G.R. No.

L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee, vs. THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant. CARSON, J.: An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his nearest relative. The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the island. The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics. On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent some time in wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr. Murphy. After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive power. After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find, hung them on stick, of which each took end, and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made a series of experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons who were called in to care for his wounds. The evidence does definitely and conclusively disclose how the caps came to be on the defendant's premises, nor how long they had been there when the boys found them. It appears, however, that some months before the accident, during the construction of the defendant's plant, detonating caps of the same size and kind as those found by the boys were used in sinking a well at the power plant near the place where the caps were found; and it also appears that at or about the time when these caps were found, similarly caps were in use in the construction of an extension of defendant's street car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to have been lying for a considerable time, and from the place where they were found would seem to have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended, when they felt disposed so to do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed premises of the defendant, in the neighborhood of the place where the caps were found. There is evidence that any effort ever was made to forbid these children from visiting the defendant company's premises, although it must be assumed that the company or its employees were aware of the fact that they not infrequently did so. Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. Later he took up work in his father's office, learning mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys of fifteen. The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are substantially admitted by counsel. The only questions of fact which are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant company's premises were the property of the defendant, or that they had come from its possession and control, and that the company or some of its employees left them exposed on its premises at the point where they were found. The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard. It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the McKinley extension of the defendant company's track; that some of these caps were used in blasting a well on the company's premises a few months before the accident; that not far from the place where the caps were found the company has a storehouse for the materials, supplies and so forth, used by it in its operations as a street railway and a purveyor of electric light; and that the place, in the neighborhood of which the caps were found, was being used by the company as a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant's premises fairly justifies the inference that the defendant company was either the owner of the caps in question or had the caps under its possession and control. We think also that the evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the company or its employees at the spot where they were found, with the expectation that they would be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are satisfied that the evidence is sufficient to sustain a finding that the company or some of its employees either willfully or through an oversight left them exposed at a point on its premises which the general public, including children at play, where not prohibited from visiting, and over which the company knew or ought to have known that young boys were likely to roam about in pastime or in play. Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by intimidating or rather assuming that the blasting work on the company's well and on its McKinley extension was done by contractors. It was conclusively proven, however, that while the workman employed in blasting the well was regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well directly and immediately under the supervision and control of one of defendant company's foremen, and there is no proof whatever in the record that the blasting on the McKinley extension was done by independent contractors . Only one witness testified upon this point, and while he stated that he understood that a part of this work was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant company. The fact having been proven that detonating caps were more or less extensively employed on work done by the defendant

company's directions and on its behalf, we think that the company should have introduced the necessary evidence to support its contention if it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was responsible for tortious or negligent acts of the agents employed therein, on the ground that this work had been intrusted to independent contractors as to whose acts the maxim respondent superior should not be applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that the caps found on its premises were its property, and were left where they were found by the company or some of its employees. Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that code. ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions or by those in which any kind of fault or negligence occurs. ART. 1902 A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them. xxx xxx xxx

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

The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage. ART. 1908 The owners shall also be liable for the damage caused — 1 By the explosion of machines which may not have been cared for with due diligence, and for kindling of explosive substances which may not have been placed in a safe and proper place. Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not established the liability of the defendant company under the provisions of these articles, and since we agree with this view of the case, it is not necessary for us to consider the various questions as to form and the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision affirming the judgment of the court below. We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent evidence: (1) Damages to the plaintiff.

or for purposes of amusement. the real difficulty arising in the application of these principles to the particular facts developed in the case under consideration. elementary. and the supreme court of Michigan in the case of Ryan vs. and had he not picked up and carried away the property of the defendant which he found on its premises. and the cases based thereon. one of which when carried away by the visitor. who from mere idle curiosity.). 463) formally repudiated and disapproved the doctrine of the Turntable cases. left in such condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine. The care and caution required of a child is according to his maturity and capacity only. was guilty.. under circumstances. or had good reason to suppose. It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were found. (84 U. at a place where the railroad company knew. from idle curiosity.(2) Negligence by act or omission of which defendant personally. and this latter the proximate cause of the accident which occasioned the injuries sustained by him. or for the purposes of amusement." and that "the conduct of an infant of tender years is not to be judged by the same rule which governs that of adult. In support of his contention. In these. enters upon the railroad company's premises. These proposition are. and do not admit of discussion. Towar (128 Mich. exploded and injured him. Stout (17 Wall. the principles on which these cases turn are that "while a railroad company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it. While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault. for his own pleasure and convenience. attributable to the negligence of the company). entered upon the defendant's premises. if such injury was. and the intervention of his action between the negligent act of defendant in leaving the caps exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any wise to the accident. As laid down in Railroad Co. and in great variety of similar cases. or if their owner had exercised due care in keeping them in an appropriate place. which should be deemed to be the direct result of defendant's negligence in leaving the caps exposed at the place where they were found by the plaintiff. S. and had he not thereafter deliberately cut open one of the caps and applied a match to its contents. or where such infant found upon the premises a dangerous machine. In a typical cases. 657). or some person for whose acts it must respond. and strolled around thereon without the express permission of the defendant. the great weight of authority holds the owner of the premises liable. it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts. counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases. such as a turntable. children would be likely to come. Stout was vigorously controverted and sharply criticized in several state courts. and this is to be determined in each case by the circumstances of the case. and there found explosive signal torpedoes left unexposed by the railroad company's employees. But counsel for plaintiff contends that because of plaintiff's youth and inexperience. but it is equally clear that plaintiff would not have been injured had he not. vs. wherein the principal question was whether a railroad company was liable for in injury received by an infant while upon its premises. especially that . his entry upon defendant company's premises. (3) The connection of cause and effect between the negligence and the damage. of course. the question involved has been whether a railroad company is liable for an injury received by an infant of tender years. such is not the rule in regard to an infant of tender years." The doctrine of the case of Railroad Company vs.

and the Supreme Court of the United States. Stout (supra). in the vicinity of the slack pit. the railroad company ought not to be heard to say that the plaintiff. 281) it was held that if a man dangerous traps. moved by curiosity to see the mine. 461. We quote at length from the discussion by the court of the application of the principles involved to the facts in that case. and after an exhaustive and critical analysis and review of many of the adjudged cases. both English and American. the plaintiff in this case being a trespasser. 35." In the case of Union Pacific Railway Co. (3) that an invitation or license to cross the premises of another can not be predicated on the mere fact that no steps have been taken to interfere with such practice. without regard to age. and witness its operation. or for whose protection it was under no obligation to make provisions. was by accident injured by falling into a burning slack pile of whose existence he had no knowledge. old and young. Railroad Co. close to its depot building. And the doctrine has been questioned in Wisconsin. On these facts the court held that the plaintiff could not be regarded as a mere trespasser. vs. without defendant's express permission or invitation. and perhaps in other States. Pennsylvania. It knew that children were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. vs. the defendant was under no obligation to make provision. a boy 12 years of age. wind. vs. made by it in the vicinity of its depot building. although defendant knew or had reason the interest or curiosity of passers-by. or kept in his neighbors premises. Stout (supra). entered upon and visited the defendant's premises.. On the contrary. On the other hand. they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile. would probably be attracted by . vs. (Nolan vs. baited with flesh. and would seem to dispose of defendant's contention that. vs. Nurding (1 Q.. (2) that no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises. citing and approving the doctrine laid down in England in the leading case of Lynch vs. or to the premises of another. New Hampshire. at which the people of the village. in a very able decision wherein it held. and while there. Wathen (9 East. But it did not do so. not due to his wanton or willful acts. to visit its mine. Under all the circumstances. Applied to the case now before us. Stout. because what is said there is strikingly applicable in the case at bar. 36). 277.. McDonal and reconsidered the doctrine laid down in Railroad Co. 29. formally declared that it adhered "to the principles announced in the case of Railroad Co. 53 Conn. MacDonald (supra) the facts were as follows: The plaintiff. Similar criticisms of the opinion in the case of Railroad Company vs. 154 Mass. (4) that there is no difference between children and adults as to the circumstances that will warrant the inference of an invitation or a license to enter upon another's premises. In Townsend vs. The slightest regard for the safety of these children would have suggested that they were in danger from being so near a pit. to whom it owed no duty. lay down the rule in these cases in accord with that announced in the Railroad Company vs. out of curiosity and for his own pleasure. but which had been left by defendant on its premises without any fence around it or anything to give warning of its dangerous condition. many if not most of the courts of last resort in the United States. Stout.laid down in Railroad Company vs. against the unseen danger referred to. in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. and in no case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant's premises. It knew that the usual approach to the mine was by a narrow path skirting its slack pit. so near to a highway. in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained by them. We adhere to the principles announced in Railroad Co. 349).. was a trespasser. that dogs passing along the highway. B. or rain prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death. Stout. it permitted all. a mere lad. in his own ground. Stout were indulged in by the courts in Connecticut and Massachusetts. It could have forbidden all persons from coming to its coal mine for purposes merely of curiosity and pleasure. would often assemble. the defendant company owed him no duty. for whose safety and protection while on the premises in question. beneath the surface of which was concealed (except when snow.

and in consequence of such act his neighbor's dogs be so attracted and thereby injured. in the case of Powers vs.. perhaps." In such cases the owner of the premises can not be heard to say that because the child has entered upon his premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. " must calculate upon this. Drawn by curiosity and impelled by the restless spirit of youth. If they leave exposed to the observation of children anything which would be tempting to them. responsible. and indeed anything which arouses the attention of the young and inquiring mind. and. must be expected to act upon childlike instincts and impulses. Stout (supra) and Union Pacific Railroad Co. (Chap. and take precautions accordingly. note. . vs. and where the child does enter under such conditions the owner's failure to take reasonable precautions to guard the child against injury from unknown or unseen dangers. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that wherein those cases originated. without objection or warning. Wathen. near the common way." Chief Justice Cooley. and others who are chargeable with a duty of care and caution toward them must calculate upon this. to do so at will. might run into it and be killed. page 305. an implied license might sometimes arise when it would not on behalf of others. where they would be likely to gather for that purpose. so that his neighbor's dog attracted by his natural instinct. well says: "It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon. "What difference. in reason we may observe in this case. and putting him there by manual force?" What difference. volume 1. or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and in play. an action on the case would lie. in the vicinity of its slack pile. in his work on the Law of Negligence. wherever they go. said that (p. voicing the opinion of the supreme court of Michigan. 515): Children. might thereby be killed or maimed for life. 10. will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. is clearly a breach of duty. if the child is actually injured.) The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. Thus leaving a tempting thing for children to play with exposed. and take precautions accordingly. may be equivalent to an invitation to them to make use of it." said Lord Ellenborough. they should expect that liberty to be taken. The movement of machinery. Harlow (53 Mich. resulting from the habit of the defendant to permit them. baited with stinking meat. 507). The owners of premises. so that his neighbor's child attracted to it and tempted to intermeddle with it by instincts equally strong. and which would exempt him from liability for the consequence of leaving exposed and unguarded on his land a dangerous machine. Children here are actuated by similar childish instincts and impulses. Judge Thompson. and other persons not fully sui juris.J. things tempting to children. and an implied license. whereon things attractive to children are exposed. if one were to throw away upon his premises. The owner's failure to take reasonable precautions to prevent the child from entering his premises at a place where he knows or ought to know that children are accustomed to roam about of to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter. And the same eminent jurist in his treatise or torts. vs. alluding to the doctrine of implied invitation to visit the premises of another. placed upon such premises by the owner. "is there in reason between drawing the animal into the trap by means of his instinct which he can not resist. boys here as well as there will usually be found whenever the public is permitted to congregate. C. therefore.their instinct into the traps. p. and which they in their immature judgment might naturally suppose they were at liberty to handle or play with. for purposes of curiosity or pleasure? Referring it the case of Townsend vs. 303. without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. is there between an express license to the children of this village to visit the defendant's coal mine. says: In the case of young children.. the same implication should arise. To hold otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter.

such is not the rule in regard to an infant of tender years. decided January 26. properly speaking. and it is because we can not agree with this proposition. Toribio. that his action would result in an explosion. 1910). under the reasoning on which rests the doctrine of the Turntable and Torpedo cases. more mature both mentally and physically than the average boy of his age." and. and the record discloses throughout that he was exceptionally well qualified to take care of himself. 5060. In the case at bar. as he undoubtedly did. In this jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights and interests of the community (see U. His attempt to discharge the cap by the use of electricity. he well knew the explosive character of the cap with which he was amusing himself. Stout (supra). we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff. knowing. The series of experiments made by him in his attempt to produce an explosion. although we accept the doctrine of the Turntable and Torpedo cases. in view of the fact that the little girl. and this is to be determined in each case by the circumstances of the case. so as to prevent their entering on the premises of others is of sufficient weight to put in doubt. justice. which must be determined by "the particular circumstances of this case. and the final success of his endeavors brought about by the application of a match to the contents of the caps. therefore is not civilly responsible for the injuries thus incurred.1 No. On this point. Plaintiff contends. as described by the little girl who was present. plaintiff at the time of the accident was a well-grown youth of 15. admit of no other explanation. vs. As was said in case of Railroad Co. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous. because of his entry upon defendant's uninclosed premises without express permission or invitation' but it is wholly different question whether such youth can be said to have been free from fault when he willfully and deliberately cut open the detonating cap. was able to earn P2. on the other hand. no fault which would relieve defendant of responsibility for injuries resulting from its negligence can be attributed to the plaintiff. despite his denials on the witness stand. The care and caution required of a child is according to his maturity and capacity only. were of such tender years that they were held not to have the capacity to understand the nature or character of the explosive instruments which fell into their hands. . S. and necessity. in whose favor judgments have been affirmed. we are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff. and neither is contention that a man has a right to do what will with his own property or that children should be kept under the care of their parents or guardians. 9 years of age. a well-grown boy of 15 years of age. upon the authority of the Turntable and Torpedo cases. he had been to sea as a cabin boy. that because of plaintiff's youth the intervention of his action between the negligent act of the defendant in leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident. "While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault. "attributable to the negligence of the defendant.50 a day as a mechanical draftsman thirty days after the injury was incurred. even if in the event of accident to the child the negligence of the parent could in any event be imputed to the child so as to deprive it a right to recover in such cases — a point which we neither discuss nor decide. the record discloses that the plaintiffs. which therefore was not. and except as to infants of very tender years it would be absurd and unreasonable in a community organized as is that in which we lived to hold that parents or guardian are guilty of negligence or imprudence in every case wherein they permit growing boys and girls to leave the parental roof unattended.This conclusion is founded on reason. show clearly that he knew what he was about. and placed a match to the contents. who was within him at the time when he put the match to the contents of the cap. became frightened and ran away. although it is worthy of observation that in all of the "Torpedo" and analogous cases which our attention has been directed. vs. without other fault on his part. followed by his efforts to explode it with a stone or a hammer. that we have thought proper to discuss and to consider that doctrine at length in this decision. But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff. and that the defendant." the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid. if such injury were attributable to the negligence of the defendant. The evidence of record leaves no room for doubt that." As we think we have shown.

and yet he willfully. Partida 3. And males of 14 and females of 12 are capable of contracting a legal marriage (Civil Code. O. 765).. though it can not be said that these provisions of law are of much practical assistance in cases such as that at bar. 17 rule 203. 7 Partida 2. Partida 2.) According to ancient sages. But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable of exercising certain rights and incurring certain responsibilities.) And they even said that when a man received an injury through his own acts the grievance should be against himself and not against another. 551). arts.) And while there does not appear to be anything in the Civil Code which expressly lays down the law touching contributory negligence in this jurisdiction. sec. or that defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances. tit. for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences. tit. 7.True. under certain circumstances. tit. and that he can not demand reparation therefor from another. Gulf and . The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own acts. and of course he did not anticipate the resultant injuries which he incurred. 8 and 9). 771). G. (Law 2. and the age at which a minor can be said to have such ability will necessarily depends of his own acts and their consequences. choose which parent it prefers to live with (Code of Civil Procedure. (Digest. when a man received an injury through his own acts the grievance should be against himself and not against another. although the fact that he is less than eighteen years of age will be taken into consideration as an extenuating circumstance (Penal Code. so as to make it negligence on his part to fail to exercise due care and precaution in the commission of such acts. 68. except so far as they illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the varying circumstances of each case. but he well knew that a more or less dangerous explosion might be expected from his act. We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to which he exposed himself when he put the match to the contents of the cap. the interpretation placed upon its provisions by the supreme court of Spain. Under the provisions of the Penal Code a minor over fifteen years of age is presumed to be capable of committing a crime and is to held criminally responsible therefore. and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act. The rule of the Roman law was: Quod quis ex culpa sua damnum sentit.. sec. tit. non intelligitur sentire . It would be going far to say that "according to his maturity and capacity" he exercised such and "care and caution" as might reasonably be required of him. sec.) The Patidas contain the following provisions: The just thing is that a man should suffer the damage which comes to him through his own fault. 1). At 10 years of age a child may. and knowingly produced the explosion. sec. art. and by this court in the case of Rakes vs. 5. 83. and may consent or refuse to be adopted ( Id. book 50. nevertheless.. that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act. and indeed it would be impracticable and perhaps impossible so to do. At 14 may petition for the appointment of a guardian (Id. No. (Law 25. he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap. recklessly. nevertheless plaintiff's own act was the proximate and principal cause of the accident which inflicted the injury. Atlantic. (Law 2. and at the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which may be done by him. so that while it may be true that these injuries would not have been incurred but for the negligence act of the defendant in leaving the caps exposed on its premises.

the 19th of February. it is apparent that it is duty of him who shall claim damages to establish their existence. which are two: An act or omission on the part of the person who is to be charged with the liability. and June 23." on the ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of January. gave rise to the damage. 1896. 1900. (Scavoela. p. 1887. 1902 of the Civil Code. although such acts or omission were imprudent or unlawful. though not the principal one. Jurisprudencia del Codigo Civil. 6. that the burden thereof is upon the plaintiff. (supra). (7 Phil. To similar effect Scaevola. said." (Decision of October 29. and September 27. Gulf and Pacific Co." but expressly and definitely denied the right of recovery when the acts of the injured party were the immediate causes of the accident. in its decision of June 12.) Negligence is not presumed. writing under that title in his Jurisprudencia del Codigo Civil (1902 Anuario. but if the injury produced should not be the result of acts or omissions of a third party. the learned Spanish writer. stated in Alcubilla's Index of that year). and we are left to seek the theory of the civil law in the practice of other countries. and the production of the damage by said act or omission. and much less when it is shown that the immediate cause of the injury was the negligence of the injured party himself. Atlantic. 1902 (93 Jurisprudencia Civil. but must be proven by him who alleges it. and March 18. by inference." See also judgment of October 21. vol. "necessarily presupposing a legal ground for imputability. 1898.) Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this court in the maturely considered case of Rakes vs. and the 7th of March. 1900. 455). 359). In that case the court said: According to the doctrine expressed in article 1902 of the Civil Code. but if the damage caused does not arise from the acts or omissions of a third person. the first setting forth in detail the necessary points of the proof. Rep. . in whole or in part. pp. even though such acts or omissions be imprudent or illegal.Pacific Co. said that "the existence of the alleged fault or negligence is not sufficient without proof that it. the latter must be the direct result of one of the first two." and in such cases we declared that law in this jurisdiction to require the application of "the principle of proportional damages. As the decision of March 22. The judgment of the supreme court of Spain of the 7th of March. decisions of supreme court of Spain of June 12. July. and much less so when it is shown that the immediate cause of the damage has been the recklessness of the injured party himself. fault or negligence gives rise to an obligation when between it and the damage there exists the relation of cause and effect. This includes. the latter has no obligation to repair the same. it is necessary that the damages result immediately and directly from an act performed culpably and wrongfully. for the injuries sustained by him. commenting on the decision of March 7. have especially supported the principle. 1900. And again — In accordance with the fundamental principle of proof. none of the cases decided by the supreme court of Spain "define the effect to be given the negligence of its causes. wherein we held that while "There are many cases (personal injury cases) was exonerated. 1903. 1902. 391). 1881.) (Cf. 551-552.. is directly in point. and no other cause. fault or negligence is a source of obligation when between such negligence and the injury there exists the relation of cause and effect. clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant. the establishment of a relation of cause or effect between the act or omission and the damage. there is no obligation to make good upon the latter. The decisions of April 9. The same court.

