G.R. No.

L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J .:
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an electric
light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the
Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be
reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the
island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent
some time in wandering about the company's premises. The visit was made on a Sunday afternoon,
and it does not appear that they saw or spoke to anyone after leaving the power house where they
had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps
scattered on the ground. These caps are approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires by means of which it may be discharged
by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite,
and have in themselves a considerable explosive power. After some discussion as to the ownership
of the caps, and their right to take them, the boys picked up all they could find, hung them on stick,
of which each took end, and carried them home. After crossing the footbridge, they met a little girl
named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife,
and finding that it was filled with a yellowish substance they got matches, and David held the cap
while Manuel applied a lighted match to the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of
the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had
his hand burned and wounded, and David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the
surgeons who were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the defendant's plant, detonating caps
of the same size and kind as those found by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also appears that at or about the time when these
caps were found, similarly caps were in use in the construction of an extension of defendant's street
car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to
have been lying for a considerable time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the defendant
company's premises, although it must be assumed that the company or its employees were aware of
the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical
draftsman and continued in that employment for six months at a salary of P2.50 a day; and it
appears that he was a boy of more than average intelligence, taller and more mature both mentally
and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them exposed on its premises at the
point where they were found.
The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that
plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on
the McKinley extension of the defendant company's track; that some of these caps were used in
blasting a well on the company's premises a few months before the accident; that not far from the
place where the caps were found the company has a storehouse for the materials, supplies and so
forth, used by it in its operations as a street railway and a purveyor of electric light; and that the
place, in the neighborhood of which the caps were found, was being used by the company as a sort
of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the average citizen,
and under all the circumstances, and in the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on
defendant's premises fairly justifies the inference that the defendant company was either the owner
of the caps in question or had the caps under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectation that they would
be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they
being old and perhaps defective; and, however this may be, we are satisfied that the evidence is
sufficient to sustain a finding that the company or some of its employees either willfully or through an
oversight left them exposed at a point on its premises which the general public, including children at
play, where not prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively proven,
however, that while the workman employed in blasting the well was regularly employed by J. G.
White and Co., a firm of contractors, he did the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen, and there is no proof whatever in
the record that the blasting on the McKinley extension was done by independent contractors. Only
one witness testified upon this point, and while he stated that he understood that a part of this work
was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and
conditions of the alleged contract, or of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps were more or less extensively
employed on work done by the defendant company's directions and on its behalf, we think that the
company should have introduced the necessary evidence to support its contention if it wished to
avoid the not unreasonable inference that it was the owner of the material used in these operations
and that it was responsible for tortious or negligent acts of the agents employed therein, on the
ground that this work had been intrusted to independent contractors as to whose acts the
maxim respondent superior should not be applied. If the company did not in fact own or make use of
caps such as those found on its premises, as intimated by counsel, it was a very simple matter for it
to prove that fact, and in the absence of such proof we think that the other evidence in the record
sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference that
the caps found on its premises were its property, and were left where they were found by the
company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon
the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of
that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for damages caused
by their employees in the service of the branches in which the latter may be employed or on
account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused —
1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions of
these articles, and since we agree with this view of the case, it is not necessary for us to consider
the various questions as to form and the right of action (analogous to those raised in the case of
Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a
decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
These proposition are, of course, elementary, and do not admit of discussion, the real difficulty
arising in the application of these principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the fulminating caps been left exposed
at the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his
own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be
the direct result of defendant's negligence in leaving the caps exposed at the place where they were
found by the plaintiff, and this latter the proximate cause of the accident which occasioned the
injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts
of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and
the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a place where the railroad company
knew, or had good reason to suppose, children would be likely to come, and there found explosive
signal torpedoes left unexposed by the railroad company's employees, one of which when carried
away by the visitor, exploded and injured him; or where such infant found upon the premises a
dangerous machine, such as a turntable, left in such condition as to make it probable that children in
playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer
injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was
whether a railroad company was liable for in injury received by an infant while upon its premises,
from idle curiosity, or for purposes of amusement, if such injury was, under circumstances,
attributable to the negligence of the company), the principles on which these cases turn are that
"while a railroad company is not bound to the same degree of care in regard to mere strangers who
are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from
responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and
that "the conduct of an infant of tender years is not to be judged by the same rule which governs that
of adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an
injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases,
especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in
the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for
injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule
exists in favor of children who are injured by dangerous machinery naturally calculated to attract
them to the premises; (3) that an invitation or license to cross the premises of another can not be
predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that
there is no difference between children and adults as to the circumstances that will warrant the
inference of an invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the
courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349).
And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in
other States.
On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29,
35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company vs.
Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by
Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine
laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many
of the adjudged cases, both English and American, formally declared that it adhered "to the
principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited
the defendant's premises, without defendant's express permission or invitation, and while there, was
by accident injured by falling into a burning slack pile of whose existence he had no knowledge, but
which had been left by defendant on its premises without any fence around it or anything to give
warning of its dangerous condition, although defendant knew or had reason the interest or curiosity
of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere
trespasser, for whose safety and protection while on the premises in question, against the unseen
danger referred to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved to
the facts in that case, because what is said there is strikingly applicable in the case at bar, and
would seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser,
the defendant company owed him no duty, and in no case could be held liable for injuries which
would not have resulted but for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case
now before us, they require us to hold that the defendant was guilty of negligence in leaving
unguarded the slack pile, made by it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit
its mine, and witness its operation. It knew that the usual approach to the mine was by a
narrow path skirting its slack pit, close to its depot building, at which the people of the village,
old and young, would often assemble. It knew that children were in the habit of frequenting
that locality and playing around the shaft house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would have suggested that they were in
danger from being so near a pit, beneath the surface of which was concealed (except when
snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally
fall and be burned to death. Under all the circumstances, the railroad company ought not to
be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the
vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it
was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited
with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises, would probably be attracted
by their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of
his instinct which he can not resist, and putting him there by manual force?" What difference,
in reason we may observe in this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied
license, resulting from the habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case
of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1,
page 305, note, well says: "It would be a barbarous rule of law that would make the owner of
land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog
attracted by his natural instinct, might run into it and be killed, and which would exempt him
from liability for the consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle
with it by instincts equally strong, might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs.
Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit
the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license might
sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to gather for that purpose, may be
equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away
upon his premises, near the common way, things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases
of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less
cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here
are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the
restless spirit of youth, boys here as well as there will usually be found whenever the public is
permitted to congregate. The movement of machinery, and indeed anything which arouses the
attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does
the magnet draw the iron which comes within the range of its magnetic influence. The owners of
premises, therefore, whereon things attractive to children are exposed, or upon which the public are
expressly or impliedly permitted to enter or upon which the owner knows or ought to know children
are likely to roam about for pastime and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be heard to say that because the
child has entered upon his premises without his express permission he is a trespasser to whom the
owner owes no duty or obligation whatever. The owner's failure to take reasonable precautions to
prevent the child from entering his premises at a place where he knows or ought to know that
children are accustomed to roam about of to which their childish instincts and impulses are likely to
attract them is at least equivalent to an implied license to enter, and where the child does enter
under such conditions the owner's failure to take reasonable precautions to guard the child against
injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a
breach of duty, responsible, if the child is actually injured, without other fault on its part than that it
had entered on the premises of a stranger without his express invitation or permission. To hold
otherwise would be expose all the children in the community to unknown perils and unnecessary
danger at the whim of the owners or occupants of land upon which they might naturally and
reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man
has a right to do what will with his own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the premises of others is of sufficient
weight to put in doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,
1
No. 5060, decided January 26, 1910), and
except as to infants of very tender years it would be absurd and unreasonable in a community
organized as is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover in such cases — a point which we
neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's
express invitation or permission would not have relieved defendant from responsibility for injuries
incurred there by plaintiff, without other fault on his part, if such injury were attributable to the
negligence of the defendant, we are of opinion that under all the circumstances of this case the
negligence of the defendant in leaving the caps exposed on its premises was not the proximate
cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable
to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in
cutting open the detonating cap and putting match to its contents was the proximate cause of the
explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is
not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co.
vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself have been
free from fault, such is not the rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and this is to be determined in each
case by the circumstances of the case." As we think we have shown, under the reasoning on which
rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of
responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown
boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express
permission or invitation' but it is wholly different question whether such youth can be said to have
been free from fault when he willfully and deliberately cut open the detonating cap, and placed a
match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion.
