding on them. Unlike in
contract involving a common carrier, private carriage does not involve the general public. Hence, the stringent
provisions of the Civil Code on common carriers protecting the general public cannot justifiably be applied to a ship
transporting commercial goods as a private carrier. Consequently, the public policy embodied therein is not
contravened by stipulations in a charter party that lessen or remove the protection given by law in contracts involving
common carriers.

The provisions of our Civil Code on common carriers were taken from Anglo-American law. Under American
jurisprudence, a common carrier undertaking to carry a special cargo or chartered to a special person only, becomes
a private carrier. As a private carrier a stipulation exempting the owner from liability for the negligence of its agent is
not against public policy and is deemed valid. Such doctrine We find reasonable. The Civil Code provisions on
common carriers should not be applied where the carrier is not acting as such but as a private carrier. The stipulation
in the charter party absolving the owner from liability for loss due to the negligence of its agent would be void only if
the strict public policy governing common carriers is applied. Such policy has no force where the public at large is not
involved as in this case of a ship totally chartered for the use of a single party. (Home Insurance Co. vs. American
Steamship Agencies Inc., 23 SCRA 24, April 4, 1968)

Tort distinguished from breach of contract

JUAN J. SYQUIA, CORAZON C. SYQUIA, CARLOTA C. SYQUIA, CARLOS C. SYQUIA and ANTHONY
C. SYQUIA vs.

THE HONORABLE COURT OF APPEALS, and THE MANILA MEMORIAL PARK CEMETERY, INC.
G.R. No. 98695, January 27, 1993, J. Campos, Jr.
FACTS:
Juan Syquia, father of the deceased Vicente Syquia, entered in a contract of Deed of Sale and Interment
Order with Manila Memorial Park Cemetery Inc (MMPCI). In the contract, there contained a
provision which stated that the coffin would be placed in a sealed concrete vault to protect the
remains of the deceased from the elements.
During the preparation for the transfer of Vicente’s remains in the newly bought lot in Manila Memorial, it
was discovered that there was a hole in the concrete vault which caused total flooding inside,
damaged the coffin as well as the body of the deceased and covered the same with filth. Syquia
filed a complaint for recovery of damages arising from breach of contract and/or quasi-delict
against the MMPCI for failure to deliver a defect-free concrete vault to protect the remains of the
deceased. In its defense, MMPCI claimed that the boring of the hole was necessary in order to
prevent the vault from floating when water fills the grave. The trial court dismissed the complaint
holding that there was no quasi-delict because the defendant is not guilty of any fault or
negligence and because there was a pre-existing contract between the parties. The CA affirmed
the decision of the trial court. Hence, the present petition.
ISSUE:
Whether or not the private respondent is guilty of tort
HELD:
Denied. Decision of the CA affirmed. We are more inclined to answer the foregoing questions in the
negative. There is not enough ground, both in fact and in law, to justify a reversal of the decision
of the respondent Court and to uphold the pleas of the petitioners. Although a pre-existing
contractual relation between the parties does not preclude the existence of a culpa aquiliana,
We find no reason to disregard the respondent’s Court finding that there was no negligence.

“Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict
x x x.”
In this case, it has been established that the Syquias and the Manila Memorial Park Cemetery, Inc.,
entered into a contract entitled “Deed of Sale and Certificate of Perpetual Care” on August 27, 1969.
That agreement governed the relations of the parties and defined their respective rights and obligations.
Hence, had there been actual negligence on the part of the Manila Memorial Park Cemetery, Inc., it would
be held liable not for aquasi-delict or culpa aquiliana, but for culpacontractual as provided by Article 1170
of the Civil Code, to wit: “Those who in the performance of their obligations are guilty of fraud, negligence,
or delay, and those who in any manner contravene the tenor thereof, are liable for damages.”

Picart v Smith (Torts)

PICART V SMITH G.R. No. L-12219 March 15, 1918 AMADO PICART, plaintiff-appellant, vs. FRANK SMITH,
JR., defendant- appellee.

FACTS:
The plaintiff was riding on his pony over the Carlatan bridge in La Union. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant
neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his course and after
he had taken the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet
some distance away or slowing down, continued to approach directly toward the horse without diminution of speed.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of
the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge
instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to
the other side. The automobile passed in such close proximity to the animal that it became frightened and turned its body across
the bridge with its head toward the railing. The horse fell and its rider was thrown off with some violence.
As a result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required
medical attention for several days.

DECISION OF LOWER COURTS:

1. CFI – La Union – absolved the defendant from liability.

ISSUE:
whether or not the defendant in maneuvering his car in the manner above described was guilty of negligence such as gives rise to
a civil obligation to repair the damage done

RULING:
Yes, he is liable.
The control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate
stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse
to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse.
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.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting
himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.
 FIRST DIVISION

[G.R. No. 145804. February 6, 2003]

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,

vs. MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD
& PRUDENT SECURITY AGENCY, respondents.

DECISION
VITUG, J.:

The case before the Court is an appeal from the decision and resolution of the
Court of Appeals, promulgated on 27 April 2000 and 10 October 2000, respectively, in
CA-G.R. CV No. 60720, entitled Marjorie Navidad and Heirs of the Late Nicanor
Navidad vs. Rodolfo Roman, et. al., which has modified the decision of 11 August 1998
of the Regional Trial Court, Branch 266, Pasig City, exonerating Prudent Security
Agency (Prudent) from liability and finding Light Rail Transit Authority (LRTA) and
Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven oclock in the evening, Nicanor
Navidad, then drunk, entered the EDSA LRT station after purchasing a token
(representing payment of the fare). While Navidad was standing on the platform near
the LRT tracks, Junelito Escartin, the security guard assigned to the area approached
Navidad. A misunderstanding or an altercation between the two apparently ensued that
led to a fist fight. No evidence, however, was adduced to indicate how the fight started
or who, between the two, delivered the first blow or how Navidad later fell on the LRT
tracks. At the exact moment that Navidad fell, an LRT train, operated by petitioner
Rodolfo Roman, was coming in. Navidad was struck by the moving train, and he was
killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad,
along with her children, filed a complaint for damages against Junelito Escartin, Rodolfo
Roman, the LRTA, the Metro Transit Organization, Inc. (Metro Transit), and Prudent for
the death of her husband. LRTA and Roman filed a counterclaim against Navidad and a
cross-claim against Escartin and Prudent. Prudent, in its answer, denied liability and
averred that it had exercised due diligence in the selection and supervision of its
security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead
of presenting evidence, filed a demurrer contending that Navidad had failed to prove
that Escartin was negligent in his assigned task. On 11 August 1998, the trial court
rendered its decision; it adjudged:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the
defendants Prudent Security and Junelito Escartin ordering the latter to pay jointly and
severally the plaintiffs the following:

a) 1) Actual damages of P44,830.00;

2) Compensatory damages of P443,520.00;

3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;

b) Moral damages of P50,000.00;

c) Attorneys fees of P20,000;

d) Costs of suit.

The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack
of merit.