For instance. Graciano Bautista." a youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the circumstances of this case. Inc. he contributes only to his own injury. CO. J. There he stopped at a gasoline station to fill up his car's gasoline tank. Zoilo Tolentino. but whether in view of the well-known fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles. and that having "contributed to the principal occurrence. the property of defendant. Julian Ramos. namely. Pampanga. where the judgment will be entered in favor of the defendant for the costs in first instance and the complaint dismissed without day. Had the crosspiece been out of place wholly or partly through his act or omission of duty. Plaintiff-Appellant.At about the same time Eduardo Tuason left Baguio City. 1953. for which he would have been responsible. Francisco de Leon and Manuel de Leon. independent of it. without which there could have been no accident. INC. was in his own act in putting a match to the contents of the cap. This took about 15 to 20 minutes. between the event itself. and those acts of the victim not entering into it.: Early in the morning of April 13. Olivia de Leon.. the accident which resulted in plaintiff's injury. the act of the plaintiff in walking by the side of the car did not contribute. that would have been one of the determining causes of the event or accident. although it was an element of the damage which came to himself. vs. the sinking of the track and the sliding of the iron rails. Defendants-Appellees. left the company's compound at Guagua. such action on the part of an infant of very tender years would have no effect in relieving defendant of responsibility. He passed the Kennon Road Checkpoint at 3:00 o'clock and winged on his way passing the National Toll Road. L-13541 January 28. he continued his drive for Manila. driving one of its truck- . and a laborer. Distinction must be made between the accident and the injury. Eduardo Tuason left Baguio City in a 1952 model Packard car. he may recover the amount that the defendant responsible for the event should pay for such injury. So ordered. This produces the event giving occasion for damages—that is. The test is simple. 24 minutes later. as one of its determining factors..The doctrine as laid down in that case is as follows: Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. without costs to either party in this instance. Where. G. Under the doctrine of the Torpedo cases. in conjunction with the occurrence. an employee of the Luzon Stevedoring Co. We think it is quite clear that under the doctrine thus stated. he can not recover. No. the cause of the accident under review was the displacement of the crosspiece or the failure to replace it. with three passengers. the immediate cause of the explosion. and ten days thereafter let the record be returned to the court wherein it originated.R. Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below. he can not recover. and carrying the relation of cause and effect between the negligent act or omission of the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. and JULIAN RAMOS. he continued slashing through the early morning air so that by 5: 00 o'clock of that same morning he arrived at a town in Tarlac." We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's premises the detonating caps. GUTIERREZ DAVID. we neither discuss nor decide. together with a mechanic. Where he contributes to the principal occurrence. less a sum deemed a suitable equivalent for his own imprudence. Thereafter. 1961 EDUARDO TUASON. as one of its determining factors. To this event.. LUZON STEVEDORING. After paying the toll. but contributing to his own proper hurt. Camp 6 Toll Gate.

The complaint alleges. Plaintiff. Tarlac.trailers for Manaoag. Tarlac. and that the collision was due to the fault and negligence of plaintiff as defendant Julian Ramos exercised due care and diligence in the performance of his duties as driver of the truck-trailer. that it to say. they proceeded on their way. San Fernando. 1956. that the collision completely wrecked plaintiff's car and caused serious physical injuries to him and his companions. who had the advantage of hearing the parties testify and of observing their demeanor on the witness stand. moral damages in the amount of P25. on the left lane facing south. Eduardo Tuason's left leg was pinned down by the door of his car. the plaintiff appealed directly to this Court. Inc. alleged that it exercised the care and diligence of a good father of a family in the selection and supervision of Julian Ramos as its driver. and Julian Ramos for the recovery of damages suffered by him as a result of the collision above referred to. and that defendant Julian Ramos was then driving recklessly and negligently at a high rate of speed. The issue being one of credibility. brought to the National Orthopedic Hospital in Manila.000.000. 1953. Inc. After going over the record. plus attorney's fees. rendered decision. Mabalacat. The defendant company.000. of the province of Pampanga. the Packard car driven by Eduardo Tuason and the truck-trailer driven by Julian Ramos collided. that after the accident. had to clean the carburetor and the gasoline line. about 75 meters south of the bridge in Barrio Cut-Cut. who were also injured were. The mechanic. the trial court.. we find no reason for rejecting the findings of fact below. with lights on. Finding the evidence adduced by plaintiff and his witnesses to he contradictory and unworthy of belief.35 to 40 kilometers per hour . on January 9. with lights on and blowing his horn. his car collided with the truck-trailer of the Luzon . alleging by way of special defenses that the truck trailer driven by the defendant Julian Ramos was traveling at low-speed. subject matter of the present case. The court hereby orders plaintiffs claims against the defendants dismissed with costs against the plaintiff. both plaintiff and defendant Julian Ramos were charged criminally before the Justice of the Peace Court of Capas. on that same day. denied any liability for damages. justifying the dismissal of plaintiff's claim for damages. Briefly stated. in addition. Angeles. plaintiff's version is that while he was driving his new Packard car along the right lane of the road. 1958. Afterwards. On February 22. Tarlac. he was taken to the clinic of Dr. Graciano Bautista. The defendants. in their separate answers. claims and prays for actual and compensatory damages in the sum of P200. solely and wholly responsible for the collision which occurred on April 13. which took him about 25 to 30 minutes to finish. both parties presented testimonial and documentary evidence. along the right side of the road when it was hit by the Packard car driven by plaintiff recklessly and negligently at a high speed. They passed through the towns of Bacolor. At around 5:10 o'clock that same morning at about 75 meters south of the bridge at barrio Cut-Cut of the municipality of Capas. the question of which testimony should be given more credence is best left to the trial judge. therefore. As a result of the collision. At the trial. taken to the clinic at Capas. and absolves the defendants Julian Ramos and Luzon Stevedoring Co.with headlights on. of the municipality of Capas." From this decision. while the truck-trailer driven by the defendant Julian Ramos was traveling at a moderate speed and was almost at a stop before the collision. when the truck-trailer driven by the defendant Julian Ramos struck his car. Eduardo Tuason filed with the Court of First Instance of Manila a complaint against the Luzon Stevedoring Co.. at a curve. After he was extricated from his seat. that plaintiff was driving at a moderate speed . the dispositive part of which reads: "WHEREFORE. Tarlac. among other things. the information as against the defendant Julian Ramos was dismissed. Pangasinan. likewise. the truck developed some engine trouble. and holding that plaintiff was traveling at a very high speed and on the wrong side of the road. or after almost three years from the date of the collision.. His companions in the car. When they reached the municipality of Bamban. and upon the case being forwarded to the Court of First Instance of the same province.. the court finds the plaintiff Eduardo Tuason. and later. and exemplary or corrective damages in the sum of P25. Pineda at Capas. from any liability or responsibility in connection therewith.

with the use of its own power. that as a result thereof. The lower court. He could not.that he was in his house when he heard a crash. sir. Considering the other circumstances of the case. which shall hereafter be discussed. and its three occupants suffered minor injuries. the last person taken out of the car was plaintiff and that it took them some 30 minutes to extricate him from the driver's seat." Alberto Yandan. and which he could not have seen. He contradicted himself. the trial court found it difficult to believe his testimony and opines that his participation in the matter of the collision was merely to bring one of the injured to the clinic of Dr. carrying plaintiff Eduardo Tuason while the three car passengers were still inside the automobile. The court is convinced that Manuel de Leon was merely accommodating the plaintiff. he said that when he arrived at the scene of the collision. Witness Mallari also declared that plaintiff's left leg was pinned down by the left bumper of the truck . claims that he saw the collision. he could. tell the matters he testified to in court. Pineda at Capas and nothing else. namely. which was later reduced to writing. testifying for the plaintiff. Capas.Stevedoring Company driven without any lights by defendant Julian Ramos. the two vehicles became attached to and entangled with one another. another resident of Barrio Cut-Cut. Moreover. safely. noted from his testimony and demeanor that he was not at all clear about the special circumstances and important details of the accident which an eyewitness would normally notice. Capas. however. Alberto Yandan and Manuel de Leon. likewise. his friend. sworn to and signed by him before the Justice of the Peace. in an effort to corroborate plaintiff's version and theory of the case. likewise.so that he could not have observed the details of the accident. that he ordered the truck to be moved backward. was also moved backwards. admitted that he was in extreme pain after the collision . he could not have seen anything that was done during his state of unconsciousness nor afterwards. when he admittedly was aware that he was being investigated to bring out everything that he knew of the accident. one of plaintiff's companions in the car. In support of his complaint. who declared that.and. He disclaimed knowledge. Tarlac. which after being separated from the truck-trailer. for it has not been explained why he did not. that the car was wrecked while the truck was only slightly damaged. recall and remember." For this reason. for instance. He declared. This statement is contrary to the testimonies of plaintiff's other witnesses. indeed. of the day of the collision in the presence of the chief of police and the Justice of the Peace. he could not even tell or recall on what part of the road the Packard car was. and that he brought one of the injured to the clinic of Dr. In that investigation. at the time he was investigated. We are inclined to agree with the lower court. of the identity of the person who moved the truck. over the bridge. this witness could not even recall how wide Cut-Cut bridge is or whether two vehicles could meet and pass each other. at the time of the accident. we think the trial court was justified in resolving his testimony against him. plaintiff himself testified. among other things. he declared . Pedro Mallari. Manuel de Leon. He saw Alberto Yandan. not recall whether there were shoulders and ditches on both sides of the road at the scene of the collision. and that to separate the two vehicles the truck-trailer had to move backwards. that the people who were attracted to the scene of the collision had to separate the automobile from the truck-trailer before they could extricate plaintiff from the driver's seat of his car. and that it took thirty minutes to take plaintiff out of the car. Pineda at Capas. yet he sought to convince the court of facts which could not have happened. that the driver of the car was badly injured. when he testified for the reason that he was neither clear nor positive as to his testimony. dragging the automobile. in some particulars. This witness admitted on direct and cross-examination that he stayed at the scene of the accident only for five minutes.contrary to his testimony in court . this witness was in a state of shock and light-headed after he recovered consciousness and. however. a resident of Barrio Cut-Cut. He was asked three times in the course of the investigation whether or not he had anything more to say in connection with the collision and in like number of times the answered. tell "who moved the trailer nor whether it was moved on its own power or pushed by the people around. that he immediately went downstairs and found that the crash was caused by a collision between a truck and a car. testified for plaintiff.m. that the collision took place at the middle of the road. during that period. however. the trial court made the following observations: "In the mind of the court." Explaining his unreliability as a witness. must have been unconscious . also took the witness stand. as he admitted that he was unconscious for 30 minutes after the collision. "no more. Thus. It also appears that he was investigated by the police of Capas at 10:00 a.

while testifying. in addition. On the contrary. however. nervous and uncomfortable and that he was shifting around and could not keep his eyes fixed.89 kilometers between Guagua. and that he (Mallari) was inside the police station and present during the investigation. chief of police. that it is the other driver. The evidence for the defendants. "I"). His declarations are directly contradicted by those of Alberto Yandan who testified that he was investigated at 10:00 a. Examining further Pedro Mallari's testimony.and that when the truck was moved back. Tarlac. a distance of 144. Pampanga. The lower court. who was at fault in causing the collision. but must. to Cut-Cut bridge. Indeed. that morning. Eduardo Tuason. that plaintiff drove his car at great speed and in excess of the speed limits along the national highway. that leaves a traveling time of 1 hour and 50 minutes. no indications on the surface of the road at the scene of the collision showing that the Packard car was carried and dragged by the truck-trailer. thus hitting the truck-trailer. we find that there is. Capas. he would certainly have volunteered his testimony. and Jesus Baluyot. Upon the other hand. If such were the case.22 kilometers. he gave. And had Mallari really been present then. from his demeanor on the witness stand and from the long delayed and often evasive answers. Tarlac. but if such were the case. be credible itself. to be worthy of credit. indeed. both of Capas. plaintiff drove his car from Baguio City to Cut-Cut bridge in Capas. he saw evidence that the Packard car driven by plaintiff swerved from the middle of the road to the left lane facing south. or. was convinced that he was suppressing and hiding the true facts of the case. and other witnesses for the defendants testified that the skid marks present at the scene of the collision were those made by the tires of the Packard car. was traveling at the rate of 60 kilometers per hour when the collision occurred. There were. As correctly found by the court below. The record also shows that it was on the basis of his report that the criminal case for physical injuries and damage to property thru reckless imprudence filed against both plaintiff and defendant Julian Ramos was dismissed as against the latter. patrolman. Plaintiff claims that the truck-trailer. And by this is meant that it shall be natural. Salvador Baun. Subtracting the 30 minutes consumed in fixing the engine trouble that developed on the way. Considering these contradictions and observing that the witness. But he did not do this and instead admitted that he testified in this case after he was approached by Alberto Yandan to do so for plaintiff. ." . tried his best to avoid the incident. No skid marks made by the tires of the truck-trailer existed or were present at the scene of the collision. plaintiff's leg would have been crushed or severed and he would not now have possession and use of both legs. the leg was still pinned by the bumper. He made such statement in his official report of the accident (Exh. therefore. Salvador Baun. the traveling time was. was justified in doing so. whether inside or outside the police station. Tarlac. This shows that the truck-trailer ran at an average speed of 30 kilometers per hour on the national highway from Guagua. having taken the trouble of going to the police station at the town proper and knowing as he did the subject matter of the police investigation. at least. however. The dismissal was made upon motion of the Provincial Fiscal on the ground that "during a reinvestigation of the case. none of the witnesses testified to this fact. which weighed 10 tons. which are not disputed.m. in 2 hours and 10 minutes. and as can be seen from the sketch attached to the record prepared by the Chief of Police of Capas. and that the prosecution has no evidence to sustain any criminal action against Julian Ramos. the accused. Evidence. on the other hand. that he did not volunteer to testify nor made known his presence at the scene of the collision. Capas. that he did not listen to the investigation but he knew that it concerned the accident which occurred in Barrio Cut-Cut. Capas. in 2 hours and 10 minutes. The trial court. reasonable and probable as to make it easy to believe. the driver of the truck-trailer. the trial court entertained grave doubts concerning the veracity of his testimony. He stated that he returned from work around 12 noon to take his lunch. we think. 1 hour and 40 minutes. Pampanga. carried and pushed back by virtue of the truck's momentum and weight. Deducting the maximum of 20 minutes it took him to load up gasoline. chief of police of the municipality of Capas another witness for the plaintiff. it is evident from the above facts. and the proof of the swerving of the car as reported by him were the skid marks of the tires of the car at the scene of the collision. must not only proceed from a credible source. that thereafter he went to the police station of Capas and when he peeped inside he saw the police investigating Alberto Yandan. Julian Ramos. and Cut-Cut bridge. the car he was driving would have been sent flying. He admitted that he conducted an investigation of the collision and he testified that in the course of that investigation. good reason to believe this witness was never at the scene of the collision. showed that the truck-trailer driven by Julian Ramos covered the distance of 50. was restless.

considering that plaintiff was painfully pinned by the door of his car and could not be extricated without disconnecting the vehicles. Likewise. both members of the police force of Capas. Defendant Julian was lengthily cross-examined and there was no divergence in his. so that the trial court believed that it was the Packard car which was moved back about three feet in order to extricate plaintiff from his seat. and noted that they testified in a straight-forward manner indicating that they know the subject matter of their testimonies and that they were testifying on facts and circumstances of their own personal knowledge. His demeanor in court was that of a witness testifying to the truth. The trial court. Jesus Baluyot and Pagano Atienza. the truck-trailer was moved back. is indicative of the weakness of plaintiff's cause of action. drew a sketch (Exh. some persons stepping on the bumper of the automobile while others pushed it away. testimony. As a matter of fact. for the defendants. that after the investigation being conducted by the Police was through he caused the Packard car to be removed upon the instruction of Engineer Panopio. This. at the time of the collision. It might not be amiss to mention here that plaintiff's complaint was filed only after the lapse of almost three years from the date of the accident. April 13. Exh. Graciano Bautista. a farmer and civilian guard residing in Barrio Cut-Cut. when the collision occurred. the vehicles were disengaged before the arrival of the aforenamed policeman. the trial court said. Mariano Nacpil is an old man and a farmer. His testimony during the trial conforms with his sworn statement appearing on Exhibit '8'. the U-bolt broken. whose testimony was found by the court to be credible and straight forward. Graciano Bautista. on its own power. testified in this regard. across the line at the center of the road and stopped on the right lane facing north carrying the car along with it. The truck-trailer's weight of ten tons eliminated the possibility of its having been pushed by the people gathered at the scene of the collision. his mechanic. Jesus Baluyot and Paciano Atienza are members of the police force of the Municipality of Capas and they testified on facts and circumstances surrounding the collision between the two vehicles. Maintenance Engineer who personally viewed the scene of the collision. These facts were testified to by the defendant Julian Ramos. which piece of evidence became the basis of the chief of police's report but which he tried to suppress at the trial of the case. The defendant Julian Ramos. after a close scrutiny of the evidence adduced. he telephoned a report to his superior. which they gathered in the course of their official investigation. Tarlac. IN VIEW OF THE FOREGOING. who declared that the vehicles were not moved during their investigation. Policeman Jesus Baluyot. rejected the claim. on the same day." Plaintiff claims that the truck-trailer and the Packard car were linked together and in order to give room to take plaintiff out of the car. in itself. was clear and explicit in his narration of facts. another witness for the defendants is a government employee who testified in regard to his own personal knowledge of the collision in question. however. and mudguard stuck to the left front wheel. The witnesses for the defendants. 1953. who had to come yet from the town proper. Apparently. there is no reason for the court to doubt the testimony of this witness. '8' before the Chief of Police and Justice of the Peace of Capas. Mariano Nacpil signed a sworn statement. Arturo Cabrera. defendant shaving shown to its satisfaction that the truck's battery and front axle were damaged. contrary to plaintiff's claim.The evidence for the defendants also showed that at the time of the collision. This testimony of defendant Julian Ramos. Mariano Nacpil. the decision appealed from is hereby affirmed. the mechanic. does not necessarily contradict those of policemen Jesus Baluyot and Pagano Atienza. the District Engineer of Tarlac that he was able to talk to Mr. Epifanio Panopio. the truck-trailer was on the right lane of the road facing north with the right front wheel of the truck on the shoulder of the road about six inches from the ditch on the right side and that the Packard car was on the left lane of the road going south towards Pampanga. Moreover. and others. with costs against plaintiff-appellant. There is no reason for the court to doubt the testimony of these police officers considering the official positions and the fact that they testified on matters gathered in the performance of their official duties. . It would certainly have been unnatural and cruel for the people who were there to have waited for them or other authorities before doing anything. "The court has observed the conduct and demeanor of the witnesses. they submitted a report of their investigation to their Chief of Police. And considering the established fact that said plaintiff was really the proximate cause of the accident. Again. Regarding the testimony of defendants' witnesses. we find no valid reason to disturb the decision complained of denying his claim for damages.A) showing the relative positions of the vehicles.. He stated that after viewing the scene of the collision and noting that the Packard car involved therein was a hazard to traffic. 1.