On this point, which must be determined by "the particular circumstances of this case," the doctrine
laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of
observation that in all of the "Torpedo" and analogous cases which our attention has been directed,
the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such
tender years that they were held not to have the capacity to understand the nature or character of
the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature
both mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred;
and the record discloses throughout that he was exceptionally well qualified to take care of himself.
The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he
well knew the explosive character of the cap with which he was amusing himself. The series of
experiments made by him in his attempt to produce an explosion, as described by the little girl who
was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity,
followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors
brought about by the application of a match to the contents of the caps, show clearly that he knew
what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the
explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within
him at the time when he put the match to the contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate
the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion
might be expected from his act, and yet he willfully, recklessly, and knowingly produced the
explosion. It would be going far to say that "according to his maturity and capacity" he exercised
such and "care and caution" as might reasonably be required of him, or that defendant or anyone
else should be held civilly responsible for injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of
things the question of negligence necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at which a minor can be said to have
such ability will necessarily depends of his own acts and their consequences; and at the age at
which a minor can be said to have such ability will necessarily vary in accordance with the varying
nature of the infinite variety of acts which may be done by him. But some idea of the presumed
capacity of infants under the laws in force in these Islands may be gathered from an examination of
the varying ages fixed by our laws at which minors are conclusively presumed to be capable of
exercising certain rights and incurring certain responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases such as that at bar, except so far as they
illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the Penal Code a minor over fifteen
years of age is presumed to be capable of committing a crime and is to held criminally responsible
therefore, although the fact that he is less than eighteen years of age will be taken into consideration
as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec.
771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse
to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal
marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents of the
cap; that he was sui juris in the sense that his age and his experience qualified him to understand
and appreciate the necessity for the exercise of that degree of caution which would have avoided the
injury which resulted from his own deliberate act; and that the injury incurred by him must be held to
have been the direct and immediate result of his own willful and reckless act, so that while it may be
true that these injuries would not have been incurred but for the negligence act of the defendant in
leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and
principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire.
(Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts the grievance
should be against himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf
and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover
damages from the defendant, in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391),
is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a
source of obligation when between such negligence and the injury there exists the relation of
cause and effect; but if the injury produced should not be the result of acts or omissions of a
third party, the latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in
his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between
it and the damage there exists the relation of cause and effect; but if the damage caused
does not arise from the acts or omissions of a third person, there is no obligation to make
good upon the latter, even though such acts or omissions be imprudent or illegal, and much
less so when it is shown that the immediate cause of the damage has been the recklessness
of the injured party himself.
And again —
In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary points of
the proof, which are two: An act or omission on the part of the person who is to be charged
with the liability, and the production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect between the act
or omission and the damage; the latter must be the direct result of one of the first two. As the
decision of March 22, 1881, said, it is necessary that the damages result immediately and
directly from an act performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in
this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury cases) was exonerated," on the
ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of
the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of
that year); none of the cases decided by the supreme court of Spain "define the effect to be given
the negligence of its causes, though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries;" and in such cases we declared that law in this jurisdiction
to require the application of "the principle of proportional damages," but expressly and definitely
denied the right of recovery when the acts of the injured party were the immediate causes of the
accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between the event itself, without which there could have
been no accident, and those acts of the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the cause of the accident under review was
the displacement of the crosspiece or the failure to replace it. This produces the event giving
occasion for damages—that is, the sinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute, although it
was an element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its determining factors, he can
not recover. Where, in conjunction with the occurrence, he contributes only to his own injury,
he may recover the amount that the defendant responsible for the event should pay for such
injury, less a sum deemed a suitable equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion,
the accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents
of the cap, and that having "contributed to the principal occurrence, as one of its determining factors,
he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps exposed
on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps.
Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years
would have no effect in relieving defendant of responsibility, but whether in view of the well-known
fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the
age and maturity of plaintiff should be deemed without fault in picking up the caps in question under
all the circumstances of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed without day. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.
G.R. No. L-10126 October 22, 1957
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA,
OSCAR and ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA
VDA. DE BATACLAN, plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.
Fortunato Jose for defendant and appellant.
MONTEMAYOR, J .:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by
its owner defendant Mariano Medina under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
were about eighteen passengers, including the driver and conductor. Among the passengers were
Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of
Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named
Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same
morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and
turned turtle. Some of the passengers managed to leave the bus the best way they could, others had
to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of
the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans
and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they
could not get out of the bus. There is nothing in the evidence to show whether or not the passengers
already free from the wreck, including the driver and the conductor, made any attempt to pull out or
extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were
made to the houses in the neighborhood. After half an hour, came about ten men, one of them
carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost immediately, a fierce fire started,
burning and all but consuming the bus, including the four passengers trapped inside it. It would
appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the
side of the chassis, spreading over and permeating the body of the bus and the ground under and
around it, and that the lighted torch brought by one of the men who answered the call for help set it
on fire.
That same day, the charred bodies of the four deemed passengers inside the bus were removed
and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600
as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the
Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim
in the complaint.
Our new Civil Code amply provides for the responsibility of common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:
ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them, according to all the circumstances of each
case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles
1734, 1735, and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755
ART. 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the order of the common carriers.
This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.
ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of
the willful acts or negligence of other passengers or of strangers, if the common carrier's
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission.
We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his
agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by the fact that according to the
testimony of the witnesses, including that of the defense, from the point where one of the front tires
burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its momentum carried it over a
distance of 150 meters before it fell into the canal and turned turtle.
There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of
Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself
and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though
he must have suffered physical injuries, perhaps serious, was still alive, and so damages were
awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory
definition of proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited
by plaintiffs-appellants in their brief. It is as follows:
. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.' And more comprehensively, 'the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all constituting a
natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as a
natural and probable result of the cause which first acted, under such circumstances that the
person responsible for the first event should, as an ordinary prudent and intelligent person,
have reasonable ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely
causing him physical injuries, if through some event, unexpected and extraordinary, the overturned
bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the proximate cause of his death
was the fire and not the overturning of the vehicle. But in the present case under the circumstances
obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the
bus, this for the reason that when the vehicle turned not only on its side but completely on its back,
the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the
men with a lighted torch was in response to the call for help, made not only by the passengers, but
most probably, by the driver and the conductor themselves, and that because it was dark (about
2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural
area where lanterns and flashlights were not available; and what was more natural than that said
rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested
from them. In other words, the coming of the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its passengers and the call for
outside help. What is more, the burning of the bus can also in part be attributed to the negligence of
the carrier, through is driver and its conductor. According to the witness, the driver and the conductor
were on the road walking back and forth. They, or at least, the driver should and must have known
that in the position in which the overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when
spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither
the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not
to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier
come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.