The compulsory counterclaim of LRTA and Roman are likewise dismissed. [1]

Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court
promulgated its now assailed decision exonerating Prudent from any liability for the
death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly and
severally liable thusly:

WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the

appellants from any liability for the death of Nicanor Navidad, Jr. Instead, appellees
Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his
death and are hereby directed to pay jointly and severally to the plaintiffs-appellees,
the following amounts:

a) P44,830.00 as actual damages;

b) P50,000.00 as nominal damages;

c) P50,000.00 as moral damages;

d) P50,000.00 as indemnity for the death of the deceased; and

e) P20,000.00 as and for attorneys fees. [2]

 The appellate court ratiocinated that while the deceased might not have then as yet
boarded the train, a contract of carriage theretofore had already existed when the victim
entered the place where passengers were supposed to be after paying the fare and
getting the corresponding token therefor. In exempting Prudent from liability, the court
stressed that there was nothing to link the security agency to the death of Navidad. It
said that Navidad failed to show that Escartin inflicted fist blows upon the victim and the
evidence merely established the fact of death of Navidad by reason of his having been
hit by the train owned and managed by the LRTA and operated at the time by
Roman. The appellate court faulted petitioners for their failure to present expert
evidence to establish the fact that the application of emergency brakes could not have
stopped the train.
The appellate court denied petitioners motion for reconsideration in its resolution of
10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of the
appellate court; viz:
I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY

DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL COURT
II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING

THAT PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR
NAVIDAD, JR.
III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING

THAT RODOLFO ROMAN IS AN EMPLOYEE OF LRTA. [3]

Petitioners would contend that the appellate court ignored the evidence and the
factual findings of the trial court by holding them liable on the basis of a sweeping
conclusion that the presumption of negligence on the part of a common carrier was not
overcome. Petitioners would insist that Escartins assault upon Navidad, which caused
the latter to fall on the tracks, was an act of a stranger that could not have been
foreseen or prevented. The LRTA would add that the appellate courts conclusion on the
existence of an employer-employee relationship between Roman and LRTA lacked
basis because Roman himself had testified being an employee of Metro Transit and not
of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a
contract of carriage was deemed created from the moment Navidad paid the fare at the
LRT station and entered the premises of the latter, entitling Navidad to all the rights and
protection under a contractual relation, and that the appellate court had correctly held
LRTA and Roman liable for the death of Navidad in failing to exercise extraordinary
diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its
business and for reasons of public policy, is burdened with the duty of exercising utmost
diligence in ensuring the safety of passengers.[4] The Civil Code, governing the liability of
a common carrier for death of or injury to its passengers, provides:

Article 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.

Article 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.

Article 1759. Common carriers are liable for the death of or injuries to passengers
through the negligence or willful acts of the formers employees, although such
employees may have acted beyond the scope of their authority or in violation of the
orders 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.

Article 1763. A common carrier is responsible for injuries suffered by a passenger on

account of the willful acts or negligence of other passengers or of strangers, if the
common carriers employees through the exercise of the diligence of a good father of a
family could have prevented or stopped the act or omission.

The law requires common carriers to carry passengers safely using the utmost
diligence of very cautious persons with due regard for all circumstances. [5] Such duty of
a common carrier to provide safety to its passengers so obligates it not only during the
course of the trip but for so long as the passengers are within its premises and where
they ought to be in pursuance to the contract of carriage. [6] The statutory provisions
render a common carrier liable for death of or injury to passengers (a) through
the negligence or wilful acts of its employees or b) on account of wilful acts or
negligence of other passengers or of strangers if the common carriers employees
through the exercise of due diligence could have prevented or stopped the act or
omission.[7] In case of such death or injury, a carrier is presumed to have been at fault
or been negligent, and[8] by simple proof of injury, the passenger is relieved of the duty to
still establish the fault or negligence of the carrier or of its employees and the burden
shifts upon the carrier to prove that the injury is due to an unforeseen event or to force
majeure.[9] In the absence of satisfactory explanation by the carrier on how the accident
occurred, which petitioners, according to the appellate court, have failed to show, the
presumption would be that it has been at fault, [10] an exception from the general rule that
negligence must be proved.[11]
The foundation of LRTAs liability is the contract of carriage and its obligation to
indemnify the victim arises from the breach of that contract by reason of its failure to
exercise the high diligence required of the common carrier. In the discharge of its
commitment to ensure the safety of passengers, a carrier may choose to hire its own
employees or avail itself of the services of an outsider or an independent firm to
undertake the task. In either case, the common carrier is not relieved of its
responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for tort
under the provisions of Article 2176[12] and related provisions, in conjunction with Article
2180,[13] of the Civil Code. The premise, however, for the employers liability is negligence
or fault on the part of the employee. Once such fault is established, the employer can
then be made liable on the basis of the presumption juris tantum that the employer
failed to exercise diligentissimi patris families in the selection and supervision of its
employees. The liability is primary and can only be negated by showing due diligence in
the selection and supervision of the employee, a factual matter that has not been
shown. Absent such a showing, one might ask further, how then must the liability of the
common carrier, on the one hand, and an independent contractor, on the other hand, be
described? It would be solidary. A contractual obligation can be breached by tort and
when the same act or omission causes the injury, one resulting in culpa contractual and
the other in culpa aquiliana, Article 2194[14] of the Civil Code can well apply.[15]In fine, a
liability for tort may arise even under a contract, where tort is that which breaches the
contract.[16] Stated differently, when an act which constitutes a breach of contract would
have itself constituted the source of a quasi-delictual liability had no contract existed
between the parties, the contract can be said to have been breached by tort, thereby
allowing the rules on tort to apply.[17]
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late
Nicanor Navidad, this Court is concluded by the factual finding of the Court of Appeals
that there is nothing to link (Prudent) to the death of Nicanor (Navidad), for the reason
that the negligence of its employee, Escartin, has not been duly proven x x x. This
finding of the appellate court is not without substantial justification in our own review of
the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of
any culpable act or omission, he must also be absolved from liability. Needless to say,
the contractual tie between the LRT and Navidad is not itself a juridical relation between
the latter and Roman; thus, Roman can be made liable only for his own fault or
negligence.
The award of nominal damages in addition to actual damages is untenable. Nominal
damages are adjudicated in order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.[18] It is an established rule that
nominal damages cannot co-exist with compensatory damages.[19]
 WHEREFORE, the assailed decision of the appellate court is AFFIRMED with
MODIFICATION but only in that (a) the award of nominal damages is DELETED and (b)
petitioner Rodolfo Roman is absolved from liability. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur.

[1]
Rollo, p. 16.
[2]
Rollo, pp. 46-47.
[3]
Rollo, pp. 18-19.
[4]
Arada vs. Court of Appeals, 210 SCRA 624.
[5]
Philippine Airlines, Inc. vs. Court of Appeals, 226 SCRA 423.
[6]
Dangwa Transportation Co., Inc. vs. Court of Appeals, 202 SCRA 575.
[7]
Article 1763, Civil Code.
Gatchalian vs. Delim, 203 SCRA 126; Yobido vs. Court of Appeals, 281 SCRA 1; Landingin vs.
[8]

Pangasinan Transportation Co., 33 SCRA 284.

[9]
Mercado vs. Lira, 3 SCRA 124.
[10]
Article 1756, Civil Code.
[11]
Vda. De Abeto vs. Phil. Air Lines, Inc., 30 July 1982.
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
[12]

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.
Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or
[13]

omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by
the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are under their
authority and live in their company.
The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.
The State is responsible in like manner when it acts through a special agent, but not when the damage
has been caused by the official to whom the task done properly pertains, in which case what is provided
in article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their
pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.
[14]
Art. 2194. The responsibility of two or more persons who are liable for a quasi-delict is solidary.
[15]
Air France vs. Carrascoso, 124 Phil. 722.
[16]
PSBA vs. CA, 205 SCRA 729.
[17]
Cangco vs. Manila Railroad, 38 Phil. 768; Manila Railroad vs. Compania Transatlantica, 38 Phil. 875.
[18]
Article 2221, Civil Code.
[19]
Medina, et al. vs. Cresencia, 99 Phil. 506.

