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NEGLIGENCE

1. MMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-Litem of minors: ROSSEL,


GLORIA, YOLANDA, ERIC SON and EDERIC, all surnamed BUSTAMANTE, Spouses
SALVADOR JOCSON and PATRIA BONE-JOCSON, Spouses JOSE RAMOS and ENRIQUETA
CEBU-RAMOS, Spouses NARCISO-HIMAYA and ADORACION MARQUEZ-HIMAYA, and
Spouses JOSE BERSAMINA and MA. COMMEMORACION PEREA-BUSTAMANTE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, FEDERICO DEL PILAR AND EDILBERTO
MONTESIANO, respondents.
This is a petition for review on certiorari seeking the reversal of the decision of the respondent Court of
Appeals dated February 15, 1989 which reversed and set aside the decision of the Regional Trial Court of
Cavite, Branch XV ordering the defendants to pay jointly and severally the plaintiffs indemnity for death
and damages; and in further dismissing the complaint insofar as defendants-appellants Federico del Pilar
and Edilberto Montesiano are concerned; and its resolution dated August 17, 1989 denying the motion for
reconsideration for lack of merit.
The facts giving rise to the controversy at bar are recounted by the trial court as follows:
At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and sand truck, with
Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231 and Plate No. DVT 259 along the
national road at Calibuyo, Tanza, Cavite. The front left side portion (barandilla) of the body of the truck
sideswiped the left side wall of the passenger bus, ripping off the said wall from the driver's seat to the last
rear seat.
Due to the impact, several passengers of the bus were thrown out and died as a result of the injuries they
sustained, Among those killed were the following:
1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano Bustamante and father of plaintiffs Rossel,
Gloria, Yolanda, Ericson, and Ederic, all surnamed Bustamante;
2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and Patria Jocson;
3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta Ramos;
4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion Himaya; and
5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma. Commemoracion Bersamina. (Rollo, p. 48)
During the incident, the cargo truck was driven by defendant Montesiano and owned by defendant Del
Pilar; while the passenger bus was driven by defendant Susulin. The vehicle was registered in the name of
defendant Novelo but was owned and/or operated as a passenger bus jointly by defendants Magtibay and
Serrado, under a franchise, with a line from Naic, Cavite, to Baclaran, Paranaque, Metro Manila, and vice
versa, which Novelo sold to Magtibay on November 8, 1981, and which the latter transferred to Serrado
(Cerrado) on January 18, 1983.
Immediately before the collision, the cargo truck and the passenger bus were approaching each other,
coming from the opposite directions of the highway. While the truck was still about 30 meters away,
Susulin, the bus driver, saw the front wheels of the vehicle wiggling. He also observed that the truck was
heading towards his lane. Not minding this circumstance due to his belief that the driver of the truck was
merely joking, Susulin shifted from fourth to third gear in order to give more power and speed to the bus,
which was ascending the inclined part of the road, in order to overtake or pass a Kubota hand tractor being
pushed by a person along the shoulder of the highway. While the bus was in the process of overtaking or

passing the hand tractor and the truck was approaching the bus, the two vehicles sideswiped each other at
each other's left side. After the impact, the truck skidded towards the other side of the road and landed on a
nearby residential lot, hitting a coconut tree and felling it." (Rollo, pp. 48-50)
After a careful perusal of the circumstances of the case, the trial court reached the conclusion "that the
negligent acts of both drivers contributed to or combined with each other in directly causing the accident
which led to the death of the aforementioned persons. It could not be determined from the evidence that it
was only the negligent act of one of them which was the proximate cause of the collision. In view of this,
the liability of the two drivers for their negligence must be solidary. (Rollo, pp. 50-51) Accordingly, the
trial court rendered a decision on March 7, 1986, the dispositive portion is hereunder quoted as follows:
WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo Susulin, Efren Novelo,
Federico del Pilar and Edilberto Montesiano are hereby ordered to pay jointly and severally to the
plaintiffs, as follows:
1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum of P30,000.00 as indemnity for
the death of Rogelio Bustamante; U.S. $127,680.00 as indemnity for the loss of the earning capacity of the
said deceased, at its prevailing rate in pesos at the time this decision shall have become final and executory;
P10,000.00 as moral damages; and P5,000.00 as exemplary damages;
2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as indemnity for the death of their
daughter, Maria Corazon Jocson; P10,000.00 as moral damages; and P5,000.00 as exemplary damages;
3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as indemnity for the death of their
daughter, Jolet Ramos; P10,000.00 as moral damages; and P5,000.00 as exemplary damages; and
4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00 as indemnity for the death of
their son, Enrico Himaya, P10,000.00 as moral damages; and P5,000.00 as exemplary damages; and
5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of P30,000.00 as indemnity for the
death of their son, Noel Bersamina, P10,000.00 as moral damages and P5,000.00 as exemplary damages.
The defendants are also required to pay the plaintiffs the sum of P10,000.00 as attorney's fees and to pay
the costs of the suit.
The cross-claim of defendant Novelo is hereby allowed, and defendants Magtibay and Serrado, the actual
owners and/or operators of the passenger bus concerned, are hereby ordered to indemnify Novelo in such
amount as he may be required to pay as damages to the plaintiffs.
The cross-claims and counter-claims of the other defendants are hereby dismissed for lack of merit.
SO ORDERED. (pp. 55-57, Rollo)
From said decision, only defendants Federico del Pilar and Edilberto Montesiano, owner and driver,
respectively, of the sand and gravel truck have interposed an appeal before the respondent Court of
Appeals. The Court of Appeals decided the appeal on a different light. It rendered judgment on February
15, 1989, to wit:
WHEREFORE, the appealed judgment is hereby REVERSED and SET ASIDE and the complaint
dismissed insofar as defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned. No
costs in this instance.
SO ORDERED. (p. 96, Rollo)

On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of the aforementioned Court
of Appeals' decision. However, respondent Court of Appeals in a resolution dated August 17, 1989 denied
the motion for lack of merit. Hence, this petition.
Petitioners raised the following questions of law, namely:
First. Whether the respondent Court can legally and validly absolve defendants-appellants from liability
despite its own finding, as well as that of the trial court that defendant-appellant Edilberto Montesiano, the
cargo truck driver, was driving an old vehicle very fast, with its wheels already wiggling, such that he had
no more control of his truck.
Second. Whether the respondent court can validly and legally disregard the findings of fact made by the
trial court which was in a better position to observe the conduct and demeanor of the witnesses, particularly
appellant Edilberto Montesiano, cargo truck driver, and which conclusively found appellant Montesiano as
jointly and severally negligent in driving his truck very fast and had lost control of his truck.
Third. Whether the respondent court has properly and legally applied the doctrine of "last clear chance" in
the present case despite its own finding that appellant cargo truck driver Edilberto Montesiano was
admittedly negligent in driving his cargo truck very fast on a descending road and in the presence of the bus
driver coming from the opposite direction.
Fourth. Whether the respondent court has applied the correct law and the correct doctrine so as to reverse
and set aside the judgment with respect to defendants-appellants. (Rollo, pp. 133-134)
As a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on
appeal, provided, they are borne out by the record or are based on substantial evidence However, this rule
admits of certain exceptions, as when the findings of facts are conclusions without citation of specific
evidence on which they are based; or the appellate court's findings are contrary to those of the trial court.
(Sese v. Intermediate Appellate Court, G.R. 66168, 31 July 1987, 152 SCRA 585).
Furthermore, only questions of law may be raised in a petition for review on certiorari under Rule 45 of the
Revised Rules of Court. The jurisdiction of the Supreme Court in cases brought to it from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive. It is not the function of the Supreme Court to analyze or weigh such evidence all over again, its
jurisdiction being limited to reviewing errors of law that might have been committed. Barring, therefore, a
showing that the findings complained of are totally devoid of support in the records, or that they are so
glaringly erroneous as to constitute serious abuse of discretion, such findings must stand for the Supreme
Court is not expected or required to examine or contrast the oral and documentary evidence submitted by
the parties. (Andres v. Manufacturers Hanover and Trust Corp., G.R. 82670, 15 September 1989, 177
SCRA 618).
Bearing in mind these basic principles, We have opted to re-examine the findings of fact mainly because
the appellate court's findings are contrary to those of the trial court.
The trial court, in declaring that the negligent acts of both drivers directly caused the accident which led to
the death of the aforementioned persons, considered the following:
It was negligent on the part of driver Montesiano to have driven his truck fast, considering that it was an
old vehicle, being a 1947 model as admitted by its owner, defendant Del Pilar; that its front wheels were
wiggling; that the road was descending; and that there was a passenger bus approaching it. Likewise, driver
Susulin was also guilty of negligence in not taking the necessary precaution to avoid the collision, in the
light of his admission that, at a distance of 30 meters, he already saw the front wheels of the truck wiggling
and that the vehicle was usurping his lane coming towards his direction. Had he exercised ordinary
prudence, he could have stopped his bus or swerved it to the side of the road even down to its shoulder. And
yet, Susulin shifted to third gear so as to, as claimed by him, give more power and speed to his bus in
overtaking or passing a hand tractor which was being pushed along the shoulder of the road. (Rollo, p. 50)

The respondent Court of Appeals ruling on the contrary, opined that "the bus driver had the last clear
chance to avoid the collision and his reckless negligence in proceeding to overtake the hand tractor was the
proximate cause of the collision." (Rollo, p. 95). Said court also noted that "the record also discloses that
the bus driver was not a competent and responsible driver. His driver's license was confiscated for a traffic
violation on April 17, 1983 and he was using a ticket for said traffic violation on the day of the accident in
question (pp. 16-18, TSN, July 23, 1984). He also admitted that he was not a regular driver of the bus that
figured in the mishap and was not given any practical examination. (pp. 11, 96, TSN, supra)." (Rollo, p96)
The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August 28, 1975 held that "We are
not prepared to uphold the trial court's finding that the truck was running fast before the impact. The
national road, from its direction, was descending. Courts can take judicial notice of the fact that a motor
vehicle going down or descending is more liable to get out of control than one that is going up or ascending
for the simple reason that the one which is going down gains added momentum while that which is going
up loses its initial speeding in so doing."
On the other hand, the trial court found and We are convinced that the cargo truck was running fast. It did
not overlook the fact that the road was descending as in fact it mentioned this circumstance as one of the
factors disregarded by the cargo truck driver along with the fact that he was driving an old 1947 cargo truck
whose front wheels are already wiggling and the fact that there is a passenger bus approaching it. In
holding that the driver of the cargo truck was negligent, the trial court certainly took into account all these
factors so it was incorrect for the respondent court to disturb the factual findings of the trial court, which is
in a better position to decide the question, having heard the witness themselves and observed their
deportment.
The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the
negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears
that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences
to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance
means that even though a person's own acts may have placed him in a position of peril, and an injury
results, the injured person is entitled to recovery. As the doctrine is usually stated, a person who has the last
clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or
that of a third person imputed to the opponent is considered in law solely responsible for the consequences
of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or
even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiffs
peril, or according to some authorities, should have been aware of it in the reasonable exercise of due case,
had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, et al. (G.R. Nos.
66102-04, August 30, 1990), the Court citing the landmark decision held in the case of Anuran, et al. v.
Buno, et al. (123 Phil. 1073) ruled that the principle of "last clear chance" applies "in a suit between the
owners and drivers of colliding vehicles. It does not arise where a passenger demands responsibility from
the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver
of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence."
Furthermore, "as between defendants: The doctrine cannot be extended into the field of joint tortfeasors as
a test of whether only one of them should be held liable to the injured person by reason of his discovery of
the latter's peril, and it cannot be invoked as between defendants concurrently negligent. As against third
persons, a negligent actor cannot defend by pleading that another had negligently failed to take action
which could have avoided the injury." (57 Am. Jur. 2d, pp. 806-807).
All premises considered, the Court is convinced that the respondent Court committed an error of law in
applying the doctrine of last clear chance as between the defendants, since the case at bar is not a suit
between the owners and drivers of the colliding vehicles but a suit brought by the heirs of the deceased

passengers against both owners and drivers of the colliding vehicles. Therefore, the respondent court erred
in absolving the owner and driver of the cargo truck from liability.
Pursuant to the new policy of this Court to grant an increased death indemnity to the heirs of the deceased,
their respective awards of P30,000.00 are hereby increased to P50,000.00.
ACCORDINGLY, the petition is GRANTED; the appealed judgment and resolution of the Court of Appeals
are hereby REVERSED and SET ASIDE and the judgment of the lower court is REINSTATED with the
modification on the indemnity for death of each of the victims which is hereby increased to P50,000.00
each. No pronouncement as to costs.

