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Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12219

March 15, 1918

AMADO PICART, plaintiff-appellant,


vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the
defendant, Frank Smith, jr., the sum of P31,000, as damages alleged to
have been caused by an automobile driven by the defendant. From a
judgment of the Court of First Instance of the Province of La Union
absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place
on December 12, 1912, on the Carlatan Bridge, at San Fernando, La
Union. It appears that upon the occasion in question the plaintiff was
riding on his pony over said bridge. Before he had gotten half way across,
the defendant approached from the opposite direction in an automobile,
going at the rate of about ten or twelve miles per hour. As the defendant
neared the bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he had taken
the bridge he gave two more successive blasts, as it appeared to him that
the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning
signals. However, being perturbed by the novelty of the apparition or the
rapidity of the approach, he pulled the pony closely up against the railing
on the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to
get over to the other side. The bridge is shown to have a length of about
75 meters and a width of 4.80 meters. As the automobile approached, the
defendant guided it toward his left, that being the proper side of the road

for the machine. In so doing the defendant assumed that the horseman
would move to the other side. The pony had not as yet exhibited fright,
and the rider had made no sign for the automobile to stop. Seeing that the
pony was apparently quiet, the defendant, instead of veering to the right
while yet some distance away or slowing down, continued to approach
directly toward the horse without diminution of speed. When he had gotten
quite near, there being then no possibility of the horse getting across to
the other side, the defendant quickly turned his car sufficiently to the right
to escape hitting the horse alongside of the railing where it as then
standing; but in so doing the automobile passed in such close proximity to
the animal that it became frightened and turned its body across the bridge
with its head toward the railing. In so doing, it as struck on the hock of the
left hind leg by the flange of the car and the limb was broken. The horse
fell and its rider was thrown off with some violence. From the evidence
adduced in the case we believe that when the accident occurred the free
space where the pony stood between the automobile and the railing of the
bridge was probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions which caused
temporary unconsciousness and required medical attention for several
days.
The question presented for decision is whether or not the defendant in
maneuvering his car in the manner above described was guilty of
negligence such as gives rise to a civil obligation to repair the damage
done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse and
the rider would pass over to the proper side; but as he moved toward the
center of the bridge it was demonstrated to his eyes that this would not be
done; and he must in a moment have perceived that it was too late for the
horse to cross with safety in front of the moving vehicle. In the nature of
things this change of situation occurred while the automobile was yet
some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of
greater safety. The control of the situation had then passed entirely to the
defendant; and it was his duty either to bring his car to an immediate stop
or, seeing that there were no other persons on the bridge, to take the
other side and pass sufficiently far away from the horse to avoid the
danger of collision. Instead of doing this, the defendant ran straight on
until he was almost upon the horse. He was, we think, deceived into doing
this by the fact that the horse had not yet exhibited fright. But in view of
the known nature of horses, there was an appreciable risk that, if the
animal in question was unacquainted with automobiles, he might get
exited and jump under the conditions which here confronted him. When

the defendant exposed the horse and rider to this danger he was, in our
opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that person would have used in the same situation? If
not, then he is guilty of negligence. The law here in effect adopts the
standard supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of negligence in a given
case is not determined by reference to the personal judgment of the actor
in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in
a given situation must of course be always determined in the light of
human experience and in view of the facts involved in the particular case.
Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and
are not supposed to be, omniscient of the future. Hence they can be
expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under
consideration, foresee harm as a result of the course actually pursued? If
so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by ignoring of the
suggestion born of this prevision, is always necessary before negligence
can be held to exist. Stated in these terms, the proper criterion for
determining the existence of negligence in a given case is this: Conduct is
said to be negligent when a prudent man in the position of the tort feasor
would have foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we
think that negligence is clearly established. A prudent man, placed in the
position of the defendant, would in our opinion, have recognized that the
course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence
of that course. Under these circumstances the law imposed on the
defendant the duty to guard against the threatened harm.

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

antecedent negligence of the plaintiff was a more remote factor in the


case.
A point of minor importance in the case is indicated in the special defense
pleaded in the defendant's answer, to the effect that the subject matter of
the action had been previously adjudicated in the court of a justice of the
peace. In this connection it appears that soon after the accident in
question occurred, the plaintiff caused criminal proceedings to be
instituted before a justice of the peace charging the defendant with the
infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the
proceedings were dismissed. Conceding that the acquittal of the defendant
at the trial upon the merits in a criminal prosecution for the offense
mentioned would be res adjudicata upon the question of his civil liability
arising from negligence -- a point upon which it is unnecessary to express
an opinion -- the action of the justice of the peace in dismissing the
criminal proceeding upon the preliminary hearing can have no effect. (See
U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court
must be reversed, and judgment is her rendered that the plaintiff recover
of the defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to
articles of his apparel, and lawful interest on the whole to the date of this
recovery. The other damages claimed by the plaintiff are remote or
otherwise of such character as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.
Johnson, J., reserves his vote.

VILLA-REAL, J.:
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.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

ALEKO E. LILIUS, ET AL., plaintiffs-appellants,


vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.

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.

Harvey and O'Brien for plaintiffs-appellants.


Jose C. Abreu for defendant-appellant.

The following facts have been proven at the trial, some without question
and the others by a preponderance of evidence, to wit:

G.R. No. L-39587

March 24, 1934

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 4-year 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 defendant-appellant 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.

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.

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

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.

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.

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 Anglo-Saxon 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.

Republic of the Philippines


SUPREME COURT
Manila
FIRST DIVISION

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.
Malcolm, Hull, Imperial, and Goddard, JJ., concur.

G.R. No. L-40570 January 30, 1976


TEODORO C. UMALI, petitioner,
vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch
IX of the Court of First Instance of Pangasinan and FIDEL H.
SAYNES, respondents.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.

ESGUERRA, J.:

Petition for certiorari to review the decision of the Court of First Instance of
Pangasinan Branch IX, in Civil Case No. U2412, entitled, "Fidel H. Saynes,
plaintiff-appellee versus Teodoro C. Umali, defendant-appellant", which
found the death by electrocution of Manuel Saynes, a boy of 3 years and 8
months, as "due to the fault or negligence of the defendant (Umali) as
owner and manager of the Alcala Electric Plant", although the liability of
defendant is mitigated by the contributory negligence of the parents of the
boy "in not providing for the proper and delegate supervision and control
over their son The dispositive part of the decision reads as follows:
Wherefore, the Court hereby renders judgment in favor of
the plaintiff by ordering the defendant to pay to the
plaintiff the sum of Five Thousand Pesos (P5,000.00) for
the death of his son, Manuel Saynes; the sum of One
Thousand Two Hundred Pesos (P1,200.00) for actual
expenses for and in connection with the burial of said
deceased child, and the further sum of Three Thousand
Pesos (P3,000.00) for moral damages and Five Hundred
(P500.00) Pesos as reasonable attorney's fee, or a total of
Nine Thousand Seven Hundred (P9,700.00) Pesos, and to
pay the costs of this suit. It Is So Ordered.

then and there of the broken line and asked him to fix it,
but the latter told the barrio captain that he could not do it
but that he was going to look for the lineman to fix it.
Sometime after the barrio captain and Cipriano Baldomero
had left the place, a small boy of 3 years and 8 months old
by the name of Manuel P. Saynes, whose house is just on
the opposite side of the road, went to the place where the
broken line wire was and got in contact with it. The boy
was electrocuted and he subsequently died. It was only
after the electrocution of Manuel Saynes that the broken
wire was fixed at about 10:00 o'clock on the same morning
by the lineman of the electric plant.
Petitioner claims that he could not be liable under the concept of quasidelict or tort as owner and manager of the Alcala Electric Plant because
the proximate cause of the boy's death electrocution could not be due to
any negligence on his part, but rather to a fortuitous event-the storm that
caused the banana plants to fall and cut the electric line-pointing out the
absence of negligence on the part of his employee Cipriano Baldomero who
tried to have the line repaired and the presence of negligence of the
parents of the child in allowing him to leave his house during that time.

Undisputed facts appearing of record are:


On May 14, 1972, a storm with strong rain hit the
Municipality of Alcala Pangasinan, which started from 2:00
o'clock in the afternoon and lasted up to about midnight of
the same day. During the storm, the banana plants
standing on an elevated ground along the barrio road in
San Pedro Ili of said municipality and near the
transmission line of the Alcala Electric Plant were blown
down and fell on the electric wire. As a result, the live
electric wire was cut, one end of which was left hanging on
the electric post and the other fell to the ground under the
fallen banana plants.
On the following morning, at about 9:00 o'clock barrio
captain Luciano Bueno of San Pedro Iii who was passing by
saw the broken electric wire and so he warned the people
in the place not to go near the wire for they might get
hurt. He also saw Cipriano Baldomero, a laborer of the
Alcala Electric Plant near the place and notified him right

A careful examination of the record convinces Us that a series of


negligence on the part of defendants' employees in the Alcala Electric Plant
resulted in the death of the victim by electrocution. First, by the very
evidence of the defendant, there were big and tall banana plants at the
place of the incident standing on an elevated ground which were about 30
feet high and which were higher than the electric post supporting the
electric line, and yet the employees of the defendant who, with ordinary
foresight, could have easily seen that even in case of moderate winds the
electric line would be endangered by banana plants being blown down, did
not even take the necessary precaution to eliminate that source of danger
to the electric line. Second, even after the employees of the Alcala Electric
Plant were already aware of the possible damage the storm of May 14,
1972, could have caused their electric lines, thus becoming a possible
threat to life and property, they did not cut off from the plant the flow of
electricity along the lines, an act they could have easily done pending
inspection of the wires to see if they had been cut. Third, employee
Cipriano Baldomero was negligent on the morning of the incident because
even if he was already made aware of the live cut wire, he did not have
the foresight to realize that the same posed a danger to life and property,

and that he should have taken the necessary precaution to prevent


anybody from approaching the live wire; instead Baldomero left the
premises because what was foremost in his mind was the repair of the
line, obviously forgetting that if left unattended to it could endanger life
and property.
On defendants' argument that the proximate cause of the victim's death
could be attributed to the parents' negligence in allowing a child of tender
age to go out of the house alone, We could readily see that because of the
aforementioned series of negligence on the part of defendants' employees
resulting in a live wire lying on the premises without any visible warning of
its lethal character, anybody, even a responsible grown up or not
necessarily an innocent child, could have met the same fate that befell the
victim. It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the child,
which enabled him to leave the house alone on the morning of the incident
and go to a nearby place cut wire was very near the house (where victim
was living) where the fatal fallen wire electrocuted him, might mitigate
respondent's liability, but we cannot agree with petitioner's theory that the
parents' negligence constituted the proximate cause of the victim's death
because the real proximate cause was the fallen live wire which posed a
threat to life and property on that morning due to the series of negligence
adverted to above committed by defendants' employees and which could
have killed any other person who might by accident get into contact with
it. Stated otherwise, even if the child was allowed to leave the house
unattended due to the parents' negligence, he would not have died that
morning where it not for the cut live wire he accidentally touched.
Art. 2179 of the Civil Code provides that if the negligence of the plaintiff
(parents of the victim in this case) was only contributory, the immediate
and proximate cause of the injury being the defendants' lack of due care,
the plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded. This law may be availed of by the petitioner but
does not exempt him from liability. Petitioner's liability for injury caused by
his employees negligence is well defined in par. 4, of Article 2180 of the
Civil Code, which states:
The owner and manager 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 tile occasion of their functions.

The negligence of the employee is presumed to be the negligence of the


employer because the employer is supposed to exercise supervision over
the work of the employees. This liability of the employer is primary and
direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil.
109). In fact the proper defense for the employer to raise so that he may
escape liability is to prove that he exercised, the diligence of the good
father of the family to prevent damage not only in the selection of his
employees but also in adequately supervising them over their work. This
defense was not adequately proven as found by the trial Court, and We do
not find any sufficient reason to deviate from its finding.
Notwithstanding diligent efforts, we fail to fired any reversible error
committed by the trial Court in this case, either in its appreciation of the
evidence on questions of facts or on the interpretation and application of
laws government quasi-delicts and liabilities emanating therefrom. The
inevitable conclusion is that no error amounting to grave abuse of
discretion was committed and the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is
affirmed.
Costs against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muoz Palma and Martin, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila

The negligence imputed to defendant-appellee was thus ruled out by the


lower court, satisfactory proof to that effect, in its opinion, being lacking.
Hence this appeal direct to us, the amount sought in the concept of
damages reaching the sum of P282,065.40. An examination of the
evidence of record fails to yield a basis for a reversal of the decision
appealed from. We affirm.

EN BANC
G.R. No. L-21291

March 28, 1969

PRECIOLITA V. CORLISS, plaintiff-appellant,


vs.
THE MANILA RAILROAD CO., defendant-appellant.
Moises C. Nicomedes for plaintiff-appellant.
The Government Corporate Counsel for defendant-appellee.
FERNANDO, J.:
Youth, the threshold of life, is invariably accompanied by that euphoric
sense of well-being, and with reason. The future, bright with promise,
looms ahead. One's powers are still to be tested, but one feels ready for
whatever challenge may come his way. There is that heady atmosphere of
self-confidence, at times carried to excess. The temptation to take risks is
there, ever so often, difficult, if not impossible, to resist. There could be
then a lessening of prudence and foresight, qualities usually associated
with age. For death seems so remote and contingent an event. Such is not
always the case though, and a slip may be attended with consequences at
times unfortunate, even fatal.
Some such thought apparently was in the mind of the lower court when it
dismissed the complaint for recovery of damages filed by plaintiffappellant, Preciolita V. Corliss whose husband, the late Ralph W. Corliss,
was, at the tender age of twenty-one, the victim of a grim tragedy, when
the jeep he was driving collided with a locomotive of defendant-appellee
Manila Railroad Company, close to midnight on the evening of Feb 21,
1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of
the Clark Air Force Base. In the decision appealed from, the lower court,
after summarizing the evidence, concluded that the deceased "in his
eagerness to beat, so to speak, the oncoming locomotive, took the risk
and attempted to reach the other side, but unfortunately he became the
victim of his own miscalculation." 1

According to the decision appealed from, there is no dispute as to the


following: "In December 1956, plaintiff, 19 years of age, married Ralph W.
Corliss Jr., 21 years of age, ...; that Corliss Jr. was an air police of the
Clark Air Force Base; that at the time of the accident, he was driving the
fatal jeep; that he was then returning in said jeep, together with a P.C.
soldier, to the Base; and that Corliss Jr. died of serious burns at the Base
Hospital the next day, while the soldier sustained serious physical injuries
and burns." 2
Then came a summary of the testimony of two of the witnesses for
plaintiff-appellant. Thus: "Ronald J. Ennis, a witness of the plaintiff,
substantially declared in his deposition, ..., that at the time of the
accident, he also awaiting transportation at the entrance of Clark Field,
which was about 40 to 50 yards away from the tracks and that while there
he saw the jeep coming towards the Base. He said that said jeep slowed
down before reaching the crossing, that it made a brief stop but that it did
not stop dead stop. Elaborating, he declared that while it was slowing
down, Corliss Jr. shifted into first gear and that was what he meant by a
brief stop. He also testified that he could see the train coming from the
direction of San Fernando and that he heard a warning but that it was not
sufficient enough to avoid the accident." 3 Also: "Virgilio de la Paz, another
witness of the plaintiff, testified that on the night of February 21, 1957, he
was at the Balibago checkpoint and saw the train coming from Angeles and
a jeep going towards the direction of Clark Field. He stated that he heard
the whistle of the locomotive and saw the collision. The jeep, which caught
fire, was pushed forward. He helped the P.C. soldier. He stated that he saw
the jeep running fast and heard the tooting of the horn. It did not stop at
the railroad crossing, according to him." 4
After which reference was made to the testimony of the main witness for
defendant-appellee, Teodorico Capili, "who was at the engine at the time of
the mishap," and who "testified that before the locomotive, which had
been previously inspected and found to be in good condition approached,
the crossing, that is, about 300 meters away, he blew the siren and
repeated it in compliance with the regulations until he saw the jeep

suddenly spurt and that although the locomotive was running between 20
and 25 kilometers an hour and although he had applied the brakes, the
jeep was caught in the middle of the tracks." 5
1. The above finding as to the non-existence of negligence attributable to
defendant-appellee Manila Railroad Company comes to us encased in the
armor of what admittedly appears to be a careful judicial appraisal and
scrutiny of the evidence of record. It is thus proof against any attack
unless sustained and overwhelming. Not that it is invulnerable, but it is
likely to stand firm in the face of even the most formidable barrage.
In the more traditional terminology, the lower court judgment has in its
favor the presumption of correctness. It is entitled to great respect. After
all, the lower court had the opportunity of weighing carefully what was
testified to and apparently did not neglect it. There is no affront to justice
then if its finding be accorded acceptance subject of course the
contingency of reversal if error or errors, substantial in character, be
shown in the conclusion thus arrived at. It is a fair statement of the
governing, principle to say that the appellate function is exhausted when
there is found to be a rational basis for the result reached by the trial
court.
As was held in a 1961 decision: "We have already ruled, that when the
credibility of witnesses is the one at issue, the trial court's judgment as to
their degree of credence deserves serious consideration by this Court." 6 An
earlier expression of the same view is found in Jai-Alai Corporation v.
Ching Kiat: "After going over the record, we find no reason for rejecting
the findings of the court below. The questions raised hinge on credibility
and it is well-settled that in the absence of compelling reasons, its
determination is best left to the trial judge why had the advantage of
hearing the parties testify and observing their demeanor on the witness
stand." 7
In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in
the record suggests any arbitrary or abusive conduct on the part of the
trial judge in the formulation of the ruling. His conclusion on the matter is
sufficiently borne out by the evidence presented. We are denied, therefore,
the prerogative to disturb that finding, consonant to the time honored
tradition of the Tribunal to hold trial judges better situated to make
conclusions on questions of fact'." 8 On this ground alone we can rest the
affirmance of the judgment appealed from.lwphi1.et

2. Nor is the result different even if no such presumption were indulged


in and the matter examined as if we were exercising original and not
appellate jurisdiction. The sad and deplorable situation in which plaintiffappellant now finds herself, to the contrary notwithstanding we find no
reason for reversing the judgment of the lower court.
This action is predicated on negligence, the Civil Code making clear that
whoever by act or omission causes damage to another, there being
negligence, is under obligation to pay for the damage done. 9 Unless it
could be satisfactorily shown, therefore, that defendant-appellee was guilty
of negligence then it could not be held liable. The crucial question,
therefore, is the existence of negligence.
The above Civil Code provision, which is a reiteration of that found in the
Civil Code of Spain, formerly applicable in this jurisdiction, 10 had been
interpreted in earlier decisions. Thus, in Smith v. Cadwallader Gibson
Lumber Co.,11 Manresa was cited to the following effect "'Among the
questions most frequently raised and upon which the majority of cases
have been decided with respect to the application of this liability, are those
referring to the determination of the damage or prejudice, and to the fault
or negligence of the person responsible therefor. These are the two
indispensable factors in the obligations under discussion, for without
damage or prejudice there can be no liability, and although this element is
present no indemnity can be awarded unless arising from some person's
fault or negligence'."
Negligence was defined by us in two 1912 decisions, United States v.
Juanillo 12 and United States v. Barias. 13Cooley' formulation was quoted
with approval in both the Juanillo and Barias decisions. Thus: "Judge
Cooley in his work on Torts (3d ed.), Sec. 1324, defines negligence to be:
"The failure to observe for the protection of the interests of another person
that degree of care, precaution and vigilance which the circumstance justly
demand whereby such other person suffers injury." There was likewise a
reliance on Ahern v. Oregon Telephone Co. 14Thus: "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."

To repeat, by such a test, no negligence could be imputed to defendantappellee, and the action of plaintiff-appellee must necessary fail. The facts
being what they are, compel the conclusion that the liability sought to be
fastened on defendant-appellee had not arisen.
3. Plaintiff-appellant, in her brief, however, would seek a reversal of the
judgment appealed from on the ground that there was a failure to
appreciate the true situation. Thus the first three assigned errors are
factual in character. The third assigned error could be summarily disposed
of. It would go against the evidence to maintain the view that the whistle
was not sounded and the brakes not applied at a distance of 300 meters
before reaching the crossing.
The first two assigned errors would make much of the failure of the lower
court to hold that the crossing bars not having been put down and there
being no guard at the gate-house, there still was a duty on the part of
Corliss to stop his jeep to avoid a collision and that Teodorico Capili, who
drove the engine, was not qualified to do so at the time of the accident.
For one cannot just single out circumstance and then confidently assign to
it decisive weight and significance. Considered separately, neither of the
two above errors assigned would call for a judgment different in character.
Nor would a combination of acts allegedly impressed with negligence
suffice to alter the result. The quantum of proof required still not been
met. The alleged errors fail of their said effect. The case for plaintiffappellant, such as it had not been improved. There is no justification for
reversing the judgment of the lower court.
It cannot be stressed too much that the decisive considerations are too
variable, too dependent in the lid analysis upon a common sense estimate
of the situation as it presented itself to the parties for us to be able to say
that this or that element having been isolated, negligence is shown. The
factors that enter the judgment are too many and diverse for us to
imprison them in a formula sufficient of itself to yield the correct answer to
the multi-faceted problems the question of negligence poses. Every case
must be dependent on its facts. The circumstances indicative of lack of due
care must be judged in the light of what could reasonably be expected of
the parties. If the objective standard of prudence be met, then negligence
is ruled out.
In this particular case, it would be to show less than fidelity to the
controlling facts to impute negligence to defendant-appellee. The first
three errors assigned certainly do not call for that conclusion.