_____________________-
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.

FELICIANO, J:

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 the res 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 quasi-
delicts 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 Phoenix 16 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.

Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.

Melencio-Herrera, J., is on leave.

Footnotes

1 TSN, 16 March 1978, pp. 25-26.

2 TSN, 16 March 1978, p. 13.

3 TSN, 23 February 1977, pp. 13-14; TSN, 7 October 1977, pp. 24-25.

4 Rule 130, Section 38,

5 Rules of Court. Rule 130, Section 36, Rules of Court.

6 People v. Berame, 72 SCRA 184 [1976]; McCormick on Evidence, Section 297 [3rd
ed., 1984].

7 TSN, 16 March 1978, pp. 18-19.

8 Compare Wright v. Manila Railroad Co., 28 Phil. 116 (1914), where it was held,
among others, that "[m]ere intoxication is not negligence, nor does the mere fact of
intoxication establish a want of ordinary care. It is but a circumstance to be
considered with the other evidence tending to prove negligence. " Id, at 125.

9 The Law on Torts [5th ed. 1984], pp. 277-278; emphasis supplied; footnotes
omitted.

10 Ibid., pp. 303-305; emphasis supplied; footnotes omitted.

11 37 Phil. 809 (1918).

12 Prosser & Keeton, supra note 9, p. 464 and note 11.

13 See Rakes v. Manila Railroad Co., 7 Phil. 359, at 370 (1907).

14 MacIntyre The Rationale of Last Clear Chance, 53 Harv. L. Rev. 1225 (1940) and
James Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704 (1938).

15 See Rakes, 7 Phil. at 374.

16 Poblete v. Fabros, 93 SCRA 202 (1979); Umali v. Bacani, 69 SCRA 263 (1976);
and Saludares v. Martinez, 29 SCRA 745 (1969).

17 See Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil. 359, 370375 (1907), where the
Court allocated the damages on a 50-50 basis between plaintiff and defendant
applying the notion of comparative negligence or proportional damages. Cf. Taylor v.
Manila Electric Railroad and Light Co., 16 Phil. 8 at 29 (1910).

18 Lanuzo v. Ping, 100 SCRA 205 (1980).

 THIRD DIVISION

[G.R. No. 102316. June 30, 1997]

VALENZUELA HARDWOOD AND INDUSTRIAL SUPPLY,

INC., petitioner, vs. COURT OF APPEALS AND SEVEN
BROTHERS SHIPPING CORPORATION, respondents.

DECISION
PANGANIBAN, J.:

Is a stipulation in a charter party that the (o)wners shall not be responsible for loss,
split, short-landing, breakages and any kind of damages to the cargo [1] valid? This is the
main question raised in this petition for review assailing the Decision of Respondent
Court of Appeals[2] in CA-G.R. No. CV-20156 promulgated on October 15, 1991. The
Court of Appeals modified the judgment of the Regional Trial Court of Valenzuela, Metro
Manila, Branch 171, the dispositive portion of which reads:

WHEREFORE, Judgment is hereby rendered ordering South Sea Surety and

Insurance Co., Inc. to pay plaintiff the sum of TWO MILLION PESOS
(P2,000,000.00) representing the value of the policy of the lost logs with legal interest
thereon from the date of demand on February 2, 1984 until the amount is fully paid or
in the alternative, defendant Seven Brothers Shipping Corporation to pay plaintiff the
amount of TWO MILLION PESOS (P2,000,000.00) representing the value of lost
logs plus legal interest from the date of demand on April 24, 1984 until full payment
thereof; the reasonable attorneys fees in the amount equivalent to five (5) percent of
the amount of the claim and the costs of the suit.

Plaintiff is hereby ordered to pay defendant Seven Brothers Shipping Corporation the
sum of TWO HUNDRED THIRTY THOUSAND PESOS (P230,000.00) representing
the balance of the stipulated freight charges.

Defendant South Sea Surety and Insurance Companys counterclaim is hereby

dismissed.

In its assailed Decision, Respondent Court of Appeals held:

WHEREFORE, the appealed judgment is hereby AFFIRMED except in so far (sic) as

the liability of the Seven Brothers Shipping Corporation to the plaintiff is concerned
which is hereby REVERSED and SET ASIDE. [3]
 The Facts

The factual antecedents of this case as narrated in the Court of Appeals Decision
are as follows:

It appears that on 16 January 1984, plaintiff (Valenzuela Hardwood and Industrial

Supply, Inc.) entered into an agreement with the defendant Seven Brothers (Shipping
Corporation) whereby the latter undertook to load on board its vessel M/V Seven
Ambassador the formers lauan round logs numbering 940 at the port of Maconacon,
Isabela for shipment to Manila.

On 20 January 1984, plaintiff insured the logs against loss and/or damage with
defendant South Sea Surety and Insurance Co., Inc. for P2,000,000.00 and the latter
issued its Marine Cargo Insurance Policy No. 84/24229 for P2,000,000.00 on said
date.

On 24 January 1984, the plaintiff gave the check in payment of the premium on the
insurance policy to Mr. Victorio Chua.

In the meantime, the said vessel M/V Seven Ambassador sank on 25 January 1984
resulting in the loss of the plaintiffs insured logs.

On 30 January 1984, a check for P5,625.00 (Exh. E) to cover payment of the premium
and documentary stamps due on the policy was tendered due to the insurer but was
not accepted. Instead, the South Sea Surety and Insurance Co., Inc. cancelled the
insurance policy it issued as of the date of the inception for non-payment of the
premium due in accordance with Section 77 of the Insurance Code.

On 2 February 1984, plaintiff demanded from defendant South Sea Surety and
Insurance Co., Inc. the payment of the proceeds of the policy but the latter denied
liability under the policy. Plaintiff likewise filed a formal claim with defendant Seven
Brothers Shipping Corporation for the value of the lost logs but the latter denied the
claim.

After due hearing and trial, the court a quo rendered judgment in favor of plaintiff and
against defendants. Both defendants shipping corporation and the surety company
appealed.

Defendant-appellant Seven Brothers Shipping Corporation impute (sic) to the court a

quo the following assignment of errors, to wit:
A. The lower court erred in holding that the proximate cause of the sinking of the
vessel Seven Ambassadors, was not due to fortuitous event but to the negligence of
the captain in stowing and securing the logs on board, causing the iron chains to snap
and the logs to roll to the portside.

B. The lower court erred in declaring that the non-liability clause of the Seven
Brothers Shipping Corporation from logs (sic) of the cargo stipulated in the charter
party is void for being contrary to public policy invoking article 1745 of the New
Civil Code.

C. The lower court erred in holding defendant-appellant Seven Brothers Shipping

Corporation liable in the alternative and ordering/directing it to pay plaintiff-appellee
the amount of two million (P2,000,000.00) pesos representing the value of the logs
plus legal interest from date of demand until fully paid.

D. The lower court erred in ordering defendant-appellant Seven Brothers Shipping

Corporation to pay appellee reasonable attorneys fees in the amount equivalent to 5%
of the amount of the claim and the costs of the suit.

E. The lower court erred in not awarding defendant-appellant Seven Brothers

Corporation its counter-claim for attorneys fees.

F. The lower court erred in not dismissing the complaint against Seven Brothers
Shipping Corporation.

Defendant-appellant South Sea Surety and Insurance Co., Inc. assigns the following
errors:

A. The trial court erred in holding that Victorio Chua was an agent of defendant-
appellant South Sea Surety and Insurance Company, Inc. and likewise erred in not
holding that he was the representative of the insurance broker Columbia Insurance
Brokers, Ltd.