The two (2) right wheels of the delivery van were on the right shoulder of the road and pieces of debris from the accident were found scattered along the shoulder of the road up to a certain portion of the lane travelled by the passenger jeepney. considering the fact that the left front portion of the delivery truck driven by Felix Angeles hit and bumped the left rear portion of the passenger jeepney driven by Alfredo Mallari Jr. the trial court ordered BULLETIN and Felix Angeles to pay jointly and severally Claudia G.600. the appellate court ruled that the collision was caused by the sole negligence of petitioner Alfredo Mallari Jr. P40.V. It also dismissed the complaint against the other defendants Alfredo Mallari Sr.000.00 for hospital and medical expenses. J.V. Instead. for brevity) along the National Highway in Barangay San Pablo.00 for moral damages and P10. BELLOSILLO.777. he overtook a Fiera .. filed a complaint for damages with the Regional Trial Court of Olongapo City against Alfredo Mallari Sr. its driver Felix Angeles. and ALFREDO MALLARI JR. The sketch of the accident showed that the collision occurred after Mallari Jr. respondent BULLETIN. overtook the Fiera while negotiating a curve in the highway.00 for funeral expenses which when paid should be deducted from the liabilities of respondent BULLETIN and its driver Felix Angeles to the plaintiff.00 for attorney’s fees.40 for loss of earning capacity.006. respondents. Netherlands Insurance Company to indemnify Claudia G. and the N. Bataan. COURT OF APPEALS and BULLETIN PUBLISHING CORPORATION. who admitted that immediately before the collision and after he rounded a curve on the highway. and Alfredo Mallari Jr. The complaint also prayed that the defendants be ordered jointly and severally to pay plaintiff P1. and also against BULLETIN. and owned by his co-petitioner Alfredo Mallari Sr.000. collided with the delivery van of respondent Bulletin Publishing Corp. P1. Before he passed by the Fiera. the passenger jeepney driven by petitioner Alfredo Mallari Jr.000. Dinalupihan. The trial court also ordered N. The trial court found that the proximate cause of the collision was the negligence of Felix Angeles.: ALFREDO MALLARI SR. Netherlands Insurance Company.006.40 in compensatory damages. Hence. Manikanä On 16 December 1987 Claudia G.00 as death indemnity and P2. the sums of P42. P18.. On appeal the Court of Appeals modified the decision of the trial court and found no negligence on the part of Angeles and consequently of his employer. The complaint alleged that the collision which resulted in the death of Israel Reyes was caused by the fault and negligence of both drivers of the passenger jeepney and the Bulletin Isuzu delivery van.270. Reyes.93 for medical expenses. Reyes P12. at about 5:00 o'clock in the morning. (BULLETIN. the widow of Israel M. Reyes.00 for burial expenses plus such amounts as may be fixed by the trial court for exemplary damages and attorney’s fees.777.ALFREDO MALLARI SR. he saw the van of respondent BULLETIN coming from the opposite direction. testified that he went to the left lane of the highway and overtook a Fiera which had stopped on the right lane. and ALFREDO MALLARI JR. On 14 October 1987. P8. It was driven by one Felix Angeles. driver of the Bulletin delivery van.000. P5. in this petition for review on certiorari seek to set aside the Decision of the Court of Appeals[1] which reversed the court a quo and adjudged petitioners to be liable for damages due to negligence as a common carrier resulting in the death of a passenger.00 for funeral and burial expenses.106. The impact caused the jeepney to turn around and fall on its left side resulting in injuries to its passengers one of whom was Israel Reyes who eventually died due to the gravity of his injuries. Reyes. The points of collision were the left rear portion of the passenger jeepney and the left front side of the delivery van of BULLETIN. and Alfredo Mallari Jr. petitioners. widow of the deceased victim. Petitioner Mallari Jr.500. vs.

at the time when the Ford Fierra stopped in front of me I slowed down with the intention of applying the brake..Yes.. did you not have an option to stop and not to overtake the Ford Fierra? A:..At the moment the Ford Fierra xxx stop(ped) and in overtaking the Fierra....And what was that accident all about? A:. sir.. to compensate Claudia G. I took into consideration the speed of the oncoming vehicle.000.. which of these statements are true? Ncmâ A:.00 as indemnity for death and P10... Contrary to their allegation that there was no evidence whatsoever that petitioner Mallari Jr.What I wanted to say.006. Felix Angeles and N.. I was then following a blue Ford Fierra and my distance behind was about twenty (20) feet and then I passed that blue Ford Fierra.. based on the sketch and spot report of the police authorities which were not disputed by petitioners.Yes..... x x x it is sufficient to overtake the Ford Fierra so I overt(ook) it x x x x Q:.. Oldmisâ o Petitioners contend that there is no evidence to show that petitioner Mallari Jr.Well. Petitioner also submits that the trial court was in a better position than the Court of Appeals to assess the evidence and observe the witnesses as well as determine their credibility... that the collision occurred immediately after petitioner Mallari Jr...00 for attorney’s fees.... Hence this petition.. sir x x x x Q:.. of RA 4136 as amended. We cannot sustain petitioners... overtook a vehicle in front of it while traversing a curve on the highway.V. sir. It absolved from any liability respondent BULLETIN. driver of the delivery van owned by respondent BULLETIN...[3] This act of overtaking was in clear violation of Sec.. sir. Q:.. overtook a vehicle at a curve on the road at the time of the accident and that the testimony of Angeles on the overtaking made by Mallari Jr.You said that you took into consideration the speed of the oncoming Press van but you also could not estimate the speed of the press van because it was dark at that time. was not credible and unreliable.. its finding that the proximate cause of the collision was the negligence of respondent Angeles..000.. pars.777.... P50....which had stopped on his lane and that he had seen the van driven by Angeles before overtaking the Fiera.. Netherlands Insurance Company. The Court of Appeals ordered petitioners Mallari Jr...Before you overtook the Ford Fierra jeepney did you look x x x whether there was any vehicle coming towards you? A:. (a) and (b).Did you see the Bulletin van or the Press van coming towards you? A:. when I saw the oncoming vehicle which is the Press van is very far x x x which is 100 feet distance.Well... hence. should be given more weight and consideration..... the same petitioner himself testified that such fact indeed did occur Q:. although at the moment I could not estimate the speed of the oncoming vehicle x x x x[2] The Court of Appeals correctly found.. however.. I overtook and when I was almost on the right lane of the highway towards Olongapo City there was an oncoming delivery van of the Bulletin Publishing Corporation which bumped the left rear portion of the jeepney which I was driving and as a result of which the jeepney x x x turned around and fell on its left side and as a result of which some of my passengers including me were injured..50 for loss of earning capacity. is that at about that time 5:00 o’clock in that morning of October 14 while I was negotiating on the highway at San Pablo... otherwise known as The Land Transportation and Traffic Code which provides: . what happened. Reyes P1.. Dinalupihan.. Bataan. 41. the Press van. Q:. overtook a vehicle at a curve on the road at the time of or before the accident. and Mallari Sr....

by his own admission. 1756 of the Civil Code. and any injury or death that might be suffered by its passengers is right away attributable to the fault or negligence of the carrier. As found by the appellate court. 41.50 for loss of earning capacity. the carrier jeepney owned by Mallari Sr. there is special necessity for keeping to the right side of the road and the driver does not have the right to drive on the left hand side relying upon having time to turn to the right if a car approaching from the opposite direction comes into view.777. the proximate cause of the collision resulting in the death of Israel Reyes. P50. Clearly. (b) The driver of a vehicle shall not overtake or pass another vehicle proceeding in the same direction when approaching the crest of a grade. in case of death or injuries to passengers.777. Reyes P1. unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking or passing to be made in safety.[5] NcmmisÓ In the instant case.. assumed the express obligation to transport the passengers to their destination safely and to observe extraordinary diligence with due regard for all the circumstances. it is liable for the death of or injuries to passengers through the negligence or willful acts of the former’s employees.006. where the driver’s view along the highway is obstructed within a distance of five hundred feet ahead except on a highway having two or more lanes for movement of traffic in one direction where the driver of a vehicle may overtake or pass another vehicle: Provided That on a highway.00 for attorney’s fees. 1759 of the same Code. within a business or residential district.. Under Art. 1755 of the Civil Code. it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap he was violating a traffic regulation. nor upon a curve in the highway. 2185 of the Civil Code. is a factual matter binding and conclusive upon this Court. WHEREFORE.50 for . the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible for the payment of damages sought by the passenger. unless there is proof to the contrary.Sec. already saw that the BULLETIN delivery van was coming from the opposite direction and failing to consider the speed thereof since it was still dark at 5:00 o'clock in the morning mindlessly occupied the left lane and overtook two (2) vehicles in front of it at a curve in the highway. petitioner Mallari Jr.000. Under Art. and P10. Scncä m The monetary award ordered by the appellate court to be paid by petitioners to the widow of the deceased passenger Israel M. by the contract of carriage. This liability of the common carrier does not cease upon proof that it exercised all the diligence of a good father of a family in the selection of its employees. petitioner Alfredo Mallari Jr. a common carrier is presumed to have been at fault or to have acted negligently.00 as civil indemnity for death.(a) The driver of a vehicle shall not drive to the left side of the center line of a highway in overtaking or passing another vehicle proceeding in the same direction. a passenger of the jeepney. Moreover. all of which were not disputed by petitioners. Restrictions on overtaking and passing. the Petition is DENIED and the Decision of the Court of Appeals dated 20 September 1995 reversing the decision of the trial court being in accord with law and evidence is AFFIRMED. Reyes of P1. who admittedly was the owner of the passenger jeepney engaged as a common carrier. .[4] When a motor vehicle is approaching or rounding a curve. Clearly. Further. was the sole negligence of the driver of the passenger jeepney. the driver of a vehicle may overtake or pass another vehicle on the right. The rule is settled that a driver abandoning his proper lane for the purpose of overtaking another vehicle in an ordinary situation has the duty to see to it that the road is clear and not to proceed if he cannot do so in safety. Consequently. The negligence and recklessness of the driver of the passenger jeepney is binding against petitioner Mallari Sr. petitioners failed to present satisfactory evidence to overcome this legal presumption. unless it proves that it observed extraordinary diligence. pursuant to Art. considering the fact that in an action based on contract of carriage. a common carrier is bound to carry the passengers safely as far as human care and foresight can provide using the utmost diligence of very cautious persons with due regard for all the circumstances. petitioners are ordered jointly and severally to pay Claudia G.000. under Art. who recklessly operated and drove his jeepney in a lane where overtaking was not allowed by traffic rules. having two or more lanes for movement of traffic in one direction.006.

000. Notably. on October 23. He also said that upon learning of the dishonor of the check.00 as civil indemnity for death.R. Reyes reminded private respondent of his son’s promise and warned that should he fail to return that amount within seven (7) days. 1985 demanding the return of the $2.[5] It appears that the check belonged to a certain Henry Chan who went to the office of private respondent and requested him to deposit the check in his dollar account by way of accommodation and for the purpose of clearing the same.00. 1984. respondents. one Ruben Gayon. February 29.[11] This was followed by a letter of the bank’s lawyer dated April 8. Mr. Napiza for sum of money. Using the blank withdrawal slip given by private respondent to Chan. de Guzman and/or Agnes C. de Guzman after it shall have been cleared upon instruction of Chan. private respondent deposited in Foreign Currency Deposit Unit (FCDU) Savings Account No. vs. Benjamin D. who is private respondent’s son."[8] Consequently. Branch 139. Costs against petitioners. private respondent wrote petitioner’s counsel on April 20. his father immediately tried to contact Chan but the latter was out of town. petitioner received communication from the Wells Fargo Bank International of New York that the said check deposited by private respondent was a counterfeit check[7] because it was "not of the type or style of checks issued by Continental Bank International.000.[2] which dismissed the complaint filed by petitioner Bank of the Philippine Islands against private respondent Benjamin C.[9] Reyes himself sent a telegram to private respondent regarding the dishonor of the check. with the understanding that as soon as the check is cleared. the manager of petitioner’s Buendia Avenue Extension Branch. [G.[6] On November 20. 1984.541. was able to withdraw the amount of $2. NAPIZA. petitioner. On December 18.[12] In reply. de Guzman and was duly initialed by the branch assistant manager. de Guzman and Agnes C. the withdrawal slip shows that the amount was payable to Ramon A. Jr.00) and duly endorsed by private respondent on its dorsal side.[10] Private respondent’s son undertook to return the amount of $2. 1984. Continental Bank Manager’s Check No. and P10. No. 112392. Sdaad On September 3.67 from FCDU Savings Account No. CV No. COURT OF APPEALS and BENJAMIN C. private respondent’s son wrote to Reyes stating that the check had been assigned "for encashment" to Ramon A. 1985[13] stating that he deposited the check "for clearing purposes" only to accommodate Chan. Teresita Lindo. 028-187[3] which he maintained in petitioner bank’s Buendia Avenue Extension Branch.500. He added: . and agreed to deliver to Chan a signed blank withdrawal slip. 2000] BANK OF THE PHILIPPINE ISLANDS. SO ORDERED. payable to "cash" in the amount of Two Thousand Five Hundred Dollars ($2. In turn.: This is a petition for review on certiorari of the Decision[1] of the Court of Appeals in CA-G. to inform his father that the check bounced. YNARES-SANTIAGO.00 to petitioner bank. P50. Ariel Reyes.00 for attorney’s fees.R. 028-187. instructed one of its employees. J.loss of earning capacity.500.500. 1984. Napiza IV. 00014757[4] dated August 17. 37392 affirming in toto that of the Regional Trial Court of Makati. Private respondent acceded. the matter would be referred to the bank’s lawyers for appropriate action to protect the bank’s interest. 1987. both of them would go to the bank to withdraw the amount of the check upon private respondent’s presentation to the bank of his passbook.

67 from his dollar savings account through collusion with one of petitioner’s employees. Henry Chan who is directly liable under the circumstances.. a decision was rendered dismissing the complaint. To so hold him liable "would render inutile the requirement of ‘clearance’ from the drawee bank before the value of a particular foreign check or draft can be credited to the account of a depositor making such deposit.00 and attorney’s fees of 30% of whatever amount that would be awarded to him plus an honorarium of P500. The lower court held that petitioner could not hold private respondent liable based on the check’s face value alone." Charging petitioner with "apparent ignorance of routine bank procedures." The lower court further held that "it was incumbent upon the petitioner to credit the value of the check in question to the account of the private respondent only upon receipt of the notice of final payment and should not have authorized the withdrawal from the latter’s account of the value or . praying for the return of the amount of $2. I did not receive its proceeds as may be gleaned from the withdrawal slip under the captioned signature of recipient.. exemplary damages of P50. 1986. 1987 and October 28.00 per appearance in court.... 1991. my obligation on the transaction is moral in nature.000.500. petitioner filed a complaint against private respondent.00 or the prevailing peso equivalent plus legal interest from date of demand to date of full payment. it had allegedly admitted having paid the amount in the check "by mistake" x x x "if not altogether due to collusion and/or bad faith on the part of (its) employees. it may not be amiss to mention here that I merely signed an authority to withdraw said deposit subject to its clearing..xxx.541. Besides." Chan was able to withdraw the amount of $2. private respondent prayed that third party defendant Chan be made to refund to him the amount withdrawn and to pay attorney’s fees of P5." by way of counterclaim.000. the motion to admit third party complaint should be granted. After private respondent failed to comply. said party was able to withdraw the amount of $2. or a total period of fifty (50) days had elapsed at the time of withdrawal.xxx. On November 4. private respondent prayed for moral damages of P100." On August 12.00 honorarium per appearance.000. 1984. which (sic) I have been and is (sic) still exerting utmost and maximum efforts to collect from Mr. on May 18.. Private respondent replied that for the parties to obtain complete relief and to avoid multiplicity of suits.500. Also. admitting that he indeed signed a "blank" withdrawal slip with the understanding that the amount deposited would be withdrawn only after the check in question has been cleared.500. the trial court. Private respondent filed his answer. and litigation and/or costs of suit.. However. without his knowledge. wherein it asserted that per paragraph 2 of the Rules and Regulations governing BPI savings accounts." in fact.. the trial court issued orders on August 25. If at all. Petitioner prayed for the denial of the said motion so as not to unduly delay the disposition of the main case asserting that private respondent’s claim could be ventilated in another case. He alleged that "thru strategem and/or manipulation. He claimed that petitioner had no one to blame except itself "for being grossly negligent." Petitioner should have disallowed the withdrawal because his passbook was not presented. 1984 and withdrawn on October 23. Thus. a sum equivalent to 20% of the total amount due as attorney's fees. please take notice that said check was deposited on September 3." It contended that private respondent was estopped from disclaiming liability because he himself authorized the withdrawal of the amount by signing the withdrawal slip."Further. He likewise alleged that he instructed the party to whom he issued the signed blank withdrawal slip to return it to him after the bank draft’s clearance so that he could lend that party his passbook for the purpose of withdrawing the amount of $2.00.00 even without private respondent’s passbook. Scsdaad xxx. Petitioner filed a comment on the motion for leave of court to admit the third party complaint. the reason why the transaction is not reflected in the passbook of the account. 1987 directing private respondent to actively participate in locating Chan. Private respondent added that he had "given the Plaintiff fifty one (51) days with which to clear the bank draft in question. private respondent alone was liable "for the value of the credit given on account of the draft or check deposited. Private respondent also filed a motion for admission of a third party complaint against Chan. Meanwhile. dismissed the third party complaint without prejudice..00 plus P300. 1988.00.