As regard the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to
include compensatory, moral, and other damages. We also believe that plaintiffs are entitled to
attorney's fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial
court, but also in the course of the appeal, and not losing sight of the able briefs prepared by them,
the attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of
merchandise carried by the deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us. According to the evidence,
one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in
the hospital, she was visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the
bus changed immediately because they were already old, and that as a matter of fact, he had been
telling the driver to change the said tires, but that the driver did not follow his instructions. If this be
true, it goes to prove that the driver had not been diligent and had not taken the necessary
precautions to insure the safety of his passengers. Had he changed the tires, specially those in front,
with new ones, as he had been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to believe that the driver
operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical
injuries to others, and the complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was banking to support the complaint,
either failed or appear or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly testified in court to the effect
of the said driver was negligent. In the public interest the prosecution of said erring driver should be
pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on
public utility buses. Let a copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the
attorney's fees, respectively, the decision appealed is from hereby affirmed, with costs.
G.R. No. 92087 May 8, 1992
SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children, namely:
ALBERTO & ROBERTO, all surnamed FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO,
ROSALIA BERTULANO, in her behalf and as the legal guardian of her minor children, namely:
EDUARDO, ROLANDO, DANIEL, AND JOCELYN, all surnamed BERTULANO, PRIMITIVA
FAJARDO in her behalf and as legal guardian of her minor children, namely: GILBERT, GLEN,
JOCELYN AND JOSELITO, all surnamed FAJARDO, and EMETERIA LIAGOSO, in her behalf
and as guardian ad litem, of her minor grandchildren, namely: NOEL, WILLIAM, GENEVIEVE
and GERRY, all surnamed LIAGOSO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF DAVAO, respondents.

MEDIALDEA, J .:
This is a petition for review on certiorari praying that the amended decision of the Court of Appeals
dated January 11, 1990 in CA-G.R. No. C.V. 04846, entitled "Sofia Fernando, etc., et al. v. The City
of Davao," be reversed and that its original decision dated January 31, 1986 be reinstated subject to
the modification sought by the petitioners in their motion for partial reconsideration dated March 6,
1986.
The antecedent facts are briefly narrated by the trial court, as follows:
From the evidence presented we see the following facts: On November 7, 1975,
Bibiano Morta, market master of the Agdao Public Market filed a requisition request
with the Chief of Property of the City Treasurer's Office for the re-emptying of the
septic tank in Agdao. An invitation to bid was issued to Aurelio Bertulano, Lito
Catarsa, Feliciano Bascon, Federico Bolo and Antonio Suñer, Jr. Bascon won the
bid. On November 26, 1975 Bascon was notified and he signed the purchase order.
However, before such date, specifically on November 22, 1975, bidder Bertulano
with four other companions namely Joselito Garcia, William Liagoso, Alberto
Fernando and Jose Fajardo, Jr. were found dead inside the septic tank. The bodies
were removed by a fireman. One body, that of Joselito Garcia, was taken out by his
uncle, Danilo Garcia and taken to the Regional Hospital but he expired there. The
City Engineer's office investigated the case and learned that the five victims entered
the septic tank without clearance from it nor with the knowledge and consent of the
market master. In fact, the septic tank was found to be almost empty and the victims
were presumed to be the ones who did the re-emptying. Dr. Juan Abear of the City
Health Office autopsied the bodies and in his reports, put the cause of death of all
five victims as "asphyxia" caused by the diminution of oxygen supply in the body
working below normal conditions. The lungs of the five victims burst, swelled in
hemmorrhagic areas and this was due to their intake of toxic gas, which, in this case,
was sulfide gas produced from the waste matter inside the septic tank. (p. 177,
Records)
On August 28, 1984, the trial court rendered a decision, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, this case is hereby DISMISSED without
pronouncement as to costs.
SO ORDERED. (Records, p. 181)
From the said decision, the petitioners appealed to the then Intermediate Appellate Court (now Court
of Appeals). On January 3, 1986, the appellate court issued a decision, the dispositive portion of
which reads:
WHEREFORE, in view of the facts fully established and in the liberal interpretation of
what the Constitution and the law intended to protect the plight of the poor and the
needy, the ignorant and the
indigent –– more entitled to social justice for having, in the unforgettable words of
Magsaysay, "less in life," We hereby reverse and set aside the appealed judgment
and render another one:
1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando, Sofia Fernando
and her minor children the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
2. Ordering the defendant to pay to the plaintiffs David Garcia and Anita Garcia the
following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano (sic) and her minor
children the following sums of money
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and her minor
children the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
5. Ordering the defendant to pay to the plaintiffs Norma Liagoso, Nicolas Liagoso
and Emeteria Liagoso and her minor grandchildren the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
The death compensation is fixed at P30,000.00 in accordance with the rulings of the
Supreme Court starting with People vs. De la Fuente, Nos. L-63251-52, December
29, 1983, 126 SCRA 518 reiterated in the recent case of People vs. Nepomuceno,
No. L-41412, May 27, 1985. Attorney's fees in the amount of P10,000.00 for the
handling of the case for the 5 victims is also awarded.
No pronouncement as to costs.
SO ORDERED. (Rollo, pp. 33-34)
Both parties filed their separate motions for reconsideration. On January 11, 1990, the Court of
Appeals rendered an Amended Decision, the dispositive portion of which reads:
WHEREFORE, finding merit in the motion for reconsideration of the defendant-
appellee Davao City, the same is hereby GRANTED. The decision of this Court
dated January 31, 1986 is reversed and set aside and another one is hereby
rendered dismissing the case. No pronouncement as to costs.
SO ORDERED. (Rollo, p. 25)
Hence, this petition raising the following issues for resolution:
1. Is the respondent Davao City guilty of negligence in the case at bar?
2. If so, is such negligence the immediate and proximate cause of deaths of the
victims hereof? (p. 72, Rollo)
Negligence has been defined as the failure to observe for the protection of the interests of another
person that degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury (Corliss v. Manila Railroad Company, L-21291, March 28,
1969, 27 SCRA 674, 680). Under the law, a person who by his omission causes damage to another,
there being negligence, is obliged to pay for the damage done (Article 2176, New Civil Code). As to
what would constitute a negligent act in a given situation, the case of Picart v. Smith (37 Phil. 809,
813) provides Us the answer, to wit:
The test by which to determine the existence of negligence in a particular case may
be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent person would have used in
the same situation? If not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the imaginary conduct of the
discreet pater familias of the Roman law. The existence of negligence in a given
case is not determined by reference to the personal judgment of the actor in the
situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by
that.
The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience and
in view of the facts involved in the particular case. Abstract speculation cannot here
be of much value but this much can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or known to them. They are
not, and are not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them to suggest or warn
of danger. Could a prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm.Reasonable foresight of harm, followed by
the ignoring of the suggestion born of this provision, is always necessary before
negligence can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the tortfeasor would have foreseen
that an effect harmful to another was sufficiently probable warrant his foregoing the
conduct or guarding against its consequences. (emphasis supplied)
To be entitled to damages for an injury resulting from the negligence of another, a claimant must
establish the relation between the omission and the damage. He must prove under Article 2179 of
the New Civil Code that the defendant's negligence was the immediate and proximate cause of his
injury. Proximate cause has been defined as that cause, which, in natural and continuous sequence
unbroken by any efficient intervening cause, produces the injury, and without which the result would
not have occurred (Vda. de Bataclan, et al. v. Medina, 102 Phil. 181, 186). Proof of such relation of
cause and effect is not an arduous one if the claimant did not in any way contribute to the negligence
of the defendant. However, where the resulting injury was the product of the negligence of both
parties, there exists a difficulty to discern which acts shall be considered the proximate cause of the
accident. InTaylor v. Manila Electric Railroad and Light Co. (16 Phil. 8, 29-30), this Court set a
guideline for a judicious assessment of the situation:
Difficulty seems to be apprehended in deciding which acts of the injured party shall
be considered immediate causes of the accident. The test is simple. Distinction must
be made between the accident and the injury, between the event itself, without which
there could have been no accident, and those acts of the victim not entering into it,
independent of it, but contributing to his own proper hurt. For instance, the cause of
the accident under review was the displacement of the crosspiece or the failure to
replace it. This produced the event giving occasion for damages — that is, the
sinking of the track and the sliding of the iron rails. To this event, the act of the
plaintiff in walking by the side of the car did not contribute, although it was an
element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its
determining factors, he can not recover. Where, in conjunction with the occurrence,
he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence. (emphasis Ours)
Applying all these established doctrines in the case at bar and after a careful scrutiny of the records,
We find no compelling reason to grant the petition. We affirm.