B. The trial court erred in holding that Victorio Chua received

compensation/commission on the premiums paid on the policies issued by the
defendant-appellant South Sea Surety and Insurance Company, Inc.

C. The trial court erred in not applying Section 77 of the Insurance Code.

D. The trial court erred in disregarding the receipt of payment clause attached to and
forming part of the Marine Cargo Insurance Policy No. 84/24229.
E. The trial court in disregarding the statement of account or bill stating the amount of
premium and documentary stamps to be paid on the policy by the plaintiff-appellee.

F. The trial court erred in disregarding the indorsement of cancellation of the policy
due to non-payment of premium and documentary stamps.

G. The trial court erred in ordering defendant-appellant South Sea Surety and
Insurance Company, Inc. to pay plaintiff-appellee P2,000,000.00 representing value of
the policy with legal interest from 2 February 1984 until the amount is fully paid,

H. The trial court erred in not awarding to the defendant-appellant the attorneys fees
alleged and proven in its counterclaim.

The primary issue to be resolved before us is whether defendants shipping corporation

and the surety company are liable to the plaintiff for the latters lost logs.
[4]

The Court of Appeals affirmed in part the RTC judgment by sustaining the liability of
South Sea Surety and Insurance Company (South Sea), but modified it by holding that
Seven Brothers Shipping Corporation (Seven Brothers) was not liable for the lost
cargo.[5] In modifying the RTC judgment, the respondent appellate court ratiocinated
thus:

It appears that there is a stipulation in the charter party that the ship owner would be
exempted from liability in case of loss.

The court a quo erred in applying the provisions of the Civil Code on common
carriers to establish the liability of the shipping corporation. The provisions on
common carriers should not be applied where the carrier is not acting as such but as a
private carrier.

Under American jurisprudence, a common carrier undertaking to carry a special cargo

or chartered to a special person only, becomes a private carrier.

As a private carrier, a stipulation exempting the owner from liability even for the
negligence of its agent is valid (Home Insurance Company, Inc. vs. American
Steamship Agencies, Inc., 23 SCRA 24).

The shipping corporation should not therefore be held liable for the loss of the logs. [6]

South Sea and herein Petitioner Valenzuela Hardwood and Industrial Supply, Inc.
(Valenzuela) filed separate petitions for review before this Court. In a Resolution dated
June 2, 1995, this Court denied the petition of South Sea.[7] There the Court found no
reason to reverse the factual findings of the trial court and the Court of Appeals that
Chua was indeed an authorized agent of South Sea when he received Valenzuelas
premium payment for the marine cargo insurance policy which was thus binding on the
insurer.[8]
The Court is now called upon to resolve the petition for review filed by Valenzuela
assailing the CA Decision which exempted Seven Brothers from any liability for the lost
cargo.

The Issue

Petitioner Valenzuelas arguments revolve around a single issue: whether or not

respondent Court (of Appeals) committed a reversible error in upholding the validity of
the stipulation in the charter party executed between the petitioner and the private
respondent exempting the latter from liability for the loss of petitioners logs arising from
the negligence of its (Seven Brothers) captain.[9]

The Courts Ruling

The petition is not meritorious.

Validity of Stipulation is Lis Mota

The charter party between the petitioner and private respondent stipulated that the
(o)wners shall not be responsible for loss, split, short-landing, breakages and any kind
of damages to the cargo.[10] The validity of this stipulation is the lis mota of this case.
It should be noted at the outset that there is no dispute between the parties that the
proximate cause of the sinking of M/V Seven Ambassadors resulting in the loss of its
cargo was the snapping of the iron chains and the subsequent rolling of the logs to the
portside due to the negligence of the captain in stowing and securing the logs on board
the vessel and not due to fortuitous event.[11] Likewise undisputed is the status of Private
Respondent Seven Brothers as a private carrier when it contracted to transport the
cargo of Petitioner Valenzuela. Even the latter admits this in its petition.[12]
The trial court deemed the charter party stipulation void for being contrary to public
policy,[13] citing Article 1745 of the Civil Code which provides:

Art. 1745. Any of the following or similar stipulations shall be considered

unreasonable, unjust and contrary to public policy:

(1) That the goods are transported at the risk of the owner or shipper;
(2) That the common carrier will not be liable for any loss, destruction, or
deterioration of the goods;

(3) That the common carrier need not observe any diligence in the custody of the
goods;

(4) That the common carrier shall exercise a degree of diligence less than that of a
good father of a family, or of a man of ordinary prudence in the vigilance over the
movables transported;

(5) That the common carrier shall not be responsible for the acts or omissions of his or
its employees;

(6) That the common carriers liability for acts committed by thieves, or of robbers
who do not act with grave or irresistible threat, violence or force, is dispensed with or
diminished;

(7) That the common carrier is not responsible for the loss, destruction, or
deterioration of goods on account of the defective condition of the car, vehicle, ship,
airplane or other equipment used in the contract of carriage.

Petitioner Valenzuela adds that the stipulation is void for being contrary to Articles
586 and 587 of the Code of Commerce[14] and Articles 1170 and 1173 of the Civil
Code. Citing Article 1306 and paragraph 1, Article 1409 of the Civil Code, [15] petitioner
further contends that said stipulation gives no duty or obligation to the private
respondent to observe the diligence of a good father of a family in the custody and
transportation of the cargo."
The Court is not persuaded. As adverted to earlier, it is undisputed that private
respondent had acted as a private carrier in transporting petitioners lauan logs. Thus,
Article 1745 and other Civil Code provisions on common carriers which were cited by
petitioner may not be applied unless expressly stipulated by the parties in their charter
party.[16]
In a contract of private carriage, the parties may validly stipulate that responsibility
for the cargo rests solely on the charterer, exempting the shipowner from liability for loss
of or damage to the cargo caused even by the negligence of the ship captain. Pursuant
to Article 1306[17] of the Civil Code, such stipulation is valid because it is freely entered
into by the parties and the same is not contrary to law, morals, good customs, public
order, or public policy. Indeed, their contract of private carriage is not even a contract of
adhesion. We stress that in a contract of private carriage, the parties may freely
stipulate their duties and obligations which perforce would be binding on them. Unlike in
a contract involving a common carrier, private carriage does not involve the general
public. Hence, the stringent provisions of the Civil Code on common carriers protecting
the general public cannot justifiably be applied to a ship transporting commercial goods
as a private carrier. Consequently, the public policy embodied therein is not
contravened by stipulations in a charter party that lessen or remove the protection given
by law in contracts involving common carriers.
The issue posed in this case and the arguments raised by petitioner are not
novel; they were resolved long ago by this Court in Home Insurance Co. vs. American
Steamship Agencies, Inc.[18] In that case, the trial court similarly nullified a stipulation
identical to that involved in the present case for being contrary to public policy based on
Article 1744 of the Civil Code and Article 587 of the Code of Commerce. Consequently,
the trial court held the shipowner liable for damages resulting from the partial loss of the
cargo. This Court reversed the trial court and laid down, through Mr. Justice Jose P.
Bengzon, the following well-settled observation and doctrine:

The provisions of our Civil Code on common carriers were taken from Anglo-
American law. Under American jurisprudence, a common carrier undertaking to carry
a special cargo or chartered to a special person only, becomes a private carrier. As a
private carrier, a stipulation exempting the owner from liability for the negligence of
its agent is not against public policy, and is deemed valid.