’ . he engages that on due presentment.... the requirement of presentation of a passbook to ascertain the propriety of the accounting reflected would be a meaningless exercise. Inc. she may not be liable on account of the dishonor of the checks indorsed by her. The Court of Appeals cited the case of Roman Catholic Bishop of Malolos. 3. as the case may be.. and (c) of the next preceding section.e. the holder or last indorsee of a negotiable instrument has the right ‘to enforce payment of the instrument for the full amount thereof against all parties liable thereon. raising the following issues: 1.That the instrument is at the time of his indorsement..[14] where this Court stated that a personal check is not legal tender or money.. the Court of Appeals affirmed the lower court’s decision. valid and subsisting.. IAC. and that if it be dishonored.. petitioner filed this petition for review on certiorari. Maniego. and (b). ‘a person placing his signature upon an instrument otherwise than as a maker. to withdraw the money without presenting private respondent’s passbook and. and (c) that all prior parties had capacity to contract.WHETHER OR NOT RESPONDENT NAPIZA IS LIABLE UNDER HIS WARRANTIES AS A GENERAL INDORSER... and the necessary proceedings on dishonor be duly taken. Likewise. or to any subsequent indorser who may be compelled to pay it.proceeds of the check.. Liability of general indorser. having affixed his signature at the dorsal side of the check. drawer or acceptor * * unless he clearly indicated by appropriate words his intention to be bound in some other capacity. petitioner’s contention that private respondent warranted the check’s genuineness by endorsing it is untenable for it would render useless the clearance requirement. The check still had to be cleared and its proceeds can only be withdrawn upon presentation of a passbook in accordance with the bank’s rules and regulations.. provides for the following warranties of a person negotiating an instrument by delivery or by qualified indorsement: (a) that the instrument is genuine and in all respects what it purports to be." Having admitted that it committed a "mistake" in not waiting for the clearance of the check before authorizing the withdrawal of its value or proceeds.WHETHER OR NOT PETITIONER WAS GROSSLY NEGLIGENT IN ALLOWING THE WITHDRAWAL. Furthermore. petitioner should suffer the resultant loss.[16] this Court described the liabilities of an indorser as follows: Juris "Appellant’s contention that as mere indorser... Without filing a motion for the reconsideration of the Court of Appeals’ Decision. and held that the check deposited in this case must be cleared before its value could be properly transferred to private respondent's account.. warrants to all subsequent holders in due course – (a)... The appellate court held that petitioner committed "clear gross negligence" in allowing Ruben Gayon.. After all.. Jr. on the other hand.’ Among the ‘parties liable thereon’ is an indorser of the instrument.. Supremax On appeal. It stressed that the mere deposit of a check in private respondent’s account did not mean that the check was already private respondent’s property. or both.. And..[15] In People v. (b) that he has a good title to it. i. 2. in addition. it shall be accepted or paid. is likewise untenable. these requirements are designed to protect the bank from deception or fraud. 66. 2031): "SEC.. Under the law.. (b). Petitioner claims that private respondent.. he will pay the amount thereof to the holder. v. – Every indorser who indorses without qualification. before the check was cleared and in crediting the amount indicated therein in private respondent’s account... should be liable for the amount stated therein in accordance with the following provision of the Negotiable Instruments Law (Act No... according to its tenor.WHETHER OR NOT A CONTRACT OF AGENCY WAS CREATED BETWEEN RESPONDENT NAPIZA AND RUBEN GAYON.The matters and things mentioned in subdivisions (a)." Section 65.

she is under the law ‘liable on the instrument to a holder for value." . Petitioner contends that "(i)n failing to do so (i. * * (the instrument) shall be accepted or paid. amount and the place where the funds are to be paid. or any subsequent indorser who may be compelled to pay it.. i. two requisites must be presented to petitioner bank by the person withdrawing an amount: (a) a duly filled-up withdrawal slip.. and may be withdrawn only in the manner above provided. the following rules on withdrawal of deposits appear: "4.’ As such. That the withdrawal slip was in fact a blank one with only private respondent’s two signatures affixed on the proper spaces is buttressed by petitioner’s allegation in the instant petition that had private respondent indicated therein the person authorized to receive the money. upon presentation of the depositor’s savings passbook and with the withdrawal form supplied by the Bank at the counter. then Ruben Gayon. private respondent "presented the opportunity for the withdrawal of the amount in question. de Guzman &/or Agnes C..."[20] Such contention would have been valid if not for the fact that the withdrawal slip itself indicates a special instruction that the amount is payable to "Ramon A." Petitioner relied "on the genuine signature on the withdrawal slip.. and neither a deposit nor a withdrawal will be permitted except upon the presentation of the depositor’s savings passbook. Petitioner asserts that by signing the withdrawal slip. 5. Jr. to be able to withdraw from the savings account deposit under the Philippine foreign currency deposit system. the Bank may allow withdrawal by another upon the depositor’s written authority duly authenticated.Such an indorser ‘who indorses without qualification. naming his authorized agent)... or both."[18] We hold. to their (availability).e. the accommodation party being the surety. that the propriety of the withdrawal should be gauged by compliance with the rules thereon that both petitioner bank and its depositors are duty-bound to observe.. to hold private respondent liable for the amount of the check he deposited by the strict application of the law and without considering the attending circumstances in the case would result in an injustice and in the erosion of the public trust in the banking system. could not have withdrawn any amount.. Any stamp. transmission and other charges related to such withdrawals shall be for the account of the depositor and shall be paid by him/her upon demand.Deposits shall not be subject to withdrawal by check.. acceptor... drawer. according to its tenor. mail or telegraphic transfer in currency of the account at the request of the depositor in writing on the withdrawal slip or by authenticated cable. as the case may be. to obtain reimbursement from the party accommodated. and the necessary proceedings on dishonor be duly taken. a person ‘who has signed the instrument as maker..[17] However.’ although she has the right.. Withdrawals in the form of notes/bills are allowed subject however. 6 requiring that the request for withdrawal must name the payee. ‘since the relation between them is in effect that of principal and surety. without the same being returned yet.’ inter alia ‘engages that on due presentment. and (b) the depositor’s passbook. he will pay the amount thereof to the holder."[19] Scjuris Under these rules..Withdrawals may be made by draft. Withdrawals may also be made in the form of travellers checks and in pesos. and that if it be dishonored. and for the purpose of lending his name to some other person. or indorser.e.. without receiving value therefor.’ Maniego may also be deemed an ‘accommodation party’ in the light of the facts. after paying the holder. in which the amount deposited withdrawn shall be entered only by the Bank. however.. 6.Withdrawals must be made by the depositor personally but in some exceptional circumstances. de Guzman. Private respondent admits that he signed a blank withdrawal slip ostensibly in violation of Rule No. Such request must indicate the name of the payee/s. the personality of private respondent’s son and the lapse of more than fifty (50) days from date of deposit of the Continental Bank draft.. the amount to be withdrawn and the place where such withdrawal should be made... In the passbook that petitioner issued to private respondent." It is thus clear that ordinarily private respondent may be held liable as an indorser of the check or even as an accommodation party. he practically authorized any possessor thereof to write any amount and to collect the same. notwithstanding such holder at the time of taking the instrument knew * * (her) to be only an accommodation party. The interest of justice thus demands looking into the events that led to the encashment of the check.

[25] Misjuris In Banco Atlantico v. Auditor General.Such being the case.. petitioner’s personnel should have been duly warned that Gayon. the provisional entry therefor made by the Bank in the savings passbook and its records shall be deemed automatically cancelled regardless of the time that has elapsed. If. However.. Extension branch. This is in consonance with the rule that a negotiable instrument. in a way. paid the amounts represented in three (3) checks to Virginia Boncan. whether a manager’s check or ordinary check. Jr. Spain. Under the above rule." was intercalated and thereafter it was signed by Gayon or whoever was allowed by petitioner to withdraw the amount. petitioner likewise overlooked another rule that is printed in the passbook. either Ramon or Agnes de Guzman should have issued another authority to Gayon for such withdrawal. at the dorsal side of the withdrawal slip is an "authority to withdraw" naming Gayon the person who can withdraw the amount indicated in the check.. merely designating petitioner as the collecting bank. as well as on the savings passbook at the first opportunity to reflect such cancellation. Collection charges by the Bank’s foreign correspondent in effecting such collection shall be for the account of the depositor. depositor should accomplish the authority at the back. the collection shall be debited by the Bank against the account. Of course.) Jurissc As correctly held by the Court of Appeals. If the account has sufficient balance. 6 set out by petitioner so that. etc." The requirement of presentation of the passbook when withdrawing an amount cannot be given mere lip service even though the person making the withdrawal is authorized by the depositor to do so. the withdrawal shall be entered in the depositor’s passbook. provided. on account of the "special treatment" that Boncan received from the personnel of Banco Atlantico’s foreign department. For withdrawals thru a representative. the finance officer of the Philippine Embassy in Madrid. Private respondent does not deny having signed such authority."[24] The rule finds more meaning in this case where the check involved is drawn on a foreign bank and therefore collection is more difficult than when the drawee bank is a local one even though the check in question is a manager’s check. the proceeds of the deposited checks. etc. and the Bank is hereby authorized to execute immediately the necessary corrections. money orders. Again. money orders. after receiving the deposit. Moreover. who was also employed in petitioner’s Buendia Ave. that deposits of drafts. the date he deposited the controversial check in the amount of $2.[21] was not the proper payee of the proceeds of the check. checks.500. 1984. Otherwise. The Court held that the encashment of the checks without prior clearance is "contrary to normal or ordinary banking practice specially so where .. such as a check. Under these facts. the Philippine National Bank in New York. amendments or changes in its record..[26] Banco Atlantico. the unavoidable conclusion is that the typewritten name of "Ruben C. private respondent was..All deposits will be received as current funds and will be repaid in the same manner. is not legal tender. under its own rules.. and whether or not the defective items can be returned to the depositor.[22] In allowing the withdrawal. for any reason. The bank did so without previously clearing the checks with the drawee bank. petitioner shall credit the amount in private respondent’s account or infuse value thereon only after the drawee bank shall have paid the amount of the check or the check has been cleared for deposit. the withdrawal slip contains a boxed warning that states: "This receipt must be signed and presented with the corresponding foreign currency savings passbook by the depositor in person. by depositing the check with petitioner. The fact that private respondent’s passbook was not presented during the withdrawal is evidenced by the entries therein showing that the last transaction that he made with the bank was on September 3. will be accepted as subject to collection only and credited to the account only upon receipt of the notice of final payment. This is clear from Rule No. considering petitioner’s clear admission that the withdrawal slip was a blank one except for private respondent’s signature." (Italics and underlining supplied.00. private respondent did not become the outright owner of the amount stated therein. there could not have been a principal-agent relationship between private respondent and Gayon so as to render the former liable for the amount withdrawn. cannot be collected or if the Bank is required to return such proceeds. however. for the protection of the bank’s interest and as a reminder to the depositor. this is in accordance with ordinary banking practices and with this Court’s pronouncement that "the collecting bank or last endorser generally suffers the loss because it has the duty to ascertain the genuineness of all prior endorsements considering that the act of presenting the check for payment to the drawee is an assertion that the party making the presentment has done its duty to ascertain the genuineness of the endorsements. Gayon. Thus: "2. drafts. in depositing the check in his name. a commercial bank in Madrid.[23] As such.

which is determined by a mixed consideration of logic. 1984. unbroken by any efficient intervening cause.00 although they had not yet received notice from the clearing bank in the United States on whether or not the check was funded. or the doing of something which a prudent and reasonable man would do. By the nature of its functions. private respondent had a balance of only $750.250.00 and the value of the check deposited in the amount of $2. a bank should exercise its functions not only with the diligence of a good father of a family but it should do so with the highest degree of care. 1984. 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. guided by those considerations which ordinarily regulate the conduct of human affairs.the drawee bank is a foreign bank and the amounts involved were large.92. which.[28] In the case at bar. 1984. an interest of $11.[32] On November 19. petitioner’s branch manager. then he is guilty of negligence.[35] Jjlex From these facts on record.00. failed to exercise the diligence of a good father of a family. While it is true that private respondent’s having signed a blank withdrawal slip set in motion the events that resulted in the withdrawal and encashment of the counterfeit check. Proximate cause. petitioner’s personnel negligently handled private respondent’s account to petitioner’s detriment. 1984." Accordingly. Said practice amounts to a disregard of the clearance requirement of the banking system. petitioner.59 was reflected in the ledger and on October 23.00 on September 3. the negligence of petitioner’s personnel was the proximate cause of the loss that petitioner sustained. a bank is under obligation to treat the accounts of its depositors "with meticulous care. always having in mind the fiduciary nature of their relationship.00. In so doing.[34] According to Reyes. Extension Branch received a copy of the communication thereon from Wells Fargo Bank International in New York the following day.[36] is untenable. in natural and continuous sequence. would do."[27] As such. was informed unofficially of the fact that the check deposited was a counterfeit.500. it is at once apparent that petitioner’s personnel allowed the withdrawal of an amount bigger than the original deposit of $750. or negligent in the man of ordinary intelligence and prudence and determines liability by that. provides the test by which to determine the existence of negligence in a particular case which may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not."[29] Petitioner violated its own rules by allowing the withdrawal of an amount that is definitely over and above the aggregate amount of private respondent’s dollar deposits that had yet to be cleared.S. produces the injury. In total disregard of its own rules."[37] The proximate cause of the withdrawal and eventual loss of the amount of $2. Said ruling brings to light the fact that the banking business is affected with public interest. The bank’s ledger on private respondent’s account shows that before he deposited $2.640.541.00. in allowing the withdrawal of private respondent’s deposit. 1984 the word "hold" was written beside the balance of $109. On September 30. it should suffer the resulting damage.500. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater-familias of the Roman law. and without which the result would not have occurred. Reyes’ contention that after the lapse of the 35-day period the amount of a deposited check could be withdrawn even in the absence of a clearance thereon. Smith. that amount was credited in his ledger as a deposit resulting in the corresponding total balance of $3. The seventy-eight (78)-year-old.[33] That must have been the time when Reyes. the amount of $600. in dealing with its depositors. The law considers what would be reckless. blameworthy. is "that cause. petitioner assumed the risk of incurring a loss on account of a forged or counterfeit foreign check and hence.[30] Upon private respondent’s deposit of $2. common sense. otherwise it could take a long time before a depositor could make a withdrawal. banks that were deposited with petitioner. policy and precedent.67 was entered as withdrawn with a balance of $109.00 were indicated therein as withdrawn thereby leaving a balance of $2.500. November 20. but petitioner’s Buendia Ave.00 on petitioner’s part was its personnel’s negligence in allowing such withdrawal in disregard of its own rules and the clearing requirement in the banking system. yet still relevant.92.00 and the additional charges of $10. the amount of $2.500.[31] On September 10. 1984. the Court approved the Auditor General’s denial of Banco Atlantico’s claim for payment of the value of the checks that was withdrawn by Boncan. . Wells Fargo Bank International handled the clearing of checks drawn against U. case of Picart v.00. As this Court once said on this matter: "Negligence is the omission to do something which a reasonable man.

which was the immediate occasion of the accident. the foreman. 1907 M. defendant-appellant. the petition for review on certiorari is DENIED. but without side pieces or guards to prevent them from slipping off. but from 24 to 30 feet in length. RAKES. SO ORDERED. was therafter apparent to the eye. vs. the blocks or crosspieces were replaced with pilling. At a certain spot at or near the water's edge the track sagged. some of them were also in front.WHEREFORE.R. H. J. on the surface of the ground. No effort was made to repair the injury at the time of the occurrence. to it and asked by . According to that defendant. so that the ends of the rails lay upon two crosspieces or sills secured to the cars. 37392 is AFFIRMED. the car either canted or upset. It was admitted that there were no side pieces or guards on the car. is not clear in the evidence. was at work transporting iron rails from a barge in the harbor to the company's yard near the malecon in Manila. a depression of the track. varying from one half inch to one inch and a half. After the road reached the water's edge. one of a gang of eight negro laborers in the employment of the defendant. the men were either in the rear of the car or at its sides. hauling by a rope.: This is an action for damages. breaking his leg. capped by timbers extending from one side to the other. The plaintiff. The tracks were each about 2 feet wide and the two inside rails of the parallel tracks about 18 inches apart. No. which was afterwards amputated at about the knee. This first point for the plaintiff to establish was that the accident happened through the negligence of the defendant. each weighing 560 pounds. The superintendent of the company attributed it to the giving way of the block laid in the sand. THE ATLANTIC. The Decision of the Court of Appeals in CA-G. the rails slid off and caught the plaintiff. On the across the stringers the parallel with the blocks were the ties to which the tracks were fastened. upon which were piled lengthwise seven rails. the defendant has not effectually overcome the plaintiff's proof that the joints between the rails were immediately above the joints between the underlying stringers.R. Plaintiff claims that but one hand car was used in this work. that where no ends of the rails of the track met each other and also where the stringers joined. TRACEY. and a fellow workman of the plaintiff swears that the day before the accident he called the attention of McKenna. GULF AND PACIFIC COMPANY. The cause of the sagging of the tracks and the breaking of the tie. The detailed description by the defendant's witnesses of the construction and quality of the track proves that if was up to the general stranded of tramways of that character. 1719 January 23. CV No. plaintiff-appellee. According to the testimony of the plaintiff. upon which at a right angle rested stringers of the same thickness. the foundation consisting on land of blocks or crosspieces of wood. According to plaintiffs witnesses. G. by 8 inches thick and from 8 to 10 feet long laid. but is found by the trial court and is admitted in the briefs and in the argument to have been the dislodging of the crosspiece or piling under the stringer by the water of the bay raised by a recent typhoon. there were no fish plates. the tie broke. The defendant has proved that there were two immediately following one another..

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

the civil remedy should be sought therewith. was formerly given a suppletory or explanatory effect. however. unless it had been waived by the party injured or been expressly reserved by him for civil proceedings for the future. and 1104. but clear light is thrown upon their meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal). would shut out litigants their will from the civil courts. both classes of action. The acts to which these articles are applicable are understood to be those and growing out of preexisting duties of the parties to one another. arising out of a crime that could be enforced by only on private complaint. the penal action once started. 1103. An examination of this topic might be carried much further. As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our general statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen. and his obligation under the civil law and its enforcement in the civil courts is not barred thereby unless by election of the injured person. the provisions of the Penal Code can not affect this action. xxx xxx xxx The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damages. that would rob some of these articles of effect. such a construction would be unnecessary. the penal action thereunder should be extinguished. then breaches of those duties are subject to articles 1101. Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of criminal actions against his employees only while they are process of prosecution. to adopt a forced construction of these scientific codes. whether springing from contract or quasi contract. except as expressly provided by law. that to the . More than this. would make the assertion of their rights dependent upon the selection for prosecution of the proper criminal offender. though n ever in actual force in these Islands. it can not be said to fall within the class of acts unpunished by the law. but the citations of these articles suffices to show that the civil liability was not intended to be merged in the criminal nor even to be suspended thereby. This construction renders it unnecessary to finally determine here whether this subsidiary civil liability in penal actions survived the laws that fully regulated it or has been abrogated by the American civil and criminal procedure now in force in the Philippines. The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to have arisen from the interpretation of the words of article 1093.xxx xxx xxx Owners or directors of an establishment or enterprise are equally liable for the damages caused by their employees in the service of the branches in which the latter may be employed or in the performance of their duties. His liability to his employee would arise out of the contract of employment. Even if these articles had always stood alone." as applied to the comprehensive definition of offenses in articles 568 and 590 of the Penal Code. but while the penal action was pending the civil was suspended. of the same code. Under article 111 of this law. According to article 112. It has been shown that the liability of an employer arising out of his relation to his employee who is the offender is not to be regarded as derived from negligence punished by the law. We should be reluctant. it is not required that the inured party should seek out a third person criminally liable whose prosecution must be a condition precedent to the enforcement of the civil right. But the answer may be a broader one. But were relations already formed give rise to duties. might be prosecuted jointly or separately. "fault or negligence not punished by law. or in so far as they determinate the existence of the criminal act from which liability arises. Where an individual is civilly liable for a negligent act or omission. If the civil action alone was prosecuted. civil and criminal. and render recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. which. These provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same subject. within the meaning of articles 1092 and 1093. under any conditions. A typical application of the distinction may be found in the consequences of a railway accident due to defective machinery supplied by the employer. His obligation therefore is one "not punished by the law " and falls under civil rather than criminal jurisprudence. the consequences of which are regulated by articles 1902 and 1903 of the Civil Code. Inasmuch as no criminal in question. such as is proposed by the defendant.

or as already existed. (March 10. 1900. The contract is one for hire and not one of mandate. as chapter 2. 1383. implied from the relation and perhaps so inherent in its nature to be invariable by the parties. we need consider neither the theory growing out of it nor that of "professional risk" more recently imposed by express legislation. and the principle stated is supported be decisions of the supreme court of Spain. No. it has since been effectually abrogated by "the Employers' Liability Acts" and the "Compensation Law. This contractual obligation. 1894 (75 Jurisprudencia Civil." we are not disposed to introduce into our jurisprudence. No. Nor may it be excused upon the ground that the negligence leading to the accident was that of a fellow-servant of the injured man. soon yielded to the principle that the true basis is the contractual obligation of the employer and employee. find a rule for this case in the contractual obligation. applicable to every kind of object. known as "the fellow-servant. corresponding in scope to articles 1902 and 1903 of the Spanish Code. may be also considered as a real source of an independent obligation. the nature of which we will discuss later. 331. No. so as to protect its workingmen from unnecessary danger. 12). Article II. which can not be presumed to exist without the other.passengers out of the contract for passage. This terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil. existing by itself. and which increases the liability arising from the already exiting obligation. while that to that injured bystander would originate in the negligent act itself. Title Travail. binds the employer to provide safe appliances for the use of the employee. fourth section. it for the employee is not presumed to have stipulated that the employer might neglect his legal duty. the letter being the culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. It is plain that in one respect or the other it failed in its duty.) And in his commentary on articles 1102 and 1104 he says that these two species of negligence may be somewhat inexactly described as contractual and extra-contractual. 29. On these principles it was the duty of the defendant to build and to maintain its track in reasonably sound condition. 1) in 1837. that culpa. or negligence. resting the responsibility of owners of industrial enterprises upon articles 1382. or as an incident in the performance of an obligation. 1897. Our law having no counterpart of this article.) Later the hardships resulting from special exemptions inserted in contracts for employment led to the discovery of a third basis for liability in an article of he French Code making the possessor of any object answerable for damage done by it while in his charge. title 16 of this book of the code is devoted to it. Fowler (3 Meeson & Welsby. This doctrine. Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his employment and. 8. 1896 (80 Jurisprudencia Civil. consequently the negligence of the defendant is established. thus closely corresponding to English and American Law. No." The American States which applied it appear to be gradually . 107. the courts of France early applied to the subject the principles common to the law of both countries. and June 27. p. substantive and independent. 196. 81 Jurisprudencia Civil. either as culpa. The original French theory. throws uncertain light on the relation between master and workman. but rather adopting the interpretation of our Civil Code above given. as such. and 1384 of the Code Napoleon. which on account of its origin arises in an obligation between two persons not formerly bound by any other obligation. Adopted in England by Lord Abinger in the case of Prescott vs. one assumed by him. Chapter XI. This distinction is thus clearly set forth by Manresa in his commentary on article 1093. We are with reference to such obligations. and. It is not apparent to us that the intervention of a third person can relieve the defendant from the performance of its duty nor impose upon the plaintiff the consequences of an act or omission not his own. Moved by the quick industrial development of their people. 151). (See 18 Dalloz. rule. which are lucidly discussed by the leading French commentators. Sua cuique culpa nocet. it is logical to presume that the reference contained in article 1093 is limited thereto and that it does not extend to those provisions relating to the other species of culpa (negligence). among them those of November 20. Of these two species of culpa the first one mentioned. 182).) Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30. (Vol. may be understood in two difference senses. otherwise the accident could not have occurred. It is evident that this can not be the case if the occurrence was due to the failure to repair the track or to duly inspect.