4. The fourth assigned error is deserving of a more extended treatment.


Plaintiff-appellant apparently had in mind this portion of the opinion of the
lower court: "The weight of authorities is to the effect that a railroad track
is in itself a warning or a signal of danger to those who go upon it, and
that those who, for reasons of their own, ignore such warning, do so at
their own risk and responsibility. Corliss Jr., who undoubtedly had crossed
the checkpoint frequently, if not daily, must have known that locomotive
engines and trains usually pass at that particular crossing where the
accident had taken place." 15
Her assignment of error, however, would single out not the above excerpt
from the decision appealed from but what to her is the apparent reliance
of the lower court on Mestres v. Manila Electric Railroad & Light Co. 16 and
United States v. Manlabat & Pasibi. 17 In the Manabat case, the doctrine
announced by this Court follows: "A person in control of an automobile
who crosses a railroad, even at a regular road crossing, and who does not
exercise that precaution and that control over it as to be able to stop the
same almost immediately upon the appearance of a train, is guilty of
criminal negligence, providing a collision occurs and injury results.
Considering the purposes and the general methods adopted for the
management of railroads and railroad trains, we think it is incumbent upon
one approaching a railroad crossing to use all of his faculties of seeing and
hearing. He should approach a railroad crossing cautiously and carefully.
He should look and listen and do everything that a reasonably prudent
man would do before he attempts to cross the track." The Mestres doctrine
in a suit arising from a collision between an automobile and a street car is
substantially similar. Thus: "It may be said, however, that, where a person
is nearing a street crossing toward which a car is approaching, the duty is
on the party to stop and avoid a collision who can most readily adjust
himself to the exigencies of the case, and where such person can do so
more readily, the motorman has a right to presume that such duty will be
performed."
It is true, as plaintiff-appellant would now allege that there has been a
drift away from the apparent rigid and inflexible doctrine thus set forth in
the two above cases evidenced by Lilius v. Manila Railroad Co., 18 the
controlling facts of which, however, are easily distinguishable from what
had been correctly ascertained in the present case. Such a deviation from
the earlier principle announced is not only true of this jurisdiction but also
of the United States.

This is made clear by Prosser. Speaking of a 1927 decision by Justice


Holmes, he had the following to say: "Especially noteworthy in this respect
is the attempt Mr. Justice Holmes, in Baltimore & Ohio Railway v.
Goodman, to 'lay down a standard once for all,' which would require an
automobile driver approaching a railroad crossing with an obstructed view
to stop, look and listen, and if he cannot be sure otherwise that no train is
coming to get out of the car. The basic idea behind this is sound enough: it
is by no means proper care to cross a railroad track without taking
reasonable precautions against a train, and normally such precautions will
require looking, hearing, and a stop, or at least slow speed, where the
view is obstructed." 19
Then, barely seven years later, in 1934, came Pakora v. Wabash
Railway, 20 where, according to Prosser, it being shown that "the only
effective stop must be made upon the railway tracks themselves, in a
position of obligation danger, the court disregarded any such uniform rule,
rejecting the 'get out of the car' requirement as 'an uncommon precaution,
likely to be futile and sometimes even dangerous,' and saying that the
driver need not always stop. 'Illustrations such as these,' said Mr. Justice
Cardozo 'bear witness to the need for caution in framing standards of
behavior that amount to rules of law.... Extraordinary situations may not
wisely or fairly be subjected to tests or regulations that are fitting for the
commonplace or normal." 21
What Justice Cardozo announced would merely emphasize what was set
forth earlier that each and every, case on questions of negligence is to be
decided in accordance with the peculiar circumstances that present
themselves. There can be no hard and fast rule. There must be that
observance of that degree of care, precaution, and vigilance which the
situation demands. Thus defendant-appellee acted. It is undeniable then
that no negligence can rightfully be imputed to it.
What commends itself for acceptance is this conclusion arrived at by the
lower court: "Predicated on the testimonies of the plaintiff's witnesses, on
the knowledge of the deceased and his familiarity with the setup of the
checkpoint, the existence of the tracks; and on the further fact that the
locomotive had blown its siren or whistle, which was heard by said
witnesses, it is clear that Corliss Jr. was so sufficiently warned in advance
of the oncoming train that it was incumbent upon him to avoid a possible
accident and this consisted simply in stopping his vehicle before the
crossing and allowing the train to move on. A prudent man under similar

circumstances would have acted in this manner. This, unfortunately,


Corliss, Jr. failed to do." 22
WHEREFORE, the decision of the lower court of November 29, 1962
dismissing the complaint, is affirmed. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez,
Castro, Capistrano, Teehankee and Barredo, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. No. L-32611

November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiff-appellee,


vs.
PHILIPPINE MOTORS CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.

STREET, J.:
This action was instituted in the Court of First Instance of Manila by the
Culion Ice, Fish & Electric Co., Inc., for the purpose of recovering from the
Philippine Motors Corporation the sum of P11,350, with interest and costs.
Upon hearing the cause the trial court gave judgment in favor of the
plaintiff to recover of the defendant the sum of P9,850, with interest at 6
per centum per annum from March 24,1927, the date of the filing of the
complaint, until satisfaction of the judgment, with costs. From this
judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at the time of
the incident with which we are here concerned, H.D. Cranston was the
representative of the plaintiff in the City of Manila. At the same time the
plaintiff was the registered owner of the motor schooner Gwendoline,
which was used in the fishing trade in the Philippine Islands. In January,
1925, Cranston decided, if practicable, to have the engine on
the Gwendoline changed from a gasoline consumer to a crude oil burner,
expecting thereby to effect economy in the cost of running the boat. He
therefore made known his desire to McLeod & Co., a firm dealing in
tractors, and was told by Mc Kellar, of said company, that he might make
inquiries of the Philippine Motors Corporations, which had its office on
Ongpin Street, in the City of Manila. Cranston accordingly repaired to the

office of the Philippine Motors Corporation and had a conference with C.E.
Quest, its manager, who agreed to do the job, with the understanding that
payment should be made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in business as
an automobile agency, but, under its charter, it had authority to deal in all
sorts of machinery engines and motors, as well as to build, operate, buy
and sell the same and the equipment therof. Quest, as general manager,
had full charge of the corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with Cranston,
visited the Gwendoline while it lay at anchor in the Pasig River, and the
work of effecting the change in the engine was begun and conducted
under the supervision of Quest, chiefly by a mechanic whom Quest took
with him to the boat. In this work Quest had the assistance of the
members of the crew of the Gwendoline, who had been directed by
Cranston to place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the conclusion
that the principal thing necessary to accomplish the end in view was to
install a new carburetor, and a Zenith carburetor was chosen as the one
most adapted to the purpose. After this appliance had been installed, the
engine was tried with gasoline as a fuel, supplied from the tank already in
use. The result of this experiment was satisfactory. The next problem was
to introduce into the carburetor the baser fuel, consisting of a low grade of
oil mixed with distillate. For this purpose a temporary tank to contain the
mixture was placed on deck above and at a short distance from the
compartment covering the engine. This tank was connected with the
carburetor by a piece of tubing, which was apparently not well fitted at the
point where it was connected with the tank. Owing to this fact the fuel
mixture leaked from the tank and dripped sown into the engine
compartment. The new fuel line and that already in use between the
gasoline tank and carburetor were so fixed that it was possible to change
from the gasoline fuel to the mixed fuel. The purpose of this arrangement
was to enable the operator to start the engine on gasoline and then, after
the engine had been operating for a few moments, to switch to the new
fuel supply. lawphil.net
In the course of the preliminary work upon the carburetor and its
connections, it was observed that the carburetor was flooding, and that
the gasoline, or other fuel, was trickling freely from the lower part to the
carburetor to the floor. This fact was called to Quest's attention, but he

appeared to think lightly of the matter and said that, when the engine had
gotten to running well, the flooding would disappear.
After preliminary experiments and adjustments had been made the boat
was taken out into the bay for a trial run at about 5 p.m. or a little later,
on the evening of January 30,1925. The first part of the course was
covered without any untoward development, other than he fact that the
engine stopped a few times, owing no doubt to the use of an improper
mixture of fuel. In the course of the trial Quest remained outside of the
engine compartment and occupied himself with making distillate, with a
view to ascertaining what proportion of the two elements would give best
results in the engine.
As the boat was coming in from this run, at about 7:30 p.m. and when
passing near Cavite, the engine stopped, and connection again had to be
made with the gasoline line to get a new start. After this had been done
the mechanic, or engineer, switched to the tube connecting with the new
mixture. A moment later a back fire occurred in the cylinder chamber. This
caused a flame to shoot back into the carburetor, and instantly the
carburetor and adjacent parts were covered with a mass of flames, which
the members of the crew were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and their escape was
safely effected, but theGwendoline was reduced to a mere hulk. The
salvage from, the wreck, when sold, brought only the sum of P150. The
value of the boat, before the accident occured, as the court found, was
P10,000.
A study of the testimony lead us to the conclusion that the loss of this boat
was chargeable to the negligence and lack of skill of Quest. The temporary
tank in which the mixture was prepared was apparently at too great an
elevation from the carburetor, with the result that when the fuel line was
opened, the hydrostatic pressure in the carburetor was greater than the
delicate parts of the carburetor could sustain. This was no doubt the cause
of the flooding of the carburetor; and the result was that; when the back
fire occurred, the external parts of the carburetor, already saturated with
gasoline, burst into flames, whence the fire was quickly communicated to
the highly inflammable material near-by. Ordinarily a back fire from an
engine would not be followed by any disaster, but in this case the leak
along the pipe line and the flooding of the carburetor had created a
dangerous situation, which a prudent mechanic, versed in repairs of this
nature, would have taken precautions to avoid. The back fire may have

been due either to the fact that the spark was too advanced or the fuel
improperly mixed.
In this connection it must be remembered that when a person holds
himself out as being competent to do things requiring professional skill, he
will be held liable for negligence if he fails to exhibit the care and skill of
one ordinarily skilled in the particular work which he attempts to do. The
proof shows that Quest had had ample experience in fixing the engines of
automobiles and tractors, but it does not appear that he was experienced
in the doing of similar work on boats. For this reason, possibly the dripping
of the mixture form the tank on deck and the flooding of the carburetor did
not convey to his mind an adequate impression of the danger of fire. But a
person skilled in that particular sort of work would, we think have been
sufficiently warned from those circumstances to cause him to take greater
and adequate precautions against the danger. In other words Quest did not
use the skill that would have been exhibited by one ordinarily expert in
repairing gasoline engines on boats. There was here, in our opinion, on the
part of Quest, a blameworthy antecedent inadvertence to possible harm,
and this constitutes negligence. The burning of the Gwendoline may be
said to have resulted from accident, but this accident was in no sense an
unavoidable accident. It would not have occured but for Quest's
carelessness or lack of skill. The test of liability is not whether the injury
was accidental in a sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this accident is
chargeable to lack of skill or negligence in effecting the changes which
Quest undertook to accomplish; and even supposing that our theory as to
the exact manner in which the accident occurred might appear to be in
some respects incorrect, yet the origin of the fire in not so inscrutable as
to enable us to say that it was casus fortuitus.
The trial judge seems to have proceeded on the idea that, inasmuch as
Quest had control of the Gwendolineduring the experimental run, the
defendant corporation was in the position of a bailee and that, as a
consequence, the burden of proof was on the defendant to exculpate itself
from responsibility by proving that the accident was not due to the fault of
Quest. We are unable to accede to this point of view. Certainly, Quest was
not in charge of the navigation of the boat on this trial run. His
employment contemplated the installation of new parts in the engine only,
and it seems rather strained to hold that the defendant corporation had
thereby become bailee of the boat. As a rule workmen who make repairs
on a ship in its owner's yard, or a mechanic who repairs a coach without

taking it to his shop, are not bailees, and their rights and liabilities are
determined by the general rules of law, under their contract. The true
bailee acquires possession and what is usually spoken of as special
property in the chattel bailed. As a consequence of such possession and
special property, the bailee is given a lien for his compensation. These
ideas seem to be incompatible with the situation now under consideration.
But though defendant cannot be held liable in the supposition that the
burden of proof had not been sustained by it in disproving the negligence
of its manager, we are nevertheless of the opinion that the proof shows by
a clear preponderance that the accident to the Gwendoline and the
damages resulting therefrom are chargeable to the negligence or lack of
skill of Quest.
This action was instituted about two years after the accident in question
had occured, and after Quest had ceased to be manager of the defendant
corporation and had gone back to the United States. Upon these facts, the
defendant bases the contention that the action should be considered stale.
It is sufficient reply to say that the action was brought within the period
limited by the statute of limitations and the situation is not one where the
defense of laches can be properly invoked.
It results that the judgment appealed from, awarding damages to the
plaintiff in the amount of P9,850, with interest, must be affirmed; and it is
so ordered, with costs against the appellant.
Avancea, C.J., Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ.,
concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12191

October 14, 1918

JOSE CANGCO, plaintiff-appellant,


vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.

FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff,
Jose Cangco, was in the employment of Manila Railroad Company in the
capacity of clerk, with a monthly wage of P25. He lived in the pueblo of
San Mateo, in the province of Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the company's
office in the city of Manila where he worked, he used a pass, supplied by
the company, which entitled him to ride upon the company's trains free of
charge. Upon the occasion in question, January 20, 1915, the plaintiff
arose from his seat in the second class-car where he was riding and,
making, his exit through the door, took his position upon the steps of the
coach, seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station
there is a cement platform which begins to rise with a moderate gradient
some distance away from the company's office and extends along in front
of said office for a distance sufficient to cover the length of several
coaches. As the train slowed down another passenger, named Emilio
Zuiga, also an employee of the railroad company, got off the same car,
alighting safely at the point where the platform begins to rise from the
level of the ground. When the train had proceeded a little farther the
plaintiff Jose Cangco stepped off also, but one or both of his feet came in
contact with a sack of watermelons with the result that his feet slipped
from under him and he fell violently on the platform. His body at once
rolled from the platform and was drawn under the moving car, where his
right arm was badly crushed and lacerated. It appears that after the
plaintiff alighted from the train the car moved forward possibly six meters
before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the
railroad station was lighted dimly by a single light located some distance
away, objects on the platform where the accident occurred were difficult to
discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where
the plaintiff alighted is found in the fact that it was the customary season
for harvesting these melons and a large lot had been brought to the
station for the shipment to the market. They were contained in numerous
sacks which has been piled on the platform in a row one upon another. The

testimony shows that this row of sacks was so placed of melons and the
edge of platform; and it is clear that the fall of the plaintiff was due to the
fact that his foot alighted upon one of these melons at the moment he
stepped upon the platform. His statement that he failed to see these
objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition,
and it appeared that the injuries which he had received were very serious.
He was therefore brought at once to a certain hospital in the city of Manila
where an examination was made and his arm was amputated. The result
of this operation was unsatisfactory, and the plaintiff was then carried to
another hospital where a second operation was performed and the
member was again amputated higher up near the shoulder. It appears in
evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the
process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First
Instance of the city of Manila to recover damages of the defendant
company, founding his action upon the negligence of the servants and
employees of the defendant in placing the sacks of melons upon the
platform and leaving them so placed as to be a menace to the security of
passenger alighting from the company's trains. At the hearing in the Court
of First Instance, his Honor, the trial judge, found the facts substantially as
above stated, and drew therefrom his conclusion to the effect that,
although negligence was attributable to the defendant by reason of the
fact that the sacks of melons were so placed as to obstruct passengers
passing to and from the cars, nevertheless, the plaintiff himself had failed
to use due caution in alighting from the coach and was therefore precluded
form recovering. Judgment was accordingly entered in favor of the
defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were
guilty of negligence in piling these sacks on the platform in the manner
above stated; that their presence caused the plaintiff to fall as he alighted
from the train; and that they therefore constituted an effective legal cause
of the injuries sustained by the plaintiff. It necessarily follows that the
defendant company is liable for the damage thereby occasioned unless
recovery is barred by the plaintiff's own contributory negligence. In
resolving this problem it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the defendant company and
the contributory negligence of the plaintiff should be separately examined.

It is important to note that the foundation of the legal liability of the


defendant is the contract of carriage, and that the obligation to respond for
the damage which plaintiff has suffered arises, if at all, from the breach of
that contract by reason of the failure of defendant to exercise due care in
its performance. That is to say, its liability is direct and immediate,
differing essentially, in legal viewpoint from that presumptive responsibility
for the negligence of its servants, imposed by article 1903 of the Civil
Code, which can be rebutted by proof of the exercise of due care in their
selection and supervision. Article 1903 of the Civil Code is not applicable to
obligations arising ex contractu, but only to extra-contractual obligations
or to use the technical form of expression, that article relates only
to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104
of the Civil Code, clearly points out this distinction, which was also
recognized by this Court in its decision in the case of Rakes vs. Atlantic,
Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093
Manresa clearly points out the difference between "culpa, substantive and
independent, which of itself constitutes the source of an obligation
between persons not formerly connected by any legal tie"
and culpa considered as an accident in the performance of an obligation
already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest
squarely upon the proposition that article 1903 of the Civil Code is not
applicable to acts of negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code]
are applicable are understood to be those not growing out of preexisting duties of the parties to one another. But where relations
already formed give rise to duties, whether springing from contract
or quasi-contract, then breaches of those duties are subject to
article 1101, 1103, and 1104 of the same code.
(Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the
Spanish law, is, in certain cases imposed upon employers with respect to
damages occasioned by the negligence of their employees to persons to
whom they are not bound by contract, is not based, as in the English
Common Law, upon the principle ofrespondeat superior if it were, the

master would be liable in every case and unconditionally but upon the
principle announced in article 1902 of the Civil Code, which imposes upon
all persons who by their fault or negligence, do injury to another, the
obligation of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant of the
method of managing such a vehicle, is himself guilty of an act of
negligence which makes him liable for all the consequences of his
imprudence. The obligation to make good the damage arises at the very
instant that the unskillful servant, while acting within the scope of his
employment causes the injury. The liability of the master is personal and
direct. But, if the master has not been guilty of any negligence whatever in
the selection and direction of the servant, he is not liable for the acts of
the latter, whatever done within the scope of his employment or not, if the
damage done by the servant does not amount to a breach of the contract
between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection
and control of the servant relieves the master from liability for the latter's
acts on the contrary, that proof shows that the responsibility has never
existed. As Manresa says (vol. 8, p. 68) the liability arising from extracontractual culpa is always based upon a voluntary act or omission which,
without willful intent, but by mere negligence or inattention, has caused
damage to another. A master who exercises all possible care in the
selection of his servant, taking into consideration the qualifications they
should possess for the discharge of the duties which it is his purpose to
confide to them, and directs them with equal diligence, thereby performs
his duty to third persons to whom he is bound by no contractual ties, and
he incurs no liability whatever if, by reason of the negligence of his
servants, even within the scope of their employment, such third person
suffer damage. True it is that under article 1903 of the Civil Code the law
creates a presumption that he has been negligent in the selection or
direction of his servant, but the presumption is rebuttable and yield to
proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as
found in the Porto Rico Code, has held that these articles are applicable to
cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20
Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the
case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an
action brought upon the theory of the extra-contractual liability of the

defendant to respond for the damage caused by the carelessness of his


employee while acting within the scope of his employment. The Court,
after citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury
is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on
the part of the master or employer either in selection of the
servant or employee, or in supervision over him after the selection,
or both; and (2) that that presumption is juris tantum and
not juris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care
and diligence of a good father of a family, the presumption is
overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the
notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant in
conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of
extra-contractual culpa based upon negligence, it is necessary that there
shall have been some fault attributable to the defendant personally, and
that the last paragraph of article 1903 merely establishes a rebuttable
presumption, is in complete accord with the authoritative opinion of
Manresa, who says (vol. 12, p. 611) that the liability created by article
1903 is imposed by reason of the breach of the duties inherent in the
special relations of authority or superiority existing between the person
called upon to repair the damage and the one who, by his act or omission,
was the cause of it.
On the other hand, the liability of masters and employers for the negligent
acts or omissions of their servants or agents, when such acts or omissions
cause damages which amount to the breach of a contact, is not based
upon a mere presumption of the master's negligence in their selection or
control, and proof of exercise of the utmost diligence and care in this
regard does not relieve the master of his liability for the breach of his
contract.