Petitioners fault the city government of Davao for failing to clean a septic tank for the period of 19
years resulting in an accumulation of hydrogen sulfide gas which killed the laborers. They contend
that such failure was compounded by the fact that there was no warning sign of the existing danger
and no efforts exerted by the public respondent to neutralize or render harmless the effects of the
toxic gas. They submit that the public respondent's gross negligence was the proximate cause of the
fatal incident.
We do not subscribe to this view. While it may be true that the public respondent has been remiss in
its duty to re-empty the septic tank annually, such negligence was not a continuing one. Upon
learning from the report of the market master about the need to clean the septic tank of the public
toilet in Agdao Public Market, the public respondent immediately responded by issuing invitations to
bid for such service. Thereafter, it awarded the bid to the lowest bidder, Mr. Feliciano Bascon (TSN,
May 24, 1983, pp. 22-25). The public respondent, therefore, lost no time in taking up remedial
measures to meet the situation. It is likewise an undisputed fact that despite the public respondent's
failure to re-empty the septic tank since 1956, people in the market have been using the public toilet
for their personal necessities but have remained unscathed. The testimonies of Messrs. Danilo
Garcia and David Secoja (plaintiffs'-petitioners' witnesses) on this point are relevant, to wit:
Atty. Mojica, counsel for defendant Davao City:
xxx xxx xxx
The place where you live is right along the Agdao creek, is that
correct?
DANILO GARCIA:
A Yes, sir.
Q And to be able to go to the market place, where you claim you
have a stall,, you have to pass on the septic tank?
A Yes, sir.
Q Day in and day out, you pass on top of the septic tank?
A Yes, sir.
Q Is it not a fact that everybody living along the creek passes on top
of this septic tank as they go out from the place and return to their
place of residence, is that correct?
And this septic tank, rather the whole of the septic tank, is covered by
lead . . .?
A Yes, sir. there is cover.
Q And there were three (3) of these lead covering the septic tank?
A Yes, sir.
Q And this has always been closed?
A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis supplied)
ATTY. JOVER, counsel for the plaintiffs:
Q You said you are residing at Davao City, is it not?
DAVID SEJOYA:
A Yes, sir.
Q How long have you been a resident of Agdao?
A Since 1953.
Q Where specifically in Agdao are you residing?
A At the Public Market.
Q Which part of the Agdao Public Market is your house located?
A Inside the market in front of the fish section.
Q Do you know where the Agdao septic tank is located?
A Yes, sir.
Q How far is that septic tank located from your house?
A Around thirty (30) meters.
Q Have you ever had a chance to use that septic tank (public toilet)?
A Yes, sir.
Q How many times, if you could remember?
A Many times, maybe more than 1,000 times.
Q Prior to November 22, 1975, have you ever used that septic tank
(public toilet)?
A Yes, sir.
Q How many times have you gone to that septic tank (public toilet)
prior to that date, November 22, 1975?
A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)
The absence of any accident was due to the public respondent's compliance with the
sanitary and plumbing specifications in constructing the toilet and the septic tank (TSN,
November 4, 1983, p. 51). Hence, the toxic gas from the waste matter could not have leaked
out because the septic tank was air-tight (TSN, ibid, p. 49). The only indication that the septic
tank in the case at bar was full and needed emptying was when water came out from it (TSN,
September 13, 1983, p. 41). Yet, even when the septic tank was full, there was no report of
any casualty of gas poisoning despite the presence of people living near it or passing on top
of it or using the public toilet for their personal necessities.
Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to emphasize the
negligence of the city government and presented witnesses to attest on this lack. However, this
strategy backfired on their faces. Their witnesses were not expert witnesses. On the other hand,
Engineer Demetrio Alindada of the city government testified and demonstrated by drawings how the
safety requirements like emission of gases in the construction of both toilet and septic tank have
been complied with. He stated that the ventilation pipe need not be constructed outside the building
as it could also be embodied in the hollow blocks as is usually done in residential buildings (TSN,
November 4, 1983, pp. 50-51). The petitioners submitted no competent evidence to corroborate their
oral testimonies or rebut the testimony given by Engr. Alindada.
We also do not agree with the petitioner's submission that warning signs of noxious gas should have
been put up in the toilet in addition to the signs of "MEN" and "WOMEN" already in place in that
area. Toilets and septic tanks are not nuisances per se as defined in Article 694 of the New Civil
Code which would necessitate warning signs for the protection of the public. While the construction
of these public facilities demands utmost compliance with safety and sanitary requirements, the
putting up of warning signs is not one of those requirements. The testimony of Engr. Alindada on this
matter is elucidative:
ATTY. ALBAY:
Q Mr. Witness, you mentioned the several aspects of the approval of
the building permit which include the plans of an architect, senitary
engineer and electrical plans. All of these still pass your approval as
building official, is that correct?
DEMETRIO ALINDADA:
A Yes.
Q So there is the sanitary plan submitted to and will not be approved
by you unless the same is in conformance with the provisions of the
building code or sanitary requirements?
A Yes, for private building constructions.
Q How about public buildings?
A For public buildings, they are exempted for payment of building
permits but still they have to have a building permit.
Q But just the same, including the sanitary plans, it require your
approval?
A Yes, it requires also.
Q Therefore, under the National Building Code, you are empowered
not to approve sanitary plans if they are not in conformity with the
sanitary requirements?
A Yes.
Q Now, in private or public buildings, do you see any warning signs in
the vicinity of septic tanks?
A There is no warning sign.
Q In residential buildings do you see any warning sign?
A There is none.
ATTY. AMPIG:
We submit that the matter is irrelevant and immaterial, Your Honor.
ATTY. ALBAY:
But that is in consonance with their cross-examination, your Honor.
COURT:
Anyway it is already answered.
ATTY. ALBAY:
Q These warning signs, are these required under the preparation of
the plans?
A It is not required.
Q I will just reiterate, Mr. Witness. In residences, for example like the
residence of Atty. Ampig or the residence of the honorable Judge,
would you say that the same principle of the septic tank, from the
water closet to the vault, is being followed?
A Yes.
ATTY. ALBAY:
That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-63)
In view of this factual milieu, it would appear that an accident such as toxic gas leakage from the
septic tank is unlikely to happen unless one removes its covers. The accident in the case at bar
occurred because the victims on their own and without authority from the public respondent opened
the septic tank. Considering the nature of the task of emptying a septic tank especially one which
has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the
attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of
service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men
to take precautionary measures for their safety was the proximate cause of the accident. In Culion
Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We held that when a person
holds himself out as being competent to do things requiring professional skill, he will be held liable
for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work
which he attempts to do (emphasis Ours). The fatal accident in this case would not have happened
but for the victims' negligence. Thus, the appellate court was correct to observe that:
. . . Could the victims have died if they did not open the septic tank which they were
not in the first place authorized to open? Who between the passive object (septic
tank) and the active subject (the victims herein) who, having no authority therefore,
arrogated unto themselves, the task of opening the septic tank which caused their
own deaths should be responsible for such deaths. How could the septic tank which
has been in existence since the 1950's be the proximate cause of an accident that
occurred only on November 22, 1975? The stubborn fact remains that since 1956 up
to occurrence of the accident in 1975 no injury nor death was caused by the septic
tank. The only reasonable conclusion that could be drawn from the above is that the
victims' death was caused by their own negligence in opening the septic tank. . . .