2. ZENAIDA R. GREGORIO, Petitioner,


vs.
COURT OF APPEALS, SANSIO PHILIPPINES, INC., and EMMA J. DATUIN, Respondents.
This is a petition1 for certiorari under Rule 45 of the Rules of Court assailing the Decision2 of the Court of
Appeals (CA) dated January 31, 2007 and its Resolution3 dated September 12, 2007 in CA-G.R. SP No.
63602, entitled "Sansio Philippines, Inc., et al. v. Hon. Romulo SG. Villanueva, et al."
The case arose from the filing of an Affidavit of Complaint4 for violation of Batas Pambansa Bilang (B.P.
Blg.) 22 (Bouncing Checks Law) by respondent Emma J. Datuin (Datuin), as Officer-in-Charge of the
Accounts Receivables Department, and upon authority of petitioner Sansio Philippines, Inc. (Sansio),
against petitioner Zenaida R. Gregorio (Gregorio) and one Vito Belarmino, as proprietors of Alvi
Marketing, allegedly for delivering insufficiently funded bank checks as payment for the numerous
appliances bought by Alvi Marketing from Sansio.
As the address stated in the complaint was incorrect, Gregorio was unable to controvert the charges against
her. Consequently, she was indicted for three (3) counts of violation of B.P. Blg. 22, docketed as Criminal
Case Nos. 236544, 236545, and 236546, before the Metropolitan Trial Court (MeTC), Branch 3, Manila.
The MeTC issued a warrant5 for her arrest, and it was served upon her by the armed operatives of the
Public Assistance and Reaction Against Crime (PARAC) of the Department of Interior and Local
Government (DILG) on October 17, 1997, Friday, at around 9:30 a.m. in Quezon City while she was
visiting her husband and their two (2) daughters at their city residence. Gregorio was brought to the
PARAC-DILG Office where she was subjected to fingerprinting and mug shots, and was detained. She was
released in the afternoon of the same day when her husband posted a bond for her temporary liberty.
On December 5, 1997, Gregorio filed before the MeTC a Motion6 for Deferment of Arraignment and
Reinvestigation, alleging that she could not have issued the bounced checks, since she did not even have a
checking account with the bank on which the checks were drawn, as certified by the branch manager of the
Philippine National Bank, Sorsogon Branch. She also alleged that her signature was patently and radically
different from the signatures appearing on the bounced checks.
The MeTC granted the Motion and a reinvestigation was conducted. In the course of the reinvestigation,
Datuin submitted an Affidavit of Desistance7 dated August 18, 1998, stating, among others, that Gregorio
was not one of the signatories of the bounced checks subject of prosecution.
Subsequently, the assistant city prosecutor filed a Motion to Dismiss8 dated November 12, 1998 with
respect to Criminal Case Nos. 236544-46. The MeTC granted the motion and ordered the B.P. Blg. 22 cases
dismissed.9
On August 18, 2000, Gregorio filed a complaint10 for damages against Sansio and Datuin before the
Regional Trial Court (RTC), Branch 12, Ligao, Albay. The complaint, in part, reads

4. That on or about December 15, 1995, defendant Emma J. Datuin filed with the Office of the City
Prosecutor of Manila an "Affidavit of Complaint" wherein, among others, she alleged under oath that as an
Officer In-charge of the Accounts Receivables Department of SANSIO PHILIPPINES, INC., she was duly
authorized and empowered by said company to file cases against debtors, customers and dealers of the
company;
xxxx
5. That while acting under authority of her employer namely the defendant SANSIO PHILIPPINES, INC.,
defendant EMMA J. DATUIN falsely stated in the "Affidavit of Complaint" (Annex "A"), among others,
that plaintiff Zenaida R. Gregorio issued and delivered to their office the following checks, to wit:
a. PNB Check No. C-347108 dated November 30, 1992 in the amount of P9,564.00;
b. PNB Check No. C-347109 dated November 30, 1992 in the amount of P19,194.48; and
c. PNB Check No. C-347104 dated December 2, 1992 in the amount of P10,000.00
and that the above-mentioned PNB Checks bounced when deposited upon maturity;
6. That as a result of the filing of the "Affidavit of Complaint" (Annex "A") wherein defendant Emma J.
Datuin falsely charged the plaintiff with offenses of Estafa and/or violation of B.P. Blg. 22 on three (3)
counts, the Office of the City Prosecutor of Manila issued a Resolution dated April 1, 1996 finding the
existence of a probable cause against the plaintiff for violation of Batas Pambansa Blg. 22 on three counts;
xxxx
7. That in the "MEMO OF PRELIMINARY INVESTIGATION" attached hereto as Annex "C," signed by
defendant Emma J. Datuin she falsely indicated the address of plaintiff to be at No. 76 Pearanda Street,
Legaspi City when the truth of the matter is that the latters correct address is at Barangay Rizal, Oas,
Albay;
8. That as a consequence of the aforegoing false and misleading indication of address, plaintiff was
therefore not duly notified of the charges filed against her by defendant Emma J. Datuin; and more, she was
not able to controvert them before the investigating prosecutor, finally resulting in the filing in court of
three (3) informations accusing her of violating B.P. 22;
xxxx
9. That as pernicious result of the unwarranted and baseless accusation by the defendants which culminated
in the filing of three (3) informations in the Metropolitan Trial Court of Manila, Branch 3 indicting the
plaintiff on three counts of the offense of violating B.P. 22, the said court issued a Warrant of Arrest on July
22, 1996 ordering the arrest of the plaintiff;
xxxx
10. That taking extra effort to expedite the apprehension of plaintiff, defendants retained private prosecutor
managed to obtain the Warrant for the Arrest of said plaintiff from the Court as evidenced by the copy of
the letter of lawyer Alquin B. Manguerra of Chua and Associates Law Office (Annex "H") so much so that
in the morning of October 17, 1997, while plaintiff was visiting her husband Jose Gregorio and their two
daughters at their city residence at 78 K-2 Street, Kamuning, Quezon City, and without the slightest
premonition that she was wanted by the law, armed operatives of the Public Assistance and Reaction
Against Crime (PARAC) of DILG suddenly swooped down on their residence, arrested the plaintiff and
brought her to the PARAC DILG Office in Quezon City where she was fingerprinted and detained like an
ordinary criminal;

xxxx
11. That feeling distraught, helpless and hungry (not having eaten for a whole day) the plaintiff languished
in her place of confinement until the late afternoon of October 17, 1997 when her husband was able to post
a bond for her temporary liberty and secure an order of release (Annex "J") from the court. It was
providential that a city judge was available in the late afternoon of October 17, 1997 which was a Friday,
otherwise plaintiff would have remained in confinement for the entire weekend;
12. That because of her desire to prove and establish her innocence of the unjustified charges lodged
against her by the defendants, the plaintiff was thus compelled to retain the services of counsel resulting in
the filing of a Motion for Deferment of Arraignment and Reinvestigation (Annex "K") which was granted
by the court; the filing of a Request for Reinvestigation with the prosecutors office (Annex "L"); and the
submission of a Counter-Affidavit to the investigating prosecutor. All of these culminated in the filing by
the investigating prosecutor of a Motion to Dismiss (Annex "M") the three criminal cases as a consequence
of which the Court issued an Order dated June 1, 1999 (Annex "N") dismissing Criminal Cases No.
236544, No. 236545 and No. 236546, copy of which was received by plaintiff only on July 7, 2000;
13. That previous to the filing of the above-mentioned Motion to Dismiss by the prosecutor and having
been faced with the truth and righteousness of plaintiffs avowal of innocence which was irrefutable,
defendants had no recourse but to concede and recognize the verity that they had wrongly accused an
innocent person, in itself a brazen travesty of justice, so much so that defendant Emma J. Datuin had to
execute an Affidavit of Desistance (Annex "O") admitting that plaintiff is not a signatory to the three
bouncing checks in question, rationalizing, albeit lamely, that the filing of the cases against the plaintiff was
by virtue of an honest mistake or inadvertence on her (Datuins) part;
14. Be that as it may, incalculable damage has been inflicted on the plaintiff on account of the defendants
wanton, callous and reckless disregard of the fundamental legal precept that "every person shall respect the
dignity, personality, privacy and peace of mind of his neighbors and other persons" (Art. 26, Civil Code of
the Philippines);
15. That the plaintiff, being completely innocent of the charges against her as adverted to in the preceding
paragraphs, was socially humiliated, embarrassed, suffered physical discomfort, mental anguish, fright, and
serious anxiety as a proximate result of her unjustified indictment, arrest and detention at the PARAC
headquarters all of these ordeals having been exacerbated by the fact that plaintiff is a woman who comes
from a respected family in Oas, Albay, being the wife of an executive of the Philippine National
Construction Corporation, the mother of two college students studying in Manila, a pharmacist by
profession, a businesswoman by occupation, and an incumbent Municipal Councilor (Kagawad) of Oas,
Albay, at the time of her arrest and detention; and that she previously held the following positions:
(a). President, Philippine Pharmaceutical Association (Albay Chapter);
(b). Chairman of the Board, Albay Pharmaceutical Marketing Cooperative (ALPHAMAC);
(c). Charter Secretary, Kiwanis Club of Oas;
(d). Chairman, Polangui Ladies Multi-Purpose Cooperative, Polangui, Albay;
(e). Vicarial Regent, Daughters of Mary Immaculate International, District IX;
(f). Chapter President and Municipal Coordinator, Albay Women Volunteers Association, Inc., Legaspi
City;
(g). Regent, Daughters of Mary Immaculate International Virgo Clemens Circle, Oas, Albay;
(h). Secretary, Girl Scout of the Philippines District Association; and

(i). Director, Albay Electric Cooperative (ALECO),


not to mention the undue aspersion cast upon her social, professional and business reputation because of
defendants tortious act of accusing her of Estafa and/or issuing bouncing checks even without a scintilla
of evidence;
16. That to compound the aforegoing travails and sufferings of the plaintiff she had to devote and spend
much of her time, money and efforts trying to clear her tarnished name and reputation, including traveling
to and from Manila to confer with her lawyer, attend the hearings at the prosecutors office and at the
Metropolitan Trial Court;
17. By and large, defendants fault or, at the very least, their reckless imprudence or negligence, in filing
the three (3) criminal cases against the plaintiff unequivocally caused damage to the latter and because of
defendants baseless and unjustified accusations, plaintiff was constrained to retain the services of a lawyer
to represent her at the Metropolitan Trial Court and at the Office of the City Prosecutor at Manila in order
to establish her innocence and cause the dismissal of the three (3) criminal cases filed against her, reason
for which she spent P20,000.00; and in order to institute this instant action for the redress of her grievances,
plaintiff have to pay the sum of P50,000.00 as attorneys fees and incur litigation expenses in the amount of
P35,000.00;
18. That by reason of all the aforegoing and pursuant to the provision of law that "whoever by act or
omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done,"
(Article 2176, Civil Code of the Philippines), the plaintiff is entitled to and hereby claims the following
items of damages:
a. P3,000,000.00 as moral damages
b. P50,000.00 as actual damages
c. P50,000.00 as nominal damages
d. P70,000.00 as attorneys fees
e. P35,000.00 as litigation expenses
19. That defendants herein are jointly and solidarily liable for the payment of the above items of damages
being co-tortfeasors. Moreover, defendant SANSIO PHILIPPINES, INC. is vicariously liable as the
employer of defendant Emma J. Datuin who patently acted within the scope of her assigned tasks (Vide:
Art. 2180, Civil Code of the Philippines).11
Sansio and Datuin filed a Motion to Dismiss12 on the ground that the complaint, being one for damages
arising from malicious prosecution, failed to state a cause of action, as the ultimate facts constituting the
elements thereof were not alleged in the complaint. Gregorio opposed13 the Motion. Sansio and Datuin
filed their Reply14 to the Opposition. Gregorio, in turn, filed her Rejoinder.15
On October 10, 2000, the RTC issued an Order16 denying the Motion to Dismiss. Sansio and Datuin filed a
Motion for Reconsideration17 of the October 10, 2000 Order, but the RTC denied the same in its Order18
dated January 5, 2001.
Sansio and Datuin went to the CA via a petition19 for certiorari under Rule 65 of the Rules of Court
alleging grave abuse of discretion on the part of the presiding judge of the RTC in denying their motions to
dismiss and for reconsideration.
Meanwhile, on March 20, 2003, the RTC rendered its Decision in the civil case for damages instituted by
Gregorio, directing Sansio and Datuin, jointly and solidarily, to pay Gregorio P200,000.00 as moral

damages; P10,000.00 as nominal damages; P35,000.00 as litigation expenses; P30,000.00 as attorneys


fees; and costs of the suit. The RTC expressly stated in its Decision that the complaint was one for damages
based on quasi-delict and not on malicious prosecution.
Aggrieved by the March 20, 2003 Decision, Sansio and Datuin appealed to the CA, and the same is now
pending resolution.
On January 31, 2007, the CA rendered a Decision on the certiorari case granting the petition and ordering
the dismissal of the damage suit of Gregorio. The latter moved to reconsider the said Decision but the same
was denied in the appellate courts Resolution dated September 12, 2007.
Hence, this petition.
The core issue to be resolved, as culled from the factual circumstances of this case, is whether the
complaint, a civil suit filed by Gregorio, is based on quasi-delict or malicious prosecution.
It is the position of Sansio and Datuin that the complaint for damages filed by Gregorio before the RTC was
for malicious prosecution, but it failed to allege the elements thereof, such that it was aptly dismissed on
appeal by the CA on the ground of lack of cause of action. In their comment, citing Albenson Enterprise
Corporation v. Court of Appeals,20 they posit that Article 26 of the Civil Code, cited by Gregorio as one of
the bases for her complaint, and Articles 19, 20, and 21 of the same Code, mentioned by the RTC as bases
for sustaining the complaint, are the very same provisions upon which malicious prosecution is grounded.
And in order to further buttress their position that Gregorios complaint was indeed one for malicious
prosecution, they even pointed out the fact that Gregorio prayed for moral damages, which may be awarded
only in case of malicious prosecution or, if the case is for quasi-delict, only if physical injury results
therefrom.
We disagree.
A perusal of the allegations of Gregorios complaint for damages readily shows that she filed a civil suit
against Sansio and Datuin for filing against her criminal charges for violation of B.P. Blg. 22; that
respondents did not exercise diligent efforts to ascertain the true identity of the person who delivered to
them insufficiently funded checks as payment for the various appliances purchased; and that respondents
never gave her the opportunity to controvert the charges against her, because they stated an incorrect
address in the criminal complaint. Gregorio claimed damages for the embarrassment and humiliation she
suffered when she was suddenly arrested at her city residence in Quezon City while visiting her family. She
was, at the time of her arrest, a respected Kagawad in Oas, Albay. Gregorio anchored her civil complaint on
Articles 26,21 2176,22 and 218023 of the Civil Code. Noticeably, despite alleging either fault or negligence
on the part of Sansio and Datuin, Gregorio never imputed to them any bad faith in her complaint.
Basic is the legal principle that the nature of an action is determined by the material averments in the
complaint and the character of the relief sought.24 Undeniably, Gregorios civil complaint, read in its
entirety, is a complaint based on quasi-delict under Article 2176, in relation to Article 26 of the Civil Code,
rather than on malicious prosecution.
In every tort case filed under Article 2176 of the Civil Code, the plaintiff has to prove by a preponderance
of evidence: (1) the damages suffered by him; (2) the fault or negligence of the defendant or some other
person to whose act he must respond; (3) the connection of cause and effect between the fault or negligence
and the damages incurred; and (4) that there must be no preexisting contractual relation between the
parties.25
On the other hand, Article 26 of the Civil Code grants a cause of action for damages, prevention, and other
relief in cases of breach, though not necessarily constituting a criminal offense, of the following rights: (1)
right to personal dignity; (2) right to personal security; (3) right to family relations; (4) right to social
intercourse; (5) right to privacy; and (6) right to peace of mind.26