Such doctrine We find reasonable. The Civil Code provisions on common carriers
should not be applied where the carrier is not acting as such but as a private
carrier. The stipulation in the charter party absolving the owner from liability for loss
due to the negligence of its agent would be void only if the strict public policy
governing common carriers is applied. Such policy has no force where the public at
large is not involved, as in this case of a ship totally chartered for the use of a single
party. (Underscoring supplied.)
[19]

Indeed, where the reason for the rule ceases, the rule itself does not apply. The
general public enters into a contract of transportation with common carriers without a
hand or a voice in the preparation thereof. The riding public merely adheres to the
contract; even if the public wants to, it cannot submit its own stipulations for the
approval of the common carrier. Thus, the law on common carriers extends its
protective mantle against one-sided stipulations inserted in tickets, invoices or other
documents over which the riding public has no understanding or, worse, no
choice. Compared to the general public, a charterer in a contract of private carriage is
not similarly situated. It can -- and in fact it usually does -- enter into a free and
voluntary agreement. In practice, the parties in a contract of private carriage can
stipulate the carriers obligations and liabilities over the shipment which, in turn,
determine the price or consideration of the charter. Thus, a charterer, in exchange for
convenience and economy, may opt to set aside the protection of the law on common
carriers. When the charterer decides to exercise this option, he takes a normal business
risk.
Petitioner contends that the rule in Home Insurance is not applicable to the present
case because it covers only a stipulation exempting a private carrier from liability for the
negligence of his agent, but it does not apply to a stipulation exempting a private carrier
like private respondent from the negligence of his employee or servant which is the
situation in this case.[20] This contention of petitioner is bereft of merit, for it raises a
distinction without any substantive difference. The case of Home Insurance specifically
dealt with the liability of the shipowner for acts or negligence of its captain and
crew[21] and a charter party stipulation which exempts the owner of the vessel from any
loss or damage or delay arising from any other source, even from the neglect or fault of
the captain or crew or some other person employed by the owner on board, for whose
acts the owner would ordinarily be liable except for said
paragraph. Undoubtedly, Home Insurance is applicable to the case at bar.
[22]

The naked assertion of petitioner that the American rule enunciated in Home
Insurance is not the rule in the Philippines[23] deserves scant consideration. The Court
there categorically held that said rule was reasonable and proceeded to apply it in the
resolution of that case.Petitioner miserably failed to show such circumstances or
arguments which would necessitate a departure from a well-settled rule. Consequently,
our ruling in said case remains a binding judicial precedent based on the doctrine
of stare decisis and Article 8 of the Civil Code which provides that (j)udicial decisions
applying or interpreting the laws or the Constitution shall form part of the legal system of
the Philippines.
In fine, the respondent appellate court aptly stated that [in the case of] a private
carrier, a stipulation exempting the owner from liability even for the negligence of its
agent is valid.[24]

Other Arguments

On the basis of the foregoing alone, the present petition may already be denied; the
Court, however, will discuss the other arguments of petitioner for the benefit and
satisfaction of all concerned.

Articles 586 and 587, Code of Commerce

Petitioner Valenzuela insists that the charter party stipulation is contrary to Articles
586 and 587 of the Code of Commerce which confer on petitioner the right to recover
damages from the shipowner and ship agent for the acts or conduct of the captain. [25] We
are not persuaded.Whatever rights petitioner may have under the aforementioned
statutory provisions were waived when it entered into the charter party.
Article 6 of the Civil Code provides that (r)ights may be waived, unless the waiver is
contrary to law, public order, public policy, morals, or good customs, or prejudicial to a
person with a right recognized by law. As a general rule patrimonial rights may be
waived as opposed to rights to personality and family rights which may not be made the
subject of waiver.[26] Being patently and undoubtedly patrimonial, petitioners right
conferred under said articles may be waived. This, the petitioner did by acceding to the
contractual stipulation that it is solely responsible for any damage to the cargo, thereby
exempting the private carrier from any responsibility for loss or damage
thereto. Furthermore, as discussed above, the contract of private carriage binds
petitioner and private respondent alone; it is not imbued with public policy
considerations for the general public or third persons are not affected thereby.

Articles 1170 and 1173, Civil Code

Petitioner likewise argues that the stipulation subject of this controversy is void for
being contrary to Articles 1170 and 1173 of the Civil Code[27] which read:

Art. 1170. Those who in the performance of their obligations are guilty of fraud,
negligence, or delay, and those who in any manner contravene the tenor thereof, are
liable for damages

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, shall apply.

If the law 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 Court notes that the foregoing articles are applicable only to the obligor or the
one with an obligation to perform. In the instant case, Private Respondent Seven
Brothers is not an obligor in respect of the cargo, for this obligation to bear the loss was
shifted to petitioner by virtue of the charter party. This shifting of responsibility, as earlier
observed, is not void. The provisions cited by petitioner are, therefore, inapplicable to
the present case.
Moreover, the factual milieu of this case does not justify the application of the
second paragraph of Article 1173 of the Civil Code which prescribes the standard of
diligence to be observed in the event the law or the contract is silent. In the instant case,
Article 362 of the Code of Commerce[28] provides the standard of ordinary diligence for
the carriage of goods by a carrier. The standard of diligence under this statutory
provision may, however, be modified in a contract of private carriage as the petitioner
and private respondent had done in their charter party.

Cases Cited by Petitioner Inapplicable

Petitioner cites Shewaram vs. Philippine Airlines, Inc.[29] which, in turn, quoted Juan
Ysmael & Co. vs. Gabino Barreto & Co.[30] and argues that the public policy
considerations stated there vis--vis contractual stipulations limiting the carriers liability
be applied with equal force to this case.[31] It also cites Manila Railroad Co. vs. Compaia
Transatlantica[32] and contends that stipulations exempting a party from liability for
damages due to negligence should not be countenanced and should be strictly
construed against the party claiming its benefit.[33] We disagree.
The cases of Shewaram and Ysmael both involve a common carrier; thus, they
necessarily justify the application of such policy considerations and concomitantly
stricter rules. As already discussed above, the public policy considerations behind the
rigorous treatment of common carriers are absent in the case of private carriers. Hence,
the stringent laws applicable to common carriers are not applied to private carriers. The
case of Manila Railroad is also inapplicable because the action for damages there does
not involve a contract for transportation.Furthermore, the defendant therein made a
promise to use due care in the lifting operations and, consequently, it was bound by its
undertaking; besides, the exemption was intended to cover accidents due to hidden
defects in the apparatus or other unforseeable occurrences not caused by its personal
negligence. This promise was thus construed to make sense together with the
stipulation against liability for damages.[34] In the present case, we stress that the private
respondent made no such promise. The agreement of the parties to exempt the
shipowner from responsibility for any damage to the cargo and place responsibility over
the same to petitioner is the lone stipulation considered now by this Court.
Finally, petitioner points to Standard Oil Co. of New York vs. Lopez
Costelo,[35] Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., [36] N. T. Hashim
and Co. vs. Rocha and Co.,[37] Ohta Development Co. vs.
SteamshipPompey and Limpangco Sons vs. Yangco Steamship Co. in support of its
[38] [39]

contention that the shipowner be held liable for damages. [40] These however are not on
all fours with the present case because they do not involve a similar factual milieu or an
identical stipulation in the charter party expressly exempting the shipowner from
responsibility for any damage to the cargo.