(Rollo, p. 23)
Petitioners further contend that the failure of the market master to supervise the area where the
septic tank is located is a reflection of the negligence of the public respondent.
We do not think so. The market master knew that work on the septic tank was still forthcoming. It
must be remembered that the bidding had just been conducted. Although the winning bidder was
already known, the award to him was still to be made by the Committee on Awards. Upon the other
hand, the accident which befell the victims who are not in any way connected with the winning bidder
happened before the award could be given. Considering that the case was yet no award to
commence work on the septic tank, the duty of the market master or his security guards to supervise
the work could not have started (TSN, September 13, 1983, p. 40). Also, the victims could not have
been seen working in the area because the septic tank was hidden by a garbage storage which is
more or less ten (10) meters away from the comfort room itself (TSN, ibid, pp. 38-39). The
surreptitious way in which the victims did their job without clearance from the market master or any
of the security guards goes against their good faith. Even their relatives or family members did not
know of their plan to clean the septic tank.
Finally, petitioners' insistence on the applicability of Article 24 of the New Civil Code cannot be
sustained. Said law states:
Art. 24. In all contractual, property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for his
protection.
We approve of the appellate court's ruling that "(w)hile one of the victims was invited to bid
for said project, he did not win the bid, therefore, there is a total absence of contractual
relations between the victims and the City Government of Davao City that could give rise to
any contractual obligation, much less, any liability on the part of Davao City." (Rollo, p. 24)
The accident was indeed tragic and We empathize with the petitioners. However, the herein
circumstances lead Us to no other conclusion than that the proximate and immediate cause
of the death of the victims was due to their own negligence. Consequently, the petitioners
cannot demand damages from the public respondent.
ACCORDINGLY, the amended decision of the Court of Appeals dated January 11, 1990 is
AFFIRMED. No costs.
SO ORDERED.
SANITARY STEAM LAUNDRY, INC., petitioner, vs. THE COURT OF
APPEALS, NICANOR BERNABE III, JOSEFINA BERNABE, in their
individual capacities and as HEIRS OF JASON BERNABE, JOHN
JOSEPH BERNABE, VICTOR IGNACIO, JULIETA ENRIQUEZ and
RAMON ENRIQUEZ, RENE TABLANTE, LEOMAR MACASPAC,
JR., CHARITO ESTOLANO, NENITA SALUNOY, in their individual
capacities and as HEIRS OF DALMACIO SALUNOY, respondents.
D E C I S I O N
MENDOZA, J .:
This case involves a collision between a Mercedes Benz panel truck of petitioner Sanitary
Steam Laundry and a Cimarron which caused the death of three persons and the injuries of
several others. The accident took place at the Aguinaldo Highway in Imus, Cavite on August 31,
1980. All the victims were riding in the Cimarron. One of those who died was the driver. The
Regional Trial Court of Makati found petitioner’s driver to be responsible for the vehicular
accident and accordingly held petitioner liable to private respondents for P472,262.30 in
damages and attorney’s fees. Its decision was affirmed in toto by the Court of Appeals. It is
here for a review of the appellate court’s decision.
The passengers of the Cimarron were mostly employees of the Project Management
Consultants, Inc. (PMCI). They had just visited the construction site of a company project at
Lian, Batangas. The other passengers were family members and friends whom they invited to an
excursion to the beach after the visit to the construction site. The group stayed at Lian beach
until 5:30 p.m., when they decided to go back to Manila.
The Cimarron, with Plate No. 840-4J, was owned by Salvador Salenga, father of one of the
employees of PMCI. Driving the vehicle was Rolando Hernandez. It appears that at about 8:00
p.m., as it was traveling along Aguinaldo Highway in Imus, Cavite on its way back to Manila,
the Cimarron was hit on its front portion by petitioner’s panel truck, bearing Plate No. 581 XM,
which was traveling in the opposite direction. The panel truck was on its way to petitioner’s
plant in Dasmariñas, Cavite after delivering some linen to the Makati Medical Center. The
driver, Herman Hernandez, claimed that a jeepney in front of him suddenly stopped. He said he
stepped on the brakes to avoid hitting the jeepney and that this caused his vehicle to swerve to
the left and encroach on a portion of the opposite lane. As a result, his panel truck collided with
the Cimarron on the north-bound lane.
The driver of the Cimarron, Rolando Hernandez, and two of his passengers, namely, Jason
Bernabe and Dalmacio Salunoy, died. Several of the other passengers of the Cimarron were
injured and taken to various hospitals.
On December 4, 1980, private respondents filed this civil case for damages before the then
Court of First Instance of Rizal, Pasig Branch, against petitioner.
On November 23, 1990, the Regional Trial Court of Makati, to which the case was
transferred following the reorganization of the judiciary, rendered judgment for private
respondents. The dispositive portion of its decision reads:
It is for the reasons stated above that the court is persuaded to award the damages
incurred by the plaintiffs as proved in the trial as follows:
Actual or compensatory expenses:
a. Charito Estolano P35,813.87 (Exh. J)
b. Nicanor Bernabe III 20,024.94
& Josefina C. Bernabe
c. Julieta, Ailyn & 45,830.45 (Exh. QQ)
Josefina Enriquez
and Josefina Valeiro
d. Leonor Macaspac 2,740.00
e. Victor Rey Ignacio 14,820.64 (Exh. EEE)
f. Rene Tablante 10,032.40 (Exh. QQQ)
g. Nenita Salonoy, widow; 20,000.00
and Manilyn, children
Moral damages should also be awarded as follows:
For the injuries sustained by:
a. Charito Estolano P10,000.00 (Exh. F)
b. Julieta P. Enriquez 15,000.00 (Exh. MM)
c. Ailyn C. Enriquez 8,000.00 (Exh. NN)
d. Josefina R. Enriquez 10,000.00 (Exh. OO)
e. Josefina P. Valerio 2,000.00 (Exh. PP)
f. Nenita Salonoy 20,000.00 (Exh. DD)
g. Nicanor Bernabe III 8,000.00 (Exh. Q)
h. Josephine Bernabe 2,000.00 (Exh. R)
i. John Joseph Bernabe 10,000.00
j. Manilyn G. Salonoy 10,000.00 (Exh. EE)
k. Jack Salonoy 10,000.00 (Exh. JJ)
l. Leonor C. Macaspac 2,000.00 (Exh. AAA)
m. Victor Ignacio 8,000.00 (Exh. DDD)
n. Rene Tablanta 8,000.00 (Exh. FFF)
and finally the heirs of Jason Bernabe should be awarded the sum of P50,000.00 for
the latter’s death. The heirs of Dalmacio Salunoy should be given the sum
of P100,000.00 for moral damages and unearned income.
The foregoing considered, judgment is rendered in favor of plaintiffs ordering
defendant to pay the amounts aforecited and to pay the further sum of P50,000.00 for
attorney’s fees and the costs.
SO ORDERED.
As already stated, the Court of Appeals, to which the decision of the trial court was
appealed, affirmed the decision on January 26, 1995. Hence, this appeal.