A scrutiny of Gregorios civil complaint reveals that the averments thereof, taken together, fulfill the
elements of Article 2176, in relation to Article 26 of the Civil Code. It appears that Gregorios rights to
personal dignity, personal security, privacy, and peace of mind were infringed by Sansio and Datuin when
they failed to exercise the requisite diligence in determining the identity of the person they should rightfully
accuse of tendering insufficiently funded checks. This fault was compounded when they failed to ascertain
the correct address of petitioner, thus depriving her of the opportunity to controvert the charges, because
she was not given proper notice. Because she was not able to refute the charges against her, petitioner was
falsely indicted for three (3) counts of violation of B.P. Blg. 22. Although she was never found at No. 76
Pearanda St., Legaspi City, the office address of Alvi Marketing as stated in the criminal complaint,
Gregorio was conveniently arrested by armed operatives of the PARAC-DILG at her city residence at 78 K2 St., Kamuning, Quezon City, while visiting her family. She suffered embarrassment and humiliation over
her sudden arrest and detention and she had to spend time, effort, and money to clear her tarnished name
and reputation, considering that she had held several honorable positions in different organizations and
offices in the public service, particularly her being a Kagawad in Oas, Albay at the time of her arrest. There
exists no contractual relation between Gregorio and Sansio. On the other hand, Gregorio is prosecuting
Sansio, under Article 2180 of the Civil Code, for its vicarious liability, as employer, arising from the act or
omission of its employee Datuin.
These allegations, assuming them to be true, sufficiently constituted a cause of action against Sansio and
Datuin. Thus, the RTC was correct when it denied respondents motion to dismiss.
Sansio and Datuin are in error when they insist that Gregorios complaint is based on malicious
prosecution. In an action to recover damages for malicious prosecution, it must be alleged and established
that Sansio and Datuin were impelled by legal malice or bad faith in deliberately initiating an action against
Gregorio, knowing that the charges were false and groundless, intending to vex and humiliate her.27 As
previously mentioned, Gregorio did not allege this in her complaint. Moreover, the fact that she prayed for
moral damages did not change the nature of her action based on quasi-delict. She might have acted on the
mistaken notion that she was entitled to moral damages, considering that she suffered physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, and social
humiliation on account of her indictment and her sudden arrest.
Verily, Gregorio was only acting within her right when she instituted against Sansio and Datuin an action
she perceived to be proper, given the factual antecedents of the case.
WHEREFORE, the petition is GRANTED. The Decision dated January 31, 2007 and the Resolution dated
September 12, 2007 are REVERSED and SET ASIDE. Costs against respondents.
3. NORMAN A. GAID, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
Before the Court is a petition for review on certiorari1 assailing the 12 July 2005 Decision2 of the Court of
Appeals and its subsequent Resolution3 denying petitioners motion for reconsideration.
Petitioner Norman A. Gaid was charged with the crime of reckless imprudence resulting in homicide in an
information which reads as follow:
That on or about 12:00 high noon of October 25, 2001, infront of the Laguindingan National High School,
Poblacion, Laguindingan, Misamis Oriental, Philippines and within the jurisdiction of this Honorable
Court, the said accused mentioned above while driving a passengers jeepney color white bearing plate no.
KVG-771 owned by barangay captain Levy Etom has no precautionary measure to preempt the accident,
did then and there willfully, unlawfully and feloniously ran [sic] over Michael Dayata resulting of [sic] his
untimely death as pronounced by the attending physician of Northern Mindanao Medical Center Hospital,
Cagayan de Oro City.

CONTRARY TO LAW.4
Petitioner entered a not guilty plea. Thereafter, trial ensued.
The antecedent facts are undisputed.
At around 12:00 noon on 25 October 2001, petitioner was driving his passenger jeepney along a two-lane
road where the Laguindingan National High School is located toward the direction of Moog in Misamis
Oriental. His jeepney was filled to seating capacity.5 At the time several students were coming out of the
school premises.6 Meanwhile, a fourteen year-old student, Michael Dayata (Dayata), was seen by
eyewitness Artman Bongolto (Bongolto) sitting near a store on the left side of the road. From where he was
at the left side of the road, Dayata raised his left hand to flag down petitioners jeepney7 which was
traveling on the right lane of the road.8 However, neither did petitioner nor the conductor, Dennis Mellalos
(Mellalos), saw anybody flagging down the jeepney to ride at that point.9
The next thing Bongalto saw, Dayatas feet was pinned to the rear wheel of the jeepney, after which, he laid
flat on the ground behind the jeepney.10 Another prosecution witness, Usaffe Actub (Actub), who was also
situated on the left side of the street but directly in front of the school gate, heard "a strong impact coming
from the jeep sounding as if the driver forced to accelerate in order to hurdle an obstacle."11 Dayata was
then seen lying on the ground12 and caught in between the rear tires.13 Petitioner felt that the left rear tire
of the jeepney had bounced and the vehicle tilted to the right side.14
Mellalos heard a shout that a boy was run over, prompting him to jump off the jeepney to help the victim.
Petitioner stopped and saw Mellalos carrying the body of the victim.15 Mellalos loaded the victim on a
motorcycle and brought him to the hospital. Dayata was first brought to the Laguindingan Health Center,
but it was closed. Mellalos then proceeded to the El Salvador Hospital. Upon advice of its doctors,
however, Dayata was brought to the Northern Mindanao Medical Center where he was pronounced dead on
arrival.16
Dr. Tammy Uy issued an autopsy report stating cranio-cerebral injuries as the cause of death.17 She
testified that the head injuries of Dayata could have been caused by having run over by the jeepney.18
The Municipal Circuit Trial Court (MCTC) of Laguindingan19 found petitioner guilty beyond reasonable
doubt of the crime charged. The lower court held petitioner negligent in his driving considering that the
victim was dragged to a distance of 5.70 meters from the point of impact. He was also scored for "not
stopping his vehicle after noticing that the jeepneys left rear tire jolted causing the vehicle to tilt towards
the right."20 On appeal, the Regional Trial Court (RTC)21 affirmed in toto the decision of the MCTC.
The Court of Appeals affirmed the trial courts judgment with modification in that it found petitioner guilty
only of simple negligence resulting in homicide.1avvphi1.zw+
The Court of Appeals exonerated petitioner from the charge of reckless imprudence resulting to homicide
on the ground that he was not driving recklessly at the time of the accident. However, the appellate court
still found him to be negligent when he failed "to promptly stop his vehicle to check what caused the
sudden jotting of its rear tire."22
In its 6 February 2006 Resolution, the Court of Appeals denied petitioners motion for reconsideration.23
Hence, the instant petition.
Petitioner submits that the Court of Appeals erred in finding that "there is (sic) absolutely lack of
precaution on the part of the petitioner when he continued even after he had noticed that the left rear tire
and the jeep tilted to its right side."24 Petitioner stressed that he, in fact, stopped his jeep when its left rear
tire bounced and upon hearing that somebody had been ran over.

Moreover, petitioner asserts that the Court of Appeals committed a grave abuse of discretion in convicting
him of the offense of simple negligence resulting in homicide. Assuming arguendo that he failed to
promptly stop his vehicle, petitioner maintains that no prudent man placed in the same situation could have
foreseen the vehicular accident or could have stopped his vehicle in time when its left rear tire bounced due
to the following reasons: (1) the victim was only a trespasser; (2) petitioners attention was focused on the
road and the students outside the schools gate; and (3) the jeepney was fully loaded with passengers and
cargoes and it was impossible for the petitioner to promptly stop his vehicle.25
The Office of the Solicitor-General (OSG) maintained that petitioner was negligent when he continued to
run towards the direction of Moog, Laguindingan, dragging the victim a few meters from the point of
impact, despite hearing that a child had been run over.26
The presence or absence of negligence on the part of petitioner is determined by the operative events
leading to the death of Dayata which actually comprised of two phases or stages. The first stage began
when Dayata flagged down the jeepney while positioned on the left side of the road and ended when he was
run over by the jeepney. The second stage covered the span between the moment immediately after the
victim was run over and the point when petitioner put the jeepney to a halt.
During the first stage, petitioner was not shown to be negligent.
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which
material damage results by reason of an inexcusable lack of precaution on the part of the person performing
or failing to perform such act.27
In Manzanares v. People,28 this Court convicted petitioner of the crime of reckless imprudence resulting in
multiple homicide and serious physical injuries when he was found driving the Isuzu truck very fast before
it smashed into a jeepney.29 Likewise, in Pangonorom v. People,30 a public utility driver, who was driving
very fast, failed to slow down and hit a swerving car. He was found negligent by this Court.
In the instant case, petitioner was driving slowly at the time of the accident, as testified to by two
eyewitnesses. Prosecution witness Actub affirmed this fact on cross-examination, thus:
ATTY. MACUA:
(to the witness)
Q Mr. Witness, when the passenger jeepney passed by the gate of the Laguindingan National High School,
is it running slowly, am I correct?
A Yes, he was running slowly.31
The slow pace of the jeepney was seconded by Mellalos:
Q You testified that you heard somebody outside from the vehicle shouting that a boy was ran over, am I
correct?
A Yes, Sir.
Q Now, before you heard that shouting, did you observe any motion from the vehicle?
A The jeep was moving slowly and I noticed that there was something that [sic] the jeep a little bit bounced
up as if a hump thats the time I heard a shout from outside.32
Petitioner stated that he was driving at no more than 15 kilometers per hour.33

It appears from the evidence Dayata came from the left side of the street. Petitioner, who was driving the
jeepney on the right lane, did not see the victim flag him down. He also failed to see him go near the
jeepney at the left side. Understandably, petitioner was focused on the road ahead. In Dayatas haste to
board the jeep which was then running, his feet somehow got pinned to the left rear tire, as narrated by
Bongolto. Actub only saw Dayata after he heard a strong impact coming from the jeep.
With the foregoing facts, petitioner can not be held liable during the first stage. Specifically, he cannot be
held liable for reckless imprudence resulting in homicide, as found by the trial court. The proximate cause
of the accident and the death of the victim was definitely his own negligence in trying to catch up with the
moving jeepney to get a ride.
In the instant case, petitioner had exercised extreme precaution as he drove slowly upon reaching the
vicinity of the school. He cannot be faulted for not having seen the victim who came from behind on the
left side.
However, the Court of Appeals found petitioner guilty of simple negligence resulting in homicide for
failing to stop driving at the time when he noticed the bouncing of his vehicle. Verily, the appellate court
was referring to the second stage of the incident.
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.34
The elements of simple negligence: are (1) that there is lack of precaution on the part of the offender; and
(2) that the damage impending to be caused is not immediate or the danger is not clearly manifest.35
The standard test in determining whether a person is negligent in doing an act whereby injury or damage
results to the person or property of another is this: could a prudent man, in the position of the person to
whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the
course actually pursued? If so, the law imposes a duty on the actor to refrain from that course or to take
precautions to guard against its mischievous results, and the failure to do so constitutes negligence.
Reasonable foresight of harm, followed by the ignoring of the admonition born of this provision, is always
necessary before negligence can be held to exist.36
In Philippine National Construction Corporation v. Court of Appeals,37 the petitioner was the franchisee
that operates and maintains the toll facilities in the North and South Luzon Toll Expressways. It failed to
exercise the requisite diligence in maintaining the NLEX safe for motorists. The lighted cans and lane
dividers on the highway were removed even as flattened sugarcanes lay scattered on the ground. The
highway was still wet from the juice and sap of the flattened sugarcanes. The petitioner should have
foreseen that the wet condition of the highway would endanger motorists passing by at night or in the wee
hours of the morning.38 Consequently, it was held liable for damages.
In an American case, Hernandez v. Lukas,39 a motorist traveling within the speed limit and did all was
possible to avoid striking a child who was then six years old only. The place of the incident was a
neighborhood where children were playing in the parkways on prior occasions. The court ruled that it must
be still proven that the driver did not exercise due care. The evidence showed that the driver was
proceeding in lawful manner within the speed limit when the child ran into the street and was struck by the
drivers vehicle. Clearly, this was an emergency situation thrust upon the driver too suddenly to avoid.
In this case, the courts below zeroed in on the fact that petitioner did not stop the jeepney when he felt the
bouncing of his vehicle, a circumstance which the appellate court equates with negligence. Petitioner
contends that he did not immediately stop because he did not see anybody go near his vehicle at the time of
the incident.40
Assuming arguendo that petitioner had been negligent, it must be shown that his negligence was the
proximate cause of the accident. Proximate cause is defined as that which, in the natural and continuous

sequence, unbroken by any efficient, intervening cause, produces the injury, and without which the result
would not have
occurred.41 In order to establish a motorist's liability for the negligent operation of a vehicle, it must be
shown that there was a direct causal connection between such negligence and the injuries or damages
complained of. Thus, negligence that is not a substantial contributing factor in the causation of the accident
is not the proximate cause of an injury.42
The head injuries sustained by Dayata at the point of impact proved to be the immediate cause of his death,
as indicated in the post-mortem findings.43 His skull was crushed as a result of the accident. Had petitioner
immediately stopped the jeepney, it would still not have saved the life of the victim as the injuries he
suffered were fatal.
The evidence on record do not show that the jeepney dragged the victim after he was hit and run over by
the jeepney. Quite the contrary, the evidence discloses that the victim was not dragged at all. In fact, it is the
other way around. Bongolto narrated that after the impact, he saw Dayata left behind the jeepney.44 Actub
saw Dayata in a prone position and bleeding within seconds after impact.45 Right after the impact,
Mellalos immediately jumped out of the jeepney and saw the victim lying on the ground.46 The distance of
5.70 meters is the length of space between the spot where the victim fell to the ground and the spot where
the jeepney stopped as observed by the trial judge during the ocular inspection at the scene of the
accident.47
Moreover, mere suspicions and speculations that the victim could have lived had petitioner stopped can
never be the basis of a conviction in a criminal case.48 The Court must be satisfied that the guilt of the
accused had been proven beyond reasonable doubt.49 Conviction must rest on nothing less than a moral
certainty of the guilt of the accused. The overriding consideration is not whether the court doubts the
innocence of the accused but whether it entertains doubt as to his guilt.50
Clearly then, the prosecution was not able to establish that the proximate cause of the victims death was
petitioners alleged negligence, if at all, even during the second stage of the incident.
If at all again, petitioners failure to render assistance to the victim would constitute abandonment of ones
victim punishable under Article 275 of the Revised Penal Code. However, the omission is not covered by
the information. Thus, to hold petitioner criminally liable under the provision would be tantamount to a
denial of due process.
Therefore, petitioner must be acquitted at least on reasonable doubt. The award of damages must also be
deleted pursuant to Article 2179 of the Civil Code which states that when the plaintiffs own negligence
was the immediate and proximate cause of his injury, he cannot recover damages.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated 12 July 2005 is
REVERSED and SET ASIDE. Petitioner Norman A. Gaid is ACQUITTED of the crime of Simple
Negligence Resulting in Homicide as found by the Court of Appeals and of the charge of Reckless
Imprudence Resulting in Homicide in Criminal Case No. 1937 of the MCTC of Laguindingan, Misamis
Oriental.
DISSENTING OPINION
With all due respect to my esteemed colleague, Mr. Justice Tinga, who has, as usual, prepared a wellwritten and comprehensive ponencia, I regret my inability to share the view that petitioner Norman A. Gaid
http://www.geocities.com/afdb/Hold/8180.htmshould be acquitted of the crime of Simple Negligence
Resulting in Homicide.
Simple negligence was shown on the part of petitioner at the second stage of the operative events leading to
the death of Dayata. The second stage constituted the time between the moment immediately after the
victim was run over and the point when petitioner stopped the jeepney.