Every legal obligation must of necessity be extra-contractual or


contractual. Extra-contractual obligation has its source in the breach or
omission of those mutual duties which civilized society imposes upon it
members, or which arise from these relations, other than contractual, of
certain members of society to others, generally embraced in the concept
of status. The legal rights of each member of society constitute the
measure of the corresponding legal duties, mainly negative in character,
which the existence of those rights imposes upon all other members of
society. The breach of these general duties whether due to willful intent or
to mere inattention, if productive of injury, give rise to an obligation to
indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract, rests
upon the fact that in cases of non-contractual obligation it is the wrongful
or negligent act or omission itself which creates the vinculum juris,
whereas in contractual relations the vinculum exists independently of the
breach of the voluntary duty assumed by the parties when entering into
the contractual relation.
With respect to extra-contractual obligation arising from negligence,
whether of act or omission, it is competent for the legislature to elect
and our Legislature has so elected whom such an obligation is imposed
is morally culpable, or, on the contrary, for reasons of public policy, to
extend that liability, without regard to the lack of moral culpability, so as to
include responsibility for the negligence of those person who acts or
mission are imputable, by a legal fiction, to others who are in a position to
exercise an absolute or limited control over them. The legislature which
adopted our Civil Code has elected to limit extra-contractual liability
with certain well-defined exceptions to cases in which moral culpability
can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in the
selection and control of one's agents or servants, or in the control of
persons who, by reason of their status, occupy a position of dependency
with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by
contract to render service to another, is wholly different from that to which
article 1903 relates. When the sources of the obligation upon which
plaintiff's cause of action depends is a negligent act or omission, the
burden of proof rests upon plaintiff to prove the negligence if he does
not his action fails. But when the facts averred show a contractual
undertaking by defendant for the benefit of plaintiff, and it is alleged that
plaintiff has failed or refused to perform the contract, it is not necessary

for plaintiff to specify in his pleadings whether the breach of the contract is
due to willful fault or to negligence on the part of the defendant, or of his
servants or agents. Proof of the contract and of its nonperformance is
sufficientprima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual
culpa, a suing creditor should assume the burden of proof of its
existence, as the only fact upon which his action is based; while on
the contrary, in a case of negligence which presupposes the
existence of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary for him to
prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a
contract to show that the breach was due to the negligent conduct of
defendant or of his servants, even though such be in fact the actual cause
of the breach, it is obvious that proof on the part of defendant that the
negligence or omission of his servants or agents caused the breach of the
contract would not constitute a defense to the action. If the negligence of
servants or agents could be invoked as a means of discharging the liability
arising from contract, the anomalous result would be that person acting
through the medium of agents or servants in the performance of their
contracts, would be in a better position than those acting in person. If one
delivers a valuable watch to watchmaker who contract to repair it, and the
bailee, by a personal negligent act causes its destruction, he is
unquestionably liable. Would it be logical to free him from his liability for
the breach of his contract, which involves the duty to exercise due care in
the preservation of the watch, if he shows that it was his servant whose
negligence caused the injury? If such a theory could be accepted, juridical
persons would enjoy practically complete immunity from damages arising
from the breach of their contracts if caused by negligent acts as such
juridical persons can of necessity only act through agents or servants, and
it would no doubt be true in most instances that reasonable care had been
taken in selection and direction of such servants. If one delivers securities
to a banking corporation as collateral, and they are lost by reason of the
negligence of some clerk employed by the bank, would it be just and
reasonable to permit the bank to relieve itself of liability for the breach of
its contract to return the collateral upon the payment of the debt by
proving that due care had been exercised in the selection and direction of
the clerk?

This distinction between culpa aquiliana, as the source of an obligation,


and culpa contractual as a mere incident to the performance of a contract
has frequently been recognized by the supreme court of Spain.
(Sentencias of June 27, 1894; November 20, 1896; and December 13,
1896.) In the decisions of November 20, 1896, it appeared that plaintiff's
action arose ex contractu, but that defendant sought to avail himself of the
provisions of article 1902 of the Civil Code as a defense. The Spanish
Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing
obligation, by fault or negligence, such as those to which article
1902 of the Civil Code relates, but of damages caused by the
defendant's failure to carry out the undertakings imposed by the
contracts . . . .
A brief review of the earlier decision of this court involving the liability of
employers for damage done by the negligent acts of their servants will
show that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for
damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that
the owner of a carriage was not liable for the damages caused by the
negligence of his driver. In that case the court commented on the fact that
no evidence had been adduced in the trial court that the defendant had
been negligent in the employment of the driver, or that he had any
knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6
Phil. Rep., 215), the plaintiff sued the defendant for damages caused by
the loss of a barge belonging to plaintiff which was allowed to get adrift by
the negligence of defendant's servants in the course of the performance of
a contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69)
that if the "obligation of the defendant grew out of a contract made
between it and the plaintiff . . . we do not think that the provisions of
articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued
the defendant to recover damages for the personal injuries caused by the
negligence of defendant's chauffeur while driving defendant's automobile
in which defendant was riding at the time. The court found that the
damages were caused by the negligence of the driver of the automobile,

but held that the master was not liable, although he was present at the
time, saying:
. . . unless the negligent acts of the driver are continued for a
length of time as to give the owner a reasonable opportunity to
observe them and to direct the driver to desist therefrom. . . . The
act complained of must be continued in the presence of the owner
for such length of time that the owner by his acquiescence, makes
the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage &
Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion
as to the liability of the defendant upon article 1903, although the facts
disclosed that the injury complaint of by plaintiff constituted a breach of
the duty to him arising out of the contract of transportation. The express
ground of the decision in this case was that article 1903, in dealing with
the liability of a master for the negligent acts of his servants "makes the
distinction between private individuals and public enterprise;" that as to
the latter the law creates a rebuttable presumption of negligence in the
selection or direction of servants; and that in the particular case the
presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated
plaintiff's action as though founded in tort rather than as based upon the
breach of the contract of carriage, and an examination of the pleadings
and of the briefs shows that the questions of law were in fact discussed
upon this theory. Viewed from the standpoint of the defendant the
practical result must have been the same in any event. The proof disclosed
beyond doubt that the defendant's servant was grossly negligent and that
his negligence was the proximate cause of plaintiff's injury. It also
affirmatively appeared that defendant had been guilty of negligence in its
failure to exercise proper discretion in the direction of the servant.
Defendant was, therefore, liable for the injury suffered by plaintiff,
whether the breach of the duty were to be regarded as constituting culpa
aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and
69) whether negligence occurs an incident in the course of the
performance of a contractual undertaking or its itself the source of an
extra-contractual undertaking obligation, its essential characteristics are
identical. There is always an act or omission productive of damage due to
carelessness or inattention on the part of the defendant. Consequently,
when the court holds that a defendant is liable in damages for having
failed to exercise due care, either directly, or in failing to exercise proper

care in the selection and direction of his servants, the practical result is
identical in either case. Therefore, it follows that it is not to be inferred,
because the court held in the Yamada case that defendant was liable for
the damages negligently caused by its servants to a person to whom it
was bound by contract, and made reference to the fact that the defendant
was negligent in the selection and control of its servants, that in such a
case the court would have held that it would have been a good defense to
the action, if presented squarely upon the theory of the breach of the
contract, for defendant to have proved that it did in fact exercise care in
the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention
to the relative spheres of contractual and extra-contractual obligations.
The field of non- contractual obligation is much more broader than that of
contractual obligations, comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively speaking, concentric; that is
to say, the mere fact that a person is bound to another by contract does
not relieve him from extra-contractual liability to such person. When such
a contractual relation exists the obligor may break the contract under such
conditions that the same act which constitutes the source of an extracontractual obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by
implication, the duty to carry him in safety and to provide safe means of
entering and leaving its trains (civil code, article 1258). That duty, being
contractual, was direct and immediate, and its non-performance could not
be excused by proof that the fault was morally imputable to defendant's
servants.
The railroad company's defense involves the assumption that even
granting that the negligent conduct of its servants in placing an
obstruction upon the platform was a breach of its contractual obligation to
maintain safe means of approaching and leaving its trains, the direct and
proximate cause of the injury suffered by plaintiff was his own contributory
negligence in failing to wait until the train had come to a complete stop
before alighting. Under the doctrine of comparative negligence announced
in the Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant's negligence and
plaintiff's negligence merely contributed to his injury, the damages should
be apportioned. It is, therefore, important to ascertain if defendant was in
fact guilty of negligence.

It may be admitted that had plaintiff waited until the train had come to a
full stop before alighting, the particular injury suffered by him could not
have occurred. Defendant contends, and cites many authorities in support
of the contention, that it is negligence per se for a passenger to alight
from a moving train. We are not disposed to subscribe to this doctrine in
its absolute form. We are of the opinion that this proposition is too badly
stated and is at variance with the experience of every-day life. In this
particular instance, that the train was barely moving when plaintiff alighted
is shown conclusively by the fact that it came to stop within six meters
from the place where he stepped from it. Thousands of person alight from
trains under these conditions every day of the year, and sustain no injury
where the company has kept its platform free from dangerous
obstructions. There is no reason to believe that plaintiff would have
suffered any injury whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide a safe alighting
place.

As the case now before us presents itself, the only fact from which a
conclusion can be drawn to the effect that plaintiff was guilty of
contributory negligence is that he stepped off the car without being able to
discern clearly the condition of the platform and while the train was yet
slowly moving. In considering the situation thus presented, it should not
be overlooked that the plaintiff was, as we find, ignorant of the fact that
the obstruction which was caused by the sacks of melons piled on the
platform existed; and as the defendant was bound by reason of its duty as
a public carrier to afford to its passengers facilities for safe egress from its
trains, the plaintiff had a right to assume, in the absence of some
circumstance to warn him to the contrary, that the platform was clear. The
place, as we have already stated, was dark, or dimly lighted, and this also
is proof of a failure upon the part of the defendant in the performance of a
duty owing by it to the plaintiff; for if it were by any possibility concede
that it had right to pile these sacks in the path of alighting passengers, the
placing of them adequately so that their presence would be revealed.

We are of the opinion that the correct doctrine relating to this subject is
that expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as
follows:

As pertinent to the question of contributory negligence on the part of the


plaintiff in this case the following circumstances are to be noted: The
company's platform was constructed upon a level higher than that of the
roadbed and the surrounding ground. The distance from the steps of the
car to the spot where the alighting passenger would place his feet on the
platform was thus reduced, thereby decreasing the risk incident to
stepping off. The nature of the platform, constructed as it was of cement
material, also assured to the passenger a stable and even surface on
which to alight. Furthermore, the plaintiff was possessed of the vigor and
agility of young manhood, and it was by no means so risky for him to get
off while the train was yet moving as the same act would have been in an
aged or feeble person. In determining the question of contributory
negligence in performing such act that is to say, whether the passenger
acted prudently or recklessly the age, sex, and physical condition of the
passenger are circumstances necessarily affecting the safety of the
passenger, and should be considered. Women, it has been observed, as a
general rule are less capable than men of alighting with safety under such
conditions, as the nature of their wearing apparel obstructs the free
movement of the limbs. Again, it may be noted that the place was
perfectly familiar to the plaintiff as it was his daily custom to get on and of
the train at this station. There could, therefore, be no uncertainty in his
mind with regard either to the length of the step which he was required to
take or the character of the platform where he was alighting. Our
conclusion is that the conduct of the plaintiff in undertaking to alight while
the train was yet slightly under way was not characterized by imprudence
and that therefore he was not guilty of contributory negligence.

The test by which to determine whether the passenger has been


guilty of negligence in attempting to alight from a moving railway
train, is that of ordinary or reasonable care. It is to be considered
whether an ordinarily prudent person, of the age, sex and
condition of the passenger, would have acted as the passenger
acted under the circumstances disclosed by the evidence. This care
has been defined to be, not the care which may or should be used
by the prudent man generally, but the care which a man of
ordinary prudence would use under similar circumstances, to avoid
injury." (Thompson, Commentaries on Negligence, vol. 3, sec.
3010.)
Or, it we prefer to adopt the mode of exposition used by this court in
Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this; Was
there anything in the circumstances surrounding the plaintiff at the time
he alighted from the train which would have admonished a person of
average prudence that to get off the train under the conditions then
existing was dangerous? If so, the plaintiff should have desisted from
alighting; and his failure so to desist was contributory negligence.1awph!
l.net

The evidence shows that the plaintiff, at the time of the accident, was
earning P25 a month as a copyist clerk, and that the injuries he has
suffered have permanently disabled him from continuing that employment.
Defendant has not shown that any other gainful occupation is open to
plaintiff. His expectancy of life, according to the standard mortality tables,
is approximately thirty-three years. We are of the opinion that a fair
compensation for the damage suffered by him for his permanent disability
is the sum of P2,500, and that he is also entitled to recover of defendant
the additional sum of P790.25 for medical attention, hospital services, and
other incidental expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered
plaintiff for the sum of P3,290.25, and for the costs of both instances. So
ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77679 September 30, 1987
VICENTE VERGARA, petitioner,
vs.
THE COURT OF APPEALS and AMADEO AZARCON, respondents.
RESOLUTION

PADILLA, J.:
An action for damages based on quasi-delict (Art. 2176 of the Civil Code)
was filed by private respondent against petitioner. The action arose from a
vehicular accident that occurred on 5 August 1979 in Gapan, Nueva Ecija,
when Martin Belmonte, while driving a cargo truck belonging to petitioner,
rammed "head-on" the store-residence of the private respondent, causing
damages thereto which were inventoried and assessed at P53,024.22.
In his answer to the complaint, the petitioner alleged principally: "that his
driver Martin Belmonte operated said cargo truck in a very diligent (and)
careful manner; that the steering wheel refused to respond to his effort
and as a result of a blown-out tire and despite application of his brakes,
the said cargo truck hit the store-residence of plaintiff (private respondent)
and that the said accident was an act of God for which he cannot be held
liable." 1
Petitioner also filed a third party complaint against Travellers Insurance
and Surety Corporation, alleging that said cargo truck involved in the
vehicular accident, belonging to the petitioner, was insured by the third
party defendant insurance company. Petitioner asked that the latter be
ordered to pay him whatever amount he may be ordered by the court to
pay to the private respondent.
The trial court rendered judgment in favor of private respondent. Upon
appeal to the Court of Appeals, the latter court affirmed in toto the
decision of the trial court, which ordered Petitioner to pay, jointly and

severally with Travellers Insurance and Surety Corporation, to the private,


respondent the following: (a) P53,024.22 as actual damages; (b)
P10,000.00 as moral damages; (c) P10,000.00 as exemplary damages;
and (d) the sum of P5,000.00 for attorney's fees and the costs. On the
third party complaint, the insurance company was sentenced to pay to the
petitioner the following: (a) P50,000.00 for third party liability under its
comprehensive accident insurance policy; and (b) P3,000.00 for and as
attorney's fees.

ACCORDINGLY, the petition is DENIED.

Hence, this petition for review on certiorari.

Republic of the Philippines


SUPREME COURT
Manila

Petitioner's contention that the respondent court erred in finding him guilty
of fault or negligence is not tenable. It was established by competent
evidence that the requisites of a quasi-delict are present in the case at bar.
These requisites are: (1) damages to the plaintiff; (2) negligence, by act
or omission, of which defendant, or some person for whose acts he must
respond, was guilty; and (3) the connection of cause and effect between
such negligence and the damages.
It is undisputed that private respondent suffered damages as a result of an
act or omission of petitioner. The issue of whether or not this act or
omission can be considered as a "negligent" act or omission was passed
upon by the trial court. The findings of said court, affirmed by the
respondent court, which we are not prepared to now disturb, show that
the fact of occurrence of the "vehicular accident" was sufficiently
established by the policy report and the testimony of Patrolman Masiclat.
And the fact of negligence may be deduced from the surrounding
circumstances thereof. According to the police report, "the cargo truck was
travelling on the right side of the road going to Manila and then it crossed
to the center line and went to the left side of the highway; it then bumped
a tricycle; and then another bicycle; and then said cargo truck rammed the
store warehouse of the plaintiff." 2
According to the driver of the cargo truck, he applied the brakes but the
latter did not work due to mechanical defect. Contrary to the claim of the
petitioner, a mishap caused by defective brakes can not be consideration
as fortuitous in character. Certainly, the defects were curable and the
accident preventable.
Furthermore, the petitioner failed to adduce any evidence to overcome the
disputable presumption of negligence on his part in the selection and
supervision of his driver.
Based on the foregoing finding by the respondent Court that there was
negligence on the part of the petitioner, the petitioner's contention that the
respondent court erred in awarding private respondent actual, moral and
exemplary damages as well as attorney's fees and costs, is untenable.

SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

SECOND DIVISION
G.R. No. L-44748 August 29, 1986
RADIO COMMUNICATIONS OF THE PHILS., INC. (RCPI). petitioner,
vs.
COURT OF APPEALS and LORETO DIONELA, respondents.
O. Pythogoras Oliver for respondents.

PARAS, J.:
Before Us, is a Petition for Review by certiorari of the decision of the Court
of Appeals, modifying the decision of the trial court in a civil case for
recovery of damages against petitioner corporation by reducing the award
to private respondent Loreto Dionela of moral damages from P40,000 to
Pl5,000, and attorney's fees from P3,000 to P2,000.
The basis of the complaint against the defendant corporation is a telegram
sent through its Manila Office to the offended party, Loreto Dionela,
reading as follows:
176 AS JR 1215PM 9 PAID MANDALUYONG JUL 22-66
LORETO DIONELA CABANGAN LEGASPI CITY
WIRE ARRIVAL OF CHECK FER

LORETO DIONELA-CABANGAN-WIRE ARRIVAL OF CHECKPER

expedient of showing that its employees acted beyond the


scope of their assigned tasks.

115 PM

The liability of the defendant is predicated not only on


Article 33 of the Civil Code of the Philippines but on the
following articles of said Code:

SA IYO WALANG PAKINABANG DUMATING KA DIYANWALA-KANG PADALA DITO KAHIT BULBUL MO


(p. 19, Annex "A")
Plaintiff-respondent Loreto Dionela alleges that the defamatory words on
the telegram sent to him not only wounded his feelings but also caused
him undue embarrassment and affected adversely his business as well
because other people have come to know of said defamatory words.
Defendant corporation as a defense, alleges that the additional words in
Tagalog was a private joke between the sending and receiving operators
and that they were not addressed to or intended for plaintiff and therefore
did not form part of the telegram and that the Tagalog words are not
defamatory. The telegram sent through its facilities was received in its
station at Legaspi City. Nobody other than the operator manned the
teletype machine which automatically receives telegrams being
transmitted. The said telegram was detached from the machine and placed
inside a sealed envelope and delivered to plaintiff, obviously as is. The
additional words in Tagalog were never noticed and were included in the
telegram when delivered.
The trial court in finding for the plaintiff ruled as follows:
There is no question that the additional words in Tagalog
are libelous. They clearly impute a vice or defect of the
plaintiff. Whether or not they were intended for the
plaintiff, the effect on the plaintiff is the same. Any person
reading the additional words in Tagalog will naturally think
that they refer to the addressee, the plaintiff. There is no
indication from the face of the telegram that the additional
words in Tagalog were sent as a private joke between the
operators of the defendant.
The defendant is sued directly not as an employer. The
business of the defendant is to transmit telegrams. It will
open the door to frauds and allow the defendant to act
with impunity if it can escape liability by the simple

ART. 19.- Every person must, in the exercise of his rights


and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
ART. 20.-Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the
latter for the same.
There is sufficient publication of the libelous Tagalog
words. The office file of the defendant containing copies of
telegrams received are open and held together only by a
metal fastener. Moreover, they are open to view and
inspection by third parties.
It follows that the plaintiff is entitled to damages and
attorney's fees. The plaintiff is a businessman. The libelous
Tagalog words must have affected his business and social
standing in the community. The Court fixes the amount of
P40,000.00 as the reasonable amount of moral damages
and the amount of P3,000.00 as attorney's fee which the
defendant should pay the plaintiff. (pp. 15-16, Record on
Appeal)
The respondent appellate court in its assailed decision confirming the
aforegoing findings of the lower court stated:
The proximate cause, therefore, resulting in injury to
appellee, was the failure of the appellant to take the
necessary or precautionary steps to avoid the occurrence
of the humiliating incident now complained of. The
company had not imposed any safeguard against such
eventualities and this void in its operating procedure does
not speak well of its concern for their clientele's interests.
Negligence here is very patent. This negligence is
imputable to appellant and not to its employees.