and one Danridge. S. barring his recovery under the severe American rule. rather than a fair inference from the testimony. Title Responsibilite. because not "plainly and manifestly against the weight of evidence. It has never found place in the civil law of continental Europe. (Dalloz. and Second. While the method of construction may have been known to the men who had helped build the road. the New York State legislature of 1906 did away with it in respect to railroad companies. Also more recent instances in Fuzier-Herman. His lack of caution in continuing at his work after noticing the slight depression of the rail was not of so gross a nature as to constitute negligence. and had in hand a scheme for its total abolition. 1841. 630. and has since adhered to it. 804. The most controverted question in the case is that of the negligence of the plaintiff. 15. contributing to the accident.getting rid of it." Were we not disposed to agree with these findings they would. and vol. nevertheless. In respect of the second charge of negligence against the plaintiff. While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way. although not as its primary cause. nor upon the necessity of the plaintiff putting himself upon the ties at the side in order to get hold upon the car. On this contradiction of proof we think that the preponderance is in favor of the defendant's contention to the extent of the general order being made known to the workmen. On this point we accept the conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the one rail being lower than then other" and "it does not appear in this case that the plaintiff knew before the accident occurred that the stringers and rails joined in the same place. the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury as a proximate. working on the same job. upon the open ties. but that was reported in his hearing to the foreman who neither promised nor refused to repair it. 1858. As to the first point. the depression in the track night indicate either a serious or a rival difficulty. The claim that he must have done so is a conclusion drawn from what is assumed to have been a probable condition of things not before us. 710. A man may easily walk along a railway without perceiving a displacement of the underlying timbers. over the depressed track. therefore. This conclusion presents . same title. paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United States in the De la Rama case (201 U." as those words of section 497. and the foreman swears that he repeated the prohibition before the starting of this particular load. In two particulars is he charged with carelessness: First. it was necessary for the employees moving it to get hold upon it as best they could. in the case of Reygasse. be binding upon us. and further that the circumstances in evidence make it clear that the persons necessary to operate the car could not walk upon the plank between the rails and that. Therefore the findings of the judge below leave the conduct of the plaintiff in walking along the side of the loaded car. the judgment below is not so specific. That having noticed the depression in the track he continued his work. Title Responsibilite Civile. That he walked on the ends of the ties at the side of the car instead of along the boards. vol. both the officers of the company and three of the workmen testify that there was a general prohibition frequently made known to all the gang against walking by the side of the car. The foreman testified that he knew the state of the track on the day of the accident and that it was then in good condition. While the judge remarks that the evidence does not justify the finding that the car was pulled by means of a rope attached to the front end or to the rails upon it. 39. free to our inquiry. 303). If so. a witness for the defendant.. for instance. it was otherwise with the plaintiff who had worked at this job less than two days. there is no specific finding upon the instruction given by the defendant to its employees to walk only upon the planks. but were expressly directed by the foreman to do so. either before or behind it. swore that he never noticed the depression in the track and never saw any bad place in it. 1895. to what extent it existed in fact and what legal effect is to be given it. The sagging of the track this plaintiff did perceive. There is nothing in the evidence to show that the plaintiff did or could see the displaced timber underneath the sleeper.) The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28.

the cour de cassation held that the carelessness of the victim did not civilly relieve the person without whose fault the accident could not have happened. or is it to be taken only in reduction of damages? While a few of the American States have adopted to a greater or less extent the doctrine of comparative negligence. for instance.") In Grant Trunk Railway Company vs. 1887 (38 Jurisprudencia Criminal. It was held that the management of the train and engine being in conformity with proper rules of the company. was held due to a freshet as a fortuitous cause. No. the 19th of February. it was sole. but that the contributory negligence of the injured man had the effect only of reducing the damages. on which stress has been laid. On the other hand. bars his recovery. and some others have accepted the theory of proportional damages. It is plain that the train was doing nothing but what it had a right to do and that the only fault lay with the injured man.. No. yet an action for such injury can not be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured. 1879. rested on two bases. because the act of the deceased in driving over level ground with unobstructed view in front of a train running at speed..sharply the question. in which the breaking down of plaintiff's dam by the logs of the defendant impelled against it by the Tajo River. 408. though not the principal one. when the latter must have perceived beforehand the danger attending the work. and of the third class the decision of the 4th of June. Mann. August 20. however slight. with the engine whistle blowing was the determining cause of the accident. His negligence was not contributory. In France in the case of Marquant. the decision of the 14th of December. by the exercise of reasonable care and prudence. and we are left to seek the theory of the civil law in the practice of other countries. S. Of the first class in the decision of January 26. allowing a recovery by a plaintiff whose own act contributed to his injury. . yet the overwhelming weight of adjudication establishes the principle in American jurisprudence that any negligence. provided his negligence was slight as compared with that of the defendant. No. None of those cases define the effect to be given the negligence of a plaintiff which contributed to his injury as one of its causes. on the part of the person injured which is one of the causes proximately contributing to his injury. The decision of the 7th of March. was thrown therefrom and killed by the shock following the backing up of the engine. 1894 (76 Jurisprudencia Civil. 546) that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might. which has grown up in recent years (having been first enunciated in Davies vs. but when analyzed they prove to have been decided either upon the point that he was not negligent or that the negligence of the plaintiff was the immediate cause of the casualty or that the accident was due to casus fortuitus. at page 429) the Supreme Court of the United States thus authoritatively states the present rule of law: Although the defendant's' negligence may have been the primary cause of the injury complained of. There are may cases in the supreme court of Spain in which the defendant was exonerated. 1902. (English and American Encyclopedia of law. Titles "Comparative Negligence" and Contributory Negligence. because expressly relieved by royal order from the common obligation imposed by the police law of maintaining a guard at the road crossing. stated in Alcubilla's Index of that year. What effect is to be given such an act of contributory negligence? Does it defeat a recovery. one. in which a railway employee. have avoided the consequences of the injured party's negligence. 134). 1888 (64 Jurisprudencia Civil. the other. 1902. that the defendant was not negligent. & W. showed no fault on its part. 10 M. and the 7th of March. according to the American rule. there are many cases reported in which it seems plain that the plaintiff sustaining damages was not free from contributory negligence. Of the second class are the decision of the 15th of January. subject to this qualification. 70). in which the owner of a building was held liable for not furnishing protection to workmen engaged in hanging out flags. reducing the award to a plaintiff in proportion to his responsibility for the accident. 1). standing on a car. and was of such an efficient nature that without it no catastrophe could have happened. Ives (144 U.

97) Exceptional practice appears to prevail in maritime law in other jurisdictions. 493. St. 1896. with which. neither party can maintain an action against the other. It was assumed that an exact measure of several concurring faults was unattainable. (Railroad vs. now embodied in a code following the Code Napoleon. held that contributory negligence did not exonerate the defendants whose fault had been the immediate cause of the accident. article 827. appears to have grown out the original method of trial by jury. (The Manitoba.) The parties being mutually in fault. it might be that he would obtain from the other party compensation for hiss own misconduct. common fault in cases of collision have been disposed of not on the ground of contradictor negligence. and that of Laugier of the 11th of November. 565. 15. reported in La Revue de Jurisprudence. (Heil vs. St. but when that proportion is incapable of ascertainment. who have preferred to impose uniformally throughout the Dominion the English theory of contributory negligence.) Of like tenor are citations in Dalloz (vol. page 90. there can be no appointment of damages.) . a hard and fast one. it has little in common. Trottier. 97. a decree is entered in favor of the vessel sustaining the greater loss against the other for the excess of her damages over one-half of the aggregate sum. In the Canadian Province of Quebee.) The damage of both being added together and the sum equally divided. indeed. 1895. 24 Penn. the fault of the one part being offset against that of the other." The rule of the common law. 827. 198). 386. S. is. volume 6. not the wrong of the one is set off against the wrong of the other.. 157 U. which has retained for the most part the French Civil Law. it that the law can not measure how much of the damage suffered is attributable to the plaintiff's own fault. 1806. 18. for instance. 363. 1888. 412. One of these is Luttrell vs. Elsewhere we find this practice embodied in legislation. The reason why. a practice in accord with that of France is laid down in many cases collected in the annotations to article 1053 of the code edited by Beauchamps. The principle of proportional damages appears to be also adopted in article 51 of the Swiss Code. which rendered difficult a nice balancing of responsibilities and which demanded an inflexible standard as a safeguard against too ready symphaty for the injured. 411. whose principles are derived from the civil law. 42 Penn. and vol. Title Responsibilite. Title Trail. otherwise known as the court of appeals. Title Responsibilite Cirile. If he were allowed to recover. for instance. in which the court of Kings bench. Glanding. The Spanish Code of Commerce. but on that of equal loss. not adjustable with respects of the faults of the parties. Such decisions throw no light upon the doctrines of the civil law. And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the accident shall stand his damages in proportion to his fault. November 10. (Ralli vs.. 122 U. he shall share the liability equally with the person principally responsible. but entitled him to a reduction of damages. and 828. This is a plain from other articles of the same code. Other similar cases in the provincial courts have been overruled by appellate tribunals made up of common law judges drawn from other provinces. the indemnification shall be reduced in the first case. which provides: "In the cases above mentioned the civil action of the owner against the person liable for the damage is reserved. the highest authority in the Dominion of Canada on points of French law. as well as the criminal liability which may appear. section 2 of article 2398 of the Code of Portugal reads as follows: If in the case of damage there was fault or negligence on the part of the person injured or in the part of some one else. S. in cases of mutual concurring negligence. 364. 499. The law has no scales to determine in such cases whose wrongdoing weighed most in the compound that occasioned the mischief. makes each vessel for its own damage when both are the fault. article 829. falls for short of a recognition of the principle of contributory negligence as understood in American Law. 1904. this provision restricted to a single class of the maritime accidents. Rep. Norton. and in the second case it shall be appropriated in proportion to such fault or negligence as provided in paragraphs 1 and 2 of section 2372. 469.The same principle was applied in the case of Recullet. 193. referring to articles 826. (Fuzier-Herman. Even in the United States in admirality jurisdictions. Troop.

m. though with some hesitation. the judgment of the trial court. CARBONEL. the general manager of a marketing corporation. amounting to a partial revision of damages by the courts. the equivalent of 2. and ten days hereafter let the case be remanded to the court below for proper action. The test is simple. independent of it. through the device of granting new trials. we deduct therefrom 2. owned by and registered in the name of petitioner Phoenix Construction Inc. During the cocktails phase of the evening. 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. as one of its determining factors. Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress and counter stress of novel schemers of legislation.500 pesos. J: In the early morning of 15 November 1975 — at about 1:30 a.. fixing the damage incurred by the plaintiff at 5. he can not recover. with cost of both instances. Makati. Where. Accepting. and direct judgment to be entered in favor of the plaintiff for the resulting sum of 2. on the right hand side of a person facing in the same direction toward which Dionisio's car was proceeding). partly blocking the way of oncoming traffic. the shinking of the track and the sliding of the iron rails. Distinction must be between the accident and the injury. No. in conjunction with the occurrence.e. Bangkal. facing the oncoming traffic. 1987 PHOENIX CONSTRUCTION. There were no lights nor any so-called "early warning" reflector devices . was parked on the right hand side of General Lacuna Street (i.Experience with jury trials in negligence cases has brought American courts to review to relax the vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive. The dump truck. In the civil law system the desirable end is not deemed beyond the capacity of its tribunals. The dump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the street. he may recover the amount that the defendant responsible for the event should pay for such injury. although it was an element of the damage which came to himself. not far from his home. Where he contributes to the principal occurrence. and was proceeding down General Lacuna Street. we find the theory of damages laid down in the judgment the most consistent with the history and the principals of our law in these Islands and with its logical development. Dionisio had taken "a shot or two" of liquor. Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. between the event itself. and those acts of the victim not entering into it. respondents.000 pesos. FELICIANO. So ordered. G. unless reduced damages are stipulated for. vs.500 pesos. without which there could have been no accident. he contributes only to his own injury.500 dollars. Dionisio was driving his Volkswagen car and had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal. the act of the plaintiff in walking by the side of the car did not contribute. It appears to us that the control by the court of the subject matter may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits of the litigants through the practice of offsetting their respective responsibilities. Had the crosspiece been out of place wholly or partly thorough his act of omission of duty. L-65295 March 10. the amount fairly attributable to his negligence.R. the last would have been one of the determining causes of the event or accident. and ARMANDO U. — private respondent Leonardo Dionisio was on his way home — he lived in 1214-B Zamora Street. United States money. Makati — from a cocktails-and-dinner meeting with his boss. for which he would have been responsible. ("Phoenix"). but contributing under review was the displacement of the crosspiece or the failure to replace it. petitioners. To this event. this produced the event giving occasion for damages — that is. less a sum deemed a suitable equivalent for his own imprudence. INC. THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO.

with the permission of his employer Phoenix. The award of P150. besmirched reputation.000. The award of P10.500. (5) To pay the plaintiff jointly and severally the sum of P 4.000. without his headlights on and without a curfew pass.500. Dionisio suffered some physical injuries including some permanent facial scars. basically because Dionisio had voluntarily resigned his job such that.71.00. (Emphasis supplied) Phoenix and Carbonel appealed to the Intermediate Appellate Court. its regular driver. social humiliation.000.00 as compensatory damages was reduced to P6.set anywhere near the dump truck. Phoenix also sought to establish that it had exercised due rare in the selection and supervision of the dump truck driver. . 2. and (6) The cost of suit.460. No.000. The dump truck had earlier that evening been driven home by petitioner Armando U. (4) To pay plaintiff jointly and severally the sum of P 10.000. on the other hand. 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.000. front or rear. and the untold sorrows and frustration in life experienced by plaintiff and his family since the accident in controversy up to the present time. As a result of the collision. his loss of income "was not solely attributable to the accident in question. The award of P100.50. 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. in the opinion of the appellate court.000.R. in view of work scheduled to be carried out early the following morning.000.00 as moral damages was held by the appellate court as excessive and unconscionable and hence reduced to P50. The award of P15." and 3. feeling of economic insecurity.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. while under the influence of liquor. (2) To pay plaintiff jointly and severally the sum of P 1.00. as moral damages for the unexpected and sudden withdrawal of plaintiff from his lifetime career as a marketing man.00 for hospital bills and the replacement of the lost dentures of plaintiff. Phoenix and Carbonel.000. a "nervous breakdown" and loss of two gold bridge dentures. That court in CA-G.00 as exemplary damages and P4.00 due as and for attorney's fees. This decision of the Intermediate Appellate Court is now before us on a petition for review. mental anguish.00 as loss of expected income was reduced to P100. 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.000. (3) To pay the plaintiff jointly and severally the sum of P 10. wounded feeling.00 as attorney's fees and costs remained untouched.-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. countered that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident. Carbonel. the latter being the only amount that the appellate court found the plaintiff to have proved as actually sustained by him. serious anxiety. 65476 affirmed the decision of the trial court but modified the award of damages to the following extent: 1.

the police station where he was based being barely 200 meters away. 2 Dionisio. 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. however. 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. Pampanga. 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. or extent of liability. however. negligent" but apparently failed to see the relevance of Dionisio's negligence and made no further mention of it. This certification was to the effect that private respondent Dionisio had a valid curfew pass. Instead. 1 Private respondent Dionisio was not able to produce any curfew pass during the trial. a nurse took off Dionisio's clothes and examined them along with the contents of pockets together with Patrolman Cuyno. The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was "in some way. and (d) whether Dionisio was intoxicated at the time of the accident. which was said to have authority to issue curfew passes for Pampanga and Metro Manila. The need to administer substantial justice as between the parties in this case. efficient cause determinative of the accident and the injuries he sustained.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. On the second issue — whether or not Dionisio was speeding home that night — both the trial court and the appellate court were completely silent. 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. San Fernando. on the other hand. unconscious. without having to remand it back to the trial court after eleven years. As to the first issue relating to the curfew pass. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas. he offered the explanation that his family may have misplaced his curfew pass. (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. He also offered a certification (dated two years after the accident) issued by one Major Benjamin N. We note. This certification did not. 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. to the Makati Medical Center for emergency treatment immediately after the accident. 3 . and that this negligence was the proximate cause of the accident and Dionisio's injuries. 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 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. 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. 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. 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. of Phoenix and Carbonel. the dump truck driver. Phoenix's evidence here consisted of the testimony of Patrolman Cuyno who had taken Dionisio. 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. (b) whether Dionisio was driving fast or speeding just before the collision with the dump truck. At the Makati Medical Center. 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. specify any pass serial number or date or period of effectivity of the supposed curfew pass.

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. at the crucial moment. Put in a slightly different manner. A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. that he had his headlights on but that. Clearly. 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 . the collision of Dionisio's car with the dump truck was a natural and foreseeable consequence of the truck driver's negligence. 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. The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was negligent the night of the accident.. and not the result of reflective thought. 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. 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. substantial weight should have been ascribed to such testimony. A third related issue is whether Dionisio purposely turned off his headlights. 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. or whether his headlights accidentally malfunctioned.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. We believe that the petitioners' theory is a more credible explanation than that offered by private respondent Dionisio — i. these had in some mysterious if convenient way malfunctioned and gone off.e. 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. 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. He was hurrying home that night and driving faster than he should have been. Worse. We are also aware that "one shot or two" of hard liquor may affect different people differently. 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. 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. rather than reflective. is quite clear. 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. The testimony of Patrolman Cuyno was therefore admissible as part of the res gestae and should have been considered by the trial court. have purported to describe quantitatively the precise velocity at winch Dionisio was travelling just before impact with the Phoenix dump truck. reactions from observers who happened to be around at that time. however. 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. just moments before the accident. as it could not. 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. Nonetheless. the negligence of petitioner Carbonel. The petitioners. even though it did not. 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. although he succeeded in switching his lights on again at "bright" split seconds before contact with the dump truck.

the defendant will not escape responsibility. to which the defendant has subjected the plaintiff has indeed come to pass. as is invariably the case. was not an efficient intervening or independent cause. and some new force intervenes. or snow or frost or fog or even lightning. as it were. When a spark ignites the gasoline. 9 We believe. nor to sever the juris vinculum of liability. If the defendant has created only a passive static condition which made the damage possible. particularly since. But so far as the fact of causation is concerned. So far as it has any validity at all. firstly." but the act may be culpable because of the danger of fire. although later in point of time than the truck driver's negligence and therefore closer to the accident. the defendant is said not to be liable. 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. It is helpful to quote once more from Professor and Keeton: Foreseeable Intervening Causes. that the truck driver's negligence far from being a "passive and static condition" was rather an indispensable and efficient cause.. We note. The courts are quite generally agreed that intervening causes which fall fairly in this category will not supersede the defendant's responsibility. .unable to persuade ourselves that these arguments have any validity for our jurisdiction. Foreseeable intervening forces are within the scope original risk. 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. 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 . 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. Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and important part of the risk. .. The person who leaves the combustible or explosive material exposed in a public place may foresee the risk of fire from some independent source. Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity. 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 who spills gasoline about the premises creates a "condition. Even the lapse of a considerable time during which the "condition" remains static will not necessarily affect liability. the latter are the result of other active forces which have gone before. the distinctions between "cause" and "condition" which the 'petitioners would have us adopt have already been "almost entirely discredited. 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. But even in such cases. Many courts have sought to distinguish between the active "cause" of the harm and the existing "conditions" upon which that cause operated. 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. In other words. 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. and hence of the defendant's negligence. Thus one who sets a fire may be required to foresee that an ordinary. that even in the United States. 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 truck driver must be held responsible. Dionisio's negligence was not of an independent and overpowering nature as to cut." Professors and Keeton make this quite clear: Cause and condition. 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 our view. including all ordinary forces of nature such as usual wind or rain. one who digs a trench in the highway may still be liable to another who fans into it a month afterward. or the defendant may be negligent only for that reason. "Cause" and "condition" still find occasional mention in the decisions. usual and customary wind arising later wig spread it beyond the defendant's own property. Dionisio's negligence. and since that is the very risk which the defendant has created.. because of failure to guard against it. and therefore to take precautions to prevent that event. . the condition has done quite as much to bring about the fire as the spark. the chain of causation in fact between the improper parking of the dump truck and the accident.. but the distinction is now almost entirely discredited. the defendant may be negligence among other reasons. secondly.