Article 365 of the Revised Penal Code (RPC) defines "simple negligence" as one that "consists in the lack
of precaution displayed in those cases in which the damage impending to be caused is not immediate nor
the danger clearly manifest."
The elements of simple imprudence are (1) that there is lack of precaution on the part of the offender; and
(2) that the damage impending to be caused is not immediate or the danger is not clearly manifest.1 As
early as in People v. Vistan,2 the Court defined simple negligence, penalized under what is now Art. 365 of
the RPC, as "a mere lack of prevision in a situation where either the threatened harm is not immediate or
the danger not openly visible." Elsewise put, the gravamen of the offense of simple negligence is the failure
to exercise the diligence necessitated or called for by the situation which was not immediately lifedestructive but which culminated, in the present case, in the death of a human being.
On October 25, 2001, on or about 12:00 high noon, the victim Dayata was waiting for a ride home in front
of the gate of Laguindingan National High School, Misamis Oriental when he was run over by a passenger
utility jeep, driven by petitioner. Dayata was dragged to a distance of 5.7 meters from the point of impact
before petitioner stopped the jeep which was running at an estimated speed of 15 kilometers per hour.
Petitioner did not get off to attend to the victim; only the conductor did. The conductor loaded the victim on
a motorcycle, and brought the victim to the hospital. The victim was declared dead on arrival. Petitioner
claimed that he did not see the victim prior to the accident and was unaware of how it happened because
the passenger jeep was fully loaded.
The evidence shows that petitioner continued on his route even after sensing that he had run over a "hard
object." At this point, petitioner should have displayed precaution by stopping on his tracks. Unfortunately,
this was not done. Instead, even after he heard the shout "adunay bata naligsan!" which means "a child has
been run over," petitioner nonetheless continued to run towards the direction of Moog, Laguindingan,
dragging the victim a few meters from the point of impact. His lack of care was, thus, perceivable.
Indeed, petitioner could not exonerate himself from his negligent act. He failed the test of being a prudent
man. The test for determining whether or not a person is negligent in doing an act that results in damage or
injury to the person or property of another is: Would a prudent man, in the position of the person to whom
negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about
to be pursued? If so, the law imposes the duty on the doer to refrain from that course or take precaution
against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of
harm, followed by ignoring the admonition borne of this prevision, is the constitutive fact in negligence.3
Even the Death Certificate of the victim and the testimonies of Dr. Remedios L. Uy and Dr. Tammy L. Uy
of the National Bureau of Investigation proved that the victim died of injuries caused by the force or impact
and found extensive/serious fractures and disfigurement as described in the Autopsy Report.4
Dr. Tammy further testified that based on the type, multiplicity, and severity of the injuries to the victims
head, he believed that the head was run over and subsequently, the body was dragged also based on the
multiplicity of the abrasions.5
The degree of precaution and diligence required of an individual in any given case so as to avoid being
charged with recklessness varies with the degree of the danger. If the danger of doing harm to a person or to
anothers property, on account of a certain line of conduct, is great, the individual who chooses to follow
that particular course of conduct is compelled to be very careful in order to prevent or avoid the damage or
injury. On the other hand, if the danger is small, very little care is required. It is, thus, possible that there are
infinite degrees of precaution or diligence, from the most slight and instantaneous thought or the transitory
glance of care to the most vigilant effort. The duty of the person to employ more or less degree of care in
such cases will depend upon the circumstances of each particular case.6
An example of simple imprudence is a case where the driver of a cart, passing along the street of a city at
the speed prescribed by the ordinances and leading his team from the side by a strap attached to the bridle
or head of one of the horses, on turning a corner and in a moment of distraction, does not see a child asleep

in the gutter on the side of the team opposite to him, by reason whereof the child is run over by the cart and
killed. The act cannot be denominated as purely accidental, because, if the cart driver had been paying
attention to his duty, he would have seen the child and very likely would have been able to avoid the
accident. Nor can it be called gross or reckless negligence, because he was not able to foresee the extremely
unusual occurrence of a child being asleep in the gutter.7
In the fairly similar case of People v. De los Santos,8 where petitioner Glenn De los Santos run over several
Philippine National Police (PNP) trainees doing their jogging, killing 11 of them and injuring another 10,
this Court set aside the Regional Trial Courts conviction of Glenn for the complex crime of multiple
murder, multiple frustrated murder and multiple attempted murder, with the use of motor vehicle as the
qualifying circumstance. We held that what happened in the wee hours of the morning with overcast skies
and the PNP trainees who were hard to discern due to their dark attire and running at the wrong side of the
road was an accident. Glenn was, however, found to be negligent in failing to apply the brakes, or to
swerve his vehicle to the left or to a safe place the moment he heard and felt the first bumping thuds. Had
he done so, many trainees would have been spared.
It is true that in the instant case, it could be argued that victim Dayata might have died instantaneously upon
being run over by the left rear tire of petitioners jeepney. Nonetheless, that is already academic at this
point. Had petitioner promptly applied the brakes when he heard the shout that he ran over someone and
felt the bump, could the victim had survived? Alas, that cannot be answered as the victim was dragged for
approximately 5.7 meters. If indeed petitioners jeepney was running at only around 15 kilometers per hour,
it would be easy to stop the jeepney within a distance of five (5) feet. Had he instantly applied the brakes
and put the jeepney to a sudden stop, hence, the life of Dayata could have been saved. Worse, the lack of
care and precaution of petitioner was shown in his utter lack of concern towards the victim. It was only his
conductor who brought the victim on a motorcycle to the hospital when petitioner was duty-bound to do so.
Clear to my mind is that petitioner did not exercise the necessary care expected of him given the
circumstances. What the Court said in De los Santos is apropos that "[A] man must use common sense, and
exercise due reflection in all his acts; it is his duty to be cautious, careful, and prudent, if not from instinct,
then through fear of incurring punishment. He is responsible for such results as anyone might foresee and
for acts which no one would have performed except through culpable abandon."9
In the instant case, like in De los Santos, petitioners offense is in not applying the brakes when he heard
the shout and felt the bump that he ran over something. These are not denied by petitioner. Petitioner, thus,
failed to show lack of precaution given the circumstances.
Therefore, I vote to affirm the finding of the Court of Appeals that petitioner is guilty beyond reasonable
doubt of the lesser offense of Simple Negligence Resulting in Homicide under Art. 365 of the RPC, with
the corresponding penalty of four (4) months imprisonment, including the awards of civil indemnity, moral
and actual damages, plus costs.
FROM ALL THE FOREGOING REASONS, I, therefore, vote for the outright DISMISSAL of the instant
petition for lack of merit.
PRESBITERO J. VELASCO, JR.
Associate Justice

4. HEDY GAN y YU, petitioner,


vs.
THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in Criminal Case
No. 10201 of the then Court of First Instance of Manila, Branch XXII presided by Judge Federico C.
Alikpala. She was sentenced to an indeterminate penalty of four (4) months and one (1) day of arresto
mayor as minimum and two (2) years, four (4) months and one (1) day of prision correccional as maximum
and was made to indemnify the heirs of the victim the sum of P12,000.00 without any subsidiary
imprisonment in case of insolvency and to pay the costs. On appeal, the trial court's decision was modified
and petitioner was convicted only of Homicide thru Simple Imprudence. Still unsatisfied with the decision
of the Court of Appeals, 1 petitioner has come to this Court for a complete reversal of the judgment below.
The facts of the case as found by the appellate court are as follows:
In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was driving a Toyota car along
North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of North Bay Boulevard, there were
two vehicles, a truck and a jeepney parked on one side of the road, one following the other about two to
three meters from each other. As the car driven by the accused approached the place where the two vehicles
were parked, there was a vehicle coming from the opposite direction, followed by another which tried to
overtake and bypass the one in front of it and thereby encroached the lane of the car driven by the accused.
To avoid a head-on collision with the oncoming vehicle, the defendant swerved to the right and as a
consequence, the front bumper of the Toyota Crown Sedan hit an old man who was about to cross the
boulevard from south to north, pinning him against the rear of the parked jeepney. The force of the impact
caused the parked jeepney to move forward hitting the rear of the parts truck ahead of it. The pedestrian
was injured, the Toyota Sedan was damaged on its front, the jeep suffered damages on its rear and front
paints, and the truck sustained scratches at the wooden portion of its rear. The body of the old man who was
later Identified as Isidoro Casino was immediately brought to the Jose Reyes Memorial Hospital but was
(pronounced) dead on arrival. 2
An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the above
incident. She entered a plea of not guilty upon arraignment and the case was set for trial.
Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of which the
trial fiscal moved for the dismissal of the case against petitioner during the resumption of hearing on
September 7, 1972. The grounds cited therefor were lack of interest on the part of the complaining witness
to prosecute the case as evidenced by an affidavit of desistance submitted to the trial court and lack of
eyewitness to sustain the charge.
The motion to dismiss filed by the fiscal was never resolved. The Court instead ordered the prosecution to
present its evidence. After the prosecution rested its case, the petitioner filed a motion to dismiss the case
on the ground of insufficiency of evidence.
On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond reasonable doubt
of the offense charged.
Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, 1976, the Court of
Appeals rendered a decision, the dispositive portion of which reads as follows:
Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of the crime of homicide
thru simple imprudence and, pursuant to paragraph 2, Article 365 of the Revised Penal Code, she is hereby
sentenced to the indeterminate penalty of three (3) months and eleven (11) days of arresto mayor and to
indemnify the heirs of Isidoro Casino in the sum of Twelve Thousand Pesos (Pl2,000.00) without, however,
any subsidiary imprisonment in case of insolvency, and to pay the costs. 3
Petitioner now appeals to this Court on the following assignments of errors:
I

The Court of Appeals erred in holding that when the petitioner saw a car travelling directly towards her, she
should have stepped on the brakes immediately or in swerving her vehicle to the right should have also
stepped on the brakes or lessened her speed, to avoid the death of a pedestrian.
II
The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru Simple Imprudence.
III
The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in the sum of
P12,000.00. 4
We reverse.
The test for determining whether or not a person is negligent in doing an act whereby injury or damage
results to the person or property of another is this: Would a prudent man in the position of the person to
whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course
about to be pursued? If so, the law imposes the duty oil the doer to take precaution against its mischievous
results and the failure to do so constitutes negligence. 5
A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who suddenly
finds himself in a place of danger, and is required to act without time to consider the best means that may
be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently
and upon reflection may appear to have been a better method, unless the emergency in which he finds
himself is brought about by his own negligence." 6
Applying the above test to the case at bar, we find the petitioner not guilty of the crime of Simple
Imprudence resulting in Homicide.
The appellate court in finding the petitioner guilty said:
The accused should have stepped on the brakes when she saw the car going in the opposite direction
followed by another which overtook the first by passing towards its left. She should not only have swerved
the car she was driving to the right but should have also tried to stop or lessen her speed so that she would
not bump into the pedestrian who was crossing at the time but also the jeepney which was then parked
along the street. 7
The course of action suggested by the appellate court would seem reasonable were it not for the fact that
such suggestion did not take into account the amount of time afforded petitioner to react to the situation she
was in. For it is undeniable that the suggested course of action presupposes sufficient time for appellant to
analyze the situation confronting her and to ponder on which of the different courses of action would result
in the least possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the relative
distances of petitioner to the parked jeepney and the oncoming overtaking vehicle that would tend to prove
that petitioner did have sufficient time to reflect on the consequences of her instant decision to swerve her
car to the light without stepping on her brakes. In fact, the evidence presented by the prosecution on this
point is the petitioner's statement to the police 8 stating::
And masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa sasakyan na aking
kasalubong kung kaya ay aking kinabig sa kanan ang akin kotse subalit siya naman biglang pagtawid ng tao
o victim at hindi ko na ho naiwasan at ako ay wala ng magawa . Iyan ho ang buong pangyayari nang
nasabing aksidente. 9 (Emphasis supplied)

The prosecution having presented this exhibit as its own evidence, we cannot but deem its veracity to have
been admitted by it. Thus, under the circumstances narrated by petitioner, we find that the appellate court is
asking too much from a mere mortal like the petitioner who in the blink of an eye had to exercise her best
judgment to extricate herself from a difficult and dangerous situation caused by the driver of the overtaking
vehicle. Petitioner certainly could not be expected to act with all the coolness of a person under normal
conditions. 10 The danger confronting petitioner was real and imminent, threatening her very existence.
She had no opportunity for rational thinking but only enough time to heed the very powerfull instinct of
self-preservation.
Also, the respondent court itself pronounced that the petitioner was driving her car within the legal limits.
We therefore rule that the "emergency rule" enunciated above applies with full force to the case at bar and
consequently absolve petitioner from any criminal negligence in connection with the incident under
consideration.
We further set aside the award of damages to the heirs of the victim, who by executing a release of the
claim due them, had effectively and clearly waived their right thereto.
WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime of
Homicide thru Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity awarded by
the appellate court to the heirs of the victim.
5. GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO,
respondents.
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO,
respondents.