The claim that there was no publication of the libelous


words in Tagalog is also without merit. The fact that a
carbon copy of the telegram was filed among other
telegrams and left to hang for the public to see, open for
inspection by a third party is sufficient publication. It would
have been otherwise perhaps had the telegram been
placed and kept in a secured place where no one may have
had a chance to read it without appellee's permission.
The additional Tagalog words at the bottom of the telegram
are, as correctly found by the lower court, libelous per se,
and from which malice may be presumed in the absence of
any showing of good intention and justifiable motive on the
part of the appellant. The law implies damages in this
instance (Quemel vs. Court of Appeals, L-22794, January
16, 1968; 22 SCRA 44). The award of P40,000.00 as moral
damages is hereby reduced to P15,000.00 and for
attorney's fees the amount of P2,000.00 is awarded. (pp.
22-23, record)
After a motion for reconsideration was denied by the appellate court,
petitioner came to Us with the following:
ASSIGNMENT OF ERRORS
I
The Honorable Court of Appeals erred in holding that
Petitioner-employer should answer directly and primarily
for the civil liability arising from the criminal act of its
employee.
II
The Honorable Court of Appeals erred in holding that there
was sufficient publication of the alleged libelous telegram
in question, as contemplated by law on libel.
III
The Honorable Court of Appeals erred in holding that the
liability of petitioner-company-employer is predicated on

Articles 19 and 20 of the Civil Code, Articles on Human


Relations.
IV
The Honorable Court of Appeals erred in awarding Atty's.
fees. (p. 4, Record)
Petitioner's contentions do not merit our consideration. The action for
damages was filed in the lower court directly against respondent
corporation not as an employer subsidiarily liable under the provisions of
Article 1161 of the New Civil Code in relation to Art. 103 of the Revised
Penal Code. The cause of action of the private respondent is based on Arts.
19 and 20 of the New Civil Code (supra). As well as on respondent's
breach of contract thru the negligence of its own employees. 1
Petitioner is a domestic corporation engaged in the business of receiving
and transmitting messages. Everytime a person transmits a message
through the facilities of the petitioner, a contract is entered into. Upon
receipt of the rate or fee fixed, the petitioner undertakes to transmit the
message accurately. There is no question that in the case at bar, libelous
matters were included in the message transmitted, without the consent or
knowledge of the sender. There is a clear case of breach of contract by the
petitioner in adding extraneous and libelous matters in the message sent
to the private respondent. As a corporation, the petitioner can act only
through its employees. Hence the acts of its employees in receiving and
transmitting messages are the acts of the petitioner. To hold that the
petitioner is not liable directly for the acts of its employees in the pursuit
of petitioner's business is to deprive the general public availing of the
services of the petitioner of an effective and adequate remedy. In most
cases, negligence must be proved in order that plaintiff may recover.
However, since negligence may be hard to substantiate in some cases, we
may apply the doctrine of RES IPSA LOQUITUR (the thing speaks for
itself), by considering the presence of facts or circumstances surrounding
the injury.
WHEREFORE, premises considered, the judgment of the appellate court is
hereby AFFIRMED.
SO ORDERED.
Feria (Chairman), Fernan, Alampay, and Gutierrez, Jr., JJ., concur.

THIRD DIVISION
[G.R. Nos. 79050-51. November 14, 1989.]
PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR
BASCOS BAESA, thru her personal guardian FRANCISCA O.
BASCOS, FE O. ICO, in her behalf and in behalf of her minor
children, namely ERWIN, OLIVE, EDMUNDO and SHARON
ICO, Respondents.
Efren N. Ambrosio & Associates for petitioner PNEI.
Emiliano S. Micu for Respondents.

SYLLABUS

1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN


APPLICABLE. The doctrine of last clear chance applies only in a situation
where the defendant, having the last fair chance to avoid the impending
harm and failed to do so, becomes liable for all the consequences of the
accident notwithstanding the prior negligence of the plaintiff.

2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. In order


that the doctrine of last clear chance may be applied, it must be shown
that the person who allegedly had the last opportunity to avert the
accident was aware of the existence of the peril or with exercise of due
care should have been aware of it.
3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY
OR BY AVAILABLE MEANS. This doctrine of last chance has no
application to a case where a person is to act instantaneously, and if the
injury cannot be avoided by using all means available after the peril is or
should have been discovered.
4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A
THROUGH HIGHWAY OR A STOP INTERSECTION. Section 43 (c), Article
III, Chapter IV of Republic Act No. 1436 cannot apply to case a bar where
at the time of the accident, the jeepney had already crossed the
intersection.
5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER.
A finding of negligence on the part of the driver establishes a presumption
that the employer has been negligent and the latter has the burden of
proof that it has exercised due negligence not only in the selection of its
employees but also in adequately supervising their work.
6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR
DAMAGES. Plaintiffs failure to present documentary evidence to support
their claim for damages for loss of earning capacity of the deceased victim
does not bar recovery of the damages, if such loss may be based
sufficiently on their testimonies.
7. ID.; ID.; INDEMNITY FIXED AT P30,000. The indemnity for the death
of a person was fixed by this Court at (P30,000.00).

DECISION

CORTES, J.:

In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the


Court to review the decision of the Court of Appeals in CA-G.R. No. 0549495 which affirmed the decisions of the Court of First Instance of Rosales,
Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R wherein
PANTRANCO was ordered to pay damages and attorneys fees to herein
private respondents.chanrobles virtual lawlibrary
The pertinent fact are as follows:chanrob1es virtual 1aw library

At about 7:00 oclock in the morning of June 12, 1981, the spouses Ceasar
and Marilyn Baesa and their children Harold Jim, Marcelino and Maricar,
together with spouses David Ico and Fe O. Ico with their son Erwin Ico and
seven other persons, were aboard a passenger jeepney on their way to a
picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding
anniversary of Ceasar and Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in the passenger jeepney
driven by David Ico, who was also the registered owner thereof. From
Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver some
viands to one Mrs. Bascos and thenceforth to San Felipe, taking the
highway going to Malalam River. Upon reaching the highway, the jeepney
turned right and proceeded to Malalam River at a speed of about 20 kph.
While they were proceeding towards Malalam River, a speeding
PANTRANCO bus from Aparri, on its regular route to Manila, encroached on
the jeepneys lane while negotiating a curve, and collided with it.
As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn
Baesa and their children, Harold Jim and Marcelino Baesa, died while the
rest of the passengers suffered injuries. The jeepney was extensively
damaged. After the accident the driver of the PANTRANCO Bus, Ambrosio
Ramirez, boarded a car and proceeded to Santiago, Isabela. From that
time on up to the present, Ramirez has never been seen and has
apparently remained in hiding.
All the victims and/or their surviving heirs except herein private
respondents settled the case amicably under the "No Fault" insurance
coverage of PANTRANCO.
Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for
herself and for her minor children, filed separate actions for damages
arising from quasi-delict against PANTRANCO, respectively docketed as
Civil Case No. 561-R and 589-R of the Court of First Instance of
Pangasinan.
In its answer, PANTRANCO, aside from pointing to the late David Icos
alleged negligence as the proximate cause of the accident, invoked the
defense of due diligence in the selection and supervision of its driver,
Ambrosio Ramirez.chanroblesvirtualawlibrary
On July 3, 1984, the CFI of Pangasinan rendered a decision against
PANTRANCO awarding the total amount of Two Million Three Hundred Four
Thousand Six Hundred Forty-Seven (P2,304,647.00) as damages, plus
10% thereof as attorneys fees and costs to Maricar Baesa in Civil Case No.
561-R, and the total amount of Six Hundred Fifty Two Thousand Six
Hundred Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof
as attorneys fees and costs to Fe Ico and her children in Civil Case No.
589-R. On appeal, the cases were consolidated and the Court of Appeals

modified the decision of the trial court by ordering PANTRANCO to pay the
total amount of One Million One Hundred Eighty-Nine Thousand Nine
Hundred Twenty Seven Pesos (P1,189,927.00) as damages, plus Twenty
Thousand Pesos (P20,000.00) as attorneys fees to Maricar Baesa, and the
total amount of Three Hundred Forty-Four Thousand Pesos (P344,000.00)
plus Ten Thousand Pesos (P10,000.00) as attorneys fees to Fe Ico and her
children, and to pay the costs in both cases. The dispositive portion of the
assailed decision reads as follows:chanrob1es virtual 1aw library
WHEREFORE, the decision appealed from is hereby modified by ordering
the defendant PANTRANCO North Express, Inc. to pay:chanrob1es virtual
1aw library
I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following
damages:chanrob1es virtual 1aw library
A) As compensatory damages for the death of Ceasar Baesa
P30,000.00;

E) For the hospitalization of Fe Ico P12,000.000;


F) And for attorneys fees P10,000.00;
and to pay the costs in both cases.
The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case
No. 561-R, and the medical expenses in the sum of P3,273.55, should be
deducted from the award in her favor.chanrobles virtual lawlibrary
All the foregoing amounts herein awarded except the costs shall earn
interest at the legal rate from date of this decision until fully paid. [CA
Decision, pp. 14-15; Rollo, pp. 57-58.]
PANTRANCO filed a motion for reconsideration of the Court of Appeals
decision, but on June 26, 1987, it denied the same for lack of merit.
PANTRANCO then filed the instant petition for review.

B) As compensatory damages for the death of Marilyn Baesa


P30,000.00;

C) As compensatory damages for the death of Harold Jim Baesa and


Marcelino Baesa P30,000.00;

Petitioner faults the Court of Appeals for not applying the doctrine of the
"last clear chance" against the jeepney driver. Petitioner claims that under
the circumstances of the case, it was the driver of the passenger jeepney
who had the last clear chance to avoid the collision and was therefore
negligent in failing to utilize with reasonable care and competence his then
existing opportunity to avoid the harm.

D) For the loss of earnings of Ceasar Baesa P630,000.00;


E) For the loss of earnings of Marilyn Bascos Baesa P375,000.00;
F) For the burial expenses of the deceased Ceasar and Marilyn Baesa
P41,200.00;
G) For hospitalization expenses of Maricar Baesa P3,727.00;
H) As moral damages P50,000.00;
I) As attorneys fees P20,000.00;
II. The plaintiffs in Civil Case No. 589-R, the following
damages:chanrob1es virtual 1aw library
A) As compensatory damages for the death of David Ico P30,000.00;
B) For loss of earning capacity of David Ico P252,000.00;
C) As moral damages for the death of David Ico and the injury of Fe Ico
P30,000.00
D) As payment for the jeepney P20,000.00;

The doctrine of the last clear chance was defined by this Court in the case
of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this
wise:chanrob1es virtual 1aw library
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 Peoples Lumber
and Hardware, Et. Al. v. 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 for damages.chanrobles lawlibrary : rednad
To avoid liability for the negligence of its driver, petitioner claims that the
original negligence of its driver was not the proximate cause of the
accident and that the sole proximate cause was the supervening
negligence of the jeepney driver David Ico in failing to avoid the accident.
It is petitioners position that even assuming arguendo, that the bus
encroached into the lane of the jeepney, the driver of the latter could have
swerved the jeepney towards the spacious dirt shoulder on his right
without danger to himself or his passengers.
The above contention of petitioner is manifestly devoid of merit.
Contrary to the petitioners contention, the doctrine of "last clear chance"
finds no application in this case. For the doctrine to be applicable, it is
necessary to show that the person who allegedly had the last opportunity
to avert the accident was aware of the existence of the peril or should,
with exercise of due care, have been aware of it. One cannot be expected
to avoid an accident or injury if he does not know or could not have known
the existence of the peril. In this case, there is nothing to show that the
jeepney driver David Ico knew of the impending danger. When he saw at a
distance that the approaching bus was encroaching on his lane, he did not
immediately swerve the jeepney to the dirt shoulder on his right since he
must have assumed that the bus driver will return the bus to its own lane
upon seeing the jeepney approaching from the opposite direction. As held
by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810,
August 31, 1970, 34 SCRA 618, a motorist who is properly proceeding on
his own side of the highway is generally entitled to assume that an
approaching vehicle coming towards him on the wrong side, will return to
his proper lane of traffic. There was nothing to indicate to David Ico that
the bus could not return to its own lane or was prevented from returning
to the proper lane by anything beyond the control of its driver. Leo
Marantan, an alternate driver of the Pantranco bus who was seated beside
the driver Ramirez at the time of the accident, testified that Ramirez had
no choice but to swerve the steering wheel to the left and encroach on the
jeepneys lane because there was a steep precipice on the right [CA
Decision, p. 2; Rollo, p. 45]. However, this is belied by the evidence on
record which clearly shows that there was enough space to swerve the bus
back to its own lane without any danger [CA Decision, p. 7; Rollo, p. 50].
Moreover, both the trial court and the Court of Appeals found that at the
time of the accident the Pantranco bus was speeding towards Manila [CA
Decision, p. 2; Rollo, p. 45]. By the time David Ico must have realized that

the bus was not returning to its own lane, it was already too late to swerve
the jeepney to his right to prevent an accident. The speed at which the
approaching bus was running prevented David Ico from swerving the
jeepney to the right shoulder of the road in time to avoid the collision.
Thus, even assuming that the jeepney driver perceived the danger a few
seconds before the actual collision, he had no opportunity to avoid it. This
Court has held that the last clear chance doctrine "can never apply where
the party charged is required to act instantaneously, and if the injury
cannot be avoided by the application of all means at hand after the peril is
or should have been discovered" [Ong v. Metropolitan Water District,
supra].chanrobles.com : virtual law library
Petitioner likewise insists that David Ico was negligent in failing to observe
Section 43 (c), Article III Chapter IV of Republic Act No. 4136 * which
provides that the driver of a vehicle entering a through highway or a stop
intersection shall yield the right of way to all vehicles approaching in either
direction on such through highway.
Petitioners misplaced reliance on the aforesaid law is readily apparent in
this case. The cited law itself provides that it applies only to vehicles
entering a through highway or a stop intersection. At the time of the
accident, the jeepney had already crossed the intersection and was on its
way to Malalam River. Petitioner itself cited Fe Icos testimony that the
accident occurred after the jeepney had travelled a distance of about two
(2) meters from the point of intersection [Petition p. 10; Rollo, p. 27]. In
fact, even the witness for the petitioner, Leo Marantan, testified that both
vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p.
50], clearly indicating that the jeepney had already crossed the
intersection.
Considering the foregoing, the Court finds that the negligence of
petitioners driver in encroaching into the lane of the incoming jeepney and
in failing to return the bus to its own lane immediately upon seeing the
jeepney coming from the opposite direction was the sole and proximate
cause of the accident without which the collision would not have occurred.
There was no supervening or intervening negligence on the part of the
jeepney driver which would have made the prior negligence of petitioners
driver a mere remote cause of the accident.
II
On the issue of its liability as an employer, petitioner claims that it had
observed the diligence of a good father of a family to prevent damage,
conformably to the last paragraph of Article 2180 of the Civil Code.
Petitioner adduced evidence to show that in hiring its drivers, the latter are
required to have professional drivers license and police clearance. The
drivers must also pass written examinations, interviews and practical
driving tests, and are required to undergo a six-month training period.

Rodrigo San Pedro, petitioners Training Coordinator, testified on


petitioners policy of conducting regular and continuing training programs
and safety seminars for its drivers, conductors, inspectors and supervisors
at a frequency rate of at least two (2) seminars a month.
On this point, the Court quotes with approval the following findings of the
trial court which was adopted by the Court of Appeals in its challenged
decision:chanrob1es virtual 1aw library
When an injury is caused by the negligence of an employee, there
instantly arises a presumption that the employer has been negligent either
in the selection of his employees or in the supervision over their acts.
Although this presumption is only a disputable presumption which could be
overcome by proof of diligence of a good father of a family, this Court
believes that the evidence submitted by the defendant to show that it
exercised the diligence of a good father of a family in the case of Ramirez,
as a company driver is far from sufficient. No support evidence has been
adduced. The professional drivers license of Ramirez has not been
produced. There is no proof that he is between 25 to 38 years old. There is
also no proof as to his educational attainment, his age, his weight and the
fact that he is married or not. Neither are the result of the written test,
psychological and physical test, among other tests, have been submitted in
evidence [sic]. His NBI or police clearances and clearances from previous
employment were not marked in evidence. No evidence was presented
that Ramirez actually and really attended the seminars. Vital evidence
should have been the certificate of attendance or certificate of participation
or evidence of such participation like a logbook signed by the trainees
when they attended the seminars. If such records are not available, the
testimony of the classmates that Ramirez was their classmate in said
seminar (should have been presented) [CA Decision, pp. 8-9; Rollo, pp.
51-52].chanrobles law library
Petitioner contends that the fact that Ambrosio Ramirez was employed and
remained as its driver only means that he underwent the same rigid
selection process and was subjected to the same strict supervision
imposed by petitioner on all applicants and employees. It is argued by the
petitioner that unless proven otherwise, it is presumed that petitioner
observed its usual recruitment procedure and company polices on safety
and efficiency

The Court finds the above contention unmeritorious.


The finding of negligence on the part of its driver Ambrosio Ramirez gave
rise to the presumption of negligence on the part of petitioner and the
burden of proving that it exercised due diligence not only in the selection
of its employees but also in adequately supervising their work rests with
the petitioner [Lilius v. Manila Railroad Company, 59 Phil. 758 (1934);
Umali v. Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623]. Contrary

to petitioners claim, there is no presumption that the usual recruitment


procedures and safety standards were observed. The mere issuance of
rules and regulations and the formulation of various company policies on
safety, without showing that they are being complied with, are not
sufficient to exempt petitioner from liability arising from the negligence of
its employee. It is incumbent upon petitioner to show that in recruiting and
employing the erring driver, the recruitment procedures and company
policies on efficiency and safety were followed. Petitioner failed to do this.
Hence, the Court finds no cogent reason to disturb the finding of both the
trial court and the Court of Appeals that the evidence presented by the
petitioner, which consists mainly of the uncorroborated testimony of its
Training Coordinator, is insufficient to overcome the presumption of
negligence against petitioner.cralawnad
III
On the question of damages, petitioner claims that the Court of Appeals
erred in fixing the damages for the loss of earning capacity of the
deceased victims. Petitioner assails respondent courts findings because no
documentary evidence in support thereof, such as income tax returns,
pay-rolls, pay slips or invoices obtained in the usual course of business,
were presented [Petition, p. 22; Rollo, p. 39]. Petitioner argues that the
"bare and self-serving testimonies of the wife of the deceased David Ico
and the mother of the deceased Marilyn Baesa . . . have no probative
value to sustain in law the Court of Appeals conclusion on the respective
earnings of the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.]
It is petitioners contention that the evidence presented by the private
respondent does not meet the requirements of clear and satisfactory
evidence to prove actual and compensatory damages.
The Court finds that the Court of Appeals committed no reversible error in
fixing the amount of damages for the loss of earning capacity of the
deceased victims. While it is true that private respondents should have
presented documentary evidence to support their claim for damages for
loss of earning capacity of the deceased victims, the absence thereof does
not necessarily bar the recovery of the damages in question. The
testimony of Fe Ico and Francisca Bascos as to the earning capacity of
David Ico, and the spouses Baesa, respectively, are sufficient to establish a
basis from which the court can make a fair and reasonable estimate of the
damages for the loss of earning capacity of the three deceased victims.
Moreover, in fixing the damages for loss of earning capacity of a deceased
victim, the court can consider the nature of his occupation, his educational
attainment and the state of his health at the time of death.
In the instant case, David Ico was thirty eight (38) years old at the time of
his death in 1981 and was driving his own passenger jeepney. The spouses
Ceasar and Marilyn Baesa were both thirty (30) years old at the time of
their death. Ceasar Baesa was a commerce degree holder and the

proprietor of the Cauayan Press, printer of the Cauayan Valley Newspaper


and the Valley Times at Cauayan, Isabela. Marilyn Baesa graduated as a
nurse in 1976 and at the time of her death, was the company nurse,
personnel manager, treasurer and cashier of the Ilagan Press at Ilagan,
Isabela. Respondent court duly considered these factors, together with the
uncontradicted testimonies of Fe Ico and Francisca Bascos, in fixing the
amount of damages for the loss of earning capacity of David Ico and the
spouses Baesa.chanrobles.com:cralaw:red
However, it should be pointed out that the Court of Appeals committed
error in fixing the compensatory damages for the death of Harold Jim
Baesa and Marcelino Baesa. Respondent court awarded to plaintiff (private
respondent) Maricar Baesa Thirty Thousand Pesos (P30,000.00) as
"compensatory damages for the death of Harold Jim Baesa and Marcelino
Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the Court of
Appeals awarded only Fifteen Thousand Pesos (P15,000.00) as indemnity
for the death of Harold Jim Baesa and another Fifteen Thousand Pesos
(P15,000.00) for the death of Marcelino Baesa. This is clearly erroneous.
In the case of People v. de la Fuente, G.R. Nos. 63251-52, December 29,
1983, 126 SCRA 518, the indemnity for the death of a person was fixed by
this Court at Thirty Thousand Pesos (P30,000.00). Plaintiff Maricar Baesa
should therefore be awarded Sixty Thousand Pesos (P60,000.00) as
indemnity for the death of her brothers, Harold Jim Baesa and Marcelino
Baesa or Thirty Thousand Pesos (P30,000.00) for the death of each
brother.
The other items of damages awarded by respondent court which were not
challenged by the petitioner are hereby affirmed.
WHEREFORE, premises considered, the petition is DENIED, and the
decision of respondent Court of Appeals is hereby AFFIRMED with the
modification that the amount of compensatory damages for the death of
Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand
Pesos (P30,000.00) each.chanrobles law library

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-57079 September 29, 1989

SO ORDERED.
Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
PROOF OF NEGLIGENCE

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,


vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.