.. private respondent Dionisio had the "last clear chance" of avoiding the accident and hence his injuries. Smith 11 but it is a matter for debate whether. and one who parks an automobile on the highway without lights at night is not relieved of responsibility when another negligently drives into it. 14 Accordingly. correctly in our opinion. The theory here of petitioners is that while the petitioner truck driver was negligent. To accept the petitioners' pro-position must tend to weaken the very bonds of society. . 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. is to determine whose negligence — the plaintiff's or the defendant's — was the legal or proximate cause of the injury. is only one of the relevant factors that may be taken into account." The relative location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions. has itself been rejected. 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. 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. 17 we . Under Article 2179. it is difficult to see what role. Civil Code of the Philippines). even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the defendant. as it has been in Article 2179 of the Civil Code of the Philippines. 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. in technical terms. 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. if any. 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. Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. and therefore to be anticipated. 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. is an affirmative showing of culpa in vigilando on the part of Phoenix. or to what extent. it has found its way into the Civil Code of the Philippines.10 We hold that private respondent Dionisio's negligence was "only contributory.The risk created by the defendant may include the intervention of the foreseeable negligence of others. The respondent appellate court in effect found. 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. and that Dionisio having failed to take that "last clear chance" must bear his own injuries alone. 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. --." 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. 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. 12 The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent. 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. the task of a court. [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. 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. 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.' Thus. 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. that Phoenix was not able to overcome this presumption of negligence. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. even though the car is negligently driven.

25 p. 1932 JULIAN DEL ROSARIO. only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarity liable therefor to the former.R.500. Carrascoso. No. but from the testimony of Demetrio Bingao. Alberto del Rosario.: This action was instituted by Julian del Rosario for the purpose of recovering damages from the Manila Electric Company for the death of his son. In a short while the wire parted and one of the ends of the wire fell to the ground among some shrubbery close to the way. The accident occurred on Dimas-Alang Street. trouble developed in a wire used by the defendant on Dimas-Alang Street for the purpose of conducting electricity used in lighting the City of Manila and its suburbs. he stepped into a garage which was located nearby and asked Jose Soco. WHEREFORE. one of the witnesses for the defense. Shortly after 2 o'clock on the afternoon of August 4. it is clear that the end of the wire was on the ground shortly after 3 p. Thus. for appellee. As soon as Noguera took cognizance of the trouble. . shall be borne by private respondent Dionisio. STREET. Vicente Sotto for appellant. Province of Rizal. to telephone the Malabon station of the Manila Electric Company that an electrical wire was burning at that place. vs.00 as attorney's fees and costs. J. Phoenix is of course entitled to reimbursement from Carbonel. except the award of P10. MANILA ELECTRIC COMPANY. 18 We see no sufficient reason for disturbing the reduced award of damages made by the respondent appellate court.m. From the testimony of the two witnesses mentioned we are justified in the conclusion that information to the effect that the electric wire at the point mentioned had developed trouble was received by the company's servant at the time stated. resulting from a shock from a wire used by the defendant for the transmission of electricity. plaintiff-appellant. L-35283 November 5. Damages are claimed in the complaint in the amount of P30. SO ORDERED. At the time that message was sent the wire had not yet parted.00 as exemplary damages and P4.000. who had charge of a tienda nearby.000. Costs against the petitioners. Soco transmitted the message at 2. and the plaintiff appealed. Jr. 20% of the damages awarded by the respondent appellate court. Lawrence & Selph and Antonio T.believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Jose Noguera.m. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the petitioners. in the municipality of Caloocan. defendant-appellee. and received answer from the station to the effect that they would send an inspector. Ross. 1930. loss of expected income and moral damages private respondent Dionisio is entitled to by 20% of such amount. the timekeeper. G. Upon hearing the cause the trial court absolved the defendant. the decision of the respondent appellate court is modified by reducing the aggregate amount of compensatory damages. first noticed that the wire was burning and its connections smoking.

alter the case. But even supposing that contributory negligence could in some measure be properly imputed to the deceased. A crowd soon collected. as it might have a current. It is doubtful whether contributory negligence can properly be imputed to the deceased.. So ordered. Luke's Hospital the child was pronounced dead. Manila Electric Company (55 Phil. not having been the determining cause of the accident. the neighborhood school was dismissed and the children went home.250. respondents. but this had been burned off for some distance from the point where the wire parted.. telling him that the wire might be charged. 7 Phil. Jose therefore stopped Saturnino. The end of the wire remained in contact with his body which fell near the post. when notice was received at the Malabon station at 2. happened to be the son of an electrician and his father had cautioned him never to touch a broken electrical wire.At 4 p. exclaiming "Ay! madre".. but more than an hour and a half passed before anyone representing the company appeared on the scene. COURT OF APPEALS and HERMINIA FAMOSO. For the rest. As the three neared the place where the wire was down.25 p. and GUILLERMO ARANETA.000 as general damages for loss of service. The judgment appealed from is therefore reversed and the plaintiff will recover of the defendant the sum of P1. somebody should have been dispatched to the scene of the trouble at once. The engineer of the company says that it was customary for the company to make a special inspection of these wires at least once in six months. Upon being taken to St. petitioners. put out his index finger and touch the wire. These other two boys were Jose Salvador. m. He immediately fell face downwards. who was a few paces ahead of two other boys. The wire was cased in the usual covering. Saturnino yielded to this admonition and desisted from his design. the majority of the court are of the opinion that the plaintiff should recover the sum of P1. of the age of 10. . No. Furthermore. with costs of both instances. Jose Salvador rejoined that he should into touch wires as they carry a current. I have for some time been in the habit of touching wires ("Yo desde hace tiempo cojo alambres"). and that all of the company's inspectors were required in their daily rounds to keep a lookout for trouble of this kind. HON.) With respect to the amount of damages recoverable the majority of the members of this court are of the opinion that the plaintiff is entitled to recover P250 for expenses incurred in connection with the death and burial of the boy. and the defendant is in our opinion responsible for the accident. m. but Alberto del Rosario.. of the age of 9 years. in our opinion. all members of the second grade in the public school. G. and some one cut the wire and disengaged the body. 427). who was somewhat ahead. of the age of 8. Among these was Alberto del Rosario.lawphil.. and in the meantime this child had been claimed as a victim.net We are of the opinion that the presumption of negligence on the part of the company from the breakage of this wire has not been overcome. and the mere fact that the deceased ignored the caution of a companion of the age of 8 years does not. but Alberto. There is nothing in the record indicating any particular cause for the parting of the wire. Gulf and Pacific Co. said. His companion. Atlantic.R. (Rakes vs. The wire was an ordinary number 6 triple braid weather proof wire. — yet such negligence would not be wholly fatal to the right of action in this case. — a proposition upon which the members of the court do not all agree. owing to his immature years and the natural curiosity which a child would feel to do something out of the ordinary. and Saturnino Endrina. 1990 MA-AO SUGAR CENTRAL CO. INC. no doubt feeling that he was challenged in the matter. in accordance with the precedents cited in Astudillo vs. such as is commonly used by the defendant company for the purpose of conducting electricity for lighting. 83491 August 27. Saturnino made a motion as if it touch it. vs. 359. or other measures taken to guard the point of danger. Jose Salvador.

On March 22. The dispositive portion of the decision read: WHEREFORE.60 private respondent and her children would be receiving from the SSS for the next five years.00 — Attorney's fees and cost of this suit ————— Pl6.000.382. J. 12. Judge Marietta Hobilla-Alinio ruled in her favor but deducted from the total damages awarded 25% thereof for the decedent's contributory negligence and the total pension of P41.367.000. the Court views with regret the adamant refusal of petitioner Ma-ao Sugar Central to recompense the private respondent for the death of Julio Famoso. the herein private respondent filed suit in the Regional Trial Court of Bago City. We shall state at the outset that on both counts the petition must fail.CRUZ. but the train fell on its side. Araneta to pay plaintiff the following amount: P30.367. who was killed in line of duty while in its employ.000. exemplary and moral damages P10. He and his companion jumped off to escape injury.40 — Total amount payable to the plaintiff. caught his legs by its wheels and pinned him down. in view of the foregoing facts and circumstances present in this case. when the locomotive was suddenly derailed.40 Plus: P3. Famoso was riding with a co-employee in the caboose or "carbonera" of Plymouth No. their main source of support.382.000.000.: To say the least.00 — loss of earnings for twenty (20) years P3. Guillermo Y. 1980. the late Julio Famoso P30. the Court order.00 — 25% for the deceased's contributory negligence Less: P41. . ————— SO ORDERED.00 — for actual.60 — pension plaintiff and her minor children would ————— be receiving for five (5) years from the SSS Pl3.250.00 — for the death of plaintiff's husband. as it does hereby order the defendant Ma-ao Sugar Central thru its Manager Mr. He was declared dead on the spot.00 — Total Damages Less: P18.00 — funeral expenses ————— P73. It is not only a matter of law but also of compassion on which we are called upon to rule today. 1 The claims for death and other benefits having been denied by the petitioner. a cargo train of the petitioner.000.

claiming that the deductions were illegal. who was in charge of the control and supervision of its train operations.000. was the responsibility of the petitioner. the respondent court declared: WHEREFORE.000.000. 3 The petitioner should therefore have taken more prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its negligence. For what is important is that the petitioner should act on these reports and not merely receive and file them. for actual. the respondent court is faulted for finding the petitioner guilty of negligence notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for disallowing the deductions made by the trial court. for funeral expenses P3. Indeed.000. So did the petitioner.The widow appealed. two on each side. and that this responsibility was not discharged. to keep the rails aligned. There is no question that the maintenance of the rails.00 Total Amount ======== In this petition. The argument that no one had been hurt before because of such derailments is of course not acceptable. but on the ground that it was not negligent and therefore not liable at all. its own witness. Although they could be removed only with special equipment. The suggestion is that the rails were properly aligned then. but that does not necessarily mean they were still aligned afterwards. The fact that it is not easy to detect if the fish plates are missing is no excuse either. the fish plates that should have kept the rails aligned could not be found at the scene of the accident. It is possible that the fish plates were . for attorney's fees ———— P76. cases of derailment in the milling district were frequent and there were even times when such derailments were reported every hour.00. the Court of Appeals 2 sustained the rulings of the trial court except as to the contributory negligence of the deceased and disallowed the deductions protested by the private respondent.000. Thus. And neither are we impressed by the claim that the brakemen and the conductors were required to report any defect in the condition of the railways and to fill out prescribed forms for the purpose. for the death of Julio Famoso P30. In its own decision.000.00.00.00. it should stress all the more the need for the responsible employees of the petitioner to make periodic checks and actually go down to the railroad tracks and see if the fish plates were in place. According to Jose Treyes. Investigation of the accident revealed that the derailment of the locomotive was caused by protruding rails which had come loose because they were not connected and fixed in place by fish plates. It is argued that the locomotive that was derailed was on its way back and that it had passed the same rails earlier without accident. exemplary and moral damages P10.00. for loss of earnings for twenty (20) years P3. for the purpose inter alia of preventing derailments. Fish plates are described as strips of iron 8" to 12" long and 3 1/2" thick which are attached to the rails by 4 bolts. the decision appealed from is MODIFIED by ordering the defendantappellant to pay the plaintiff-appellee the following amounts: P30.

4 thus: Where the thing which causes injury is shown to be under the management of the defendant. in the absence of an explanation by the defendant. for. Intermediate Appellate Court. the absence of the fish plates – whatever the cause or reason – is by itself alone proof of the negligence of the petitioner. Philex Mining Corporation. The last point raised by the petitioner is easily resolved. and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care.60. contending it has exercised due diligence in the selection and supervision of its employees." 5 It has been held that "to hold a person as having contributed to his injuries." Obviously. The pension is the benefit derivable from such contributions. as earlier noted. But the Court feels that even this was unlikely. The Court cannot agree. Res ipsa loquitur. It is pure speculation to suppose that he would not have been injured if he had stayed in the front car rather than at the back and that he had been killed because he chose to ride in the caboose. 173 of the Labor Code. The fact that the fish plates were not found later at the scene of the mishap may show they were never there at all to begin with or had been removed long before. The record shows it was in fact lax in requiring them to exercise the necessary vigilance in maintaining the rails in good condition to prevent the derailments that sometimes happened "every hour. The doctrine was described recently in Layugan v." 6 There is no showing that the caboose where Famoso was riding was a dangerous place and that he recklessly dared to stay there despite warnings or signs of impending danger.loosened and detached during its first trip and the rails were as a result already mis-aligned during the return trip. 7 it argues that the respondent court erred in disauthorizing the deduction from the total damages awarded the private respondent of the amount of P41. it must be shown that he performed an act that brought about his injuries in disregard of warnings or signs of an impending danger to health and body. Indeed. Citing the case of Floresca v. that the accident arose from want of care. the certification from the SSS 8 submitted by the petitioner is simply to the effect that: TO WHOM IT MAY CONCERN: . representing the pension to be received by the private respondent from the Social Security System for a period of five years. the fish plates were supposed to have been bolted to the rails and could be removed only with special tools. That might have been a violation of company rules but could not have directly contributed to his injury. as the petitioner suggests. merely ordering the brakemen and conductors to fill out prescribed forms reporting derailments-which reports have not been acted upon as shown by the hourly derailments is-not the kind of supervision envisioned by the Civil Code. We also do not see how the decedent can be held guilty of contributory negligence from the mere fact that he was not at his assigned station when the train was derailed. is the proximate cause of the injury. whose funds are administered by the SSS. The amount to be paid by the SSS represents the usual pension received by the heirs of a deceased employee who was a member of the SSS at the time of his death and had regularly contributed his premiums as required by the System. At any rate. The argument is that such deduction was quite proper because of Art. It does not represent the death benefits payable under the Workmen's Compensation Act to an employee who dies as a result of a work-connected injury. as amended. it affords reasonable evidence. Contributory negligence has been defined as "the act or omission amounting to want of ordinary care on the part of the person injured which. shall be exclusive of all other amounts that may otherwise be claimed under the Civil Code and other pertinent laws. The petitioner also disclaims liability on the ground of Article 2176 of the Civil Code. concurring with the defendant's negligence. This article provides that any amount received by the heirs of a deceased employee from the Employees Compensation Commission.367.

as amended. (Emphasis supplied). Commonwealth Act Numbered One hundred eighty-six.) COSME Q. It must be realized that. whereas. controlling: 9 which is still . By their nature and purpose.This is to certify that Mrs. Rep. This certification is issued to Ma-ao Sugar Central for whatever legal purpose it may serve best. is the Social Security Law. under the Social Security Act. as amended by Rep. The payment of compensation under this Title shall not bar the recovery of benefits as provided for in Section 699 of the Revised Administrative Code. an SSS member with SSS No. Republic Act Numbered Eleven hundred sixty-one. Issued this 8th day of April 1983 in Bacolod City. Reyes in the case of Valencia v. Julio Famoso. as amended. his dependents or anyone otherwise entitled to receive damages on behalf of the employee or his dependents. as amended. This conclusion is supported by the express provision of Art. Act No. Manila Yacht Club. JR.L. Herminia Vda. which categorically states that: Art. payment is being made . . 1161. 1792 and 2658) are not the same as the compensation that may be claimed against the employer under the Workmen's Compensation Act or the Civil Code. Republic Act Numbered Six hundred ten. Chief. the employer is required to compensate the employee for the sickness or injury arising in the course of the employment because the industry is supposed to be responsible therefore. as amended and other laws whose benefits are administered by the System or by other agencies of the government. 07-018173-1. BERMEO. 173 as amended. Exclusiveness of liability. As observed by Justice J. in a proper case). the liability of the State Insurance Fund under this Title shall be exclusive and in place of all other liabilities of the employer to the employee. — Unless otherwise provided. de Famoso is a recipient of a monthly pension from the Social Security System arising from the death of her late husband. as amended. 1161. 173. .B. so that payment to the member employee of social security benefits would not wipe out or extinguish the employer's liability for the injury or illness contracted by his employee in the course of or during the employment. Republic Act Numbered Forty-eight hundred sixty-four. Acts Nos. Philippines. SISON Regional Manager By: (SGD. the sickness or disability benefits to which a member of the System may be entitled under the Social Security law (Rep. Benefits Branch It does not indicate that the pension is to be taken from the funds of the ECC. The certification would have said so if the pension represented the death benefits accruing to the heirs under the Workmen's Compensation Act. GODOFREDO S. Act No. under the Workmen's Compensation Act (or the Civil Code.

social security benefits are paid to the System's members. In other words. irrespective of whether they arose from or in the course of the employment or not.. . by reason of their membership therein for which they contributed their money to a general common fund. by reason of their membership therein for which they contribute their money to a general common fund . the benefits provided for in the Workmen's Compensation Act accrues to the employees concerned due to the hazards involved in their employment and is made a burden on the employment itself However. It may be added that whereas social security benefits are intended to provide insurance or protection against the hazards or risks for which they are established. but are paid to the members of the System as a matter of right. social security sickness benefits are not paid as a burden on the industry. . G.. since they contributed their money to the general common fund out of which benefits are paid. the appealed decision is AFFIRMED in toto. (Rural Transit Employees Asso. 1999 . Social Security System:" 10 The philosophy underlying the Workmen's Compensation Act is to make the payment of the benefits provided for therein as a responsibility of the industry.because the hazard specifically covered by the membership. the benefits provided for in the Workmen's Compensation Act accrues to the employees concerned. social security benefits are paid to the System's members. . whenever the hazards provided for in the law occurs. on the ground that it is industry which should bear the resulting death or injury to employees engaged in the said industry.R. Bachrach Trans. the petitioner has sought to frustrate their efforts and has even come to this Court to seek our assistance in defeating their claim. On the other hand. Barrera in Benguet Consolidated. That relief-and we are happy to say this must be withheld. v. had taken place. Co. e. SO ORDERED. To deny payment of social security benefits because the death or injury or confinement is compensable under the Workmen's Compensation Act would be to deprive the employees members of the System of the statutory benefits bought and paid for by them. sickness. and for which the employee had put up his own money. old age or death. . since they contribute their money to the general common fund out of which benefits are paid. As this Court had said: . 124354 December 29. Inc. To deny payment of social security benefits because the death or injury or confinement is compensable under the Workmen's Compensation Act would be to deprive the employees-members of the System of the statutory benefits bought and paid for by them. No.g. disability. the compensation receivable under the Workmen's Compensation law is in the nature of indemnity for the injury or damage suffered by the employee or his dependents on account of the employment. . The petition is DENIED. In other words. Famoso's widow and nine minor children have since his death sought to recover the just recompense they need for their support. due to the hazards involved in their employment and is made a burden on the employment itself However. WHEREFORE. 21 SCRA 1263 [19671]) And according to Justice Jesus G. vs. with costs against the petitioner. Instead of lending a sympathetic hand.