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV
Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November
1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No.
4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga
entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh
Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime
Tayag and Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for moral
damages, attorney's fees and litigation expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a vehicular accident which
led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George
Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the
deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh
and her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh,
were the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners of the
cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the truck at the time of
the accident.
The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur
Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an
International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents,
and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose
Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical
injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the
Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and
Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At
the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat
of the car while Araceli and her two (2) sons were seated at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice
weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and
was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San
Fernando. When the northbound car was about (10) meters away from the southern approach of the bridge,
two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys were
moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew
the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights
of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car
collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the
said bridge.
The incident was immediately reported to the police station in Angeles City; consequently, a team of police
officers was forthwith dispatched to conduct an on the spot investigation. In the sketch 1 prepared by the
investigating officers, the bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps"
wide seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides. 2 Pulong
Pulo Bridge, which spans a dry brook, is made of concrete with soft shoulders and concrete railings on both
sides about three (3) feet high.
The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2)
"footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of
the bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen
(16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36)
"footsteps" from the opposite end. Skid marks produced by the right front tire of the truck measured nine
(9) "footsteps", while skid marks produced by the left front tire measured five (5) "footsteps." The two (2)
rear tires of the truck, however, produced no skid marks.
In his statement to the investigating police officers immediately after the accident, Galang admitted that he
was traveling at thirty (30) miles (48 kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31
January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and
Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the
award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral damages, P60,000.00 as
exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 for the
burial lot and P9,500.00 for the tomb, plus attorney's fees. 3 In the second case, petitioners in G.R. No.
68102 prayed for the following: (a) in connection with the death of Kim McKee, the sum of P12,000.00 as
death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb,
P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous
damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered,
the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of
earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the complaint; and (c)
with respect to George McKee, Jr., in connection with the serious physical injuries suffered, the sum of
P50,000.00 as moral damages, P20,000.00 as exemplary damages and the following medical expenses:

P3,400 payable to the Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00
payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also
sought an award of attorney's fees amounting to 25% of the total award plus traveling and hotel expenses,
with costs. 4
On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence
Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial
court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same
Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the Ford
Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and P30,000.00 as business losses. 6 In Civil Case No. 4478,
private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case
No. 4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a
motion to consolidate the case with Civil Case No. 4477 pending before Branch III of the same court,
which was opposed by the plaintiffs. 7 Both motions were denied by Branch V, then presided over by Judge
Ignacio Capulong. Thereupon, private respondents filed their Answer with Counter-claim 8 wherein they
alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by Ruben
Galang, . . . which was on the right lane going towards Manila and at a moderate speed observing all traffic
rules and regulations applicable under the circumstances then prevailing;" in their counterclaim, they
prayed for an award of damages as may be determined by the court after due hearing, and the sums of
P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.
Petitioners filed their Answers to the Counterclaims in both cases.
To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to
adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private
respondents opposed and which the court denied. 9 Petitioners subsequently moved to reconsider the order
denying the motion for consolidation, 10 which Judge Capulong granted in the Order of 5 September 1978;
he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the
court then presided over by Judge Mario Castaeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col. Robert
Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, 11 and offered several
documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang,
Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12
In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc.
Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc.
Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco,
and offered several documentary exhibits. 13 Upon the other hand, the defense presented the accused
Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits.
14
On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the aforesaid
criminal case. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang
guilty beyond reasonable doubt of the crime charged in the information and after applying the provisions of
Article 365 of the Revised Penal Code and indeterminate sentence law, this Court, imposes upon said
accused Ruben Galang the penalty of six (6) months of arresto mayor as minimum to two (2) years, four (4)
months and one (1) day of prision correccional as maximum; the accused is further sentenced to pay and

indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse the
heirs of Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs of Loida
Bondoc the amount of P20,000.00 representing her loss of income; to indemnify and pay the heirs of the
deceased Jose Koh the value of the car in the amount of P53,910.95, and to pay the costs. 15
The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for
petitioners filed with Branch III of the court where the two (2) civil cases were pending a
manifestation to that effect and attached thereto a copy of the decision. 16
Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12 November 1980
and awarded the private respondents moral damages, exemplary damages and attorney's fees. 17 The
dispositive portion of the said decision reads as follows:
WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against the
plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants had
proven their counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are hereby awarded
moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and
litigation expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is (sic)
hereby dismissing for lack of proof to that effect (sic). 18
A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was
received on 2 December 1980. 19
Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was
docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil
Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate
court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and
were assigned to the Fourth Civil Cases Division.
On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-CR
affirming the conviction of Galang. 21 The dispositive portion of the decision reads:
DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang
naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.
A motion for reconsideration of the decision was denied by the respondent Court in its Kapasiyahan
promulgated on 25 November 1982. 22 A petition for its review 23 was filed with this Court; said petition
was subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20
April 1983. 24
On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated
its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the dispositive portion of which reads:
WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered,
ordering defendants-appellees to pay plaintiffs-appellants as follows:
For the death of Jose Koh:
P 50,000.00 as moral damages
P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)
For the death of Kim Koh McKee:

P 50,000.00 as moral damages


P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)
For the physical injuries suffered by George Koh McKee:
P 25,000.00 as moral damages
P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)
For the physical injuries suffered by Araceli Koh McKee:
P 25,000.00 as moral damages
P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muoz Clinic (Exh. MM)
For the physical injuries suffered by Christopher Koh McKee:
P 10,000.00 as moral damages
P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as
counsel (sic) fees in Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED. 26
The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's
inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the
law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the
selection and supervision of the latter; it was further asserted that these defendants did not allege in their
Answers the defense of having exercised the diligence of a good father of a family in selecting and
supervising the said employee. 27 This conclusion of reckless imprudence is based on the following
findings of fact:
In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is posited
in the fourth assigned error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS
TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO
THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?


A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the
highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys
who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed
the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to
come back to our right lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming,
my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July
22, 1977); or (Exhibit "O" in these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its
speed before the actual impact of collision (sic) as you narrated in this Exhibit "1," how did you know
(sic)?
A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on
side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31,
Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:
1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped only when it
had already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing in the criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to arrive
at the scene of the accident. As a matter of fact, he brought one of the injured passengers to the hospital.
We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a passenger of the
truck, and Roman Dayrit, who supposedly lived across the street.
Regarding Soliman, experience has shown that in the ordinary course of events people usually take the side
of the person with whom they are associated at the time of the accident, because, as a general rule, they do
not wish to be identified with the person who was at fault. Thus an imaginary bond is unconsciously
created among the several persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-CR,
Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He did not
go to the succor of the injured persons. He said he wanted to call the police authorities about the mishap,
but his phone had no dial tone. Be this (sic) as it may, the trial court in the criminal case acted correctly in
refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at a safe
distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of appellants was
completely passed sub-silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the exhibits
not included in the record. According to the Table of Contents submitted by the court below, said Exhibit 2
was not submitted by defendants-appellees. In this light, it is not far-fetched to surmise that Galang's claim
that he stopped was an eleventh-hour desperate attempt to exculpate himself from imprisonment and
damages.
3. Galang divulged that he stopped after seeing the car about 10 meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that inspite of the fact that you admitted that the road is straight
and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first saw that car only
about ten (10) meters away from you for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it before that
ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the impact.
At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in Galang's affidavit (Exh.
2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision on a bridge.
5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to return to his
proper lane. The police investigator, Pfc. Fernando L. Nuag, stated that he found skid marks under the
truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of
skid marks show (sic) that the truck was speeding. Since the skid marks were found under the truck and
none were found at the rear of the truck, the reasonable conclusion is that the skid marks under the truck
were caused by the truck's front wheels when the trucks (sic) suddenly stopped seconds before the mishap
in an endeavor to avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very
short distance to avoid a collision, and in his futile endeavor to avoid the collision he abruptly stepped on
his brakes but the smashup happened just the same.
For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part of the
defendants in the selection of their driver or in the supervision over him. Appellees did not allege such
defense of having exercised the duties of a good father of a family in the selection and supervision of their
employees in their answers. They did not even adduce evidence that they did in fact have methods of
selection and programs of supervision. The inattentiveness or negligence of Galang was the proximate
cause of the mishap. If Galang's attention was on the highway, he would have sighted the car earlier or at a
very safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision
was already inevitable, because at the time that he entered the bridge his attention was not riveted to the
road in front of him.
On the question of damages, the claims of appellants were amply proven, but the items must be reduced. 28
A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private
respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984, 29 reconsidered
and set aside its 29 November 1983 decision and affirmed in toto the trial court's judgment of 12 November
1980. A motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984. 30

Hence, this petition.


Petitioners allege that respondent Court:
I
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS
DECISION BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY
DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS,
WHO EXCLUSIVELY COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic),
FURTHER, IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE
RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B,
PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS, CONJECTURES
AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A
DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT
CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE
THE DRIVER OF THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING
PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFSAPPELLANTS (APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR
ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF
PRIVATE RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF
DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE
CASES.
V
. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING
THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY
TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE
ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS'
DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND
GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN
SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS
NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND
GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES

TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW


AND JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31
In the Resolution of 12 September 1984, We required private respondents to Comment on the petition. 32
After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this Court then gave due
course to the instant petitions and required petitioners to file their Brief, 35 which they accordingly
complied with.
There is merit in the petition. Before We take on the main task of dissecting the arguments and counterarguments, some observations on the procedural vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from a quasi-delict
under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No.
3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch
III of the trial court. The records do not indicate any attempt on the part of the parties, and it may therefore
be reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with the civil cases,
or vice-versa. The parties may have then believed, and understandably so, since by then no specific
provision of law or ruling of this Court expressly allowed such a consolidation, that an independent civil
action, authorized under Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases in
this case, cannot be consolidated with the criminal case. Indeed, such consolidation could have been
farthest from their minds as Article 33 itself expressly provides that the "civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence." Be that as
it may, there was then no legal impediment against such consolidation. Section 1, Rule 31 of the Rules of
Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse, prevent delays,
clear congested dockets to simplify the work of the trial court, or in short, attain justice with the least
expense to the parties litigants, 36 would have easily sustained a consolidation, thereby preventing the
unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to their respective
orientation, perception and perhaps even prejudice, the same facts differently, and thereafter rendering
conflicting decisions. Such was what happened in this case. It should not, hopefully, happen anymore. In
the recent case of Cojuangco vs. Court or Appeals, 37 this Court held that the present provisions of Rule
111 of the Revised Rules of Court allow a consolidation of an independent civil action for the recovery of
civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action
subject, however, to the condition that no final judgment has been rendered in that criminal case.
Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless
imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to
set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance to
this case.
As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in a quasi-delict
is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. And,
as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent
civil actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction,
would be entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this
Court stated:
. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in the
same manner to be filed separately from the criminal case, may proceed similarly regardless of the result of
the criminal case.
Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to
proceed independently even during the pendency of the latter case, the intention is patent to make the
court's disposition of the criminal case of no effect whatsoever on the separate civil case. This must be so
because the offenses specified in Article 33 are of such a nature, unlike other offenses not mentioned, that
they may be made the subject of a separate civil action because of the distinct separability of their
respective juridical cause or basis of action . . . .

What remains to be the most important consideration as to why the decision in the criminal case should not
be considered in this appeal is the fact that private respondents were not parties therein. It would have been
entirely different if the petitioners' cause of action was for damages arising from a delict, in which case
private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. In
the absence of any collusion, the judgment of conviction in the criminal case against Galang would have
been conclusive in the civil cases for the subsidiary liability of the private respondents. 41
And now to the merits of the petition.
It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not
respondent Court's findings in its challenged resolution are supported by evidence or are based on mere
speculations, conjectures and presumptions.
The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari
under Rule 45 of the Revised Rules of Court, only questions of law may be raised. The resolution of factual
issues is the function of the lower courts whose findings on these matters are received with respect and are,
as a rule, binding on this Court. 42
The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court of
Appeals may be set aside when such findings are not supported by the evidence or when the trial court
failed to consider the material facts which would have led to a conclusion different from what was stated in
its judgment. 43 The same is true where the appellate court's conclusions are grounded entirely on
conjectures, speculations and surmises 44 or where the conclusions of the lower courts are based on a
misapprehension of facts. 45
It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as
the findings and conclusions of the trial court and the respondent Court in its challenged resolution are not
supported by the evidence, are based on an misapprehension of facts and the inferences made therefrom are
manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the correct findings of
fact.
In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane of
the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car,
Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately
concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision.
This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car
swerved into the truck's lane because as it approached the southern end of the bridge, two (2) boys darted
across the road from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh
McKee:
Q What happened after that, as you approached the bridge?
A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the
highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys
who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed
the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to
come back to our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming,
my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. 46
Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the lane
of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril death or
injury to the two (2) boys. Such act can hardly be classified as negligent.
Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate Court, 47 thus:
. . . Negligence is the omission to do something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a
prudent and reasonable man would not do (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley
defines it, "(T)he 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." (Cooley on Torts, Fourth Edition, vol. 3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule, (W)e
held:
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
paterfamilias of the Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . Negligence is want of the care required by the circumstances. It is a relative or comparative, not an
absolute, term and its application depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is
necessary, and the failure to observe it is a want of ordinary care under the circumstances. (citing Ahern v.
Oregon Telephone Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is
manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man
would have tried to avoid running over the two boys by swerving the car away from where they were even
if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to
take particularly where the vehicle in the opposite lane would be several meters away and could very well
slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is known
as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without
time to consider the best means that may be adopted to avoid the impending danger, is not guilty of
negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better
method, unless the emergency in which he finds himself is brought about by his own negligence." 49
Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted
the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is
clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the
proximate cause of the collision. 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. 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.
50
Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the
initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths
because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was
the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the
collision had the latter heeded the emergency signals given by the former to slow down and give the car an
opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the
road, which was the proper precautionary measure under the given circumstances, the truck driver
continued at full speed towards the car. The truck driver's negligence becomes more apparent in view of the
fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in
width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to
spare. 51 Furthermore, the bridge has a level sidewalk which could have partially accommodated the truck.
Any reasonable man finding himself in the given situation would have tried to avoid the car instead of
meeting it head-on.
The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30
miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge 52 is
only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed
negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to
private respondents' claim that there was an error in the translation by the investigating officer of the truck
driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour.
The law presumes that official duty has been regularly performed; 53 unless there is proof to the contrary,
this presumption holds. In the instant case, private respondents' claim is based on mere conjecture.
The truck driver's negligence was likewise duly established through the earlier quoted testimony of
petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio Tanhueco, an
impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its
speed before the actual impact of collision as you narrated in this Exhibit "1," how did you know?
A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on
side (sic) of the highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases) (pp. 3031, Appellants' Brief) 54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A

It was moving 50 to 60 kilometers per hour, sir.

Immediately after you saw this truck, do you know what happened?