Effect of the South Sea Resolution

In its memorandum, Seven Brothers argues that petitioner has no cause of action
against it because this Court has earlier affirmed the liability of South Sea for the loss
suffered by petitioner. Private respondent submits that petitioner is not legally entitled to
collect twice for a single loss.[41] In view of the above disquisition upholding the validity of
the questioned charter party stipulation and holding that petitioner may not recover from
private respondent, the present issue is moot and academic. It suffices to state that the
Resolution of this Court dated June 2, 1995[42] affirming the liability of South Sea does
not, by itself, necessarily preclude the petitioner from proceeding against private
respondent. An aggrieved party may still recover the deficiency from the person causing
the loss in the event the amount paid by the insurance company does not fully cover the
loss. Article 2207 of the Civil Code provides:
ART. 2207. If the plaintiffs property has been insured, and he has received indemnity
from the insurance company for the injury or loss arising out of the wrong or breach
of contract complained of, the insurance company shall be subrogated to the rights of
the insured against the wrongdoer or the person who has violated the contract. If the
amount paid by the insurance company does not fully cover the injury or loss, the
aggrieved party shall be entitled to recover the deficiency from the person causing the
loss or injury.

WHEREFORE, premises considered, the petition is hereby DENIED for its utter
failure to show any reversible error on the part of Respondent Court. The assailed
Decision is AFFIRMED.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

[1]
Charter Party, p. 2; Record of the Regional Trial Court, p. 202.
[2]
Seventeenth Division, composed of J. Fernando A. Santiago, ponente, and JJ. Pedro A. Ramirez,
Chairman, and Fermin A. Martin, Jr., concurring.
[3]
Rollo, p. 24.
[4]
Decision of the Court of Appeals, pp. 1-4; Rollo, pp. 19-22.
[5]
Ibid., p. 6; rollo, p. 24.
[6]
Ibid., p. 4; rollo, p. 22.
[7]
South Sea Surety and Insurance Company, Inc. vs. Hon. Court of Appeals and Valenzuela Hardwood
and Industrial Supply, Inc., G.R. No. 102253, p. 4, June 2, 1995.
[8]
Ibid., pp. 5-7.
[9]
Memorandum for Petitioner, p. 5; rollo, p. 47.
[10]
Charter Party of January 16, 1984; Petitioners Memorandum, p. 2; rollo, p. 62. See first, second, and
third versions of charter party in Record of the Regional Trial Court, pp. 201-206.
[11]
Decision of the Regional Trial Court, p. 17; Record of the Regional Trial Court, p. 383.
[12]
Petition, p. 13; rollo, p. 14.
[13]
Decision of the Regional Trial Court, p. 17; Record of the Regional Trial Court, p. 383.
[14]
Petition, p. 2, rollo, p. 9. The Code of Commerce provides:
Art. 586. The shipowner and the ship agent shall be civilly liable for the acts of the captain and for the
obligations contracted by the latter to repair equip, and provision the vessel, provided the
creditors prove that the amount claimed was invested therein.
Art. 587. The ship agent shall also be civilly liable for the indemnities in favor of third persons which arise
from the conduct of the captain in the vigilance over the goods which the vessel carried; but he
may exempt himself therefrom by abandoning the vessel with all her equipments and the freight
he may have earned during the voyage.
[15]
Ibid., p. 11; rollo, p. 53.
[16]
See Hernandez, Eduardo F. and Peasales, Antero A., Philippine Admiralty and Maritime Law, p. 250,
(1987).
[17]
Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as
they may deem convenient, provided they are not contrary to law, morals, good customs, public
order, or public policy. See also, Section 10, Article III, Constitution; People vs. Pomar, 46 Phil.
440, 449, (1924).
[18]
23 SCRA 24, April 4, 1968.
[19]
Ibid., pp. 27-28.
[20]
Petitioners Memorandum, p. 12; rollo, p. 57.
[21]
Home Insurance Co. vs. American Steamship Agencies, Inc., supra, p. 27.
[22]
Ibid.
[23]
Petitioners Memorandum, pp. 8-9; rollo, pp. 50-51.
[24]
Decision, p. 4; rollo, p. 22.
[25]
Petitioners Memorandum, p. 15; rollo, p. 57.
Art. 586. The shipowner and the ship agent shall be civilly liable for the acts of the captain and for the
obligations contracted by the latter to repair, equip, and provision the vessel, provided the creditor
proves that the amount claimed was invested therein.
By ship agent is understood the person intrusted with the provisioning of a vessel, or who represents her
in port in which she may be found.
Art. 587. The ship agent shall also be civilly liable for the indemnities in favor of third persons which arise
from the conduct of the captain in the vigilance over the goods which the vessel carried; but he
may exempt himself therefrom by abandoning the vessel with all her equipment and the freight he
may have earned during the voyage.
[26]
Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, p. 29,
Volume I, (1990).
[27]
Petitioners Memorandum, p. 15; rollo, p. 54.

Art. 362. Nevertheless, the carrier shall be liable for the losses and damages resulting from causes
[28]

mentioned in the preceding article if it is proved, as against him, that they arose through his negligence or
by reason of his having failed to take the precautions which usage has established among careful
persons, unless the shipper has committed fraud in the bill of lading, representing the goods to be of a
kind or quality different from what they really were.
If notwithstanding the precautions referred to in this article, the goods transported run the risk of being
lost, on account of their nature or by reason of unavoidable accident, there being no time for their
owners to dispose of them, the carrier may proceed to sell them, placing them for the purpose at
the disposal of the judicial authority or of the officials designated by special provisions.
[29]
17 SCRA 606, July 7, 1966.
[30]
51 Phil. 90, (1927).
[31]
Petitioners Memorandum, pp. 9-10; rollo, pp. 51-52.
[32]
38 Phil.875, (1918).
[33]
Petitioners Memorandum, p. 13, rollo, p. 55.
[34]
Manila Railroad vs. Compaia Transatlantica, supra, pp. 886-887.
[35]
42 Phil. 256, (1921).
[36]
55 Phil. 517 (1930).
[37]
18 Phil. 315, (1911).
[38]
49 Phil. 117, (1926).
[39]
34 Phil. 597, (1916).
[40]
Petitioners Memorandum, p. 7; rollo, p. 49.
[41]
Memorandum For Private Respondent, p. 8; rollo, p. 68.
[42]
Supra.
G.R. No. 98695 January 27, 1993

JUAN J. SYQUIA, CORAZON C. SYQUIA, CARLOTA C. SYQUIA, CARLOS C. SYQUIA and

ANTHONY C. SYQUIA, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, and THE MANILA MEMORIAL PARK CEMETERY,
INC., respondents.

Pacis & Reyes Law Offices for petitioners.

Augusto S. San Pedro & Ari-Ben C. Sebastian for private respondents.

CAMPOS, JR., J.:

Herein petitioners, Juan J. Syquia and Corazon C. Syquia, Carlota C. Syquia, Carlos C. Syquia, and
Anthony Syquia, were the parents and siblings, respectively, of the deceased Vicente Juan Syquia.
On March 5, 1979, they filed a complaint1 in the then Court of First Instance against herein private
respondent, Manila Memorial Park Cemetery, Inc. for recovery of damages arising from breach of
contract and/or quasi-delict. The trial court dismissed the complaint.

The antecedent facts, as gathered by the respondent Court, are as follows:

On March 5, 1979, Juan, Corazon, Carlota and Anthony all surnamed Syquia,
plaintiff-appellants herein, filed a complaint for damages against defendant-appellee,
Manila Memorial Park Cemetery, Inc.