17). ROY RODERICK RAMOS and RON RAYMOND RAMOS. . The antecedent facts as summarized by the trial court are reproduced hereunder: Plaintiff Erlinda Ramos was. Hosaka decided that she should undergo a "cholecystectomy" operation after examining the documents (findings from the Capitol Medical Center. in their own behalf and as natural guardians of the minors. Married to Rogelio E. she was as normal as any other woman. October 19. October 19. would be on June 17. Hosaka to look for a good anesthesiologist. she was admitted at one of the rooms of the DLSMC. 11). "A" and "C") which indicated she was fit for surgery. Hosaka. p.: The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. 3-4. finding private respondents liable for damages arising from negligence in the performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition. which overturned the decision 4 of the Regional Trial Court. 10). pp. DELOS SANTOS MEDICAL CENTER. 13. located along E. an anesthesiologist and a hospital should be made liable for the unfortunate comatose condition of a patient scheduled for cholecystectomy. January 13. TSN. a 47-year old (Exh. 1988. 1988. she has three children whose names are Rommel Ramos. and TSN. Except for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in her gall bladder (TSN. 1985. Orlino Hozaka (should be Hosaka. PERFECTA GUTIERREZ. "A") robust woman (TSN. through gross negligence or incompetence or plain human error. J. which was to include the anesthesiologist's fee and which was to be paid after the operation (TSN. on June 10. 5). she and her husband Rogelio met for the first time Dr. p. the Court is called upon to rule whether a surgeon. February 27. Ramos. she sought professional advice.M. 2 Petitioners seek the reversal of the decision 3 of the Court of Appeals. 1985 at 9:00 A. p.000. COURT OF APPEALS. respondents. 1985. Dr. They agreed that their date at the operating table at the DLSMC (another defendant). 1989. Rogelio E. January 13. Because the discomforts somehow interfered with her normal ways. 4-5). assured Rogelio that he will get a good anesthesiologist. p. Roy Roderick Ramos and Ron Raymond Ramos (TSN. pp. Through the intercession of a mutual friend. until the afternoon of June 17. RAMOS and ERLINDA RAMOS. may spell the difference between life and death. he is made accountable for his acts. Buenviaje (TSN. Hosaka charged a fee of P16. pp. November 9. p. 1990. 5-6). KAPUNAN. dated 29 May 1995. 7). A mistake. one of the defendants in this case. Quezon City (TSN. 1 In the case at bar. see TSN. vs. FEU Hospital and DLSMC) presented to him. pp. October 19. however. October 19. asked Dr.00. p. Ramos.1989. Dr. February 20. If a doctor fails to live up to this precept. 10. petitioners. in turn. ROMMEL RAMOS. 1989. 14-15. an executive of Philippine Long Distance Telephone Company. 22-23. Dr. A day before the scheduled date of operation. dated 30 January 1992. the doctor plays God on his patient's fate. January 13. 1989. 1989. She was advised to undergo an operation for the removal of a stone in her gall bladder (TSN. Rodriguez Avenue. ORLINO HOSAKA and DRA. DR. 1990.ROGELIO E. 3). Dr. 31-33. In this sense. She underwent a series of examinations which included blood and urine tests (Exhs.. 1988.

p. Dr. January 13. Rogelio E.. he went down to the lobby and waited for the operation to be completed (id. When she returned to the operating room. 19). Calderon was then able to intubate the patient (TSN. saw a respiratory machine being rushed towards the door of the operating room. Calderon arrived at the operating room. Hosaka to arrive ( id. she was given injections. she was prepared for the operation by the hospital staff. the other defendant... January 13. 9). Garcia) was also tired of waiting for Dr. 13). Her husband. that the doctor was not yet around (id. Herminda saw about two or three nurses and Dr. Herminda Cruz. she then saw Dr. 16. "Nandiyan na si Dr. she focused her attention on what Dr.At around 7:30 A. . July 25. 19-20).). "ang hirap ma-intubate nito. Hosaka. inip na inip na ako.). the patient told her. 1988.M. Thereafter.). 16).M. At about 12:15 P. dumating na raw. Herminda then went back to the patient who asked. p. The patient's nailbed became bluish and the patient was placed in a trendelenburg position — a position where the head of the patient is placed in a position lower than her feet which is an indication that there is a decrease of blood supply to the patient's brain (Id. Her hands were held by Herminda as they went down from her room to the operating room (TSN. She then heard Dr. Although not a member of the hospital staff... Garcia at around 12:10 P.M. Herminda was allowed to stay inside the operating room.. Gutierrez. At the operating room. p. Calderon. "Mindy. darating na iyon" (Ibid. and she told Rogelio E. who was inside the operating room with the patient. 29-30)..M. another anesthesiologist ( id. "Huwag kang mag-alaala. [and] preparing the patient for the operation" (TSN." She then saw people inside the operating room "moving. Hosaka. Hosaka issue an order for someone to call Dr. was also with her (TSN. After Dr. Rogelio. 1989. p. 1989. While talking to Dr. Rogelio. she went out again and told Rogelio about what the patient said (id. Garcia who remarked that he (Dr. At around 9:30 A. As she held the hand of Erlinda Ramos.. who was inside the operating room waiting for the doctor to arrive (ibid. Ramos was "already dying [and] waiting for the arrival of the doctor" even as he did his best to find somebody who will allow him to pull out his wife from the operating room (TSN. Rogelio. O lumalaki ang tiyan" (id. p. October 19. She thereafter heard Dr. 15). Dr. 25-28). Hosaka arrived as a nurse remarked. . Hosaka who was not yet in (TSN. October 19. Gutierrez was doing. 18). he met Dr. pp. Immediately thereafter. p. was also there for moral support. 1988. to them. she went out of the operating room. When informed by Herminda Cruz that something wrong was happening. he came to know that Dr. happening" ( Ibid. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay in the arrival of Dr. heard somebody say that "Dr. pp. Ramos "that something wrong was . pp. He also thought of the feeling of his wife. Meanwhile. 1991. At around 10:00 A. Hosaka is already here. January 13. Because of the remarks of Dra. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. At almost 12:00 noon. 17)... Gutierrez say. Herminda introduced herself as Dean of the College of Nursing at the Capitol Medical Center who was to provide moral support to the patient. After praying. pp. October 19. he told her (Herminda) to be back with the patient inside the operating room (TSN. 1988. 1989. of June 17. mali yata ang pagkakapasok.. 11-12). 9-11). Perfecta Gutierrez. p. who was the Dean of the College of Nursing at the Capitol Medical Center.M. Herminda went out of the operating room and informed the patient's husband. she returned to the operating room. 1985 and while still in her room. Dr." So. Gutierrez intubating the hapless patient. Gutierrez reached a nearby phone to look for Dr. pp. Her sister-in-law. Hosaka approached her. 19-20). 21). She reiterated her previous request for Herminda to be with her even during the operation. who was outside the operating room. Thereafter. ikuha mo ako ng ibang Doctor. wala pa ba ang Doctor"? The former replied. who was to administer anesthesia. doing this and that. He also saw several doctors rushing towards the operating room. ." Upon hearing those words. Herminda Cruz. "Mindy. p. pp. she saw this anesthesiologist trying to intubate the patient.

both parties presented evidence as to the possible cause of Erlinda's injury. She cannot move any part of her body. About four months thereafter or on November 15. During the trial.542. and saw that the patient was still in trendelenburg position (TSN. was placed in trendelenburg position. she has been staying in their residence. to the effect that the cause of brain damage was Erlinda's allergic reaction to the anesthetic agent. 31). She cannot see or hear. Since that fateful afternoon of June 17. 1989. the patient's nailbed became bluish and the patient. Erlinda Ramos stayed at the ICU for a month. Hosaka. August 20. on 8 January 1986. 20). pp. 1985. Ramos was able to talk to Dr. "G". November 9. Reacting to what was told to him. the patient was released from the hospital. negligence in the performance of their duty to plaintiff-patient Erlinda Ramos. The doctors explained that the patient had bronchospasm (TSN. still needing constant medical attention. She suffered brain damage as a result of the absence of oxygen in her brain for four to five minutes (TSN. About two days thereafter. She was also diagnosed to be suffering from "diffuse cerebral parenchymal damage" (Exh. 21-22). she incurred hospital bills amounting to P93. 1989. She is living on mechanical means. 3234). caused the patient to become comatose.Herminda Cruz immediately rushed back. at the very least. p. Eduardo Jamora. of that fateful day. After being discharged from the hospital. she saw the patient taken to the Intensive Care Unit (ICU). p. November 15.000. Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. this Court finds and so holds that defendants are liable to plaintiffs for damages. pp. the Regional Trial Court rendered judgment in favor of petitioners.25 which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E. October 19. Rogelio E. She cannot do anything. Perfecta Gutierrez. p. without due regard to the fact that the patient was inside the operating room for almost three (3) hours. because of the decrease of blood supply to the patient's brain. 1985. December 21. 5-10). For after she committed a mistake in intubating [the] patient. 1990. At almost 3:00 P. Thiopental Sodium (Pentothal). During the whole period of her confinement. but also in not repeating the administration of atropine (TSN.M. Mariano Gavino to prove that the sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the anesthesia phase. Ramos in favor of DLSMC. On the part of Dr. in turn.000.00 to P10.00 (TSN. a pulmonologist. The latter informed the former that something went wrong during the intubation. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. 2627). see also TSN. this Court finds that she omitted to exercise reasonable care in not only intubating the patient. had he (Dr. On the other hand. private respondents primarily relied on the expert testimony of Dr. 1989. 1988. October 19. 6). . January 13. she has been in a comatose condition. The evidence further shows that the hapless patient suffered brain damage because of the absence of oxygen in her (patient's) brain for approximately four to five minutes which. pp. and applying the aforecited provisions of law and jurisprudence to the case at bar. 1989. 5 Thus. The defendants were guilty of. petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon City against herein private respondents alleging negligence in the management and care of Erlinda Ramos. 1991. Hosaka) looked for a good anesthesiologist (TSN. to wit: After evaluating the evidence as shown in the finding of facts set forth earlier. After considering the evidence from both sides. pp. Rogelio reminded the doctor that the condition of his wife would not have happened. thereafter. with her husband Rogelio incurring a monthly expense ranging from P8.

00 as of April 15. the former the following sums of money. SO ORDERED. 2) the sum of P100. Atty. Rogelio Ramos. 1985 or in the total sum of P632. Rogelio referred the decision of the appellate court to a new lawyer. they should have done. this Court rejects the defense raised by defendants that they have acted with due care and prudence in rendering medical services to plaintiff-patient. In having held thus. the patient would not have become comatose. On the part of DLSMC (the hospital). subject to its being updated. the fact that another anesthesiologist was called to try to intubate the patient after her (the patient's) nailbed turned bluish. this Court finds that it is liable for the acts of negligence of the doctors in their "practice of medicine" in the operating room. dated 29 May 1995. The appellate court rendered a Decision. plus legal interest for justice must be tempered with mercy. The counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting to P93. 7 Private respondents seasonably interposed an appeal to the Court of Appeals.000. And.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from November 15. if defendants acted with due care and prudence as the patient's case was an elective. Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation to provide the patient a good anesthesiologist'. reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads: WHEREFORE. Orlino Hosaka. 4) the costs of the suit.000. jointly and severally. xxx xxx xxx WHEREFORE. Moreover. not an emergency case. and. the defendants should have rescheduled the operation to a later date. However. or four (4) days before the expiration of the reglementary period for filing a motion for reconsideration.00 by way of moral damages and the further sum of P200. The motion for reconsideration was submitted on 4 July 1995. judgment is rendered in favor of the plaintiffs and against the defendants. This. this Court finds that he is liable for the acts of Dr. Atty. 3) the sum of P800. Accordingly. filed with the appellate court a motion for extension of time to file a motion for reconsideration. For if the patient was properly intubated as claimed by them. to wit: 1) the sum of P8. for the foregoing premises the appealed decision is hereby REVERSED. 1992." No copy of the decision.000. only on 20 June 1995. however. Hosaka inexcusably failed to arrive on time.00 as reasonable attorney's fees.25. On the same day. then counsel on record of petitioners. belie their claim. Ligsay.000. the appellate court denied the . 8 The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as "Atty.000. to cancel the scheduled operation after Dr.00 by way of exemplary damages. the latter are ordered to pay.542. was sent nor received by the Coronel Law Office. and in view of the foregoing. and the complaint below against the appellants is hereby ordered DISMISSED.On the part of Dr. the hospital is liable for failing through its responsible officials. Furthermore. Ligsay. SO ORDERED. and for arriving for the scheduled operation almost three (3) hours late.

motion for extension of time in its Resolution dated 25 July 1995. 9 Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit: We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the latter should be denied. Even assuming admissibility of the Motion for the Reconsideration, but after considering the Comment/Opposition, the former, for lack of merit, is hereby DENIED. SO ORDERED.
10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by the Court. Petitioners assail the decision of the Court of Appeals on the following grounds: I IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA; II IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS; III IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.
11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their Comment, 12 private respondents contend that the petition should not be given due course since the motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed beyond the reglementary period. We do not agree. A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was

mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995. It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believed that the receipt of the former should be considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted on time. After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine. Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with an explanation. 13 Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant's want of care. 14 The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. 15 It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. 17 Instead, it is considered as merely evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. 19 In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.
21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage. 22 Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident. 23 Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. 25 The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. 26 Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. 27 The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. 30 Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, 32 injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, 33 removal of the wrong part of the body when another part was intended, 34 knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, 36 among others. Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to

In fact. Upon these facts and under these circumstances a layman would be able to say. including the endotracheal tube. she went out of the operating room already decerebrate and totally incapacitated. and in the use and employment of an endoctracheal tube. custody and control of his physician who had complete and exclusive control over him. conditions and circumstances alleged in Count II it is held that a cause of action is stated under the doctrine of res ipsa loquitur. if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. Bridwell. Erlinda was neurologically sound and. 42 We find the doctrine of res ipsa loquitur appropriate in the case at bar. brain damage. or why any particular scientific treatment did not produce the desired result. Furthermore. who are the physicians-in-charge. without undergoing surgery. the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter. In the present case. that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised. Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of anesthetics and unconscious. petitioner Erlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious. 39 Thus. was likewise physically fit in mind and body. in applying the res ipsa loquitur stated: 43 where the Kansas Supreme Court The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care. is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations.explain why any particular diagnosis was not correct. by evidence of exculpation. Normally. Likewise. Upon all the facts. but the operation was never performed. if he could. this kind of situation does not in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur. the principles enunciated in the aforequoted case apply with equal force here. However. is an injury which does not normally occur in the process of a gall bladder operation. 41 If there was such extraneous interventions. which Erlinda sustained. the instruments used in the administration of anesthesia. Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. 40 The real question. a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed. and the circumstances are such that the true explanation of event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia. At the time of submission he was neurologically sound and physically fit in mind and body. res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. . 44 Indeed. which. but he suffered irreparable damage and injury rendering him decerebrate and totally incapacitated. Ordinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. A case strikingly similar to the one before us is Voss vs. during the administration of anesthesia and prior to the performance of cholecystectomy she suffered irreparable damage to her brain. custody and control of private respondents who exercised complete and exclusive control over her. except for a few minor discomforts. as a matter of common knowledge and observation. were all under the exclusive control of private respondents. As will hereinafter be explained. The injury was one which does not ordinarily occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic. therefore. Thus. At the time of submission. On that fateful day she delivered her person over to the care. Obviously.

as testified on by their expert witness. Herminda Cruz. Jamora. we hold that a practical administration of justice dictates the application of res ipsa loquitur. Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein. in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia. Upon these facts and under these circumstances the Court would be able to say. whether the alleged negligence was the proximate cause of Erlinda's comatose condition. we find her negligent in the care of Erlinda during the anesthesia phase. Nonetheless. Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law. being a nurse. Gutierrez failed to properly intubate the patient. Gutierrez. With regard to Dra. Dr. or to any and all anesthesia cases. was allegedly not knowledgeable in the process of intubation. who was in the operating room right beside the patient when the tragic event occurred. Moreover. Gutierrez. if negligence attended the management and care of the patient. This fact was attested to by Prof. We hold that private respondents were unable to disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous condition. the Court now comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and. Calderon and Dr. The appellate court likewise opined that private respondents were able to show that the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal). Dra. Corollary thereto. the liability of the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based.Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious and under the immediate and exclusive control of the physicians. if any on the patient? . In sustaining the position of private respondents. respondent Dra. the appellate court rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube since the latter. upon all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur. Gutierrez. the Court of Appeals rationalized that she was candid enough to admit that she experienced some difficulty in the endotracheal intubation 45 of the patient and thus. Thus. if in the affirmative. Witness Cruz testified to this effect: ATTY. what did Dra. In the instant case. As will be shown hereinafter. In giving weight to the testimony of Dra. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage. as a matter of common knowledge and observation. Perfecta Gutierrez do. As borne by the records. We disagree with the findings of the Court of Appeals. private respondents' own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative of their negligence in the care and management of Erlinda. the appellate court returned a verdict in favor of respondents physicians and hospital and absolved them of any liability towards Erlinda and her family. In so holding. we shall also determine if the Court of Appeals erred in relying on the testimonies of the witnesses for the private respondents. cannot be said to be covering her negligence with falsehood. Jamora. the Court of Appeals relied on the testimonies of Dra. On the other hand. PAJARES: Q: In particular. a short-acting barbiturate.

if any? A: [S]he tried to intubate the patient. Gutierrez? ATTY." what did you notice on the person of the patient? A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at. Calderon try (sic) to intubate the patient. after a while the patient's nailbed became bluish and I saw the patient was placed in trendelenburg position. 46 . there is a decrease of blood supply to the brain. Orlino Ho[s]aka then at that particular time? A: I saw him approaching the patient during that time. O lumalaki ang tiyan. xxx xxx xxx ATTY. arrive inside the operating room? A: Yes sir. I was beside the stretcher holding the left hand of the patient and all of a sudden heard some remarks coming from Dra. A: As have said. upon being called. Q: When he approached the patient. I could see that she was intubating the patient. Calderon.A: In particular. xxx xxx xxx Q: Do you know the reason why the patient was placed in that trendelenburg position? A: As far as I know. Q: Do you know what happened to that intubation process administered by Dra. Q: What did [s]he do. I was with the patient. ALCERA: She will be incompetent Your Honor. PAJARES: Q: From whom did you hear those words "lumalaki ang tiyan"? A: From Dra. Calderon. what did he do. xxx xxx xxx Q: After hearing the phrase "lumalaki ang tiyan. Perfecta Gutierrez herself. Perfecta Gutierrez. COURT: Witness may answer if she knows. Q: What happened to the patient? A: When Dr. She was saying "Ang hirap ma-intubate nito. Q: Did Dr. Q: Where was Dr. if any? A: He made an order to call on the anesthesiologist in the person of Dr. when a patient is in that position. mali yata ang pagkakapasok.