First. Petitioner contends that the driver of the Cimarron was guilty of contributory
negligence and, therefore, its liability should be mitigated, if not totally extinguished. It claims
that the driver of the Cimarron was guilty of violation of traffic rules and regulations at the time
of the mishap. Hence, in accordance with Art. 2185 of the Civil Code, he was presumed to be
negligent.
According to petitioner, the negligence consisted of the following:
1. The Cimarron was overloaded because there were from 20 to 25 passengers inside when the
passenger capacity of the vehicle was only 17.
2. The front seat of the Cimarron was occupied by four adults, including the driver.
3. The Cimarron had only one headlight on (its right headlight) as its left headlight was not
functioning.
Petitioner cites Art. III, §2 of R.A. No. 4136, known as the Land Transportation and Traffic
Code, which provides that “No person operating any vehicle shall allow more passengers or
more freight or cargo in his vehicle than its registered carry capacity” and Art. IV, §3(e) which
states that “Every motor vehicle of more than one meter of projected width, while in use on any
public highway shall bear two headlights... which not later than one-half hour after sunset and
until at least one-half hour before sunrise and whenever weather conditions so require, shall both
be lighted.”
Petitioner asserts that the fact that its panel truck encroached on a portion of the lane of the
Cimarron does not show that its driver was negligent. Petitioner cites the case of Bayasen v.
Court of Appeals,
[1]
which allegedly held that the sudden swerving of a vehicle caused by its
driver stepping on the brakes is not negligence per se. Petitioner further claims that even if
petitioner’s swerving to the lane of respondents were considered proof of negligence, this fact
would not negate the presumption of negligence on the part of the other driver arising from his
violations of traffic rules and regulations.
Petitioner likewise invokes the ruling in Mckee v. Intermediate Appellate Court,
[2]
in which a
driver who invaded the opposite lane and caused a collision between his car and a truck coming
from the opposite lane, was exonerated based on the doctrine of last clear chance, which states
that a person who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent, is solely responsible for the consequences of
the accident.
Petitioner contends that the ruling in that case should be applied to the present
case. According to petitioner, although the driver of the panel truck was initially negligent, the
driver of the Cimarron had the last opportunity to avoid the accident. However, because of his
negligence (i.e., the aforementioned violations of traffic rules and regulations such as the use of
only one headlight at night and the overcrowding at the front seat of the vehicle), he was not able
to avoid a collision with the panel truck.
We find the foregoing contention to be without merit.
First of all, it has not been shown how the alleged negligence of the Cimarron driver
contributed to the collision between the vehicles. Indeed, petitioner has the burden of showing a
causal connection between the injury received and the violation of the Land Transportation and
Traffic Code. He must show that the violation of the statute was the proximate or legal cause of
the injury or that it substantially contributed thereto. Negligence, consisting in whole or in part,
of violation of law, like any other negligence, is without legal consequence unless it is a
contributing cause of the injury.
[3]
Petitioner says that “driving an overloaded vehicle with only
one functioning headlight during nighttime certainly increases the risk of accident,”
[4]
that
because the Cimarron had only one headlight, there was “decreased visibility,” and that the fact
that the vehicle was overloaded and its front seat overcrowded “decreased [its]
maneuverability.”
[5]
However, mere allegations such as these are not sufficient to discharge its
burden of proving clearly that such alleged negligence was the contributing cause of the injury.
Furthermore, based on the evidence in this case, there was no way either driver could have
avoided the collision. The panel truck driver testified:
[6]

Q. You stated you were following a jeepney along the highway in Imus, Cavite, what happened
afterwards, if any?
A. The passenger jeepney I was following made a sudden stop so I stepped on the brakes.
Q. Upon stepping on your brakes, what happened if any?
A. The Mercedes Benz (panel) suddenly swerved to the left, sir.
Q. How big was the swerving to the left?
A. The distance which my vehicle swerved beyond the middle line or center line to the left was
about this distance, sir (witness demonstrating by using both hands the distance).
ATTY. ALILING:
Can we stipulate that it is 1 foot, Your Honor.
ATTY. GONZALES:
A little more, 1 1/2 feet.
ATTY. ALILING:
1 1/4 feet.
ATTY. GONZALES:
Between 1 1/4 and 1 1/2 feet.
The panel truck driver’s testimony is consistent with the testimonies of private respondents
that the panel truck went out of control and simply smashed into the Cimarron in which they
were riding. Thus, Nicanor Bernabe III testified:
[7]

Q: And did you see how the accident happened?
A: I just saw a glare of light. That is all and then the impact.
Q: Where did you see that glare of light?
A: Coming in front ahead of us.
Q: When you say ahead of you, was it . . . ?
A: Towards us.
. . . .
Q: And from what did those glare of light come from?
A: Based on information I received, the light came from the headlights of a certain panel owned by
Sanitary Steam Laundry, Inc.
. . . .
Q: You said that the lights were going towards you. Now, at what pace did these lights come toward
you?
A: Fast pace.”
Charito Estolano, another passenger who was seated in front of the Cimarron, similarly testified that
they just saw the panel truck hurtling toward them. She said:
[8]

Q Now, you said earlier that you were involved in an accident. What was that accident?
A An approaching vehicle hit us.
Q Now, why do you know that there was the approaching vehicle?
A There was a light which glared us and I knew that it came from a vehicle. We were blinded.
Q Where was this vehicle headed for?
A Headed for Cavite.
Q Coming from?
A Coming from Manila, I think.
Q So that, actually, in relation to your vehicle, it was coming from the opposite direction?
A Yes, sir.
Q Now, you said that the light headed towards your vehicle. On which side of the highway was
your Tamaraw vehicle travelling at that time?
A We were on the right lane.
Q Did you actually see this light from the vehicle coming from the opposite direction heading
towards your vehicle?
A Yes, sir.
Q And what happened after that?
A After that, there was an impact.
Q All right. Will you tell the Court which bumped which?
A We were bumped by the vehicle which was coming from the opposite direction.
The foregoing testimonies show that the driver of the panel truck lost control of his vehicle
and bumped the Cimarron. Hence, even if both headlights of the Cimarron were lighted, it
would have been bumped just the same because the driver of the panel truck could not stop
despite the fact that he applied the brakes. Petitioner’s contention that because of “decreased
visibility,” caused by the fact that the Cimarron allegedly had only one headlight on, its driver
failed to see the Cimarron is without any basis in fact. Only its driver claimed that the Cimarron
had only one headlight on. The police investigator did not state in his report or in his testimony
that the Cimarron had only one headlight on.
Nor is there any basis in fact for petitioner’s contention that because of overcrowding in the
front seat of the Cimarron there was “decreased maneuverability” which prevented the Cimarron
driver from avoiding the panel truck. There is absolutely no basis for this claim. There is
nothing in the testimonies of the passengers of the Cimarron, particularly Charito Estolano, who
was seated in front, which suggest that the driver had no elbow room for maneuvering the
vehicle. To the contrary, from the testimony of some of the witnesses,
[9]
it appears that the driver
of the Cimarron tried to avoid the collision but because of the emergency created by the speeding
panel truck coming from the opposite direction he was not able to fully move his Cimarron away
from the path of the oncoming vehicle. We are convinced that no “maneuvering” which the
Cimarron driver could have done would have avoided a collision with the panel truck, given the
suddenness of the events. Clearly, the overcrowding in the front seat was immaterial.
All these point to the fact that the proximate cause of the accident was the negligence of
petitioner’s driver. As the trial court noted, the swerving of petitioner’s panel truck to the
opposite lane could mean not only that petitioner’s driver was running the vehicle at a very high
speed but that he was tailgating the passenger jeepney ahead of it as well.
Petitioner’s driver claimed that the distance between the panel truck and the passenger
jeepney in front was about 12 meters.