REGALADO, J.:
This case had its inception in an action for damages instituted in the
former Court of First Instance of Negros Occidental 1 by private respondent

spouses against petitioner Philippine Long Distance Telephone Company


(PLDT, for brevity) for the injuries they sustained in the evening of July 30,
1968 when their jeep ran over a mound of earth and fell into an open
trench, an excavation allegedly undertaken by PLDT for the installation of
its underground conduit system. The complaint alleged that respondent
Antonio Esteban failed to notice the open trench which was left uncovered
because of the creeping darkness and the lack of any warning light or
signs. As a result of the accident, respondent Gloria Esteban allegedly
sustained injuries on her arms, legs and face, leaving a permanent scar on
her cheek, while the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered. 2
PLDT, in its answer, denies liability on the contention that the injuries
sustained by respondent spouses were the result of their own negligence
and that the entity which should be held responsible, if at all, is L.R. Barte
and Company (Barte, for short), an independent contractor which
undertook the construction of the manhole and the conduit
system. 3 Accordingly, PLDT filed a third-party complaint against Barte
alleging that, under the terms of their agreement, PLDT should in no
manner be answerable for any accident or injuries arising from the
negligence or carelessness of Barte or any of its employees. 4 In answer
thereto, Barte claimed that it was not aware nor was it notified of the
accident involving respondent spouses and that it had complied with the
terms of its contract with PLDT by installing the necessary and appropriate
standard signs in the vicinity of the work site, with barricades at both ends
of the excavation and with red lights at night along the excavated area to
warn the traveling public of the presence of excavations. 5
On October 1, 1974, the trial court rendered a decision in favor of private
respondents, the decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant
Philippine Long Distance Telephone Company is hereby
ordered (A) to pay the plaintiff Gloria Esteban the sum of
P20,000.00 as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum of
P2,000.00 as moral damages and P500.00 as exemplary
damages, with legal rate of interest from the date of the
filing of the complaint until fully paid. The defendant is
hereby ordered to pay the plaintiff the sum of P3,000.00
as attorney's fees.

(B) The third-party defendant is hereby ordered to


reimburse whatever amount the defendant-third party
plaintiff has paid to the plaintiff. With costs against the
defendant. 6
From this decision both PLDT and private respondents appealed, the latter
appealing only as to the amount of damages. Third-party defendant Barte
did not appeal.
On September 25, 1979, the Special Second Division of the Court of
Appeals rendered a decision in said appealed case, with Justice Corazon
Juliano Agrava as ponente, reversing the decision of the lower court and
dismissing the complaint of respondent spouses. It held that respondent
Esteban spouses were negligent and consequently absolved petitioner
PLDT from the claim for damages. 7 A copy of this decision was received by
private respondents on October 10, 1979. 8 On October 25, 1979, said
respondents filed a motion for reconsideration dated October 24,
1979. 9 On January 24, 1980, the Special Ninth Division of the Court of
Appeals denied said motion for reconsideration. 10 This resolution was
received by respondent spouses on February 22, 1980. 11
On February 29, 1980, respondent Court of Appeals received private
respondents' motion for leave of court to file a second motion for
reconsideration, dated February 27, 1980. 12 On March 11, 1980,
respondent court, in a resolution likewise penned by Justice Agrava,
allowed respondents to file a second motion for reconsideration, within ten
(10) days from notice thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private respondents had
already filed their second motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to
dismiss said second motion for reconsideration. 15 The Court of Appeals, in
view of the divergent opinions on the resolution of the second motion for
reconsideration, designated two additional justices to form a division of
five. 16 On September 3, 1980, said division of five promulgated its
resolution, penned by Justice Mariano A. Zosa, setting aside the decision
dated September 25, 1979, as well as the resolution dated, January
24,1980, and affirming in toto the decision of the lower court. 17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or
for reconsideration of the resolution of September 3, 1980, contending
that the second motion for reconsideration of private respondent spouses

was filed out of time and that the decision of September 25, 1979 penned
by Justice Agrava was already final. It further submitted therein that the
relationship of Barte and petitioner PLDT should be viewed in the light of
the contract between them and, under the independent contractor rule,
PLDT is not liable for the acts of an independent contractor. 18 On May 11,
1981, respondent Court of Appeals promulgated its resolution denying said
motion to set aside and/or for reconsideration and affirming in toto the
decision of the lower court dated October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner
assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents'
second motion for reconsideration on the ground that the decision of the
Special Second Division, dated September 25, 1979, and the resolution of
the Special Ninth Division, dated January 24, 1980, are already final, and
on the additional ground that said second motion for reconsideration is pro
forma.
2. Respondent court erred in reversing the aforesaid decision and
resolution and in misapplying the independent contractor rule in holding
PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court,
as shown by the records and admitted by both parties, may be graphically
presented as follows:
(a) September 25, 1979, a decision was rendered by the
Court of Appeals with Justice Agrava asponente;
(b) October 10, 1979, a copy of said decision was received
by private respondents;
(c) October 25, 1979, a motion for reconsideration was
filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said
motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was
received by private respondents;

(f) February 29, 1980, a motion for leave to file a second


motion for reconsideration was filed by private respondents
(g) March 7, 1980, a second motion for reconsideration
was filed by private respondents;
(h) March 11, 1980, a resolution was issued allowing
respondents to file a second motion for reconsideration
within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by
Justice Zosa, reversing the original decision dated
September 25, 1979 and setting aside the resolution dated
January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for
leave to file a second motion for reconsideration and, consequently, said
second motion for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance
at the time, provided that a second motion for reconsideration may be
presented within fifteen (15) days from notice of the order or judgment
deducting the time in which the first motion has been pending. 20 Private
respondents having filed their first motion for reconsideration on the last
day of the reglementary period of fifteen (15) days within which to do so,
they had only one (1) day from receipt of the order denying said motion to
file, with leave of court, a second motion for reconsideration. 21 In the
present case, after their receipt on February 22, 1980 of the resolution
denying their first motion for reconsideration, private respondents had two
remedial options. On February 23, 1980, the remaining one (1) day of the
aforesaid reglementary period, they could have filed a motion for leave of
court to file a second motion for reconsideration, conceivably with a prayer
for the extension of the period within which to do so. On the other hand,
they could have appealed through a petition for review on certiorari to this
Court within fifteen (15) days from February 23, 1980. 22 Instead, they
filed a motion for leave to file a second motion 'for reconsideration on
February 29, 1980, and said second motion for reconsideration on March
7, 1980, both of which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original
fifteen (15) day period, the running of which was suspended during the
pendency of the first motion for reconsideration, the Court of Appeals

could no longer validly take further proceedings on the merits of the case,
much less to alter, modify or reconsider its aforesaid decision and/or
resolution. The filing of the motion for leave to file a second motion for
reconsideration by herein respondents on February 29, 1980 and the
subsequent filing of the motion itself on March 7, 1980, after the
expiration of the reglementary period to file the same, produced no legal
effects. Only a motion for re-hearing or reconsideration filed in time shall
stay the final order or judgment sought to be re-examined. 23

Prescinding from the aforesaid procedural lapses into the substantive


merits of the case, we find no error in the findings of the respondent court
in its original decision that the accident which befell private respondents
was due to the lack of diligence of respondent Antonio Esteban and was
not imputable to negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment and evaluation of
the evidence on record, as evidenced by the respondent court's resolution
of January 24, 1980 which we quote with approval:

The consequential result is that the resolution of respondent court of


March 11, 1980 granting private respondents' aforesaid motion for leave
and, giving them an extension of ten (10) days to file a second motion for
reconsideration, is null and void. The period for filing a second motion for
reconsideration had already expired when private respondents sought
leave to file the same, and respondent court no longer had the power to
entertain or grant the said motion. The aforesaid extension of ten (10)
days for private respondents to file their second motion for reconsideration
was of no legal consequence since it was given when there was no more
period to extend. It is an elementary rule that an application for extension
of time must be filed prior to the expiration of the period sought to be
extended. 24 Necessarily, the discretion of respondent court to grant said
extension for filing a second motion for reconsideration is conditioned upon
the timeliness of the motion seeking the same.

First. Plaintiff's jeep was running along the inside lane of


Lacson Street. If it had remained on that inside lane, it
would not have hit the ACCIDENT MOUND.

No appeal having been taken seasonably, the respondent court's decision,


dated September 25, 1979, became final and executory on March 9, 1980.
The subsequent resolutions of respondent court, dated March 11, 1980
and September 3, 1980, allowing private respondents to file a second
motion for reconsideration and reversing the original decision are null and
void and cannot disturb the finality of the judgment nor restore jurisdiction
to respondent court. This is but in line with the accepted rule that once a
decision has become final and executory it is removed from the power and
jurisdiction of the court which rendered it to further alter or amend, much
less revoke it. 25 The decision rendered anew is null and void. 26 The court's
inherent power to correct its own errors should be exercised before the
finality of the decision or order sought to be corrected, otherwise litigation
will be endless and no question could be considered finally settled.
Although the granting or denial of a motion for reconsideration involves
the exercise of discretion, 27 the same should not be exercised whimsically,
capriciously or arbitrarily, but prudently in conformity with law, justice,
reason and equity. 28

Second. That plaintiff's jeep was on the inside lane before


it swerved to hit the ACCIDENT MOUND could have been
corroborated by a picture showing Lacson Street to the
south of the ACCIDENT MOUND.

Exhibit B shows, through the tiremarks, that the


ACCIDENT MOUND was hit by the jeep swerving from the
left that is, swerving from the inside lane. What caused the
swerving is not disclosed; but, as the cause of the
accident, defendant cannot be made liable for the damages
suffered by plaintiffs. The accident was not due to the
absence of warning signs, but to the unexplained abrupt
swerving of the jeep from the inside lane. That may
explain plaintiff-husband's insistence that he did not see
the ACCIDENT MOUND for which reason he ran into it.

It has been stated that the ditches along Lacson Street had
already been covered except the 3 or 4 meters where the
ACCIDENT MOUND was located. Exhibit B-1 shows that the
ditches on Lacson Street north of the ACCIDENT MOUND
had already been covered, but not in such a way as to
allow the outer lane to be freely and conveniently passable
to vehicles. The situation could have been worse to the
south of the ACCIDENT MOUND for which reason no
picture of the ACCIDENT MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an
hour as plaintiff-husband claimed. At that speed, he could
have braked the vehicle the moment it struck the

ACCIDENT MOUND. The jeep would not have climbed the


ACCIDENT MOUND several feet as indicated by the
tiremarks in Exhibit B. The jeep must have been running
quite fast. If the jeep had been braked at 25 kilometers an
hour, plaintiff's would not have been thrown against the
windshield and they would not have suffered their injuries.
Fourth. If the accident did not happen because the jeep
was running quite fast on the inside lane and for some
reason or other it had to swerve suddenly to the right and
had to climb over the ACCIDENT MOUND, then plaintiffhusband had not exercised the diligence of a good father
of a family to avoid the accident. With the drizzle, he
should not have run on dim lights, but should have put on
his regular lights which should have made him see the
ACCIDENT MOUND in time. If he was running on the
outside lane at 25 kilometers an hour, even on dim lights,
his failure to see the ACCIDENT MOUND in time to brake
the car was negligence on his part. The ACCIDENT MOUND
was relatively big and visible, being 2 to 3 feet high and 11/2 feet wide. If he did not see the ACCIDENT MOUND in
time, he would not have seen any warning sign either. He
knew of the existence and location of the ACCIDENT
MOUND, having seen it many previous times. With
ordinary precaution, he should have driven his jeep on the
night of the accident so as to avoid hitting the ACCIDENT
MOUND. 29
The above findings clearly show that the negligence of respondent Antonio
Esteban was not only contributory to his injuries and those of his wife but
goes to the very cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right to recover
damages. 30 The perils of the road were known to, hence appreciated and
assumed by, private respondents. By exercising reasonable care and
prudence, respondent Antonio Esteban could have avoided the injurious
consequences of his act, even assuming arguendo that there was some
alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the
accident; the only purpose of said signs was to inform and warn the public
of the presence of excavations on the site. The private respondents
already knew of the presence of said excavations. It was not the lack of

knowledge of these excavations which caused the jeep of respondents to


fall into the excavation but the unexplained sudden swerving of the jeep
from the inside lane towards the accident mound. As opined in some
quarters, the omission to perform a duty, such as the placing of warning
signs on the site of the excavation, constitutes the proximate cause only
when the doing of the said omitted act would have prevented the
injury. 31 It is basic that private respondents cannot charge PLDT for their
injuries where their own failure to exercise due and reasonable care was
the cause thereof. It is both a societal norm and necessity that one should
exercise a reasonable degree of caution for his own protection.
Furthermore, respondent Antonio Esteban had the last clear chance or
opportunity to avoid the accident, notwithstanding the negligence he
imputes to petitioner PLDT. As a resident of Lacson Street, he passed on
that street almost everyday and had knowledge of the presence and
location of the excavations there. It was his negligence that exposed him
and his wife to danger, hence he is solely responsible for the consequences
of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in
its original decision that there was insufficient evidence to prove any
negligence on the part of PLDT. We have for consideration only the selfserving testimony of respondent Antonio Esteban and the unverified
photograph of merely a portion of the scene of the accident. The absence
of a police report of the incident and the non-submission of a medical
report from the hospital where private respondents were allegedly treated
have not even been satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution
of January 24, 1980
(a) There was no third party eyewitness of the accident. As
to how the accident occurred, the Court can only rely on
the testimonial evidence of plaintiffs themselves, and such
evidence should be very carefully evaluated, with
defendant, as the party being charged, being given the
benefit of any doubt. Definitely without ascribing the same
motivation to plaintiffs, another person could have
deliberately engineered a similar accident in the hope and
expectation that the Court can grant him substantial moral
and exemplary damages from the big corporation that
defendant is. The statement is made only to stress the
disadvantageous position of defendant which would have

extreme difficulty in contesting such person's claim. If


there were no witness or record available from the police
department of Bacolod, defendant would not be able to
determine for itself which of the conflicting testimonies of
plaintiffs is correct as to the report or non-report of the
accident to the police department. 32
A person claiming damages for the negligence of another has the burden
of proving the existence of such fault or negligence causative thereof. The
facts constitutive of negligence must be affirmatively established by
competent evidence. 33 Whosoever relies on negligence for his cause of
action has the burden in the first instance of proving the existence of the
same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March
11, 1980 and September 3,1980, are hereby SET ASIDE. Its original
decision, promulgated on September 25,1979, is hereby REINSTATED and
AFFIRMED.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento JJ., concur

NEGLIGENCE AS PROXIMATE CAUSE


SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO U.
CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO
DIONISIO, respondents.

FELICIANO, J:

In the early morning of 15 November 1975 at about 1:30 a.m.


private respondent Leonardo Dionisio was on his way home he lived in
1214-B Zamora Street, Bangkal, Makati from a cocktails-and-dinner
meeting with his boss, the general manager of a marketing corporation.
During the cocktails phase of the evening, Dionisio had taken "a shot or
two" of liquor. Dionisio was driving his Volkswagen car and had just
crossed the intersection of General Lacuna and General Santos Streets at
Bangkal, Makati, not far from his home, and was proceeding down General
Lacuna Street, when his car headlights (in his allegation) suddenly failed.
He switched his headlights on "bright" and thereupon he saw a Ford dump
truck looming some 2-1/2 meters away from his car. The dump truck,
owned by and registered in the name of petitioner Phoenix Construction
Inc. ("Phoenix"), was parked on the right hand side of General Lacuna
Street (i.e., on the right hand side of a person facing in the same direction
toward which Dionisio's car was proceeding), facing the oncoming traffic.
The dump truck was parked askew (not parallel to the street curb) in such
a manner as to stick out onto the street, partly blocking the way of
oncoming traffic. There were no lights nor any so-called "early warning"
reflector devices set anywhere near the dump truck, front or rear. The
dump truck had earlier that evening been driven home by petitioner
Armando U. Carbonel, its regular driver, with the permission of his
employer Phoenix, in view of work scheduled to be carried out early the
following morning, Dionisio claimed that he tried to avoid a collision by
swerving his car to the left but it was too late and his car smashed into the
dump truck. As a result of the collision, Dionisio suffered some physical
injuries including some permanent facial scars, a "nervous breakdown" and
loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance
of Pampanga basically claiming that the legal and proximate cause of his
injuries was the negligent manner in which Carbonel had parked the dump
truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on
the other hand, countered that the proximate cause of Dionisio's injuries
was his own recklessness in driving fast at the time of the accident, while
under the influence of liquor, without his headlights on and without a
curfew pass. Phoenix also sought to establish that it had exercised due
rare in the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix
and Carbonel and ordered the latter:

(1) To pay plaintiff jointly and severally the sum of P


15,000.00 for hospital bills and the replacement of the lost
dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P
1,50,000.-00 as loss of expected income for plaintiff
brought about the accident in controversy and which is the
result of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P
10,000. as moral damages for the unexpected and sudden
withdrawal of plaintiff from his lifetime career as a
marketing man; mental anguish, wounded feeling, serious
anxiety, social humiliation, besmirched reputation, feeling
of economic insecurity, and the untold sorrows and
frustration in life experienced by plaintiff and his family
since the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P
10,000.00 as damages for the wanton disregard of
defendants to settle amicably this case with the plaintiff
before the filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P
4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That
court in CA-G.R. No. 65476 affirmed the decision of the trial court but
modified the award of damages to the following extent:
1. The award of P15,000.00 as
compensatory damages was reduced
to P6,460.71, the latter being the only
amount that the appellate court found the
plaintiff to have proved as actually
sustained by him;
2. The award of P150,000.00 as loss of
expected income was reduced
to P100,000.00,basically because Dionisio

had voluntarily resigned his job such that,


in the opinion of the appellate court, his
loss of income "was not solely attributable
to the accident in question;" and
3. The award of P100,000.00 as moral
damages was held by the appellate court
as excessive and unconscionable and
hence reduced to P50,000.00.
The award of P10,000.00 as exemplary
damages and P4,500.00 as attorney's fees
and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a
petition for review.
Both the trial court and the appellate court had made fairly explicit findings
of fact relating to the manner in which the dump truck was parked along
General Lacuna Street on the basis of which both courts drew the
inference that there was negligence on the part of Carbonel, the dump
truck driver, and that this negligence was the proximate cause of the
accident and Dionisio's injuries. We note, however, that both courts failed
to pass upon the defense raised by Carbonel and Phoenix that the true
legal and proximate cause of the accident was not the way in which the
dump truck had been parked but rather the reckless way in which Dionisio
had driven his car that night when he smashed into the dump truck. The
Intermediate Appellate Court in its questioned decision casually conceded
that Dionisio was "in some way, negligent" but apparently failed to see the
relevance of Dionisio's negligence and made no further mention of it. We
have examined the record both before the trial court and the Intermediate
Appellate Court and we find that both parties had placed into the record
sufficient evidence on the basis of which the trial court and the appellate
court could have and should have made findings of fact relating to the
alleged reckless manner in which Dionisio drove his car that night. The
petitioners Phoenix and Carbonel contend that if there was negligence in
the manner in which the dump truck was parked, that negligence was
merely a "passive and static condition" and that private respondent
Dionisio's recklessness constituted an intervening, efficient cause
determinative of the accident and the injuries he sustained. The need to
administer substantial justice as between the parties in this case, without
having to remand it back to the trial court after eleven years, compels us

to address directly the contention put forward by the petitioners and to


examine for ourselves the record pertaining to Dionisio's alleged
negligence which must bear upon the liability, or extent of liability, of
Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or
not private respondent Dionisio had a curfew pass valid and effective for
that eventful night; (b) whether Dionisio was driving fast or speeding just
before the collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact with the dump
truck or whether those headlights accidentally malfunctioned moments
before the collision; and (d) whether Dionisio was intoxicated at the time
of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew
pass was found on the person of Dionisio immediately after the accident
nor was any found in his car. Phoenix's evidence here consisted of the
testimony of Patrolman Cuyno who had taken Dionisio, unconscious, to the
Makati Medical Center for emergency treatment immediately after the
accident. At the Makati Medical Center, a nurse took off Dionisio's clothes
and examined them along with the contents of pockets together with
Patrolman Cuyno. 1 Private respondent Dionisio was not able to produce
any curfew pass during the trial. Instead, he offered the explanation that
his family may have misplaced his curfew pass. He also offered a
certification (dated two years after the accident) issued by one Major
Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of
Camp Olivas, San Fernando, Pampanga, which was said to have authority
to issue curfew passes for Pampanga and Metro Manila. This certification
was to the effect that private respondent Dionisio had a valid curfew pass.
This certification did not, however, specify any pass serial number or date
or period of effectivity of the supposed curfew pass. We find that private
respondent Dionisio was unable to prove possession of a valid curfew pass
during the night of the accident and that the preponderance of evidence
shows that he did not have such a pass during that night. The relevance of
possession or non-possession of a curfew pass that night lies in the light it
tends to shed on the other related issues: whether Dionisio was speeding
home and whether he had indeed purposely put out his headlights before
the accident, in order to avoid detection and possibly arrest by the police
in the nearby police station for travelling after the onset of curfew without
a valid curfew pass.