A I saw the truck and a car collided (sic), sir, and I went to the place to help the victims. (tsn. 28, April 19,
1979)
xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will you tell us if the said truck ever stopped?
A
I saw it stopped (sic) when it has (sic) already collided with the car and it was already motionless.
(tsn. 31, April 19, 1979; Emphasis Supplied). (p. 27, Appellants' Brief). 55
Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper measures and
degree of care necessary to avoid the collision which was the proximate cause of the resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear
chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will
not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care
and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the
person who had the last clear chance to avoid the mishap is considered in law solely responsible for the
consequences thereof. 56
In Bustamante vs. Court of Appeals, 57 We held:
The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the
negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears
that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences
to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance
means that even though a person's own acts may have placed him in a position of peril, and an injury
results, the injured person is entitled to recovery (sic). As the doctrine is usually stated, a person who has
the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his
opponent or that of a third person imputed to the opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165).
The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or
even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's
peril, or according to some authorities, should have been aware of it in the reasonable exercise of due care,
had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).
In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:
The doctrine of last clear chance was defined by this Court in the case of Ong v. Metropolitan Water
District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and
prudence, might have avoided injurious consequences to claimant notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but
the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable
for all the consequences of the accident notwithstanding the prior negligence of the plaintiff [Picart v.
Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware, et al. vs. Intermediate Appellate Court,
Cecilia Alferez Vda. de Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent negligence of the
defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or
proximate cause of the accident which intervenes between the accident and the more remote negligence of
the plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a
plaintiff who was guilty of prior or antecedent negligence, although it may also be raised as a defense to
defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's
negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause of
the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil
Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows
from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure.
59 Their only possible defense is that they exercised all the diligence of a good father of a family to prevent
the damage. Article 2180 reads as follows:
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.
xxx xxx xxx
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.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.
The diligence of a good father referred to means the diligence in the selection and supervision of
employees. 60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not interpose
this defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of
the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984
finds no sufficient legal and factual moorings.
In the light of recent decisions of this Court, 61 the indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3
April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is
REINSTATED, subject to the modification that the indemnity for death is increased from P12,000.00 to
P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

6. DELSAN TRANSPORT LINES, INC., petitioner,


vs.
C & A construction, inc., respondent.
Assailed in this petition for review under Rule 45 of the Revised Rules of Court are the June 14, 2002
decision1 of the Court of Appeals in CA-G.R. CV No. 59034, which reversed the decision2 of the Regional

Trial Court of Manila, Branch 46, in Civil Case No. 95-75565, and its November 7, 2002 resolution3
denying petitioners motion for reconsideration.
The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the National Housing
Authority (NHA) to construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo, Manila.4 The
project was completed in 1994 but it was not formally turned over to NHA.
On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan Transport Lines,
Inc., anchored at the Navotas Fish Port for the purpose of installing a cargo pump and clearing the cargo oil
tank. At around 12:00 midnight of October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express
received a report from his radio head operator in Japan5 that a typhoon was going to hit Manila6 in about
eight (8) hours.7 At approximately 8:35 in the morning of October 21, 1994, Capt. Jusep tried to seek
shelter at the North Harbor but could not enter the area because it was already congested.8 At 10:00 a.m.,
Capt. Jusep decided to drop anchor at the vicinity of Vitas mouth, 4 miles away from a Napocor power
barge. At that time, the waves were already reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go
full ahead to counter the wind which was dragging the ship towards the Napocor power barge. To avoid
collision, Capt. Jusep ordered a full stop of the vessel.9 He succeeded in avoiding the power barge, but
when the engine was re-started and the ship was maneuvered full astern, it hit the deflector wall constructed
by respondent.10 The damage caused by the incident amounted to P456,198.24.11
Respondent demanded payment of the damage from petitioner but the latter refused to pay. Consequently,
respondent filed a complaint for damages with the Regional Trial Court of Manila, Branch 46, which was
docketed as Civil Case No. 95-75565. In its answer, petitioner claimed that the damage was caused by a
fortuitous event.12
On February 13, 1998, the complaint filed by respondent was dismissed. The trial court ruled that petitioner
was not guilty of negligence because it had taken all the necessary precautions to avoid the accident.
Applying the "emergency rule", it absolved petitioner of liability because the latter had no opportunity to
adequately weigh the best solution to a threatening situation. It further held that even if the maneuver
chosen by petitioner was a wrong move, it cannot be held liable as the cause of the damage sustained by
respondent was typhoon "Katring", which is an act of God.13
On appeal to the Court of Appeals, the decision of the trial court was reversed and set aside.14 It found
Capt. Jusep guilty of negligence in deciding to transfer the vessel to the North Harbor only at 8:35 a.m. of
October 21, 1994 and thus held petitioner liable for damages.
Hence, petitioner filed the instant petition contending that Capt. Jusep was not negligent in waiting until
8:35 in the morning of October 21, 1994 before transferring the vessel to the North Harbor inasmuch as it
was not shown that had the transfer been made earlier, the vessel could have sought shelter.15 It further
claimed that it cannot be held vicariously liable under Article 2180 of the Civil Code because respondent
failed to allege in the complaint that petitioner was negligent in the selection and supervision of its
employees.16 Granting that Capt. Jusep was indeed guilty of negligence, petitioner is not liable because it
exercised due diligence in the selection of Capt. Jusep who is a duly licensed and competent Master
Mariner.17
The issues to be resolved in this petition are as follows (1) Whether or not Capt. Jusep was negligent; (2)
If yes, whether or not petitioner is solidarily liable under Article 2180 of the Civil Code for the quasi-delict
committed by Capt. Jusep?
Article 2176 of the Civil Code provides that 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 preexisting contractual relation between the parties, is called a quasi-delict. The test for determining the
existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged
negligent act use the reasonable care and caution which an ordinary prudent person would have used in the
same situation? If not, then he is guilty of negligence.18

In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was negligent in deciding to
transfer the vessel only at 8:35 in the morning of October 21, 1994. As early as 12:00 midnight of October
20, 1994, he received a report from his radio head operator in Japan19 that a typhoon was going to hit
Manila20 after 8 hours.21 This, notwithstanding, he did nothing, until 8:35 in the morning of October 21,
1994, when he decided to seek shelter at the North Harbor, which unfortunately was already congested. The
finding of negligence cannot be rebutted upon proof that the ship could not have sought refuge at the North
Harbor even if the transfer was done earlier. It is not the speculative success or failure of a decision that
determines the existence of negligence in the present case, but the failure to take immediate and appropriate
action under the circumstances. Capt. Jusep, despite knowledge that the typhoon was to hit Manila in 8
hours, complacently waited for the lapse of more than 8 hours thinking that the typhoon might change
direction.22 He cannot claim that he waited for the sun to rise instead of moving the vessel at midnight
immediately after receiving the report because of the difficulty of traveling at night. The hour of 8:35 a.m.
is way past sunrise. Furthermore, he did not transfer as soon as the sun rose because, according to him, it
was not very cloudy23 and there was no weather disturbance yet.24
When he ignored the weather report notwithstanding reasonable foresight of harm, Capt. Jusep showed an
inexcusable lack of care and caution which an ordinary prudent person would have observed in the same
situation.25 Had he moved the vessel earlier, he could have had greater chances of finding a space at the
North Harbor considering that the Navotas Port where they docked was very near North Harbor.26 Even if
the latter was already congested, he would still have time to seek refuge in other ports.
The trial court erred in applying the emergency rule. Under this rule, one who suddenly finds himself in a
place of danger, and is required to act without time to consider the best means that may be adopted to avoid
the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection
may appear to have been a better method, unless the danger in which he finds himself is brought about by
his own negligence.27 Clearly, the emergency rule is not applicable to the instant case because the danger
where Capt. Jusep found himself was caused by his own negligence.
Anent the second issue, we find petitioner vicariously liable for the negligent act of Capt.
Jusep.1awphi1.nt Under Article 2180 of the Civil Code an employer may be held solidarily liable for the
negligent act of his employee. Thus
Art. 2180. The obligation imposed in Article 2176 is demandable not only for ones own acts or omissions,
but also for those of persons for whom one is responsible.
xxxxxxxxx
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.
xxxxxxxxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to prevent damage.
Whenever an employees negligence causes damage or injury to another, there instantly arises a
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection
(culpa in eligiendo) or supervision (culpa in vigilando) of its employees. To avoid liability for a quasi-delict
committed by his employee, an employer must overcome the presumption by presenting convincing proof
that he exercised the care and diligence of a good father of a family in the selection and supervision of his
employee. 28
There is no question that petitioner, who is the owner/operator of M/V Delsan Express, is also the employer
of Capt. Jusep who at the time of the incident acted within the scope of his duty. The defense raised by
petitioner was that it exercised due diligence in the selection of Capt. Jusep because the latter is a licensed
and competent Master Mariner. It should be stressed, however, that the required diligence of a good father

of a family pertains not only to the selection, but also to the supervision of employees. It is not enough that
the employees chosen be competent and qualified, inasmuch as the employer is still required to exercise
due diligence in supervising its employees.
In Fabre, Jr. v. Court of Appeals,29 it was held that due diligence in supervision requires the formulation of
rules and regulations for the guidance of employees and the issuance of proper instructions as well as actual
implementation and monitoring of consistent compliance with the rules. Corollarily, in Ramos v. Court of
Appeals,30 the Court stressed that once negligence on the part of the employees is shown, the burden of
proving that he observed the diligence in the selection and supervision of its employees shifts to the
employer.
In the case at bar, however, petitioner presented no evidence that it formulated rules/guidelines for the
proper performance of functions of its employees and that it strictly implemented and monitored
compliance therewith. Failing to discharge the burden, petitioner should therefore be held liable for the
negligent act of Capt. Jusep.
So also, petitioner cannot disclaim liability on the basis of respondents failure to allege in its complaint
that the former did not exercise due diligence in the selection and supervision of its employees. In Viron
Transportation Co., Inc. v. Delos Santos,31 it was held that it is not necessary to state that petitioner was
negligent in the supervision or selection of its employees, inasmuch as its negligence is presumed by
operation of law. Allegations of negligence against the employee and that of an employer-employee relation
in the complaint are enough to make out a case of quasi-delict under Article 2180 of the Civil Code.32
Considering that petitioner did not assail the damages awarded by the trial court, we find no reason to alter
the same. The interest imposed should, however, be modified. In Eastern Shipping Lines, Inc. v. Court of
Appeals,33 it was held that the rate of interest on obligations not constituting a loan or forbearance of
money is six percent (6%) per annum. If the purchase price can be established with certainty at the time of
the filing of the complaint, the six percent (6%) interest should be computed from the date the complaint
was filed until finality of the decision. After the judgment becomes final and executory until the obligation
is satisfied, the amount due shall earn interest at 12% per year, the interim period being deemed equivalent
to a forbearance of credit.34
Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest per annum from October
3, 1995 until the finality of this decision. If the adjudged principal and the interest (or any part thereof)
remain unpaid thereafter, the interest rate shall be twelve percent (12%) per annum computed from the time
the judgment becomes final and executory until it is fully satisfied.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED.1awphi1.nt The June 14, 2002
decision of the Court of Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan Transport Lines,
Inc., to pay respondent C & A Construction, Inc., damages in the amount of P456,198.27, plus P30,000.00
as attorneys fees, is AFFIRMED with the MODIFICATION that the award of P456,198.27 shall earn
interest at the rate of 6% per annum from October 3, 1995, until finality of this decision, and 12% per
annum thereafter on the principal and interest (or any part thereof) until full payment.

7. ILOCOS NORTE ELECTRIC COMPANY, petitioner,


vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES,
VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.

Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First Division,
setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the following
dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby
defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages of
P50,000.00; exemplary damages of P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in both
instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their
respective versions of the scenario from which the disputed claims originate. The respondent Court of
Appeals (CA) summarized the evidence of the parties as follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June 29,
1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing heavy
rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the typhoon
had abated and when the floodwaters were beginning to recede the deceased Isabel Lao Juan, fondly called
Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag
City, and proceeded northward towards the direction of the Five Sisters Emporium, of which she was the
owner and proprietress, to look after the merchandise therein that might have been damaged. Wading in
waist-deep flood on Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters
Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema,
which was partly owned by the deceased. Aida and Linda walked side by side at a distance of between 5
and 6 meters behind the deceased, Suddenly, the deceased screamed "Ay" and quickly sank into the water.
The two girls attempted to help, but fear dissuaded them from doing so because on the spot where the
deceased sank they saw an electric wire dangling from a post and moving in snake-like fashion in the water.
Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go
to the deceased, but at four meters away from her he turned back shouting that the water was grounded.
Aida and Linda prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema building which was
four or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted
immediately. With his wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the City Hall of
Laoag to request the police to ask the people of defendant Ilocos Norte Electric Company or INELCO to
cut off the electric current. Then the party waded to the house on Guerrero Street. The floodwater was
receding and the lights inside the house were out indicating that the electric current had been cut off in
Guerrero. Yabes instructed his boys to fish for the body of the deceased. The body was recovered about two
meters from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power
Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain
fluctuations in their electric meter which indicated such abnormalities as grounded or short-circuited lines.
Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On the way, he saw
grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since he could
not see any INELCO lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street
by way of Guerrero. As he turned right at the intersection of Guerrero and Rizal, he saw an electric wire
about 30 meters long strung across the street "and the other end was seeming to play with the current of the
water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing no lineman
therein, he returned to the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned
of the death of Isabel Lao Juan, he passed by the house of the deceased at the corner of Guerrero and M.H.
del Pilar streets to which the body had been taken. Using the resuscitator which was a standard equipment
in his jeep and employing the skill he acquired from an in service training on resuscitation, he tried to
revive the deceased. His efforts proved futile. Rigor mortis was setting in. On the left palm of the deceased,
Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen on the way. He

told them about the grounded lines of the INELCO In the afternoon of the same day, he went on a third
inspection trip preparatory to the restoration of power. The dangling wire he saw on Guerrero early in the
morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the
deceased had been electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal Health
Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro examined the
body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical parlance, cyanotic, which
indicated death by electrocution. On the left palm, the doctor found an "electrically charged wound" (Exh.
C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on the left hand was a
burned wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr. Castro stated the
cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its officers and employees, namely,
Conrado Asis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and Julio
Agcaoili, president-manager of INELCO Through the testimonies of these witnesses, defendant sought to
prove that on and even before June 29, 1967 the electric service system of the INELCO in the whole
franchise area, including Area No. 9 which covered the residence of Antonio Yabes at No. 18 Guerrero
Street, did not suffer from any defect that might constitute a hazard to life and property. The service lines,
devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in question.
As a public service operator and in line with its business of supplying electric current to the public,
defendant had installed safety devices to prevent and avoid injuries to persons and damage to property in
case of natural calamities such as floods, typhoons, fire and others. Defendant had 12 linesmen charged
with the duty of making a round-the-clock check-up of the areas respectively assigned to them.
Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967,
putting to streets of Laoag City under water, only a few known places in Laoag were reported to have
suffered damaged electric lines, namely, at the southern approach of the Marcos Bridge which was washed
away and where the INELCO lines and posts collapsed; in the eastern part near the residence of the late
Governor Simeon Mandac; in the far north near the defendant's power plant at the corner of Segundo and
Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos Norte National
High School. Fabico Abijero, testified that in the early morning before 6 o'clock on June 29, 1967 he
passed by the intersection of Rizal and Guerrero Streets to switch off the street lights in Area No. 9. He did
not see any cut or broken wires in or near the vicinity. What he saw were many people fishing out the body
of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased
could not have died of electrocution Substantially, the testimony of the doctor is as follows: Without an
autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert, can speculate as to the real
cause of death. Cyanosis could not have been found in the body of the deceased three hours after her death,
because cyanosis which means lack of oxygen circulating in the blood and rendering the color of the skin
purplish, appears only in a live person. The presence of the elongated burn in the left palm of the deceased
(Exhibits C-1 and C-2) is not sufficient to establish her death by electrocution; since burns caused by
electricity are more or less round in shape and with points of entry and exit. Had the deceased held the
lethal wire for a long time, the laceration in her palm would have been bigger and the injury more massive.
(CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased
with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo), petitioner
advanced the theory, as a special defense, that the deceased could have died simply either by drowning or
by electrocution due to negligence attributable only to herself and not to petitioner. In this regard, it was
pointed out that the deceased, without petitioner's knowledge, caused the installation of a burglar deterrent
by connecting a wire from the main house to the iron gate and fence of steel matting, thus, charging the
latter with electric current whenever the switch is on. Petitioner then conjectures that the switch to said
burglar deterrent must have been left on, hence, causing the deceased's electrocution when she tried to open
her gate that early morning of June 29, 1967. After due trial, the CFI found the facts in favor of petitioner