[10]
If this was so, he would have had no difficulty
bringing his panel truck to a stop. It is very probable that the driver did not really apply his
brakes (which is why there were no skid marks) but that finding the jeepney in front of him to be
in close proximity, he tried to avoid hitting it by swerving his vehicle to the left. In the process,
however, he invaded a portion of the opposite lane and consequently hit the Cimarron. Indeed,
the panel truck driver testified that his vehicle was running at the speed of 60 miles per
hour.
[11]
He tried to correct himself when asked by petitioner’s counsel whether the panel truck
speedometer indicated miles or kilometers by saying that the speedometer measured kilometers
and not miles, but on cross examination his testimony got muddled.
[12]

Be that as it may, whether the driver meant 60 miles per hour (which could be 96.77
kilometers per hour) or 60 kilometers per hour, the fact remains that the panel truck was
overspeeding because the maximum allowable speed for trucks and buses on open country roads,
such as the Aguinaldo Highway in Imus, Cavite, is only 50 kilometers per hour.
[13]

The case of Bayasen, which petitioner invokes, cannot apply to this case. There was no
swerving of the vehicle in that case but skidding, and it was caused by the fact that the road was
wet and slippery. In this case, the road was dry and safe. There was no reason for the vehicle to
swerve because of road condition. The only explanation for this occurrence was human error.
Petitioner’s reliance on the McKee case is also misplaced. In that case, the driver of the
vehicle at fault, a truck, had an opportunity to avoid the collision but he ignored the signals from
the other vehicle, a car, to slow down and allow it to safely pass the bridge. In this case, there
was no such opportunity given the Cimarron on the night of the mishap. Everything happened so
quickly that before the passengers of the Cimarron knew it, the vehicle had been bumped by the
truck.
Second. On its liability as employer of the negligent driver, petitioner contends that the
non-submission of the NBI clearance and police clearance of its driver does not mean that it
failed to exercise the diligence of a good father of the family in the selection and supervision of
its employees. It argues that there is no law requiring employees to submit NBI and police
clearance prior to their employment. Hence, petitioner’s failure to require submission of these
documents does not mean that it did not exercise due diligence in the selection and supervision
of its employees. On the other hand, it asserts that its employment of Herman Hernandez as a
driver means that he had passed the screening tests of the company, including submission of the
aforementioned documents. Petitioner maintains that the presumption is that the said driver
submitted NBI and police clearance.
Petitioner likewise contends that the Court of Appeal’s position that it failed to exercise due
diligence in the selection and supervision of its employees by not requiring its prospective
employees to undergo psychological and physical tests before employment has no basis in law
because there is no law requiring such tests prior to hiring employees.
The petitioner’s contention has no merit. The Court of Appeals did not say that petitioner’s
failure to submit NBI and police clearances of its driver was proof that petitioner failed to
exercise due diligence in the selection of its employees. What the Court of Appeals said was that
petitioner’s policy of requiring prospective employees to submit NBI and police clearance and to
have at least two (2) years experience as driver prior to employment was not enough to prove the
exercise of due diligence and that even this policy petitioner failed to prove by its failure to
present the driver’s NBI and police records during the trial.
With respect to the requirement of passing psychological and physical tests prior to his
employment, although no law requires it, such circumstance would certainly be a reliable
indicator of the exercise of due diligence. As the trial court said:
[14]

. . . No tests of skill, physical as well as mental and emotional, were conducted on
their would-be employees. No on-the-job training and seminars reminding
employees, especially drivers, of road courtesies and road rules and regulations were
done. There were no instructions given to defendant’s drivers as to how to react in
cases of emergency nor what to do after an emergency occurs. There was even failure
on the part of defendant to present its concerned employee’s 204 file. All these could
only mean failure on the part of defendant to exercise the diligence required of it of a
good father of a family in the selection and supervision of its employees.
Indeed, driving exacts a more than usual toll on the senses.
[15]
Accordingly, it behooves
employers to exert extra care in the selection and supervision of their employees. They must go
beyond the minimum requirements fixed by law. In this case, David Bautista, the office manager
of petitioner in its Dasmariñas plant, said that petitioner has a policy of requiring job applicants
to submit clearances from the police and the NBI. In the case of applicants for the position of
driver they are required to have at least two (2) years driving experience and to be holders of a
professional driver’s license for at least two years. But the supposed company policies on
employment were not in writing. Nor did Bautista show in what manner he supervised the
drivers to ensure that they drove their vehicles in a safe way.
Third. With respect to the question of damages, we find no reversible error committed in
the award of actual damages to private respondents. To justify an award of actual damages, there
must be competent proof of the actual amount of loss. Credence can be given only to claims
which are duly supported by receipts.
[16]
Here, the actual damages claimed by private respondents
were duly supported by receipts and appear to have been really incurred.
As to the moral damages awarded, we find them to be reasonable and necessary in view of
the circumstances of this case. Moral damages are awarded to allow the victims to obtain means,
diversion, or amusement to alleviate the moral suffering they had undergone due to the
defendant’s culpable action.
[17]
In this case, private respondents doubtless suffered some ordeal
because some of them lost their loved ones, while others lost their future. Within the meaning of
Art. 2217 of the Civil Code, they suffered sleepless nights, mental anguish, serious anxiety, and
wounded feelings. An award of moral damages in their favor is thus justified.
The award of P50,000.00 to the heirs of Jason Bernabe as death indemnity is likewise in
accordance with law.
[18]
However, the award of P100,000 to the heirs of Dalmacio Salunoy,
denominated in the decision of the trial court as “moral damages and unearned income” cannot
be upheld. The heirs were already included among those awarded moral damages. Marilyn
Salunoy was ordered to be paid P10,000, Jack Salunoy, P10,000, and their mother Nenita
Salunoy, P20,000, as moral damages. The amount of P100,000 was presumably awarded
primarily for loss of earning capacity but even then the amount must be modified. In accordance
with our cases
[19]
on this question, the formula for determining the life expectancy of Dalmacio
Salunoy must be determined by applying the formula 2/3 multiplied by (80 minus the age of the
deceased). Since Salunoy was 46 years of age at the time of his death, as stated in his death
certificate, then his life expectancy was 22.6 years, or up to 68 years old.
Next, his net earnings must be computed. At the time of his death, Dalmacio Salunoy was
earning more than P900.00 a month as bookkeeper at the PMCI so that his annual gross earnings
was about P11,000.00. From this amount, about 50% should be deducted as reasonable and
necessary living expenses because it seems his wife occasionally finds work and thus helps in the
household expenses.
Based on the foregoing, his net earning capacity was P124,300.00 computed as
follows:
[20]

net earning life
capacity (x) = expectancy x [Gross annual income less reasonable &
necessary living expenses]
x = [2 (80-46)] x [P11,000 - P5,500]
3
= 22.6 x 5,500
= P124,300.00
In addition, the heirs of Dalmacio Salunoy should be paid P50,000.00 as death indemnity.
Finally, the award of attorney’s fees should be disallowed as the trial court did not give
any justification for granting it in its decision. It is now settled that awards of attorney’s fees
must be based on findings of fact and law, stated in the decision of the trial court.
[21]

WHEREFORE, the decision of the Court of Appeals is MODIFIED in the sense that the
award of P100,000.00 denominated “for moral damages and unearned income” is deleted, and in
lieu thereof the amount of P124,300.00 for loss of earning capacity and the further amount
of P50,000.00 for death indemnity are awarded to the heirs of Dalmacio Salunoy and the award
of P50,000.00 for attorney’s fees is disallowed. In all other respects the appealed decision is
AFFIRMED.
SO ORDERED.
Bellosillo (Chairman), Puno, and Martinez, JJ., concur.