witness Cruz is not competent to testify on whether or not the intubation was a success. Even on the assumption that she is fully capable of determining whether or not a patient is properly intubated. 1991. intubate. With her clinical background as a nurse. Indeed. p. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. and considered a layman in the process of intubation. does not require a medical degree to be acceptable. disbelieved Dean Cruz's testimony in the trial court by declaring that: A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing procedures and techniques. she can very well testify upon matters on which she is capable of observing such as.xxx xxx xxx The appellate court. 49 We take judicial notice of the fact that anesthesia procedures have become so common. LIGSAY: Q: In this particular case. however. At any rate. GUTIERREZ: A: Yes sir. while you were intubating at your first attempt ( sic). (TSN. witness Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. an experienced clinical nurse whose long experience and scholarship led to her appointment as Dean of the Capitol Medical Center School at Nursing. Gutierrez who admitted that she experienced difficulty in inserting the tube into Erlinda's trachea. the Court is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful day. It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge. and to determine the condition of the heart. This kind of observation. it would not be too difficult to tell if the tube was properly inserted. Thus. and cannot. Dean of the Laguna College of Nursing in San Pablo City. there is no evidence that she ever auscultated the patient or that she conducted any type of examination to check if the endotracheal tube was in its proper place. and then Dean of the Capitol Medical Center School of Nursing. admittedly. lungs. that even an ordinary person can tell if it was administered properly. July 25. 47 In other words. to wit: ATTY. More importantly. the statements and acts of the physician and surgeon. we believe. 13). Illinois. Although witness Cruz is not an anesthesiologist. Most of all. We do not agree with the above reasoning of the appellate court. Doctora. 50 Reviewing witness Cruz' statements. petitioner's witness. with the kind of detail. did not peep into the throat of the patient. 48 This is precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. we find that the same were delivered in a straightforward manner. her testimony was affirmed by no less than respondent Dra. Q: Did you pull away the tube immediately? . As such. and manifest conditions which are observable by any one. the FEU-NRMF. external appearances. staff nurse and clinical instructor in a teaching hospital. consistency and spontaneity which would have been difficult to fabricate. and other organs. was fully capable of determining whether or not the intubation was a success. what the Court of Appeals is trying to impress is that being a nurse. She had extensive clinical experience starting as a staff nurse in Chicago. clarity. or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. you did not immediately see the trachea? DRA. witness Herminda Cruz. without doubt. we take judicial notice of the fact that nurses do not.

prominent central incisors. on 17 June 1985. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath. diseased or artificial teeth. Respondent Dra. . temporomandibular mobility. however. Respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda." that was the patient. hoping that she could get away with it. the day before elective surgery. Her failure to follow this medical procedure is. The argument does not convince us. ability to visualize uvula and the thyromental distance. Q: So. respondent Dra. as a means of defense. private respondents adduced no evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's airway. because of (sic) my first attempt. Until the day of the operation." what were you referring to? A: "Mahirap yata itong i-intubate. Gutierrez tried to muddle the difference between an elective surgery and an emergency surgery just . since Erlinda is obese and has a short neck and protruding teeth. From their testimonies. 57 Where the need arises. 56 Thus. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist reviews the patient's medical records and visits with the patient. you found some difficulty in inserting the tube? A: Yes. 51 Curiously in the case at bar. even if this would mean postponing the procedure. lungs and upper airway. no prior consultations with. Gutierrez. Q: When you said "mahirap yata ito. cardiovascular system. physical examination and interpretation of laboratory data. 54 The physical examination performed by the anesthesiologist is directed primarily toward the central nervous system. respondent Dra. an act of exceptional negligence and professional irresponsibility. If this was indeed observed. traditionally. therefore. it appears that the observation was made only as an afterthought. as when initial assessment indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway would go a long way towards decreasing patient morbidity and mortality. 53 It includes taking the patient's medical history. . it made intubation even more difficult. In the case at bar. attempts to gloss over this omission by playing around with the trial court's ignorance of clinical procedure. respondent Dra. physical characteristics of the patient's upper airway that could make tracheal intubation difficult should be studied. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative procedure was. Q: Did you or did you not? A: I did not pull the tube. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda.A: You do not pull the . a clear indicia of her negligence. or preoperative evaluation of Erlinda was done by her. The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility of anesthetic accidents. Before this date. Gutierrez made the haphazard defense that she encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal anatomy of a person) 52 making it harder to locate and. Respondent Dra. 55 A thorough analysis of the patient's airway normally involves investigating the following: cervical spine mobility. prior to the induction of anesthesia. I did not see right away. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself. therefore. review of current drug therapy.

we now determine if the faulty intubation is truly the proximate cause of Erlinda's comatose condition. she never saw the patient at the bedside. he could not have been capable of properly enlightening the court about anesthesia practice and procedure and their complications. of explaining to the court the pharmacologic and toxic effects of the supposed culprit. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an anesthesiologist. Jamora is a pulmonologist. and only on the actual date of the cholecystectomy. Jamora's testimony as an expert witness in the anesthetic practice of Pentothal administration is further supported by his own admission that he formulated his opinions on the drug not from the practical experience gained by a specialist or expert . who advanced private respondents' theory that the oxygen deprivation which led to anoxic encephalopathy. the anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper interview and clinical evaluation. Towards this end. Usually. First of all. The inappropriateness and absurdity of accepting Dr. he is not a pharmacologist and. LIGSAY: Q: Would you agree. Gutierrez failed to perform pre-operative evaluation of the patient which. Hence. there is hardly enough time available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery. in these cases. as an expert would. Thiopental Sodium. Elective procedures. introduced into her system. when the patient is relaxed and cooperative. and their possible hazards for purposes of informed consent. could not have been capable. 58 However. if at all. Dr. She herself admitted that she had seen petitioner only in the operating room.so her failure to perform the required pre-operative evaluation would escape unnoticed. with elective cases and normal cardio-pulmonary clearance like that. Thus. Thiopental Sodium (Pentothal). are operative procedures that can wait for days. However. In an emergency procedure. weeks or even months. Doctor. As such. There is ample time to explain the method of anesthesia. she had all the time to make a thorough evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. Moreover. We find the theory of private respondents unacceptable. Having established that respondent Dra. Erlinda's case was elective and this was known to respondent Dra. Gutierrez. the exact opposite is true. 60 was due to an unpredictable drug reaction to the short-acting barbiturate. resulted to a wrongful intubation. Since Dr. as such. it depends on the operative procedure of the anesthesiologist and in my case. the pre-operative assessment is conducted at least one day before the intended surgery. Jamora. Dr. She negligently failed to take advantage of this important opportunity. Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on allergic-mediated processes. that it is good medical practice to see the patient a day before so you can introduce yourself to establish good doctor-patient relationship and gain the trust and confidence of the patient? DRA. I usually don't do it except on emergency and on cases that have an abnormalities (sic). on the other hand. they presented Dr. GUTIERREZ: A: As I said in my previous statement. the drugs to be used. in turn. her attempt to exculpate herself must fail. a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine. Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due to bronchospasm 59 mediated by her allergic response to the drug. In her testimony she asserted: ATTY.

to qualify as an expert witness. experience or training which he is shown to possess. Q: How many times have you used pentothal? A: They used it on me. Moreover. LIGSAY: Q: In your line of expertise on pulmonology. I went into bronchospasm during my appendectomy. skin . Dr. private respondents' theory. — The opinion of a witness on a matter requiring special knowledge. may be received in evidence. No evidence of stridor. The provision in the rules of evidence 62 regarding expert witnesses states: Sec. many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine. Jamora's field. Q: And because they have used it on you and on account of your own personal experience you feel that you can testify on pentothal here with medical authority? A: No. but only from reading certain references. either by the study of recognized authorities on the subject or by practical experience. and training in the field of anesthesiology. allergic mediated bronchospasm alleged in this case is within the disciplines of anesthesiology. private respondents' intentionally avoided providing testimony by competent and independent experts in the proper areas. skill. On the basis of the foregoing transcript. did you have any occasion to use pentothal as a method of management? DR. That is why I used references to support my claims. apart from submitting testimony from a specialist in the wrong field. JAMORA: A: We do it in conjunction with the anesthesiologist when they have to intubate our patient. While admittedly. Opinion of expert witness.in the administration and use of Sodium Pentothal on patients. 61 An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia. The resulting anoxic encephalopathy belongs to the field of neurology. skill. one must have acquired special knowledge of the subject matter about which he or she is to testify. 63 Clearly. the anesthetic druginduced. Dr. internal medicine-allergy. it is clear that the appellate court erred in giving weight to Dr. 49. Q: In other words. has no support in evidence. Oddly. Q: But not in particular when you practice pulmonology? A: No. allergology and pharmacology. and clinical pharmacology. Generally. Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge. to wit: ATTY. that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic mediated response. in which the pulmonologist himself admitted that he could not testify about the drug with medical authority. Jamora's testimony as an expert in the administration of Thiopental Sodium. your knowledge about pentothal is based only on what you have read from books and not by your own personal application of the medicine pentothal? A: Based on my personal experience also on pentothal.

The development of abdominal distention. Proximate cause has been defined as that which. together with respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the respiratory tree. "Ang hirap ma-intubate nito. mali yata ang pagkakapasok. 70 As . which supports the contention that the second intubation was successful. produces injury. or wheezing — some of the more common accompanying signs of an allergic reaction — appears on record. beyond private respondents' bare claims. her comatosed condition. Entry into the esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. In view of the evidence at hand. Applying the above definition in relation to the evidence at hand. moving or producing cause. No laboratory data were ever presented to the court. faulty intubation is undeniably the proximate cause which triggered the chain of events leading to Erlinda's brain damage and. unbroken by any efficient intervening cause. and without which the result would not have occurred. ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing a thorough evaluation of the patient's airway prior to the operation." Thereafter. This fact was likewise observed by witness Cruz when she heard respondent Dra. 66 As stated in the testimony of Dr.reactions. private respondents contend that a second intubation was executed on Erlinda and this one was successfully done. Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. We do not think so. Hosaka. allergic-mediated bronchospasm happens only very rarely. such distention indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs through the trachea. that the second intubation was accomplished. 69 Nevertheless. it could not be claimed. witness Cruz noticed abdominal distention on the body of Erlinda. Private respondents themselves admitted in their testimony that the first intubation was a failure. As aptly explained by the trial court. it was obviously too late. Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea. In fact. the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already blue. No evidence exists on record. the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought. If courts were to accept private respondents' hypothesis without supporting medical proof. that the act or omission played a substantial part in bringing about or actually causing the injury or damage. we are inclined to believe petitioners' stand that it was the faulty intubation which was the proximate cause of Erlinda's comatose condition. 64 An injury or damage is proximately caused by an act or a failure to act. During intubation. Evidently. in natural and continuous sequence. then every anesthetic accident would be an act of God. and against the weight of available evidence. That abdominal distention had been observed during the first intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. O lumalaki ang tiyan. as private respondents insist. Even granting that the tube was successfully inserted during the second attempt. In any case. ultimately. 65 It is the dominant. Such an explanation was advanced in order to advanced in order to absolve them of any and all responsibility for the patient's condition. the hallmark of a successful intubation. 67 However. private respondents themselves admit that Thiopental induced. instead of the intended endotracheal intubation what actually took place was an esophageal intubation. 68 The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third (1/3) of deaths and serious injuries associated with anesthesia. Gutierrez remarked. Proceeding from this event (cyanosis). the same gave no guarantee of oxygen delivery. whenever it appears from the evidence in the case. Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes. In other words. cyanosis was again observed immediately after the second intubation. and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.

with the exception of the payment of wages. Had appropriate diligence and reasonable care been used in the pre-operative evaluation. generally. he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. would have had little difficulty going around the short neck and protruding teeth. the hiring. While "consultants" are not. presents problems in apportioning responsibility for negligence in medical malpractice cases. fire and exercise real control over their attending and visiting "consultant" staff. . technically employees. In fact. interns and residents. 72 Having failed to observe common medical standards in pre-operative management and intubation. no evidence on record exists to show that respondent Dr. he shares equal responsibility for the events which resulted in Erlinda's condition. respondent Dra. nurses. This indicates that he was remiss in his professional duties towards his patient." 74 who are allegedly not hospital employees. Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's cholecystectomy. However. In other words. their educational qualifications. and references. and was in fact over three hours late for the latter's operation. the control exercised. evidence of fellowship in most cases. we rule that for the purpose of allocating responsibility in medical negligence cases. or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee. it does not escape us that respondent Dr. the control test is determining. In addition to these. 71 In other words. Doctors who apply for "consultant" slots. an employeremployee relationship in effect exists between hospitals and their attending and visiting physicians. and/or for the privilege of admitting patients into the hospital. We now determine the responsibility of respondent Dr. adequately alerted by a thorough pre-operative evaluation. respondent physician could have been much more prepared to meet the contingency brought about by the perceived anatomic variations in the patient's neck and oral area. the difficulty is only more apparent than real. hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. defects which would have been easily overcome by a prior knowledge of those variations together with a change in technique. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda. hire. interns and residents. We now discuss the responsibility of the hospital in this particular incident. Respondent Dr. visiting or attending. an experienced anesthesiologist. and the right to terminate consultants all fulfill the important hallmarks of an employeremployee relationship. Hosaka's negligence can be found in his failure to exercise the proper authority (as the "captain" of the operative team) in not determining if his anesthesiologist observed proper anesthesia protocols. conduct bedside rounds for clerks. moderate grand rounds and patient audits and perform other tasks and responsibilities. a point which respondent hospital asserts in denying all responsibility for the patient's condition. for the privilege of being able to maintain a clinic in the hospital. In assessing whether such a relationship in fact exists. is normally politely terminated. Gutierrez properly intubated the patient. Orlino Hosaka as the head of the surgical team. Furthermore. Thus. After a physician is accepted. and feedback from patients. As the so-called "captain of the ship. Accordingly." 73 it is the surgeon's responsibility to see to it that those under him perform their task in the proper manner. A consultant remiss in his duties. are required to submit proof of completion of residency. private hospitals. In the first place. Because of this. he is normally required to attend clinico-pathological conferences. Gutierrez failed to observe the proper pre-operative protocol which could have prevented this unfortunate incident. the physician's performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics.stated beforehand. either as a visiting or attending consultant. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. respondent Dra. on the basis of the foregoing. evidence of accreditation by the appropriate board (diplomate). 75 This is particularly true with respondent hospital. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting "consultants. Hosaka verified if respondent Dra.

or proof of a similar nature. Indeed. Given these considerations. respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. 76 The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former's responsibility under a relationship of patria potestas. as shown by the above discussions. In the instant case for instance.000.00) in compensatory damages to the plaintiff. while the burden of proving negligence rests on the plaintiffs. The trial court awarded a total of P632. a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. based on monthly expenses for the care of the patient estimated at P8. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code. not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy. Food preparation should be normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin supplements. In the instant case.This being the case. the amount of actual damages recoverable in suits arising from negligence should at least reflect the correct minimum cost of proper care. And yet ideally. the P8000/monthly amount established by the trial court at the time of its decision would be grossly inadequate to cover the actual costs of home-based care for a comatose individual. the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Having failed to do this. Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. Based on the foregoing. What it reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills. failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. apart from a general denial of its responsibility over respondent physicians. once negligence is shown. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians.000. Feeding is done by nasogastric tube. At current levels. guardian. The Civil Code provides: .000. respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition. Furthermore. However. respondent hospital. we hold that the Court of Appeals erred in accepting and relying on the testimonies of the witnesses for the private respondents. and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory complications.00. We now come to the amount of damages due petitioners. "subject to its being updated" covering the period from 15 November 1985 up to 15 April 1992. The calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. 78 In other words. she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy.00 pesos (should be P616. teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. 77 Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. the provisions of the Civil Code on actual or compensatory damages present us with some difficulties. private respondents were unable to rebut the presumption of negligence. the burden shifts to the respondents (parent. In neglecting to offer such proof.

Our rules on actual or compensatory damages generally assume that at the time of litigation. they were likely to arise only in the future. the damage done to her would . as in this case. Valenzuela will forever be deprived of the full ambulatory functions of her left extremity. In these cases.000. During the lifetime. up to the time of trial. Assuming she reaches menopause. should be one which compensates for pecuniary loss incurred and proved. be made with certainty. while certain to occur. Under the circumstances. and one which would meet pecuniary loss certain to be suffered but which could not.00 in temperate damages would therefore be reasonable. and were certain to be incurred by the plaintiff. for example. We awarded P1. The reason is that these damages cover two distinct phases. 2199. These adjustments entail costs. should take into account the cost of proper care. menopause and aging. — Except as provided by law or by stipulation. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals.00 in moral damages in that case. petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for over a decade. these provisions neglect to take into account those situations. no incompatibility arises when both actual and temperate damages are provided for. if they are to adequately and correctly respond to the injury caused.000. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation. the amount of damages which should be awarded. As it would not be equitable — and certainly not in the best interests of the administration of justice — for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded — temperate damages are appropriate. she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of healing. even with the use of state of the art prosthetic technology. it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. Court of Appeals. In the instant case.Art. And because of the unique nature of such cases.500. In other words. 82 this Court was confronted with a situation where the injury suffered by the plaintiff would have led to expenses which were difficult to estimate because while they would have been a direct result of the injury (amputation). Well beyond the period of hospitalization (which was paid for by Li). are difficult to predict. from the nature of the case. Because of this. the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. prosthetic replacements and months of physical and occupational rehabilitation and therapy. The amount given as temperate damages. the Court therein stated: As a result of the accident. However.000. 80 In other words. where the resulting injury might be continuing and possible future complications directly arising from the injury. Describing the nature of the injury. Ma. Such compensation is referred to as actual or compensatory damages. 81 In Valenzuela vs. the prosthetic devise will have to be replaced and readjusted to changes in the size of her lower limb effected by the biological changes of middle-age. the prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-menopausal women. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the distal left thigh just above the knee. though to a certain extent speculative. temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. an award of P1. for anything less would be grossly inadequate. one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.

and solidarily against private respondents the following: 1) P1. 84 The husband and the children. who.000. We recognized. will have to live with the day to day uncertainty of the patient's illness. exemplary damages in the amount of P100. however technologically advanced. the same automatically gives the injured a right to reparation for the damage caused. all petitioners in this case. changes. The burden of care has so far been heroically shouldered by her husband and children. in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface of the resulting moral damage because it would be highly speculative to estimate the amount of emotional and moral pain.00 are likewise proper. the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of petitioners. She has been in a comatose state for over fourteen years now. an award of P2. are painful.00 are hereby awarded.00 as actual damages computed as of the date of promulgation of this decision plus a . the actual physical. in the intervening years have been deprived of the love of a wife and a mother. WHEREFORE.00 in moral damages would be appropriate. The sensory functions are forever lost. and he may end a distinguished career using unorthodox methods without incident.000. it has been documented. will only allow a reasonable amount of functional restoration of the motor functions of the lower limb. when failure to follow established procedure results in the evil precisely sought to be averted by observance of the procedure and a nexus is made between the deviation and the injury or damage.000. they rarely set out to intentionally cause injury or death to their patients. the physician would necessarily be called to account for it. The family's moral injury and suffering in this case is clearly a real one. Established medical procedures and practices. The resultant anxiety. Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at P100. by way of example. The replacements. psychological injury. Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. A physician's experience with his patients would sometimes tempt him to deviate from established community practices. sleeplessness.not only be permanent and lasting. Finally. psychological damage and injury suffered by the victim or those actually affected by the victim's condition. intent is immaterial in negligence cases because where negligence exists and is proven.000. xxx xxx xxx A prosthetic devise. knowing any hope of recovery is close to nil. All of these adjustments. it would also be permanently changing and adjusting to the physiologic changes which her body would normally undergo through the years. and adjustments will require corresponding adjustive physical and occupational therapy.000. emotional and financial cost of the care of petitioner would be virtually impossible to quantify. In the case at bar. Even the temperate damages herein awarded would be inadequate if petitioner's condition remains unchanged for the next ten years. They. 83 The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than the amputation in the Valenzuela case. They have fashioned their daily lives around the nursing care of petitioner. though in constant flux are devised for the purpose of preventing complications. are charged with the moral responsibility of the care of the victim. However. Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and. the failure to observe pre-operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private respondents' case. Meanwhile.352. However. not the respondents. For the foregoing reasons. altering their long term goals to take into account their life with a comatose patient. mental and physical pain are inestimable.

000. 2) P2.00 as moral damages. 5) the costs of the suit.00 as temperate damages.500.000. 4) P100.000.00 each as exemplary damages and attorney's fees.monthly payment of P8. 3) P1. and. . SO ORDERED.000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives.000.