On the second issue whether or not Dionisio was speeding home that
night both the trial court and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman
Cuyno who was at the scene of the accident almost immediately after it
occurred, the police station where he was based being barely 200 meters
away. Patrolman Cuyno testified that people who had gathered at the
scene of the accident told him that Dionisio's car was "moving fast" and
did not have its headlights on. 2 Dionisio, on the other hand, claimed that
he was travelling at a moderate speed at 30 kilometers per hour and had
just crossed the intersection of General Santos and General Lacuna Streets
and had started to accelerate when his headlights failed just before the
collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was
hearsay and did not fag within any of the recognized exceptions to the
hearsay rule since the facts he testified to were not acquired by him
through official information and had not been given by the informants
pursuant to any duty to do so. Private respondent's objection fails to take
account of the fact that the testimony of Patrolman Cuyno is admissible
not under the official records exception to the hearsay rule 4 but rather as
part of the res gestae. 5 Testimonial evidence under this exception to the
hearsay rule consists of excited utterances made on the occasion of an
occurrence or event sufficiently startling in nature so as to render
inoperative the normal reflective thought processes of the observer and
hence made as a spontaneous reaction to the occurrence or event, and not
the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly
smashing into a stationary object in the dead of night is a sufficiently
startling event as to evoke spontaneous, rather than reflective, reactions
from observers who happened to be around at that time. The testimony of
Patrolman Cuyno was therefore admissible as part of the res gestae and
should have been considered by the trial court. Clearly, substantial weight
should have been ascribed to such testimony, even though it did not, as it
could not, have purported to describe quantitatively the precise velocity at
winch Dionisio was travelling just before impact with the Phoenix dump
truck.
A third related issue is whether Dionisio purposely turned off his
headlights, or whether his headlights accidentally malfunctioned, just
moments before the accident. The Intermediate Appellate Court expressly

found that the headlights of Dionisio's car went off as he crossed the
intersection but was non-committal as to why they did so. It is the
petitioners' contention that Dionisio purposely shut off his headlights even
before he reached the intersection so as not to be detected by the police in
the police precinct which he (being a resident in the area) knew was not
far away from the intersection. We believe that the petitioners' theory is a
more credible explanation than that offered by private respondent Dionisio
i.e., that he had his headlights on but that, at the crucial moment, these
had in some mysterious if convenient way malfunctioned and gone off,
although he succeeded in switching his lights on again at "bright" split
seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the
time of the accident. The evidence here consisted of the testimony of
Patrolman Cuyno to the effect that private respondent Dionisio smelled of
liquor at the time he was taken from his smashed car and brought to the
Makati Medical Center in an unconscious condition. 7 This testimony has to
be taken in conjunction with the admission of Dionisio that he had taken "a
shot or two" of liquor before dinner with his boss that night. We do not
believe that this evidence is sufficient to show that Dionisio was so heavily
under the influence of liquor as to constitute his driving a motor vehicle
per se an act of reckless imprudence. 8There simply is not enough
evidence to show how much liquor he had in fact taken and the effects of
that upon his physical faculties or upon his judgment or mental alertness.
We are also aware that "one shot or two" of hard liquor may affect
different people differently.
The conclusion we draw from the factual circumstances outlined above is
that private respondent Dionisio was negligent the night of the accident.
He was hurrying home that night and driving faster than he should have
been. Worse, he extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus did not see the dump
truck that was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the
Intermediate Appellate Court that the legal and proximate cause of the
accident and of Dionisio's injuries was the wrongful or negligent manner
in which the dump truck was parked in other words, the negligence of
petitioner Carbonel. That there was a reasonable relationship between
petitioner Carbonel's negligence on the one hand and the accident and
respondent's injuries on the other hand, is quite clear. Put in a slightly

different manner, the collision of Dionisio's car with the dump truck was a
natural and foreseeable consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was
merely a "passive and static condition" and that private respondent
Dionisio's negligence was an "efficient intervening cause and that
consequently Dionisio's negligence must be regarded as the legal and
proximate cause of the accident rather than the earlier negligence of
Carbonel. We note that the petitioners' arguments are drawn from a
reading of some of the older cases in various jurisdictions in the United
States but we are unable to persuade ourselves that these arguments
have any validity for our jurisdiction. We note, firstly, that even in the
United States, the distinctions between "cause" and "condition" which the
'petitioners would have us adopt have already been "almost entirely
discredited." Professors and Keeton make this quite clear:
Cause and condition. Many courts have sought to
distinguish between the active "cause" of the harm and the
existing "conditions" upon which that cause operated. If
the defendant has created only a passive static condition
which made the damage possible, the defendant is said not
to be liable. But so far as the fact of causation is
concerned, in the sense of necessary antecedents which
have played an important part in producing the result it is
quite impossible to distinguish between active forces and
passive situations, particularly since, as is invariably the
case, the latter are the result of other active forces which
have gone before. The defendant who spills gasoline about
the premises creates a "condition," but the act may be
culpable because of the danger of fire. When a spark
ignites the gasoline, the condition has done quite as much
to bring about the fire as the spark; and since that is the
very risk which the defendant has created, the defendant
will not escape responsibility. Even the lapse of a
considerable time during which the "condition" remains
static will not necessarily affect liability; one who digs a
trench in the highway may still be liable to another who
fans into it a month afterward. "Cause" and "condition"
still find occasional mention in the decisions; but the
distinction is now almost entirely discredited. So far as it
has any validity at all, it must refer to the type of case
where the forces set in operation by the defendant have

come to rest in a position of apparent safety, and some


new force intervenes. But even in such cases, it is not the
distinction between "cause" and "condition" which is
important but the nature of the risk and the character of
the intervening cause. 9
We believe, secondly, that the truck driver's negligence far from being a
"passive and static condition" was rather an indispensable and efficient
cause. The collision between the dump truck and the private respondent's
car would in an probability not have occurred had the dump truck not been
parked askew without any warning lights or reflector devices. The
improper parking of the dump truck created an unreasonable risk of injury
for anyone driving down General Lacuna Street and for having so created
this risk, the truck driver must be held responsible. In our view, Dionisio's
negligence, although later in point of time than the truck driver's
negligence and therefore closer to the accident, was not an efficient
intervening or independent cause. What the Petitioners describe as an
"intervening cause" was no more than a foreseeable consequent manner
which the truck driver had parked the dump truck. In other words, the
petitioner truck driver owed a duty to private respondent Dionisio and
others similarly situated not to impose upon them the very risk the truck
driver had created. Dionisio's negligence was not of an independent and
overpowering nature as to cut, as it were, the chain of causation in fact
between the improper parking of the dump truck and the accident, nor to
sever the juris vinculum of liability. It is helpful to quote once more from
Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause
is one which in ordinary human experience is reasonably
to be anticipated or one which the defendant has reason to
anticipate under the particular circumstances, the
defendant may be negligence among other reasons,
because of failure to guard against it; or the defendant
may be negligent only for that reason. Thus one who sets
a fire may be required to foresee that an ordinary, usual
and customary wind arising later wig spread it beyond the
defendant's own property, and therefore to take
precautions to prevent that event. The person who leaves
the combustible or explosive material exposed in a public
place may foresee the risk of fire from some independent
source. ... In all of these cases there is an intervening
cause combining with the defendant's conduct to produce

the result and in each case the defendant's negligence


consists in failure to protect the plaintiff against that very
risk.
Obviously the defendant cannot be relieved from liability
by the fact that the risk or a substantial and important
part of the risk, to which the defendant has subjected the
plaintiff has indeed come to pass. Foreseeable intervening
forces are within the scope original risk, and hence of the
defendant's negligence. The courts are quite generally
agreed that intervening causes which fall fairly in this
category will not supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to
anticipate the usual weather of the vicinity, including all
ordinary forces of nature such as usual wind or rain, or
snow or frost or fog or even lightning; that one who leaves
an obstruction on the road or a railroad track should
foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the
intervention of the foreseeable negligence of others. ...
[The standard of reasonable conduct may require the
defendant to protect the plaintiff against 'that occasional
negligence which is one of the ordinary incidents of human
life, and therefore to be anticipated.' Thus, a defendant
who blocks the sidewalk and forces the plaintiff to walk in
a street where the plaintiff will be exposed to the risks of
heavy traffic becomes liable when the plaintiff is run down
by a car, even though the car is negligently driven; and
one who parks an automobile on the highway without
lights at night is not relieved of responsibility when
another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only
contributory," that the "immediate and proximate cause" of the injury
remained the truck driver's "lack of due care" and that consequently
respondent Dionisio may recover damages though such damages are
subject to mitigation by the courts (Article 2179, Civil Code of the
Philippines).

Petitioners also ask us to apply what they refer to as the "last clear
chance" doctrine. The theory here of petitioners is that while the petitioner
truck driver was negligent, private respondent Dionisio had the "last clear
chance" of avoiding the accident and hence his injuries, and that Dionisio
having failed to take that "last clear chance" must bear his own injuries
alone. The last clear chance doctrine of the common law was imported into
our jurisdiction by Picart vs. Smith 11 but it is a matter for debate
whether, or to what extent, it has found its way into the Civil Code of the
Philippines. The historical function of that doctrine in the common law was
to mitigate the harshness of another common law doctrine or rule that of
contributory negligence. 12 The common law rule of contributory
negligence prevented any recovery at all by a plaintiff who was also
negligent, even if the plaintiff's negligence was relatively minor as
compared with the wrongful act or omission of the defendant. 13 The
common law notion of last clear chance permitted courts to grant recovery
to a plaintiff who had also been negligent provided that the defendant had
the last clear chance to avoid the casualty and failed to do
so. 14 Accordingly, it is difficult to see what role, if any, the common law
last clear chance doctrine has to play in a jurisdiction where the common
law concept of contributory negligence as an absolute bar to recovery by
the plaintiff, has itself been rejected, as it has been in Article 2179 of the
Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be
extracted from its common law matrix and utilized as a general rule in
negligence cases in a civil law jurisdiction like ours? We do not believe so.
Under Article 2179, the task of a court, in technical terms, is to determine
whose negligence the plaintiff's or the defendant's was the legal or
proximate cause of the injury. That task is not simply or even primarily an
exercise in chronology or physics, as the petitioners seem to imply by the
use of terms like "last" or "intervening" or "immediate." The relative
location in the continuum of time of the plaintiff's and the defendant's
negligent acts or omissions, is only one of the relevant factors that may be
taken into account. Of more fundamental importance are the nature of the
negligent act or omission of each party and the character and gravity of
the risks created by such act or omission for the rest of the community.
The petitioners urge that the truck driver (and therefore his employer)
should be absolved from responsibility for his own prior negligence
because the unfortunate plaintiff failed to act with that increased diligence
which had become necessary to avoid the peril precisely created by the
truck driver's own wrongful act or omission. To accept this proposition is to
come too close to wiping out the fundamental principle of law that a man
must respond for the forseeable consequences of his own negligent act or

omission. Our law on quasi-delicts seeks to reduce the risks and burdens
of living in society and to allocate them among the members of society. To
accept the petitioners' pro-position must tend to weaken the very bonds of
society.
Petitioner Carbonel's proven negligence creates a presumption of
negligence on the part of his employer Phoenix16 in supervising its
employees properly and adequately. The respondent appellate court in
effect found, correctly in our opinion, that Phoenix was not able to
overcome this presumption of negligence. The circumstance that Phoenix
had allowed its truck driver to bring the dump truck to his home whenever
there was work to be done early the following morning, when coupled with
the failure to show any effort on the part of Phoenix to supervise the
manner in which the dump truck is parked when away from company
premises, is an affirmative showing of culpa in vigilando on the part of
Phoenix.
Turning to the award of damages and taking into account the comparative
negligence of private respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, 17 we believe that the
demands of substantial justice are satisfied by allocating most of the
damages on a 20-80 ratio. Thus, 20% of the damages awarded by the
respondent appellate court, except the award of P10,000.00 as exemplary
damages and P4,500.00 as attorney's fees and costs, shall be borne by
private respondent Dionisio; only the balance of 80% needs to be paid by
petitioners Carbonel and Phoenix who shall be solidarity liable therefor to
the former. The award of exemplary damages and attorney's fees and
costs shall be borne exclusively by the petitioners. Phoenix is of course
entitled to reimbursement from Carbonel. 18 We see no sufficient reason
for disturbing the reduced award of damages made by the respondent
appellate court.
WHEREFORE, the decision of the respondent appellate court is modified by
reducing the aggregate amount of compensatory damages, loss of
expected income and moral damages private respondent Dionisio is
entitled to by 20% of such amount. Costs against the petitioners.
SO ORDERED.
Yap (Chairman), Narvasa, Cruz, Gancayco and Sarmiento, JJ., concur.
Melencio-Herrera, J., is on leave.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-47379 May 16, 1988
NATIONAL POWER CORPORATION, petitioner,
vs.
HONORABLE COURT OF APPEALS and ENGINEERING
CONSTRUCTION, INC., respondents.
G.R. No. L-47481 May 16, 1988
ENGINEERING CONSTRUCTION, INC., petitioner,
vs.
COUTRT OF APPEALS and NATIONAL POWER
CORPORATION, respondents.
Raymundo A. Armovit for private respondent in L-47379.
The Solicitor General for petitioner.

GUTIERREZ, JR., J.:


These consolidated petitions seek to set aside the decision of the
respondent Court of Appeals which adjudged the National Power
Corporation liable for damages against Engineering Construction, Inc. The
appellate court, however, reduced the amount of damages awarded by the
trial court. Hence, both parties filed their respective petitions: the National
Power Corporation (NPC) in G.R. No. 47379, questioning the decision of
the Court of Appeals for holding it liable for damages and the Engineering
Construction, Inc. (ECI) in G.R. No. 47481, questioning the same decision
for reducing the consequential damages and attorney's fees and for
eliminating the exemplary damages.
The facts are succinctly summarized by the respondent Court of Appeals,
as follows:

On August 4, 1964, plaintiff Engineering Construction, Inc.,


being a successful bidder, executed a contract in Manila
with the National Waterworks and Sewerage Authority
(NAWASA), whereby the former undertook to furnish all
tools, labor, equipment, and materials (not furnished by
Owner), and to construct the proposed 2nd lpo-Bicti
Tunnel, Intake and Outlet Structures, and Appurtenant
Structures, and Appurtenant Features, at Norzagaray,
Bulacan, and to complete said works within eight hundred
(800) calendar days from the date the Contractor receives
the formal notice to proceed (Exh. A).
The project involved two (2) major phases: the first phase
comprising, the tunnel work covering a distance of seven
(7) kilometers, passing through the mountain, from the
Ipo river, a part of Norzagaray, Bulacan, where the Ipo
Dam of the defendant National Power Corporation is
located, to Bicti; the other phase consisting of the
outworks at both ends of the tunnel.
By September 1967, the plaintiff corporation already had
completed the first major phase of the work, namely, the
tunnel excavation work. Some portions of the outworks at
the Bicti site were still under construction. As soon as the
plaintiff corporation had finished the tunnel excavation
work at the Bicti site, all the equipment no longer needed
there were transferred to the Ipo site where some projects
were yet to be completed.
The record shows that on November 4,1967, typhoon
'Welming' hit Central Luzon, passing through defendant's
Angat Hydro-electric Project and Dam at lpo, Norzagaray,
Bulacan. Strong winds struck the project area, and heavy
rains intermittently fell. Due to the heavy downpour, the
water in the reservoir of the Angat Dam was rising
perilously at the rate of sixty (60) centimeters per hour. To
prevent an overflow of water from the dam, since the
water level had reached the danger height of 212 meters
above sea level, the defendant corporation caused the
opening of the spillway gates." (pp. 45-46, L-47379, Rollo)

The appellate court sustained the findings of the trial court that the
evidence preponlderantly established the fact that due to the negligent
manner with which the spillway gates of the Angat Dam were opened, an
extraordinary large volume of water rushed out of the gates, and hit the
installations and construction works of ECI at the lpo site with terrific
impact, as a result of which the latter's stockpile of materials and supplies,
camp facilities and permanent structures and accessories either washed
away, lost or destroyed.
The appellate court further found that:
It cannot be pretended that there was no negligence or
that the appellant exercised extraordinary care in the
opening of the spillway gates of the Angat Dam.
Maintainers of the dam knew very well that it was far more
safe to open them gradually. But the spillway gates were
opened only when typhoon Welming was already at its
height, in a vain effort to race against time and prevent
the overflow of water from the dam as it 'was rising
dangerously at the rate of sixty centimeters per hour.
'Action could have been taken as early as November 3,
1967, when the water in the reservoir was still low. At that
time, the gates of the dam could have been opened in a
regulated manner. Let it be stressed that the appellant
knew of the coming of the typhoon four days before it
actually hit the project area. (p. 53, L-47379, Rollo)
As to the award of damages, the appellate court held:
We come now to the award of damages. The appellee
submitted a list of estimated losses and damages to the
tunnel project (Ipo side) caused by the instant flooding of
the Angat River (Exh. J-1). The damages were itemized in
four categories, to wit: Camp Facilities P55,700.00;
Equipment, Parts and Plant P375,659.51; Materials
P107,175.80; and Permanent Structures and accessories
P137,250.00, with an aggregate total amount of
P675,785.31. The list is supported by several vouchers
which were all submitted as Exhibits K to M-38 a, N to O, P
to U-2 and V to X- 60-a (Vide: Folders Nos. 1 to 4). The
appellant did not submit proofs to traverse the
aforementioned documentary evidence. We hold that the

lower court did not commit any error in awarding P


675,785.31 as actual or compensatory damages.
However, We cannot sustain the award of P333,200.00 as
consequential damages. This amount is broken down as
follows: P213,200.00 as and for the rentals of a crane to
temporarily replace the one "destroyed beyond repair," and
P120,000.00 as one month bonus which the appellee failed
to realize in accordance with the contract which the
appellee had with NAWASA. Said rental of the crane
allegedly covered the period of one year at the rate of
P40.00 an hour for 16 hours a day. The evidence, however,
shows that the appellee bought a crane also a crawler
type, on November 10, 1967, six (6) days after the
incident in question (Exh N) And according to the lower
court, which finding was never assailed, the appellee
resumed its normal construction work on the Ipo- Bicti
Project after a stoppage of only one month. There is no
evidence when the appellee received the crane from the
seller, Asian Enterprise Limited. But there was an
agreement that the shipment of the goods would be
effected within 60 days from the opening of the letter of
credit (Exh. N).<re||an1w> It appearing that the
contract of sale was consummated, We must conclude or
at least assume that the crane was delivered to the
appellee within 60 days as stipulated. The appellee then
could have availed of the services of another crane for a
period of only one month (after a work stoppage of one
month) at the rate of P 40.00 an hour for 16 hours a day
or a total of P 19,200.00 as rental.
But the value of the new crane cannot be included as part
of actual damages because the old was reactivated after it
was repaired. The cost of the repair was P 77,000.00 as
shown in item No. 1 under the Equipment, Parts and Plants
category (Exh. J-1), which amount of repair was already
included in the actual or compensatory damages. (pp. 5456, L-47379, Rollo)
The appellate court likewise rejected the award of unrealized bonus from
NAWASA in the amount of P120,000.00 (computed at P4,000.00 a day in
case construction is finished before the specified time, i.e., within 800

calendar days), considering that the incident occurred after more than
three (3) years or one thousand one hundred seventy (1,170) days. The
court also eliminated the award of exemplary damages as there was no
gross negligence on the part of NPC and reduced the amount of attorney's
fees from P50,000.00 to P30,000.00.
In these consolidated petitions, NPC assails the appellate court's decision
as being erroneous on the ground that the destruction and loss of the
ECI's equipment and facilities were due to force majeure. It argues that
the rapid rise of the water level in the reservoir of its Angat Dam due to
heavy rains brought about by the typhoon was an extraordinary
occurrence that could not have been foreseen, and thus, the subsequent
release of water through the spillway gates and its resultant effect, if any,
on ECI's equipment and facilities may rightly be attributed to force
majeure.
On the other hand, ECI assails the reduction of the consequential damages
from P333,200.00 to P19,000.00 on the grounds that the appellate court
had no basis in concluding that ECI acquired a new Crawler-type crane and
therefore, it only can claim rentals for the temporary use of the leased
crane for a period of one month; and that the award of P4,000.00 a day or
P120,000.00 a month bonus is justified since the period limitation on ECI's
contract with NAWASA had dual effects, i.e., bonus for earlier completion
and liquidated damages for delayed performance; and in either case at the
rate of P4,000.00 daily. Thus, since NPC's negligence compelled work
stoppage for a period of one month, the said award of P120,000.00 is
justified. ECI further assailes the reduction of attorney's fees and the total
elimination of exemplary damages.
Both petitions are without merit.
It is clear from the appellate court's decision that based on its findings of
fact and that of the trial court's, petitioner NPC was undoubtedly negligent
because it opened the spillway gates of the Angat Dam only at the height
of typhoon "Welming" when it knew very well that it was safer to have
opened the same gradually and earlier, as it was also undeniable that NPC
knew of the coming typhoon at least four days before it actually struck.
And even though the typhoon was an act of God or what we may call force
majeure, NPC cannot escape liability because its negligence was the
proximate cause of the loss and damage. As we have ruled in Juan F.
Nakpil & Sons v. Court of Appeals, (144 SCRA 596, 606-607):