The complaint alleged among others, that pursuant to a Deed of Sale (Contract No.
6885) dated August 27, 1969 and Interment Order No. 7106 dated July 21, 1978
executed between plaintiff-appellant Juan J. Syquia and defendant-appellee, the
former, father of deceased Vicente Juan J. Syquia authorized and instructed
defendant-appellee to inter the remains of deceased in the Manila Memorial Park
Cemetery in the morning of July 25, 1978 conformably and in accordance with
defendant-appellant's (sic) interment procedures; that on September 4, 1978,
preparatory to transferring the said remains to a newly purchased family plot also at
the Manila Memorial Park Cemetery, the concrete vault encasing the coffin of the
deceased was removed from its niche underground with the assistance of certain
employees of defendant-appellant (sic); that as the concrete vault was being raised
to the surface, plaintiffs-appellants discovered that the concrete vault had a hole
approximately three (3) inches in diameter near the bottom of one of the walls closing
out the width of the vault on one end and that for a certain length of time (one hour,
more or less), water drained out of the hole; that because of the aforesaid discovery,
plaintiffs-appellants became agitated and upset with concern that the water which
had collected inside the vault might have risen as it in fact did rise, to the level of the
coffin and flooded the same as well as the remains of the deceased with ill effects
thereto; that pursuant to an authority granted by the Municipal Court of Parañaque,
Metro Manila on September 14, 1978, plaintiffs-appellants with the assistance of
licensed morticians and certain personnel of defendant-appellant (sic) caused the
opening of the concrete vault on September 15, 1978; that upon opening the vault,
the following became apparent to the plaintiffs-appellants: (a) the interior walls of the
concrete vault showed evidence of total flooding; (b) the coffin was entirely damaged
 by water, filth and silt causing the wooden parts to warp and separate and to crack
the viewing glass panel located directly above the head and torso of the deceased;
(c) the entire lining of the coffin, the clothing of the deceased, and the exposed parts
of the deceased's remains were damaged and soiled by the action of the water and
silt and were also coated with filth.

Due to the alleged unlawful and malicious breach by the defendant-appellee of its
obligation to deliver a defect-free concrete vault designed to protect the remains of
the deceased and the coffin against the elements which resulted in the desecration
of deceased's grave and in the alternative, because of defendant-appellee's gross
negligence conformably to Article 2176 of the New Civil Code in failing to seal the
concrete vault, the complaint prayed that judgment be rendered ordering defendant-
appellee to pay plaintiffs-appellants P30,000.00 for actual damages, P500,000.00 for
moral damages, exemplary damages in the amount determined by the court, 20% of
defendant-appellee's total liability as attorney's fees, and expenses of litigation and
costs of suit.2

In dismissing the complaint, the trial court held that the contract between the parties did not
guarantee that the cement vault would be waterproof; that there could be no quasi-delict because
the defendant was not guilty of any fault or negligence, and because there was a pre-existing
contractual relation between the Syquias and defendant Manila Memorial Park Cemetery, Inc.. The
trial court also noted that the father himself, Juan Syquia, chose the gravesite despite knowing that
said area had to be constantly sprinkled with water to keep the grass green and that water would
eventually seep through the vault. The trial court also accepted the explanation given by defendant
for boring a hole at the bottom side of the vault: "The hole had to be bored through the concrete vault
because if it has no hole the vault will (sic) float and the grave would be filled with water and the
digging would caved (sic) in the earth, the earth would caved (sic) in the (sic) fill up the grave."3

From this judgment, the Syquias appealed. They alleged that the trial court erred in holding that the
contract allowed the flooding of the vault; that there was no desecration; that the boring of the hole
was justifiable; and in not awarding damages.

The Court of Appeals in the Decision4 dated December 7, 1990 however, affirmed the judgment of
dismissal. Petitioner's motion for reconsideration was denied in a Resolution dated April 25, 1991.5

Unsatisfied with the respondent Court's decision, the Syquias filed the instant petition. They allege
herein that the Court of Appeals committed the following errors when it:

1. held that the contract and the Rules and Resolutions of private respondent allowed
the flooding of the vault and the entrance thereto of filth and silt;

2. held that the act of boring a hole was justifiable and corollarily, when it held that no
act of desecration was committed;

3. overlooked and refused to consider relevant, undisputed facts, such as those

which have been stipulated upon by the parties, testified to by private respondent's
witnesses, and admitted in the answer, which could have justified a different
conclusion;

4. held that there was no tort because of a pre-existing contract and the absence of
fault/negligence; and
 5. did not award the P25,000.00 actual damages which was agreed upon by the
parties, moral and exemplary damages, and attorney's fees.

At the bottom of the entire proceedings is the act of boring a hole by private respondent on the vault
of the deceased kin of the bereaved petitioners. The latter allege that such act was either a breach
of private respondent's contractual obligation to provide a sealed vault, or, in the alternative, a
negligent act which constituted a quasi-delict. Nonetheless, petitioners claim that whatever kind of
negligence private respondent has committed, the latter is liable for desecrating the grave of
petitioners' dead.

In the instant case, We are called upon to determine whether the Manila Memorial Park Cemetery,
Inc., breached its contract with petitioners; or, alternatively, whether private respondent was guilty of
a tort.

We understand the feelings of petitioners and empathize with them. Unfortunately, however, We are
more inclined to answer the foregoing questions in the negative. There is not enough ground, both in
fact and in law, to justify a reversal of the decision of the respondent Court and to uphold the pleas
of the petitioners.

With respect to herein petitioners' averment that private respondent has committed culpa aquiliana,
the Court of Appeals found no negligent act on the part of private respondent to justify an award of
damages against it. Although a pre-existing contractual relation between the parties does not
preclude the existence of a culpa aquiliana, We find no reason to disregard the respondent's Court
finding that there was no negligence.

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 . . . . (Emphasis supplied).

In this case, it has been established that the Syquias and the Manila Memorial Park
Cemetery, Inc., entered into a contract entitled "Deed of Sale and Certificate of Perpetual
Care"6 on August 27, 1969. That agreement governed the relations of the parties and defined
their respective rights and obligations. Hence, had there been actual negligence on the part
of the Manila Memorial Park Cemetery, Inc., it would be held liable not for a quasi-
delict or culpa aquiliana, but for culpa contractual as provided by Article 1170 of the Civil
Code, to wit:

Those who in the performance of their obligations are guilty of fraud, negligence, or
delay, and those who in any manner contravene the tenor thereof, are liable for
damages.

The Manila Memorial Park Cemetery, Inc. bound itself to provide the concrete box to be send in the
interment. Rule 17 of the Rules and Regulations of private respondent provides that:

Rule 17. Every earth interment shall be made enclosed in a concrete box, or in an
outer wall of stone, brick or concrete, the actual installment of which shall be made
by the employees of the Association.7

Pursuant to this above-mentioned Rule, a concrete vault was provided on July 27, 1978, the day
before the interment, and was, on the same day, installed by private respondent's employees in the
grave which was dug earlier. After the burial, the vault was covered by a cement lid.
Petitioners however claim that private respondent breached its contract with them as the latter held
out in the brochure it distributed that the . . . lot may hold single or double internment (sic)
underground in sealed concrete vault."8 Petitioners claim that the vault provided by private
respondent was not sealed, that is, not waterproof. Consequently, water seeped through the cement
enclosure and damaged everything inside it.