and dismissed the complaint but awarded to the latter P25,000 in moral damages and attorney's fees of
P45,000. An appeal was filed with the CA which issued the controverted decision.
In this petition for review the petitioner assigns the following errors committed by the respondent CA:
1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the purely
hearsay alleged declarations of Ernesto de la Cruz as part of the res gestae.
2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the
strong typhoon "Gening" which struck Laoag City and Ilocos Norte on June 29, 1967 and the flood and
deluge it brought in its wake were not fortuitous events and did not exonerate petitioner-company from
liability for the death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal
principle of "assumption of risk" in the present case to bar private respondents from collecting damages
from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused its discretion in completely reversing the
findings of fact of the trial court.
5. The findings of fact of the respondent Court of Appeals are reversible under the recognized exceptions.
6. The trial court did not err in awarding moral damages and attorney's fees to defendant corporation, now
petitioner company.
7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao
Juan, the damages granted by respondent Court of Appeals are improper and exhorbitant. (Petitioners
Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2) whether
or not petitioner may be held liable for the deceased's death; and (3) whether or not the respondent CA's
substitution of the trial court's factual findings for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative. By a
preponderance of evidence, private respondents were able to show that the deceased died of electrocution, a
conclusion which can be primarily derived from the photographed burnt wounds (Exhibits "C", "C-1", "C2") on the left palm of the former. Such wounds undoubtedly point to the fact that the deceased had
clutched a live wire of the petitioner. This was corroborated by the testimony of Dr. Jovencio Castro who
actually examined the body of the deceased a few hours after the death and described the said burnt wounds
as a "first degree burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102,
TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong added that
after the deceased screamed "Ay" and sank into the water, they tried to render some help but were
overcome with fear by the sight of an electric wire dangling from an electric post, moving in the water in a
snake-like fashion (supra). The foregoing therefore justifies the respondent CA in concluding that "(t)he
nature of the wounds as described by the witnesses who saw them can lead to no other conclusion than that
they were "burns," and there was nothing else in the street where the victim was wading thru which could
cause a burn except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if
such was really the case when she tried to open her steel gate, which was electrically charged by an electric
wire she herself caused to install to serve as a burglar deterrent. Petitioner suggests that the switch to said
burglar alarm was left on. But this is mere speculation, not backed up with evidence. As required by the
Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA
significantly noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23,
Rollo).

Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during that
fateful morning of June 29, 1967. This Court has not been offered any sufficient reason to discredit the
testimonies of these two young ladies. They were one in the affirmation that the deceased, while wading in
the waist-deep flood on Guerrero Street five or six meters ahead of them, suddenly screamed "Ay" and
quickly sank into the water. When they approached the deceased to help, they were stopped by the sight of
an electric wire dangling from a post and moving in snake-like fashion in the water. Ernesto dela Cruz also
tried to approach the deceased, but he turned back shouting that the water was grounded. These bits of
evidence carry much weight. For the subject of the testimonies was a startling occurrence, and the
declarations may be considered part of the res gestae. (CA Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be present: (1) that the
principal act, the res gestae, be a startling occurrence; (2) that the statements were made before the
declarant had time to contrive or devise; (3) that the statements made must concern the occurrence in
question and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs. Balbas,
122 SCRA 959). We do not find any abuse of discretion on the CA' part in view of the satisfaction of said
requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence precisely as an exception
to the hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness" because the
statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because such natural and
spontaneous utterances are more convincing than the testimony of the same person on the stand (Mobile vs.
Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz, was not presented to testify
does not make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the said declaration
is part of the res gestae. Similarly, We considered part of the res gestae a conversation between two accused
immediately after commission of the crime as overheard by a prosecution witness (People vs. Reyes, 82
Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto de la
Cruz was not an actual witness to the instant when the deceased sank into the waist-deep water, he acted
upon the call of help of Aida Bulong and Linda Alonzo Estavillo with the knowledge of, and immediately
after, the sinking of the deceased. In fact the startling event had not yet ceased when Ernesto de la Cruz
entered the scene considering that the victim remained submerged. Under such a circumstance, it is
undeniable that a state of mind characterized by nervous excitement had been triggered in Ernesto de la
Cruz's being as anybody under the same contingency could have experienced. As such, We cannot honestly
exclude his shouts that the water was grounded from the res gestae just because he did not actually see the
sinking of the deceased nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We concede to
the submission that the statement must be one of facts rather than opinion, We cannot agree to the
proposition that the one made by him was a mere opinion. On the contrary, his shout was a translation of an
actuality as perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private
respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the application
of said Rule as against a party to a case, it is necessary that the evidence alleged to be suppressed is
available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The presumption does
not operate if the evidence in question is equally available to both parties (StaplesHowe Printing Co. vs.
Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that petitioner could have called Ernesto de
la Cruz to the witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel
when she testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)

The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la Cruz
which, if truly adverse to private respondent, would have helped its case. However, due to reasons known
only to petitioner, the opportunity was not taken.
Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent CA
acted correctly in disposing the argument that petitioner be exonerated from liability since typhoons and
floods are fortuitous events. While it is true that typhoons and floods are considered Acts of God for which
no person may be held responsible, it was not said eventuality which directly caused the victim's death. It
was through the intervention of petitioner's negligence that death took place. We subscribe to the
conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the electrocution and consequent death of
the late Isabel Lao Juan, defendant called to the witness-stand its electrical engineer, chief lineman, and
lineman to show exercise of extraordinary diligence and to negate the charge of negligence. The witnesses
testified in a general way about their duties and the measures which defendant usually adopts to prevent
hazards to life and limb. From these testimonies, the lower court found "that the electric lines and other
equipment of defendant corporation were properly maintained by a well-trained team of lineman,
technicians and engineers working around the clock to insure that these equipments were in excellent
condition at all times." (P. 40, Record on Appeal) The finding of the lower court, however, was based on
what the defendant's employees were supposed to do, not on what they actually did or failed to do on the
date in question, and not on the occasion of the emergency situation brought about by the typhoon.
The lower court made a mistake in assuming that defendant's employees worked around the clock during
the occurrence of the typhoon on the night of June 28 and until the early morning of June 29, 1967, Engr.
Antonio Juan of the National Power Corporation affirmed that when he first set out on an inspection trip
between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected electric lines of the
defendant but he saw no INELCO lineman. The INELCO Office at the Life theatre on Rizal Street was still
closed. (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the finding of the lower
court. Conrado Asis, defendant's electrical engineer, testified that he conducted a general inspection of the
franchise area of the INELCO only on June 30, 1967, the day following the typhoon. The reason he gave
for the delay was that all their vehicles were submerged. (p. 337, TSN, July 20, 1973) According to Asis, he
arrived at his office at 8:00 A.M. on June 30 and after briefing his men on what to do they started out. (p.
338, lbid) One or two days after the typhoon, the INELCO people heard "rumors that someone was
electrocuted" so he sent one of his men to the place but his man reported back that there was no damaged
wire. (p. 385, Id.) Loreto Abijero, chief lineman of defendant, corroborated Engr. Juan. He testified that at
about 8:00 A.M. on June 29, 1967 Engr. Juan came to the INELCO plant and asked the INELCO people to
inspect their lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00 noon. (pp.
460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29,
1967 the typhoon ceased. At that time, he was at the main building of the Divine Word College of Laoag
where he had taken his family for refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the early
hours of June 29, 1967, extraordinary diligence requires a supplier of electricity to be in constant vigil to
prevent or avoid any probable incident that might imperil life or limb. The evidence does not show that
defendant did that. On the contrary, evidence discloses that there were no men (linemen or otherwise)
policing the area, nor even manning its office. (CA Decision, pp. 24-25, Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is done to
the general public"... considering that electricity is an agency, subtle and deadly, the measure of care
required of electric companies must be commensurate with or proportionate to the danger. The duty of
exercising this high degree of diligence and care extends to every place where persons have a right to be"
(Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been shown, it may not
now absolve itself from liability by arguing that the victim's death was solely due to a fortuitous event.
"When an act of God combines or concurs with the negligence of the defendant to produce an injury, the

defendant is liable if the injury would not have resulted but for his own negligent conduct or omission" (38
Am. Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case at
bar. It is imperative to note the surrounding circumstances which impelled the deceased to leave the
comforts of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN, p. 5,
26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by the former
two, were on their way to the latter's grocery store "to see to it that the goods were not flooded." As such,
shall We punish her for exercising her right to protect her property from the floods by imputing upon her
the unfavorable presumption that she assumed the risk of personal injury? Definitely not. For it has been
held that a person is excused from the force of the rule, that when he voluntarily assents to a known danger
he must abide by the consequences, if an emergency is found to exist or if the life or property of another is
in peril (65A C.S.C. Negligence(174(5), p. 301), or when he seeks to rescue his endangered property
(Harper and James, "The Law of Torts." Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency
was at hand as the deceased's property, a source of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had a right to be
without regard to petitioner's consent as she was on her way to protect her merchandise. Hence, private
respondents, as heirs, may not be barred from recovering damages as a result of the death caused by
petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely reversing the trial court's
findings of fact, pointing to the testimonies of three of its employees its electrical engineer, collectorinspector, lineman, and president-manager to the effect that it had exercised the degree of diligence
required of it in keeping its electric lines free from defects that may imperil life and limb. Likewise, the
said employees of petitioner categorically disowned the fatal wires as they appear in two photographs taken
on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked to the
electric post (petitioner's Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of
the lower court ... was based on what the defendant's employees were supposed to do, not on what they
actually did or failed to do on the date in question, and not on the occasion of the emergency situation
brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by the CA, which We have
already reiterated above, petitioner was in fact negligent. In a like manner, petitioner's denial of ownership
of the several wires cannot stand the logical conclusion reached by the CA when it held that "(t)he nature of
the wounds as described by the witnesses who saw them can lead to no other conclusion than that they were
'burns', and there was nothing else in the street where the victim was wading thru which could cause a burn
except the dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover and
repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer Antonio Juan of
the National Power Corporation set out in the early morning of June 29, 1967 on an inspection tour, he saw
grounded and disconnected lines hanging from posts to the ground but did not see any INELCO lineman
either in the streets or at the INELCO office (vide, CA Decision, supra). The foregoing shows that
petitioner's duty to exercise extraordinary diligence under the circumstance was not observed, confirming
the negligence of petitioner. To aggravate matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about the impending typhoon, through
radio announcements. Even the fire department of the city announced the coming of the big flood. (pp. 532534, TSN, March 13, 1975) At the INELCO irregularities in the flow of electric current were noted because
"amperes of the switch volts were moving". And yet, despite these danger signals, INELCO had to wait for
Engr. Juan to request that defendant's switch be cut off but the harm was done. Asked why the delay, Loreto
Abijero answered that he "was not the machine tender of the electric plant to switch off the current." (pp.
467-468, Ibid.) How very characteristic of gross inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's findings
but tediously considered the factual circumstances at hand pursuant to its power to review questions of fact
raised from the decision of the Regional Trial Court, formerly the Court of First Instance (see sec. 9, BP
129).

In considering the liability of petitioner, the respondent CA awarded the following in private respondent's
favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and P18,229.45 for funeral
expenses); P50,000 in compensatory damages, computed in accordance with the formula set in the VillaRey Transit case (31 SCRA 511) with the base of P15,000 as average annual income of the deceased;
P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the award of P12,000
as compensation for the victim's death, We affirm the respondent CA's award for damages and attorney's
fees. Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya, 147 SCRA
381), We increase the said award of P12,000 to P30,000, thus, increasing the total actual damages to
P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was properly made by the
respondent CA, the charge of malice and bad faith on the part of respondents in instituting his case being a
mere product of wishful thinking and speculation. Award of damages and attorney's fees is unwarranted
where the action was filed in good faith; there should be no penalty on the right to litigate (Espiritu vs. CA,
137 SCRA 50). If damage results from a person's exercising his legal rights, it is damnum absque injuria
(Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight modification that actual
damages be increased to P48,229.45 is hereby AFFIRMED.
8. AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of
P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability
the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the
Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from
the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the
defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He
continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to
him that the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up
against the railing on the right side of the bridge instead of going to the left. He says that the reason he did
this was that he thought he did not have sufficient time to get over to the other side. The bridge is shown to
have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant
guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant
assumed that the horseman would move to the other side. The pony had not as yet exhibited fright, and the
rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant,
instead of veering to the right while yet some distance away or slowing down, continued to approach
directly toward the horse without diminution of speed. When he had gotten quite near, there being then no
possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to
the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became frightened and turned its body
across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by
the flange of the car and the limb was broken. The horse fell and its rider was thrown off with some
violence. From the evidence adduced in the case we believe that when the accident occurred the free space

where the pony stood between the automobile and the railing of the bridge was probably less than one and
one half meters. As a result of its injuries the horse died. The plaintiff received contusions which caused
temporary unconsciousness and required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the manner
above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done;
and we are of the opinion that he is so liable. As the defendant started across the bridge, he had the right to
assume that the horse and the rider would pass over to the proper side; but as he moved toward the center of
the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment have
perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature
of things this change of situation occurred while the automobile was yet some distance away; and from this
moment it was not longer within the power of the plaintiff to escape being run down by going to a place of
greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take
the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of
doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived
into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he
might get exited and jump under the conditions which here confronted him. When the defendant exposed
the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use that person would have used in the same situation?
If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a
given case is not determined by reference to the personal judgment of the actor in the situation before him.
The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence
and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course
be always determined in the light of human experience and in view of the facts involved in the particular
case. Abstract speculations cannot here be of much value but this much can be profitably said: Reasonable
men govern their conduct by the circumstances which are before them or known to them. They are not, and
are not supposed to be, omniscient of the future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions
to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of
this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper
criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another
was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established. A prudent man, placed in the position of the defendant, would in our opinion, have recognized
that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the
horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed
on the defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant
was also negligent; and in such case the problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval.
Under these circumstances the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of
the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be
mentioned in this connection. This Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be received in evidence to reduce the damages
which would otherwise have been assessed wholly against the other party. The defendant company had
there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to
the company's yards located not far away. The rails were conveyed upon cars which were hauled along a
narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of
the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off;
and the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the
effects of the typhoon which had dislodged one of the supports of the track. The court found that the
defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car
instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason
of its negligence in having failed to keep the track in proper repair nevertheless the amount of the damages
should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a case like the one now before us, where the
defendant was actually present and operating the automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage
according to the degree of their relative fault. It is enough to say that the negligence of the defendant was in
this case the immediate and determining cause of the accident and that the antecedent negligence of the
plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the court of a
justice of the peace. In this connection it appears that soon after the accident in question occurred, the
plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the defendant
with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was
discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the
defendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res
adjudicata upon the question of his civil liability arising from negligence -- a point upon which it is
unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal
proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil.
Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and judgment is
her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of
other instances. The sum here awarded is estimated to include the value of the horse, medical expenses of
the plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the
date of this recovery. The other damages claimed by the plaintiff are remote or otherwise of such character
as not to be recoverable. So ordered.