Thus, if upon the happening of a fortuitous event or an act


of God, there concurs a corresponding fraud, negligence,
delay or violation or contravention in any manner of the
tenor of the obligation as provided for in Article 1170 of
the Civil Code, which results in loss or damage, the obligor
cannot escape liability.
The principle embodied in the act of God doctrine strictly
requires that the act must be one occasioned exclusively
by the violence of nature and human agencies are to be
excluded from creating or entering into the cause of the
mischief. When the effect, the cause of which is to be
considered, is found to be in part the result of the
participation of man, whether it be from active intervention
or neglect, or failure to act, the whole occurrence is
thereby humanized, as it was, and removed from the rules
applicable to the acts of God. (1 Corpus Juris, pp. 11741175).
Thus, it has been held that when the negligence of a
person concurs with an act of God in producing a loss,
such person is not exempt from liability by showing that
the immediate cause of the damage was the act of God. To
be exempt from liability for loss because of an act of God,
he must be free from any previous negligence or
misconduct by which the loss or damage may have been
occasioned. (Fish & Elective Co. v. Phil. Motors, 55 Phil.
129; Tucker v. Milan 49 O.G. 4379; Limpangco & Sons v.
Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith,
45 Phil. 657).
Furthermore, the question of whether or not there was negligence on the
part of NPC is a question of fact which properly falls within the jurisdiction
of the Court of Appeals and will not be disturbed by this Court unless the
same is clearly unfounded. Thus, in Tolentino v. Court of appeals, (150
SCRA 26, 36) we ruled:
Moreover, the findings of fact of the Court of Appeals are
generally final and conclusive upon the Supreme Court
(Leonardo v. Court of Appeals, 120 SCRA 890 [1983]. In
fact it is settled that the Supreme Court is not supposed to
weigh evidence but only to determine its substantially

(Nuez v. Sandiganbayan, 100 SCRA 433 [1982] and will


generally not disturb said findings of fact when supported
by substantial evidence (Aytona v. Court of Appeals, 113
SCRA 575 [1985]; Collector of Customs of Manila v.
Intermediate Appellate Court, 137 SCRA 3 [1985]. On the
other hand substantial evidence is defined as such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion (Philippine Metal Products, Inc. v.
Court of Industrial Relations, 90 SCRA 135 [1979]; Police
Commission v. Lood, 127 SCRA 757 [1984]; Canete v.
WCC, 136 SCRA 302 [1985])

therefore, could have been possibly earned by ECI at that point in time.
The supposed liquidated damages for failure to finish the project within the
stipulated period or the opposite of the claim for bonus is not clearly
presented in the records of these petitions. It is not shown that NAWASA
imposed them.
As to the question of exemplary damages, we sustain the appellate court
in eliminating the same since it found that there was no bad faith on the
part of NPC and that neither can the latter's negligence be considered
gross. InDee Hua Liong Electrical Equipment Corp. v. Reyes, (145 SCRA
713, 719) we ruled:

Therefore, the respondent Court of Appeals did not err in holding the NPC
liable for damages.
Likewise, it did not err in reducing the consequential damages from
P333,200.00 to P19,000.00. As shown by the records, while there was no
categorical statement or admission on the part of ECI that it bought a new
crane to replace the damaged one, a sales contract was presented to the
effect that the new crane would be delivered to it by Asian Enterprises
within 60 days from the opening of the letter of credit at the cost of
P106,336.75. The offer was made by Asian Enterprises a few days after
the flood. As compared to the amount of P106,336.75 for a brand new
crane and paying the alleged amount of P4,000.00 a day as rental for the
use of a temporary crane, which use petitioner ECI alleged to have lasted
for a period of one year, thus, totalling P120,000.00, plus the fact that
there was already a sales contract between it and Asian Enterprises, there
is no reason why ECI should opt to rent a temporary crane for a period of
one year. The appellate court also found that the damaged crane was
subsequently repaired and reactivated and the cost of repair was
P77,000.00. Therefore, it included the said amount in the award of of
compensatory damages, but not the value of the new crane. We do not
find anything erroneous in the decision of the appellate court that the
consequential damages should represent only the service of the temporary
crane for one month. A contrary ruling would result in the unjust
enrichment of ECI.
The P120,000.00 bonus was also properly eliminated as the same was
granted by the trial court on the premise that it represented ECI's lost
opportunity "to earn the one month bonus from NAWASA ... ." As stated
earlier, the loss or damage to ECI's equipment and facilities occurred long
after the stipulated deadline to finish the construction. No bonus,

Neither may private respondent recover exemplary


damages since he is not entitled to moral or compensatory
damages, and again because the petitioner is not shown to
have acted in a wanton, fraudulent, reckless or oppressive
manner (Art. 2234, Civil Code; Yutuk v. Manila Electric Co.,
2 SCRA 377; Francisco v. Government Service Insurance
System, 7 SCRA 577; Gutierrez v. Villegas, 8 SCRA 527;
Air France v. Carrascoso, 18 SCRA 155; Pan Pacific (Phil.)
v. Phil. Advertising Corp., 23 SCRA 977; Marchan v.
Mendoza, 24 SCRA 888).
We also affirm the reduction of attorney's fees from P50,000.00 to
P30,000.00. There are no compelling reasons why we should set aside the
appellate court's finding that the latter amount suffices for the services
rendered by ECI's counsel.
WHEREFORE, the petitions in G.R. No. 47379 and G.R. No. 47481 are both
DISMISSED for LACK OF MERIT. The decision appealed from is AFFIRMED.
SO ORDERED.
Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

VITUG, J.:
In this petition for review, the application of the doctrines of "proximate
cause" and "last clear chance" is, once again, being put to test. The
petition questions the decision of the Court of Appeals, dated 18 July
1991, which has reversed that of the trial court.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 101683 February 23, 1995


LBC AIR CARGO, INC. FERNANDO M. YU and JAIME
TANO, petitioners,
vs.
HON. COURT OF APPEALS, Fourth Division, SHERWIN MONTEROLA
y OYON-OYON, represented by PATROCENIA GRONDIANO y
MONTEROLA, and PATROCENIA GRONDIANO y
MONTEROLA, respondents.

The case arose from a vehicular collision which occurred at about 11:30 in
the morning of 15 November 1987. Rogelio Monterola, a licensed driver,
was traveling on board his Suzuki motorcycle towards Mangagoy on the
right lane along a dusty national road in Bislig, Surigao del Sur. At about
the same time, a cargo van of the LBC Air Cargo Incorporated, driven by
defendant Jaime Tano, Jr., was coming from the opposite direction on its
way to the Bislig Airport. On board were passengers Fernando Yu, Manager
of LBC Air Cargo, and his son who was seated beside Tano. When Tano was
approaching the vicinity of the airport road entrance on his left, he saw
two vehicles racing against each other from the opposite direction. Tano
stopped his vehicle and waited for the two racing vehicles to pass by. The
stirred cloud of dust made visibility extremely bad. Instead of waiting for
the dust to settled, Tano started to make a sharp left turn towards the
airport road. When he was about to reach the center of the right lane, the
motorcycle driven by Monterola suddenly emerged from the dust and
smashed head-on against the right side of the LBC van. Monterola died
from the severe injuries he sustained.
A criminal case for "homicide thru reckless imprudence" was filed against
Tano. A civil suit was likewise instituted by the heirs of deceased Monterola
against Tano, along with Fernando Yu and LBC Air Cargo Incorporated, for
the recovery of damages. The two cases were tried jointly by the Regional
Trial Court, Branch 29, of Surigao del Sur.
On 29 July 1990, the trial court dismissed both cases on the ground that
the proximate cause of the "accident" was the negligence of deceased
Rogelio Monterola.
Private respondent appealed the dismissal of the civil case to the Court of
Appeals. On 18 July 1991, the appellate court reversed the court a quo. It
held:

WHEREFORE, the judgment appealed from is REVERSED,


and another one is hereby rendered ordering the
defendants Jaime Tano and LBC Air Cargo, Inc. to jointly
and severally pay the plaintiff Patrocinia Monterola the
following amounts:

The issues raised are thus essentially factual. The intrinsic merit of, as well
as cogency in, the detailed analyses made by the Court of Appeals in
arriving at its findings is at once apparent. Said the appellate court:
That visibility was poor when Jaime Tano made a left turn
was admitted by the latter.

To SHERWIN MONTEROLA:
1. Indemnity for the death of
Rogelio Monterola P50,000.00

Q When these two vehicles passed by your


parked vehicle, as you said, there were
clouds of dust, did I get you right?

2. For Moral damages P20,000.00

A Yes sir, the road was dusty.

To PATROCINIA GRONDIANO Y MONTEROLA:

Q So much so that you could no longer see


the vehicles from the opposite direction
following these vehicles?

3. Actual Damages P7,361.00


4. Hospitals & Burial Expenses 15,000.00
5. Attorneys' Fees and expenses
of Litigation 10,000.00

A It is not clear, sir, so I even turned on my


left signal and the headlight.
Q What do you mean by it was not clear,
you could not see the incoming vehicles?

Plus the costs.


Actual payment of the aforementioned amounts should
however be reduced to twenty (20%) percent.1
In the instant petition for review, petitioners contend that
1. The Court of Appeals erred in finding that Jaime Tano,
Jr. was negligent in the driving of his vehicle and in failing
to give a signal to approaching vehicles of his intention to
make a left turn.
2. The Court of Appeals erred in not finding that the
proximate cause of the accident was the victim's
negligence in the driving of his motorcycle in a very fast
speed and thus hitting the petitioner's cargo van. 2

A I could not see because of the cloud of


dust.
Q And it was at this juncture, when you
were to follow your theory, when you
started your LBC van again and swerved to
the left leading to the Bislig airport?
A I did not enter immediately the airport, I
waited the dust to clear a little before I
drove.
xxx xxx xxx
Q In other words when you said that it was
slightly clear, you would like to tell the
Honorable Court that you could only clearly

see big vehicles . . . but not small vehicles


like a motorcycle?
A I could see clearly big vehicles but not
small vehicles like a motorcycle.
Q Like the motorcycle of Rogelio
Monterola?
A Yes, sir. I could not see clearly. (Tano,
tsn, April 18, 1989, pp. 26-30) (p. 15,
Appellant's brief).
Tano should not have made a left turn under the conditions
admitted by him. Under the Land Transportation and Traffic
Code, the driver of any vehicle upon a highway, before
starting, stopping or turning from a direct line, is called
upon to first see that such movement can be made in
safety, and whenever the operation of any other vehicle
approaching may be affected by such movement, shall give
a signal plainly visible to the driver of such other vehicles
of the intention to make such movement (Sec. 44, R.A.
4136, as amended). This means that before a driver turns
from a direct line, in this case to the left, the driver must
first see to it that there are no approaching vehicles and, if
there are, to make the turn only if it can be made in
safety, or at the very least give a signal that is plainly
visible to the driver of such other vehicle. Tano did neither
in this case, for he recklessly made a left turn even as
visibility was still very poor, and thus failed to see the
approaching motorcycle and warn the latter, of his
intention to make a left turn. This is plain and simple
negligence.
In thus making the left turn, he placed his vehicle directly
at the path of the motorcycle which, unaware of Tano's
intention to make a left turn, smashed at Tano's vehicle. It
was Tano's negligence that created the risk or the
condition of danger that set into operation the event that
led to the smashedup and untimely death of Rogelio
Monterola.

Rogelio Monterola's motorcycle would not have hit the


cargo van had Tano, in operating it, not recklessly turned
left when visibility was still poor, and instead observed the
direct line of the Land Transportation Code that before
doing so, he should first see to it that such movement can
be made in safety, and that whenever any other vehicle
approaching may be affected by such movement, should
give a signal plainly visible to the driver of such other
vehicle of the intention to make such movement.
That Rogelio Monterola was running fast despite poor
visibility as evidenced by the magnitude of the damage to
the vehicles is no defense. His negligence would at most
be contributory (Article 2179, N.C.C.). Having negligently
created the condition of danger, defendants may not avoid
liability by pointing to the negligence of the former.
xxx xxx xxx
Tano's proven negligence created a presumption of
negligence on the part of his employer, the LBC Air Cargo
Corporation, in supervising its employees properly and
adequately (Phoenix Construction, Inc. vs. Intermediate
Appellate Court, supra), which may only be destroyed by
proof of due diligence in the selection and supervision of
his employees to prevent the damage (Article 2180,
N.C.C.). No such defense was interposed by defendants in
their answer.
We, however, fail to see Fernando Yu's liability as Manager
of LBC-Mangagoy Branch Office, there being no employeremployee relationship between him and Jaime Tano who is
a driver of the LBC Air Cargo Inc. It was held in Philippine
Rabbit Bus Lines Inc. et al. vs. Phil. American
Forwarders,Inc., 63 SCRA 231, that the term "Manager" in
Article 2180 is used in the sense of "employer." Hence, no
tortuous or quasi-delictual liability can be fastened on
Fernando Yu as branch manager of LBC Air Cargo Inc.
Now for the amount of damages. Aside from the indemnity
for death which has been pegged at P50,000.00
(Resolution En Banc, August 30, 1990, cited in People vs.

Sazon, 189 SCRA 700), the evidence disclose that as a


result of the accident, Rogelio Monterola's motorcycle was
damaged, the repair cost of which amounted to P7,361.00
(Exh. E-1), for hospitalization, wake and burial expenses,
plaintiff spent P15,000.00. There is likewise no question
that by reason of Rogelio Monterola's untimely death, his
only child 14 years old Sherwin Monterola, suffered mental
anguish, fright, serious anxiety, wounded feelings and
moral shock that entitles him to moral damages which we
hereby fix at P20,000.00. Because of defendants' refusal to
indemnify the plaintiff for his father's death, the latter was
compelled to litigate and engage the services of counsel.
He is therefore entitled to an additional amount of
P10,000.00 for attorney's fees and expenses of litigation.
Considering, however, the contributory negligence of
Rogelio Monterola in driving at a fast clip despite the fact
that the road was dusty, we reduce the aggregate amount
of damages to which the plaintiff is entitled by twenty per
cent (Phoenix Construction Inc. vs. Intermediate Appellate
Court,Supra). 3

the latter, who had the last fair chance, could have avoided the impending
harm by the exercise of due diligence (Pantranco North Express, Inc. vs.
Baesa, 179 SCRA 384; Glan People's Lumber and Hardware vs.
Intermediate Appellate Court, 173 SCRA 464).
In the case at bench, the victim was traveling along the lane where he was
rightly supposed to be. The incident occurred in an instant. No appreciable
time had elapsed, from the moment Tano swerved to his left to the actual
impact; that could have afforded the victim a last clear opportunity to
avoid the collision.
It is true however, that the deceased was not all that free from negligence
in evidently speeding too closely behind the vehicle he was following. We,
therefore, agree with the appellate court that there indeed was
contributory negligence on the victim's part that could warrant a mitigation
of petitioners liability for damages.
WHEREFORE, the appealed decision is AFFIRMED. Costs against
petitioners.
SO ORDERED.

From every indication, the proximate cause of the accident was the
negligence of Tano who, despite extremely poor visibility, hastily executed
a left turn (towards the Bislig airport road entrance) without first waiting
for the dust to settle. It was this negligent act of Tano, which had placed
his vehicle (LBC van) directly on the path of the motorcycle coming from
the opposite direction, that almost instantaneously caused the collision to
occur. Simple prudence required him not to attempt to cross the other lane
until after it would have been safe from and clear of any oncoming vehicle.

Feliciano, Romero, Melo and Francisco, JJ., concur.

Petitioners poorly invoke the doctrine of "last clear chance" (also referred
to, at times, as "supervening negligence" or as "discovered peril"). The
doctrine, in essence, is to the effect that where both parties are negligent,
but the negligent act of one is appreciably later in time than that of the
other, or when it is impossible to determine whose fault or negligence
should be attributed to the incident, the one who had the last clear
opportunity to avoid the impending harm and failed to do so is chargeable
with the consequences thereof (seePicart vs. Smith, 37 Phil. 809). Stated
differently, the rule would also mean that an antecedent negligence of a
person does not preclude the recovery of damages for supervening
negligence of, or bar a defense against the liability sought by, another if

2 Rollo, pp. 30-31.

Footnotes
1 Rollo, p. 17.

3 Rollo, pp. 51-55.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC

G.R. No. L-12986

March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the


HEIRS OF DOMINGA ONG,petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.
Ross, Selph, Carrascoso and Janda for the respondents.
Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court
of Appeals, which affirmed that of the Court of First Instance of Manila
dismissing petitioners' second amended complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil
Code. It appears that in the afternoon of March 18, 1948 a fire broke out
at the Caltex service station at the corner of Antipolo street and Rizal
Avenue, Manila. It started while gasoline was being hosed from a tank
truck into the underground storage, right at the opening of the receiving
tank where the nozzle of the hose was inserted. The fire spread to and
burned several neighboring houses, including the personal properties and
effects inside them. Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged
owner of the station and the second as its agent in charge of operation.
Negligence on the part of both of them was attributed as the cause of the
fire.
The trial court and the Court of Appeals found that petitioners failed to
prove negligence and that respondents had exercised due care in the
premises and with respect to the supervision of their employees.
The first question before Us refers to the admissibility of certain reports on
the fire prepared by the Manila Police and Fire Departments and by a
certain Captain Tinio of the Armed Forces of the Philippines. Portions of the
first two reports are as follows:
1. Police Department report:

Investigation disclosed that at about 4:00 P.M. March 18,


1948, while Leandro Flores was transferring gasoline from
a tank truck, plate No. T-5292 into the underground tank
of the Caltex Gasoline Station located at the corner of Rizal
Avenue and Antipolo Street, this City, an unknown Filipino
lighted a cigarette and threw the burning match stick near
the main valve of the said underground tank. Due to the
gasoline fumes, fire suddenly blazed. Quick action of
Leandro Flores in pulling off the gasoline hose connecting
the truck with the underground tank prevented a terrific
explosion. However, the flames scattered due to the hose
from which the gasoline was spouting. It burned the truck
and the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises was (sic)
subleased for the installation of a coca-cola and cigarette stand,
the complainants furnished this Office a copy of a photograph
taken during the fire and which is submitted herewith. it appears
in this picture that there are in the premises a coca-cola cooler and
a rack which according to information gathered in the
neighborhood contained cigarettes and matches, installed between
the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain
Benito Morales regarding the history of the gasoline station and what the
chief of the fire department had told him on the same subject.
The foregoing reports were ruled out as "double hearsay" by the Court of
Appeals and hence inadmissible. This ruling is now assigned as error. It is
contended: first, that said reports were admitted by the trial court without
objection on the part of respondents; secondly, that with respect to the
police report (Exhibit V-Africa) which appears signed by a Detective
Zapanta allegedly "for Salvador Capacillo," the latter was presented as
witness but respondents waived their right to cross-examine him although
they had the opportunity to do so; and thirdly, that in any event the said
reports are admissible as an exception to the hearsay rule under section
35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the
hearing of September 17, 1953 (pp. 167-170) shows that the reports in

question, when offered as evidence, were objected to by counsel for each


of respondents on the ground that they were hearsay and that they were
"irrelevant, immaterial and impertinent." Indeed, in the court's resolution
only Exhibits J, K, K-5 and X-6 were admitted without objection; the
admission of the others, including the disputed ones, carried no such
explanation.
On the second point, although Detective Capacillo did take the witness
stand, he was not examined and he did not testify as to the facts
mentioned in his alleged report (signed by Detective Zapanta). All he said
was that he was one of those who investigated "the location of the fire
and, if possible, gather witnesses as to the occurrence, and that he
brought the report with him. There was nothing, therefore, on which he
need be cross-examined; and the contents of the report, as to which he
did not testify, did not thereby become competent evidence. And even if
he had testified, his testimony would still have been objectionable as far as
information gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is,
without further testimonial evidence on their contents, fall within the scope
of section 35, Rule 123, which provides that "entries in official records
made in the performance of his duty by a public officer of the Philippines,
or by a person in the performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just mentioned:
(a) that the entry was made by a public officer, or by another person
specially enjoined by law to do so; (b) that it was made by the public
officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and (c) that the public
officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official
information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p.
398).
Of the three requisites just stated, only the last need be considered here.
Obviously the material facts recited in the reports as to the cause and
circumstances of the fire were not within the personal knowledge of the
officers who conducted the investigation. Was knowledge of such facts,
however, acquired by them through official information? As to some facts
the sources thereof are not even identified. Others are attributed to
Leopoldo Medina, referred to as an employee at the gas station were the

fire occurred; to Leandro Flores, driver of the tank truck from which
gasoline was being transferred at the time to the underground tank of the
station; and to respondent Mateo Boquiren, who could not, according to
Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information" acquired by the officers who prepared
the reports, the persons who made the statements not only must have
personal knowledge of the facts stated but must have the duty to give
such statements for record.1
The reports in question do not constitute an exception to the hearsay rule;
the facts stated therein were not acquired by the reporting officers through
official information, not having been given by the informants pursuant to
any duty to do so.
The next question is whether or not, without proof as to the cause and
origin of the fire, the doctrine of res ipsa loquitur should apply so as to
presume negligence on the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the instant case on the
grounds that "as to (its) applicability ... in the Philippines, there seems to
he nothing definite," and that while the rules do not prohibit its adoption in
appropriate cases, "in the case at bar, however, we find no practical use for
such doctrine." The question deserves more than such summary dismissal.
The doctrine has actually been applied in this jurisdiction, in the case
of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-R,
September 20, 1949), wherein the decision of the Court of Appeals was
penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and
other companions were loading grass between the municipalities of
Bay and Calauan, in the province of Laguna, with clear weather
and without any wind blowing, an electric transmission wire,
installed and maintained by the defendant Philippine Power and
Development Co., Inc. alongside the road, suddenly parted, and
one of the broken ends hit the head of the plaintiff as he was
about to board the truck. As a result, plaintiff received the full
shock of 4,400 volts carried by the wire and was knocked
unconscious to the ground. The electric charge coursed through his
body and caused extensive and serious multiple burns from skull
to legs, leaving the bone exposed in some parts and causing
intense pain and wounds that were not completely healed when