G.R. No. 156037 May 28, 2007
MERCURY DRUG CORPORATION, Petitioner,
vs.
SEBASTIAN M. BAKING, Respondent.
D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
For our resolution is the instant Petition for Review on Certiorari
1
assailing the Decision
2
dated May
30, 2002 and Resolution dated November 5, 2002 of the Court of Appeals in CA-G.R. CV No.
57435, entitled "Sebastian M. Baking, plaintiff-appellee, versus Mercury Drug Co. Inc., defendant-
appellant."
The facts are:
On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for a
medical check-up. On the following day, after undergoing an ECG, blood, and hematology
examinations and urinalysis, Dr. Sy found that respondent’s blood sugar and triglyceride were above
normal levels. Dr. Sy then gave respondent two medical prescriptions – Diamicron for his blood
sugar and Benalize tablets for his triglyceride.
Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy the
prescribed medicines. However, the saleslady misread the prescription for Diamicron as a
prescription for Dormicum. Thus, what was sold to respondent was Dormicum, a potent sleeping
tablet.
Unaware that what was given to him was the wrong medicine, respondent took one pill of Dormicum
on three consecutive days –November 6, 1993 at 9:00 p.m., November 7 at 6:00 a.m., and
November 8 at 7:30 a.m.
On November 8 or on the third day he took the medicine, respondent figured in a vehicular accident.
The car he was driving collided with the car of one Josie Peralta. Respondent fell asleep while
driving. He could not remember anything about the collision nor felt its impact.
Suspecting that the tablet he took may have a bearing on his physical and mental state at the time of
the collision, respondent returned to Dr. Sy’s clinic. Upon being shown the medicine, Dr. Sy was
shocked to find that what was sold to respondent was Dormicum, instead of the prescribed
Diamicron.
Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of Quezon
City a complaint for damages against petitioner, docketed as Civil Case No. Q-94-20193.
After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent, thus:
WHEREFORE, premises considered, by preponderance of evidence, the Court hereby renders
judgment in favor of the plaintiff and against the defendant ordering the latter to pay mitigated
damages as follows:
1. P250,000.00 as moral damages;
2. P20,000.00 as attorney’s fees and litigation expenses;
3. plus ½% of the cost of the suit.
SO ORDERED.
On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner filed a
motion for reconsideration but it was denied in a Resolution dated November 5, 2002.
Hence, this petition.
Petitioner contends that the Decision of the Court of Appeals is not in accord with law or prevailing
jurisprudence.
Respondent, on the other hand, maintains that the petition lacks merit and, therefore, should be
denied.
The issues for our resolution are:
1. Whether petitioner was negligent, and if so, whether such negligence was the proximate
cause of respondent’s accident; and
2. Whether the award of moral damages, attorney’s fees, litigation expenses, and cost of the
suit is justified.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
To sustain a claim based on the above provision, the following requisites must concur: (a) damage
suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of cause and
effect between the fault or negligence of the defendant and the damage incurred by the plaintiff.
3

There is no dispute that respondent suffered damages.
It is generally recognized that the drugstore business is imbued with public interest. The health and
safety of the people will be put into jeopardy if drugstore employees will not exercise the highest
degree of care and diligence in selling medicines. Inasmuch as the matter of negligence is a
question of fact, we defer to the findings of the trial court affirmed by the Court of Appeals.
Obviously, petitioner’s employee was grossly negligent in selling to respondent Dormicum, instead of
the prescribed Diamicron. Considering that a fatal mistake could be a matter of life and death for a
buying patient, the said employee should have been very cautious in dispensing medicines. She
should have verified whether the medicine she gave respondent was indeed the one prescribed by
his physician. The care required must be commensurate with the danger involved, and the skill
employed must correspond with the superior knowledge of the business which the law demands.
4
1awphi1. nét
Petitioner contends that the proximate cause of the accident was respondent’s negligence in driving
his car.
We disagree.
Proximate cause is defined as any cause that produces injury in a natural and continuous sequence,
unbroken by any efficient intervening cause, such that the result would not have occurred otherwise.
Proximate cause is determined from the facts of each case, upon a combined consideration of logic,
common sense, policy, and precedent.
5

Here, the vehicular accident could not have occurred had petitioner’s employee been careful in
reading Dr. Sy’s prescription. Without the potent effects of Dormicum, a sleeping tablet, it was
unlikely that respondent would fall asleep while driving his car, resulting in a collision.
Complementing Article 2176 is Article 2180 of the same Code which states:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is responsible.
x x x
The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.
x x x
The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed the diligence of a good father of a family to prevent damage.
It is thus clear that the employer of a negligent employee is liable for the damages caused by the
latter. When an injury is caused by the negligence of an employee, there instantly arises a
presumption of the law that there has been negligence on the part of the employer, either in the
selection of his employee or in the supervision over him, after such selection. The presumption,
however, may be rebutted by a clear showing on the part of the employer that he has exercised the
care and diligence of a good father of a family in the selection and supervision of his
employee.
6
Here, petitioner's failure to prove that it exercised the due diligence of a good father of a
family in the selection and supervision of its employee will make it solidarily liable for damages
caused by the latter.
As regards the award of moral damages, we hold the same to be in order. Moral damages may be
awarded whenever the defendant’s wrongful act or omission is the proximate cause of the plaintiff’s
physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings,
moral shock, social humiliation, and similar injury in the cases specified or analogous to those
provided in Article 2219 of the Civil Code.
7

Respondent has adequately established the factual basis for the award of moral damages when he
testified that he suffered mental anguish and anxiety as a result of the accident caused by the
negligence of petitioner’s employee.
There is no hard-and-fast rule in determining what would be a fair and reasonable amount of moral
damages, since each case must be governed by its own peculiar facts. However, it must be
commensurate to the loss or injury suffered.
8
Taking into consideration the attending circumstances
here, we are convinced that the amount awarded by the trial court is exorbitant. Thus, we reduce the
amount of moral damages from P250,000.00 toP50,000.00 only.
In addition, we also deem it necessary to award exemplary damages. Article 2229 allows the grant
of exemplary damages by way of example or correction for the public good. As mentioned earlier,
the drugstore business is affected with public interest. Petitioner should have exerted utmost
diligence in the selection and supervision of its employees. On the part of the employee concerned,
she should have been extremely cautious in dispensing pharmaceutical products. Due to the
sensitive nature of its business, petitioner must at all times maintain a high level of meticulousness.
Therefore, an award of exemplary damages in the amount of P25,000.00 is in order.1awphi 1. nét
On the matter of attorney’s fees and expenses of litigation, it is settled that the reasons or grounds
for the award thereof must be set forth in the decision of the court.
9
Since the trial court’s decision
did not give the basis of the award, the same must be deleted. In Vibram Manufacturing Corporation
v. Manila Electric Company,
10
we held:
Likewise, the award for attorney’s fees and litigation expenses should be deleted. Well-enshrined is
that "an award for attorney’s fees must be stated in the text of the court’s decision and not in the
dispositive portion only"(Consolidated Bank and Trust Corporation (Solidbank) v. Court of Appeals,
246 SCRA 193 [1995] and Keng Hua Paper Products, Inc. v. Court of Appeals, 286 SCRA 257
[1998]). This is also true with the litigation expenses where the body of the decision discussed
nothing for its basis.
WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 57435 are AFFIRMED with modification in the sense that (a) the award
of moral damages to respondent is reduced from P250,000.00 to P50,000.00; (b) petitioner is
likewise ordered to pay said respondent exemplary damages in the amount of P25,000.00; and (c)
the award of attorney’s fees and litigation expenses is deleted.
Costs against petitioner.
SO ORDERED.