Separate Opinions
MALCOLM, J., concurring:
After mature deliberation, I have finally decided to concur with the judgment in this case. I do so because
of my understanding of the "last clear chance" rule of the law of negligence as particularly applied to
automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is concurrent with
that of the defendant. Again, if a traveler when he reaches the point of collision is in a situation to extricate

himself and avoid injury, his negligence at that point will prevent a recovery. But Justice Street finds as a
fact that the negligent act of the interval of time, and that at the moment the plaintiff had no opportunity to
avoid the accident. Consequently, the "last clear chance" rule is applicable. In other words, when a traveler
has reached a point where he cannot extricate himself and vigilance on his part will not avert the injury, his
negligence in reaching that position becomes the condition and not the proximate cause of the injury and
will not preclude a recovery. (Note especially Aiken vs. Metcalf [1917], 102 Atl., 330.)

9. MERCURY DRUG CORPORATION, Petitioner,


vs.
SEBASTIAN M. BAKING, Respondent.
For our resolution is the instant Petition for Review on Certiorari1 assailing the Decision2 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 respondents 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. Sys 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 attorneys fees and litigation expenses;
3. plus % 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
respondents accident; and
2. Whether the award of moral damages, attorneys 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, petitioners 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.41awphi1.nt
Petitioner contends that the proximate cause of the accident was respondents 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 petitioners employee been careful in reading Dr.
Sys 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 ones own acts or
omissions, but also for those of persons for whom one is responsible.
xxx
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.
xxx
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 defendants wrongful act or omission is the proximate cause of the plaintiffs 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
petitioners 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 to P50,000.00 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.1awphi1.nt
On the matter of attorneys 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 courts 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 attorneys fees and litigation expenses should be deleted. Well-enshrined is that "an
award for attorneys fees must be stated in the text of the courts 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 attorneys fees and
litigation expenses is deleted.
10. ALEKO E. LILIUS, ET AL., plaintiffs-appellants,
vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the
plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the
dispositive part of which reads as follows:
Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the purposes
above stated, the total amount of P30,865, with the costs of the suit. And although the suit brought by the
plaintiffs has the nature of a joint action, it must be understood that of the amount adjudicated to the said
plaintiffs in this judgment, the sum of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the
sum of P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan
Hospital, Province of Laguna, and the balance to the plaintiff Aleko E. Lilius.
In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors committed
by the trial court in its said judgment, which will be discussed in the course of this decision.
As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as
committed by the same court a quo in its judgment in question, which will be discussed later.
This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein
alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for
material and moral damages suffered by them through the fault and negligence of the said defendant
entity's employees, the sum of P50,000 plus legal interest thereon from the date of the filing of the
complaint, with costs.
The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation
thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his
wife and coplaintiff, negligently and recklessly drove his car, and prays that it be absolved from the
complaint.
The following facts have been proven at the trial, some without question and the others by a preponderance
of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and
photographer. At the time of the collision in question, he was a staff correspondent in the Far East of the
magazines The American Weekly of New York and The Sphere of London.
Some of his works have been translated into various languages. He had others in preparation when the
accident occurred. According to him, his writings netted him a monthly income of P1,500. He utilized the

linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into English, German,
and Swedish. Furthermore, she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4year old daughter Brita Marianne Lilius, left Manila in their Studebaker car driven by the said plaintiff
Aleko E. Lilius for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the
first time that he made said trip although he had already been to many places, driving his own car, in and
outside the Philippines. Where the road was clear and unobstructed, the plaintiff drove at the rate of from
19 to 25 miles an hour. Prior thereto, he had made the trip as far as Calauan, but never from Calauan to
Pagsanjan, via Dayap. He was entirely unacquainted with the conditions of the road at said points and had
no knowledge of the existence of a railroad crossing at Dayap. Before reaching the crossing in question,
there was nothing to indicate its existence and inasmuch as there were many houses, shrubs and trees along
the road, it was impossible to see an approaching train. At about seven or eight meters from the crossing,
coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several people,
who seemed to have alighted from the said truck, were walking on the opposite side. He slowed down to
about 12 miles an hour and sounded his horn for the people to get out of the way. With his attention thus
occupied, he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a
huge black mass fling itself upon him, which turned out to be locomotive No. 713 of the defendant
company's train coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's car right
in the center. After dragging the said car a distance of about ten meters, the locomotive threw it upon a
siding. The force of the impact was so great that the plaintiff's wife and daughter were thrown from the car
and were picked up from the ground unconscious and seriously hurt. In spite of the efforts of engineer
Andres Basilio, he was unable to stop the locomotive until after it had gone about seventy meters from the
crossing.
On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where they
were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a contusion
above the left eye and a lacerated wound on the right leg, in addition to multiple contusions and scratches
on various parts of the body. As a result of the accident, the said plaintiff was highly nervous and very
easily irritated, and for several months he had great difficulty in concentrating his attention on any matter
and could not write articles nor short stories for the newspapers and magazines to which he was a
contributor, thus losing for some time his only means of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right
leg, below the knee, and received a large lacerated wound on the forehead. She underwent two surgical
operations on the left leg for the purpose of joining the fractured bones but said operations notwithstanding,
the leg in question still continues deformed. In the opinion of Dr. Waterous, the deformity is permanent in
character and as a result the plaintiff will have some difficulty in walking. The lacerated wound, which she
received on her forehead, has left a disfiguring scar.
The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the
left side of the face, in addition to fractures of both legs, above and below the knees. Her condition was
serious and, for several days, she was hovering between life and death. Due to a timely and successful
surgical operation, she survived her wounds. The lacerations received by the child have left deep scars
which will permanently disfigure her face, and because of the fractures of both legs, although now
completely cured, she will be forced to walk with some difficulty and continuous extreme care in order to
keep her balance.
Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there
anybody to warn the public of approaching trains. The flagman or switchman arrived after the collision,
coming from the station with a red flag in one hand and a green one in the other, both of which were wound
on their respective sticks. The said flagman and switchman had many times absented himself from his post
at the crossing upon the arrival of a train. The train left Bay station a little late and therefore traveled at
great speed.

Upon examination of the oral as well as of the documentary evidence which the parties presented at the
trial in support of their respective contentions, and after taking into consideration all the circumstances of
the case, this court is of the opinion that the accident was due to negligence on the part of the defendantappellant company, for not having had on that occasion any semaphore at the crossing at Dayap, to serve as
a warning to passers-by of its existence in order that they might take the necessary precautions before
crossing the railroad; and, on the part of its employees the flagman and switchman, for not having
remained at his post at the crossing in question to warn passers-by of the approaching train; the
stationmaster, for failure to send the said flagman and switchman to his post on time; and the engineer, for
not having taken the necessary precautions to avoid an accident, in view of the absence of said flagman and
switchman, by slackening his speed and continuously ringing the bell and blowing the whistle before
arriving at the crossing. Although it is probable that the defendant-appellant entity employed the diligence
of a good father of a family in selecting its aforesaid employees, however, it did not employ such diligence
in supervising their work and the discharge of their duties because, otherwise, it would have had a
semaphore or sign at the crossing and, on previous occasions as well as on the night in question, the
flagman and switchman would have always been at his post at the crossing upon the arrival of a train. The
diligence of a good father of a family, which the law requires in order to avoid damage, is not confined to
the careful and prudent selection of subordinates or employees but includes inspection of their work and
supervision of the discharge of their duties.
However, in order that a victim of an accident may recover indemnity for damages from the person liable
therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary that the said
victim has not, through his own negligence, contributed to the accident, inasmuch as nobody is a guarantor
of his neighbor's personal safety and property, but everybody should look after them, employing the care
and diligence that a good father of a family should apply to his own person, to the members of his family
and to his property, in order to avoid any damage. It appears that the herein plaintiff-appellant Aleko E.
Lilius took all precautions which his skill and the presence of his wife and child suggested to him in order
that his pleasure trip might be enjoyable and have a happy ending, driving his car at a speed which
prudence demanded according to the circumstances and conditions of the road, slackening his speed in the
face of an obstacle and blowing his horn upon seeing persons on the road, in order to warn them of his
approach and request them to get out of the way, as he did when he came upon the truck parked on the left
hand side of the road seven or eight meters from the place where the accident occurred, and upon the
persons who appeared to have alighted from the said truck. If he failed to stop, look and listen before going
over the crossing, in spite of the fact that he was driving at 12 miles per hour after having been free from
obstacles, it was because, his attention having been occupied in attempting to go ahead, he did not see the
crossing in question, nor anything, nor anybody indicating its existence, as he knew nothing about it
beforehand. The first and only warning, which he received of the impending danger, was two short blows
from the whistle of the locomotive immediately preceding the collision and when the accident had already
become inevitable.
In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad
Company alone is liable for the accident by reason of its own negligence and that of its employees, for not
having employed the diligence of a good father of a family in the supervision of the said employees in the
discharge of their duties.
The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for
damages which the defendant company should pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income
of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the
trial court as indemnity for damages, is reasonable.
As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the
different items thereof representing doctor's fees, hospital and nursing services, loss of personal effects and
torn clothing, have duly been proven at the trial and the sum in question is not excessive, taking into
consideration the circumstances in which the said expenses have been incurred.

Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius
is in the language of the court, which saw her at the trial "young and beautiful and the big scar, which
she has on her forehead caused by the lacerated wound received by her from the accident, disfigures her
face and that the fracture of her left leg has caused a permanent deformity which renders it very difficult for
her to walk", and taking into further consideration her social standing, neither is the sum of P10,000,
adjudicated to her by the said trial court by way of indemnity for patrimonial and moral damages,
excessive. In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the plaintiff Narciso
Gutierrez was fractured as a result of a collision between the autobus in which he was riding and the
defendant's car, which fractured required medical attendance for a considerable period of time. On the day
of the trial the fracture had not yet completely healed but it might cause him permanent lameness. The trial
court sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000,
in spite of the fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered
any facial deformity, nor did he have the social standing that the herein plaintiff-appellant Sonja Maria
Lilius enjoys.1vvphi1.ne+
As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and
Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the lacerations
received by her have left deep scars that permanently disfigure her face and that the fractures of both her
legs permanently render it difficult for her to walk freely, continuous extreme care being necessary in order
to keep her balance in addition to the fact that all of this unfavorably and to a great extent affect her
matrimonial future.
With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E.
Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of
indemnity for damages consisting in the loss of his income as journalist and author as a result of his illness.
This question has impliedly been decided in the negative when the defendant-appellant entity's petition for
the reduction of said indemnity was denied, declaring it to be reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's
services in his business as journalist and author, which services consisted in going over his writings,
translating them into English, German and Swedish, and acting as his secretary, in addition to the fact that
such services formed part of the work whereby he realized a net monthly income of P1,500, there is no
sufficient evidence of the true value of said services nor to the effect that he needed them during her illness
and had to employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called AngloSaxon common law "consortium" of his wife, that is, "her services, society and conjugal companionship",
as a result of personal injuries which she had received from the accident now under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the provisions of
the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations
of the spouses, contained in articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations
of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with
and protect his wife. The wife must obey and live with her husband and follow him when he changes his
domicile or residence, except when he removes to a foreign country. . . .
Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife's
assistance. This assistance comprises the management of the home and the performance of household
duties, including the care and education of the children and attention to the husband upon whom primarily
devolves the duty of supporting the family of which he is the head. When the wife's mission was
circumscribed to the home, it was not difficult to assume, by virtue of the marriage alone, that she
performed all the said tasks and her physical incapacity always redounded to the husband's prejudice
inasmuch as it deprived him of her assistance. However, nowadays when women, in their desire to be more
useful to society and to the nation, are demanding greater civil rights and are aspiring to become man's

equal in all the activities of life, commercial and industrial, professional and political, many of them
spending their time outside the home, engaged in their businesses, industry, profession and within a short
time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to a
nursemaid, to public or private institutions which take charge of young children while their mothers are at
work, marriage has ceased to create the presumption that a woman complies with the duties to her husband
and children, which the law imposes upon her, and he who seeks to collect indemnity for damages resulting
from deprivation of her domestic services must prove such services. In the case under consideration, apart
from the services of his wife Sonja Maria Lilius as translator and secretary, the value of which has not been
proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the existence of domestic
services and their nature, rendered by her prior to the accident, in order that it may serve as a basis in
estimating their value.
Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal and
voluntary acts which neither of the spouses may be compelled to render (Arroyo vs. Vazquez de Arroyo, 42
Phil., 54), it is necessary for the party claiming indemnity for the loss of such services to prove that the
person obliged to render them had done so before he was injured and that he would be willing to continue
rendering them had he not been prevented from so doing.
In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad
company which has not installed a semaphore at a crossing an does not see to it that its flagman and
switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is guilty of
negligence and is civilly liable for damages suffered by a motorist and his family who cross its line without
negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity on the face and on the
left leg, suffered by a young and beautiful society woman, is not excessive; (3) that an indemnity of P5,000
for a permanent deformity on the face and legs of a four-year old girl belonging to a well-to-do family, is
not excessive; and (4) that in order that a husband may recover damages for deprivation of his wife's
assistance during her illness from an accident, it is necessary for him to prove the existence of such
assistance and his wife's willingness to continue rendering it had she not been prevented from so doing by
her illness.
The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities
adjudicated to them, from the date of the appealed judgment until this judgment becomes final, in
accordance with the provisions of section 510 of Act No. 190.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the sole
modification that interest of 6 per cent per annum from the date of the appealed judgment until this
judgment becomes final will be added to the indemnities granted, with the costs of both instances against
the appellant. So ordered.