We do not agree. There was no stipulation in the Deed of Sale and Certificate of Perpetual Care and
in the Rules and Regulations of the Manila Memorial Park Cemetery, Inc. that the vault would be
waterproof. Private respondent's witness, Mr. Dexter Heuschkel, explained that the term "sealed"
meant "closed."9 On the other hand, the word "seal" is defined as . . . any of various closures or
fastenings . . . that cannot be opened without rupture and that serve as a check against tampering or
unauthorized opening." 10 The meaning that has been given by private respondent to the word
conforms with the cited dictionary definition. Moreover, it is also quite clear that "sealed" cannot be
equated with "waterproof". Well settled is the rule that when the terms of the contract are clear and
leave no doubt as to the intention of the contracting parties, then the literal meaning of the stipulation
shall control. 11 Contracts should be interpreted according to their literal meaning and should not be
interpreted beyond their obvious intendment. 12 As ruled by the respondent Court:

When plaintiff-appellant Juan J. Syquia affixed his signature to the Deed of Sale
(Exhibit "A") and the attached Rules and Regulations (Exhibit "1"), it can be assumed
that he has accepted defendant-appellee's undertaking to merely provide a concrete
vault. He can not now claim that said concrete vault must in addition, also be
waterproofed (sic). It is basic that the parties are bound by the terms of their contract,
which is the law between them (Rizal Commercial Banking Corporation vs. Court of
Appeals, et al. 178 SCRA 739). Where there is nothing in the contract which is
contrary to law, morals, good customs, public order, or public policy, the validity of
the contract must be sustained (Phil. American Insurance Co. vs. Judge Pineda, 175
SCRA 416). Consonant with this ruling, a contracting party cannot incur a liability
more than what is expressly specified in his undertaking. It cannot be extended by
implication, beyond the terms of the contract (Rizal Commercial Banking Corporation
vs. Court of Appeals, supra). And as a rule of evidence, where the terms of an
agreement are reduced to writing, the document itself, being constituted by the
parties as the expositor of their intentions, is the only instrument of evidence in
respect of that agreement which the law will recognize, so long as its (sic) exists for
the purpose of evidence (Starkie, Ev., pp. 648, 655, Kasheenath vs. Chundy, 5 W.R.
68 cited in Francisco, Revised Rules of Court in the Phil. p. 153, 1973 Ed.). And if the
terms of the contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulations shall control (Santos vs. CA,
et al., G. R. No. 83664, Nov. 13, 1989; Prudential Bank & Trust Co. vs. Community
Builders Co., Inc., 165 SCRA 285; Balatero vs. IAC, 154 SCRA 530). 13

We hold, therefore, that private respondent did not breach the tenor of its obligation to the Syquias.
While this may be so, can private respondent be liable for culpa aquiliana for boring the hole on the
vault? It cannot be denied that the hole made possible the entry of more water and soil than was
natural had there been no hole.

The law defines negligence as 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." 14 In
the absence of stipulation or legal provision providing the contrary, the diligence to be observed in
the performance of the obligation is that which is expected of a good father of a family.
The circumstances surrounding the commission of the assailed act — boring of the hole — negate
the allegation of negligence. The reason for the act was explained by Henry Flores, Interment
Foreman, who said that:

Q It has been established in this particular case that a certain Vicente

Juan Syquia was interred on July 25, 1978 at the Parañaque
Cemetery of the Manila Memorial Park Cemetery, Inc., will you
please tell the Hon. Court what or whether you have participation in
connection with said internment (sic)?

A A day before Juan (sic) Syquia was buried our personnel dug a
grave. After digging the next morning a vault was taken and placed in
the grave and when the vault was placed on the grave a hole was
placed on the vault so that water could come into the vault because it
was raining heavily then because the vault has no hole the vault will
float and the grave would be filled with water and the digging would
caved (sic) in and the earth, the earth would (sic) caved in and fill up
the grave. 15 (Emphasis ours)

Except for the foreman's opinion that the concrete vault may float should there be a heavy rainfall,
from the above-mentioned explanation, private respondent has exercised the diligence of a good
father of a family in preventing the accumulation of water inside the vault which would have resulted
in the caving in of earth around the grave filling the same with earth.

Thus, finding no evidence of negligence on the part of private respondent, We find no reason to
award damages in favor of petitioners.

In the light of the foregoing facts, and construed in the language of the applicable laws and
jurisprudence, We are constrained to AFFIRM in toto the decision of the respondent Court of
Appeals dated December 7, 1990. No costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.

# Footnotes

1 Civil Case No. Q-27112, "Juan J. Syquia, et al. vs. Manila Memorial Park
Cemetery, Inc.".

2 Rollo, pp. 59-60.

3 Ibid., p. 65.

4 Penned by Associate Justice Arturo B. Buena, concurred in by Associate Justices

Minerva P. Gonzaga-Reyes and Jainal D. Rasul.

5 Rollo, p. 87-A.
6 Exhibit "D"; Records, p. 10.

7 Annex A of Answer; Records, p. 31.

8 Petition, p. 5; Rollo, p. 13.

9 TSN, November 4, 1981, p. 7.

10 Webster's Third International Dictionary 2046 (1970).

11 Mercantile Insurance Co., Inc. vs. Felipe Ysmael, Jr. and Co., Inc., 169 SCRA 66
(1989); Papa vs. Alonzo, 198 SCRA 564 (1991); Alim vs. CA, 200 SCRA 450 (1991);
Republic vs. Sandiganbayan, 203 SCRA 310 (1991).

12 Mercantile Insurance Co., Inc., vs. Felipe Ysmael, Jr. and Co., Inc., 169 SCRA 66
(1989).

13 Rollo, pp. 64-65.

14 CIVIL CODE, Article 1173.

15 TSN, June 28, 1982, p. 2.

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum
of P31,000, as damages alleged to have been caused by an automobile driven by the defendant.
From a judgment of the Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve
miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to
give warning of his approach. He continued his course and after he had taken the bridge he gave
two more successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely
up against the railing on the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper side of the
road for the machine. In so doing the defendant assumed that the horseman would move to the
other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being then no possibility of
the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right
to escape hitting the horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became frightened and turned its
body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left
hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the automobile and the railing of the bridge
was probably less than one and one half meters. As a result of its injuries the horse died. The
plaintiff received contusions which caused temporary unconsciousness and required medical
attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider would pass over to the proper side;
but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to
an immediate stop or, seeing that there were no other persons on the bridge, to take the other side
and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this,
the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into
doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here confronted him. When
the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye
of the law.

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 person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.
The existence of negligence in a given case is not determined by reference to the personal judgment
of the actor in the situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion,
have recognized that the course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence of that course. Under
these circumstances the law imposed on the defendant the duty to guard against the threatened
harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were
not contemporaneous, since the negligence of the defendant succeeded the negligence of the
plaintiff by an appreciable interval. Under these circumstances the law is that the person who has
the last fair chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps
be mentioned in this connection. This Court there held that while contributory negligence on the part
of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails
from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed
upon cars which were hauled along a narrow track. At certain spot near the water's edge the track
gave way by reason of the combined effect of the weight of the car and the insecurity of the road
bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and
broken. It appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment
of the accident, guilty of contributory negligence in walking at the side of the car instead of being in
front or behind. It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair nevertheless the amount of the
damages should be reduced on account of the contributory negligence in the plaintiff. As will be
seen the defendant's negligence in that case consisted in an omission only. The liability of the
company arose from its responsibility for the dangerous condition of its track. In a case like the one
now before us, where the defendant was actually present and operating the automobile which
caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective
parties in order to apportion the damage according to the degree of their relative fault. It is enough to
say that the negligence of the defendant was in this case the immediate and determining cause of
the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for
the offense mentioned would be res adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of
the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect.
(See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel,
and lawful interest on the whole to the date of this recovery. The other damages claimed by the
plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.

Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so
because of my understanding of the "last clear chance" rule of the law of negligence as particularly
applied to automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is
concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in
a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery.
But Justice Street finds as a fact that the negligent act of the interval of time, and that at the moment
the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule is
applicable. In other words, when a traveler has reached a point where he cannot extricate himself
and vigilance on his part will not avert the injury, his negligence in reaching that position becomes
the condition and not the proximate cause of the injury and will not preclude a recovery. (Note
especially Aiken vs. Metcalf [1917], 102 Atl., 330.)