the case was tried on June 18, 1947, over one year after the
mishap.
The defendant therein disclaimed liability on the ground that the plaintiff
had failed to show any specific act of negligence, but the appellate court
overruled the defense under the doctrine of res ipsa loquitur. The court
said:
The first point is directed against the sufficiency of plaintiff's
evidence to place appellant on its defense. While it is the rule, as
contended by the appellant, that in case of noncontractual
negligence, or culpa aquiliana, the burden of proof is on the
plaintiff to establish that the proximate cause of his injury was the
negligence of the defendant, it is also a recognized principal that
"where the thing which caused injury, without fault of the injured
person, is under the exclusive control of the defendant and the
injury is such as in the ordinary course of things does not occur if
he having such control use proper care, it affords reasonable
evidence, in the absence of the explanation, that the injury arose
from defendant's want of care."
And the burden of evidence is shifted to him to establish that he
has observed due care and diligence. (San Juan Light & Transit Co.
v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the
name of res ipsa loquitur (the transaction speaks for itself), and is
peculiarly applicable to the case at bar, where it is unquestioned
that the plaintiff had every right to be on the highway, and the
electric wire was under the sole control of defendant company. In
the ordinary course of events, electric wires do not part suddenly
in fair weather and injure people, unless they are subjected to
unusual strain and stress or there are defects in their installation,
maintenance and supervision; just as barrels do not ordinarily roll
out of the warehouse windows to injure passersby, unless some
one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng.
Reprint 299, the leading case that established that rule).
Consequently, in the absence of contributory negligence (which is
admittedly not present), the fact that the wire snapped suffices to
raise a reasonable presumption of negligence in its installation,
care and maintenance. Thereafter, as observed by Chief Baron
Pollock, "if there are any facts inconsistent with negligence, it is for
the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down
doctrines binding on the Supreme Court, but we do not consider this a
reason for not applying the particular doctrine of res ipsa loquitur in the
case at bar. Gasoline is a highly combustible material, in the storage and
sale of which extreme care must be taken. On the other hand, fire is not
considered a fortuitous event, as it arises almost invariably from some act
of man. A case strikingly similar to the one before Us is Jones vs. Shell
Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon
which in the year 1934 was leased to the Shell Petroleum
Corporation for a gasoline filling station. On October 8, 1934,
during the term of the lease, while gasoline was being transferred
from the tank wagon, also operated by the Shell Petroleum
Corporation, to the underground tank of the station, a fire started
with resulting damages to the building owned by Jones. Alleging
that the damages to his building amounted to $516.95, Jones sued
the Shell Petroleum Corporation for the recovery of that amount.
The judge of the district court, after hearing the testimony,
concluded that plaintiff was entitled to a recovery and rendered
judgment in his favor for $427.82. The Court of Appeals for the
First Circuit reversed this judgment, on the ground the testimony
failed to show with reasonable certainty any negligence on the part
of the Shell Petroleum Corporation or any of its agents or
employees. Plaintiff applied to this Court for a Writ of Review which
was granted, and the case is now before us for
decision.1wph1.t
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence
one relating to the cause of the fire and the other relating to the
spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's
building by the fire, no witnesses were placed on the stand by the
defendant.
Taking up plaintiff's charge of negligence relating to the cause of
the fire, we find it established by the record that the filling station
and the tank truck were under the control of the defendant and
operated by its agents or employees. We further find from the

uncontradicted testimony of plaintiff's witnesses that fire started in


the underground tank attached to the filling station while it was
being filled from the tank truck and while both the tank and the
truck were in charge of and being operated by the agents or
employees of the defendant, extended to the hose and tank truck,
and was communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.

Investigation of the basic complaint disclosed that the Caltex


Gasoline Station complained of occupies a lot approximately 10 m
x 10 m at the southwest corner of Rizal Avenue and Antipolo. The
location is within a very busy business district near the Obrero
Market, a railroad crossing and very thickly populated
neighborhood where a great number of people mill around t
until

Predicated on these circumstances and the further circumstance of


defendant's failure to explain the cause of the fire or to show its
lack of knowledge of the cause, plaintiff has evoked the doctrine
of res ipsa loquitur. There are many cases in which the doctrine
may be successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of is shown to
be under the management of defendant or his servants and the
accident is such as in the ordinary course of things does not
happen if those who have its management or control use proper
care, it affords reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care. (45 C.J.
#768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely
approved and adopted by the courts of last resort. Some of the
cases in this jurisdiction in which the doctrine has been applied are
the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So.
977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So.
731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc.,
R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So.
599.
The principle enunciated in the aforequoted case applies with equal force
here. The gasoline station, with all its appliances, equipment and
employees, was under the control of appellees. A fire occurred therein and
spread to and burned the neighboring houses. The persons who knew or
could have known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It is a fair
and reasonable inference that the incident happened because of want of
care.
In the report submitted by Captain Leoncio Mariano of the Manila Police
Department (Exh. X-1 Africa) the following appears:

gasoline
tever be theWactjvities of these peopleor lighting a cigarette
cannot be excluded and this constitute a secondary hazard to its
operation which in turn endangers the entire neighborhood to
conflagration.
Furthermore, aside from precautions already taken by its operator
the concrete walls south and west adjoining the neighborhood are
only 2-1/2 meters high at most and cannot avoid the flames from
leaping over it in case of fire.
Records show that there have been two cases of fire which caused
not only material damages but desperation and also panic in the
neighborhood.
Although the soft drinks stand had been eliminated, this gasoline
service station is also used by its operator as a garage and repair
shop for his fleet of taxicabs numbering ten or more, adding
another risk to the possible outbreak of fire at this already small
but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the
performance of his duties on the basis of his own personal observation of
the facts reported, may properly be considered as an exception to the
hearsay rule. These facts, descriptive of the location and objective
circumstances surrounding the operation of the gasoline station in
question, strengthen the presumption of negligence under the doctrine of
res ipsa loquitur, since on their face they called for more stringent
measures of caution than those which would satisfy the standard of due
diligence under ordinary circumstances. There is no more eloquent
demonstration of this than the statement of Leandro Flores before the
police investigator. Flores was the driver of the gasoline tank wagon who,

alone and without assistance, was transferring the contents thereof into
the underground storage when the fire broke out. He said: "Before loading
the underground tank there were no people, but while the loading was
going on, there were people who went to drink coca-cola (at the coca-cola
stand) which is about a meter from the hole leading to the underground
tank." He added that when the tank was almost filled he went to the tank
truck to close the valve, and while he had his back turned to the
"manhole" he, heard someone shout "fire."
Even then the fire possibly would not have spread to the neighboring
houses were it not for another negligent omission on the part of
defendants, namely, their failure to provide a concrete wall high enough to
prevent the flames from leaping over it. As it was the concrete wall was
only 2-1/2 meters high, and beyond that height it consisted merely of
galvanized iron sheets, which would predictably crumple and melt when
subjected to intense heat. Defendants' negligence, therefore, was not only
with respect to the cause of the fire but also with respect to the spread
thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to
the second amended complaint that "the fire was caused through the acts
of a stranger who, without authority, or permission of answering
defendant, passed through the gasoline station and negligently threw a
lighted match in the premises." No evidence on this point was adduced,
but assuming the allegation to be true certainly any unfavorable
inference from the admission may be taken against Boquiren it does not
extenuate his negligence. A decision of the Supreme Court of Texas, upon
facts analogous to those of the present case, states the rule which we find
acceptable here. "It is the rule that those who distribute a dangerous
article or agent, owe a degree of protection to the public proportionate to
and commensurate with a danger involved ... we think it is the generally
accepted rule as applied to torts that 'if the effects of the actor's negligent
conduct actively and continuously operate to bring about harm to another,
the fact that the active and substantially simultaneous operation of the
effects of a third person's innocent, tortious or criminal act is also a
substantial factor in bringing about the harm, does not protect the actor
from liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439).
Stated in another way, "The intention of an unforeseen and unexpected
cause, is not sufficient to relieve a wrongdoer from consequences of
negligence, if such negligence directly and proximately cooperates with the
independent cause in the resulting injury." (MacAfee, et al. vs. Traver's
Gas Corporation, 153 S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages
caused to appellants. This issue depends on whether Boquiren was an
independent contractor, as held by the Court of Appeals, or an agent of
Caltex. This question, in the light of the facts not controverted, is one of
law and hence may be passed upon by this Court. These facts are: (1)
Boquiren made an admission that he was an agent of Caltex; (2) at the
time of the fire Caltex owned the gasoline station and all the equipment
therein; (3) Caltex exercised control over Boquiren in the management of
the state; (4) the delivery truck used in delivering gasoline to the station
had the name of CALTEX painted on it; and (5) the license to store
gasoline at the station was in the name of Caltex, which paid the license
fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6
Africa; Exhibit Y-Africa).
In Boquiren's amended answer to the second amended complaint, he
denied that he directed one of his drivers to remove gasoline from the
truck into the tank and alleged that the "alleged driver, if one there was,
was not in his employ, the driver being an employee of the Caltex (Phil.)
Inc. and/or the owners of the gasoline station." It is true that Boquiren
later on amended his answer, and that among the changes was one to the
effect that he was not acting as agent of Caltex. But then again, in his
motion to dismiss appellants' second amended complaint the ground
alleged was that it stated no cause of action since under the allegations
thereof he was merely acting as agent of Caltex, such that he could not
have incurred personal liability. A motion to dismiss on this ground is
deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment
therein, but claims that the business conducted at the service station in
question was owned and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature of their
relationship at the time of the fire. There must have been one in existence
at that time. Instead, what was presented was a license agreement
manifestly tailored for purposes of this case, since it was entered into
shortly before the expiration of the one-year period it was intended to
operate. This so-called license agreement (Exhibit 5-Caltex) was executed
on November 29, 1948, but made effective as of January 1, 1948 so as to
cover the date of the fire, namely, March 18, 1948. This retroactivity
provision is quite significant, and gives rise to the conclusion that it was
designed precisely to free Caltex from any responsibility with respect to
the fire, as shown by the clause that Caltex "shall not be liable for any
injury to person or property while in the property herein licensed, it being

understood and agreed that LICENSEE (Boquiren) is not an employee,


representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be
considered an independent contractor. Under that agreement Boquiren
would pay Caltex the purely nominal sum of P1.00 for the use of the
premises and all the equipment therein. He could sell only Caltex Products.
Maintenance of the station and its equipment was subject to the approval,
in other words control, of Caltex. Boquiren could not assign or transfer his
rights as licensee without the consent of Caltex. The license agreement
was supposed to be from January 1, 1948 to December 31, 1948, and
thereafter until terminated by Caltex upon two days prior written notice.
Caltex could at any time cancel and terminate the agreement in case
Boquiren ceased to sell Caltex products, or did not conduct the business
with due diligence, in the judgment of Caltex. Termination of the contract
was therefore a right granted only to Caltex but not to Boquiren. These
provisions of the contract show the extent of the control of Caltex over
Boquiren. The control was such that the latter was virtually an employee of
the former.
Taking into consideration the fact that the operator owed his
position to the company and the latter could remove him or
terminate his services at will; that the service station belonged to
the company and bore its tradename and the operator sold only
the products of the company; that the equipment used by the
operator belonged to the company and were just loaned to the
operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's
gasoline and service station; that the price of the products sold by
the operator was fixed by the company and not by the operator;
and that the receipts signed by the operator indicated that he was
a mere agent, the finding of the Court of Appeals that the operator
was an agent of the company and not an independent contractor
should not be disturbed.
To determine the nature of a contract courts do not have or are
not bound to rely upon the name or title given it by the contracting
parties, should thereby a controversy as to what they really had
intended to enter into, but the way the contracting parties do or
perform their respective obligations stipulated or agreed upon may
be shown and inquired into, and should such performance conflict

with the name or title given the contract by the parties, the former
must prevail over the latter. (Shell Company of the Philippines, Ltd.
vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil.
757).
The written contract was apparently drawn for the purpose of
creating the apparent relationship of employer and independent
contractor, and of avoiding liability for the negligence of the
employees about the station; but the company was not satisfied to
allow such relationship to exist. The evidence shows that it
immediately assumed control, and proceeded to direct the method
by which the work contracted for should be performed. By
reserving the right to terminate the contract at will, it retained the
means of compelling submission to its orders. Having elected to
assume control and to direct the means and methods by which the
work has to be performed, it must be held liable for the negligence
of those performing service under its direction. We think the
evidence was sufficient to sustain the verdict of the jury. (Gulf
Refining Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to
Boquiren. But no cash invoices were presented to show that Boquiren had
bought said gasoline from Caltex. Neither was there a sales contract to
prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after
deducting the amount of P2,000.00 collected by them on the insurance of
the house. The deduction is now challenged as erroneous on the ground
that Article 2207 of the New Civil Code, which provides for the subrogation
of the insurer to the rights of the insured, was not yet in effect when the
loss took place. However, regardless of the silence of the law on this point
at that time, the amount that should be recovered be measured by the
damages actually suffered, otherwise the principle prohibiting unjust
enrichment would be violated. With respect to the claim of the heirs of
Ong P7,500.00 was adjudged by the lower court on the basis of the
assessed value of the property destroyed, namely, P1,500.00, disregarding
the testimony of one of the Ong children that said property was worth
P4,000.00. We agree that the court erred, since it is of common
knowledge that the assessment for taxation purposes is not an accurate
gauge of fair market value, and in this case should not prevail over
positive evidence of such value. The heirs of Ong are therefore entitled to
P10,000.00.

Wherefore, the decision appealed from is reversed and respondentsappellees are held liable solidarily to appellants, and ordered to pay them
the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest
from the filing of the complaint, and costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera,
Regala, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.

CORTES, J.:
This petition to review the decision of the Court of Appeals puts in issue
the application of the common law doctrine of res ipsa loquitur.
The essential facts of the case are not disputed.
The furniture manufacturing shop of petitioner in Caloocan City was
situated adjacent to the residence of private respondents. Sometime in
August 1971, private respondent Gregorio Mable first approached Eric
Cruz, petitioner's plant manager, to request that a firewall be constructed
between the shop and private respondents' residence. The request was
repeated several times but they fell on deaf ears. In the early morning of
September 6, 1974, fire broke out in petitioner's shop. Petitioner's
employees, who slept in the shop premises, tried to put out the fire, but
their efforts proved futile. The fire spread to private respondents' house.
Both the shop and the house were razed to the ground. The cause of the
conflagration was never discovered. The National Bureau of Investigation
found specimens from the burned structures negative for the presence of
inflammable substances.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-52732 August 29, 1988
F.F. CRUZ and CO., INC., petitioner,
vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by his
wife LUZ ALMONTE MABLE and children DOMING, LEONIDAS,
LIGAYA, ELENA, GREGORIO, JR., SALOME, ANTONIO, and
BERNARDO all surnamed MABLE, respondents.
Luis S. Topacio for petitioner.
Mauricio M. Monta for respondents.

Subsequently, private respondents collected P35,000.00 on the insurance


on their house and the contents thereof.
On January 23, 1975, private respondents filed an action for damages
against petitioner, praying for a judgment in their favor awarding
P150,000.00 as actual damages, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and
costs. The Court of First Instance held for private respondents:
WHEREFORE, the Court hereby renders judgment, in favor
of plaintiffs, and against the defendant:
1. Ordering the defendant to pay to the plaintiffs the
amount of P80,000.00 for damages suffered by said
plaintiffs for the loss of their house, with interest of 6%
from the date of the filing of the Complaint on January 23,
1975, until fully paid;

2. Ordering the defendant to pay to the plaintiffs the sum


of P50,000.00 for the loss of plaintiffs' furnitures, religious
images, silverwares, chinawares, jewelries, books, kitchen
utensils, clothing and other valuables, with interest of 6%
from date of the filing of the Complaint on January 23,
1975, until fully paid;
3. Ordering the defendant to pay to the plaintiffs the sum
of P5,000.00 as moral damages, P2,000.00 as exemplary
damages, and P5,000.00 as and by way of attorney's fees;
4. With costs against the defendant;
5. Counterclaim is ordered dismissed, for lack of merit. [CA
Decision, pp. 1-2; Rollo, pp. 29-30.]
On appeal, the Court of Appeals, in a decision promulgated on November
19, 1979, affirmed the decision of the trial court but reduced the award of
damages:
WHEREFORE, the decision declaring the defendants liable
is affirmed. The damages to be awarded to plaintiff should
be reduced to P70,000.00 for the house and P50,000.00
for the furniture and other fixtures with legal interest from
the date of the filing of the complaint until full payment
thereof. [CA Decision, p. 7; Rollo, p. 35.]
A motion for reconsideration was filed on December 3, 1979 but was
denied in a resolution dated February 18, 1980. Hence, petitioner filed the
instant petition for review on February 22, 1980. After the comment and
reply were filed, the Court resolved to deny the petition for lack of merit
on June 11, 1980.
However, petitioner filed a motion for reconsideration, which was granted,
and the petition was given due course on September 12, 1980. After the
parties filed their memoranda, the case was submitted for decision on
January 21, 1981.
Petitioner contends that the Court of Appeals erred:
1. In not deducting the sum of P35,000.00, which private respondents
recovered on the insurance on their house, from the award of damages.

2. In awarding excessive and/or unproved damages.


3. In applying the doctrine of res ipsa loquitur to the facts of the instant
case.
The pivotal issue in this case is the applicability of the common law
doctrine of res ipsa loquitur, the issue of damages being merely
consequential. In view thereof, the errors assigned by petitioner shall be
discussed in the reverse order.
1. The doctrine of res ipsa loquitur, whose application to the instant case
petitioner objects to, may be stated as follows:
Where the thing which caused the injury complained of is
shown to be under the management of the defendant or
his servants and the accident is such as in the ordinary
course of things does not happen if those who have its
management or control use proper care, it affords
reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from want of care.
[Africa v. Caltex (Phil.), Inc., G.R. No. L-12986, March 31,
1966, 16 SCRA 448.]
Thus, in Africa, supra, where fire broke out in a Caltex service station
while gasoline from a tank truck was being unloaded into an underground
storage tank through a hose and the fire spread to and burned neighboring
houses, this Court, applying the doctrine of res ipsa loquitur, adjudged
Caltex liable for the loss.
The facts of the case likewise call for the application of the doctrine,
considering that in the normal course of operations of a furniture
manufacturing shop, combustible material such as wood chips, sawdust,
paint, varnish and fuel and lubricants for machinery may be found thereon.
It must also be noted that negligence or want of care on the part of
petitioner or its employees was not merely presumed. The Court of
Appeals found that petitioner failed to construct a firewall between its shop
and the residence of private respondents as required by a city ordinance;
that the fire could have been caused by a heated motor or a lit cigarette;
that gasoline and alcohol were used and stored in the shop; and that
workers sometimes smoked inside the shop [CA Decision, p. 5; Rollo, p.
33.]

Even without applying the doctrine of res ipsa loquitur, petitioner's failure
to construct a firewall in accordance with city ordinances would suffice to
support a finding of negligence.
Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent
omission on the part of defendants, namely, their failure to
provide a concrete wall high enough to prevent the flames
from leaping over it. As it was the concrete wall was only
2-1/2 meters high, and beyond that height it consisted
merely of galvanized iron sheets, which would predictably
crumble and melt when subjected to intense
heat. Defendant's negligence, therefore, was not only with
respect to the cause of the fire but also with respect to the
spread thereof to the neighboring houses. [Africa v. Caltex
(Phil.), Inc., supra; Emphasis supplied.]
In the instant case, with more reason should petitioner be found guilty of
negligence since it had failed to construct a firewall between its property
and private respondents' residence which sufficiently complies with the
pertinent city ordinances. The failure to comply with an ordinance
providing for safety regulations had been ruled by the Court as an act of
negligence [Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51
SCRA 181.]
The Court of Appeals, therefore, had more than adequate basis to find
petitioner liable for the loss sustained by private respondents.
2. Since the amount of the loss sustained by private respondents
constitutes a finding of fact, such finding by the Court of Appeals should
not be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v. Court of
Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA 559], more so
when there is no showing of arbitrariness.
In the instant case, both the CFI and the Court of Appeals were in
agreement as to the value of private respondents' furniture and fixtures
and personal effects lost in the fire (i.e. P50,000.00). With regard to the
house, the Court of Appeals reduced the award to P70,000.00 from
P80,000.00. Such cannot be categorized as arbitrary considering that the
evidence shows that the house was built in 1951 for P40,000.00 and,
according to private respondents, its reconstruction would cost
P246,000.00. Considering the appreciation in value of real estate and the

diminution of the real value of the peso, the valuation of the house at
P70,000.00 at the time it was razed cannot be said to be excessive.
3. While this Court finds that petitioner is liable for damages to private
respondents as found by the Court of Appeals, the fact that private
respondents have been indemnified by their insurer in the amount of
P35,000.00 for the damage caused to their house and its contents has not
escaped the attention of the Court. Hence, the Court holds that in
accordance with Article 2207 of the Civil Code the amount of P35,000.00
should be deducted from the amount awarded as damages. Said article
provides:
Art. 2207. If the plaintiffs property has been insured, and
he has received indemnity from the insurance company for
the injury or loss arising out of the wrong or breach of
contract complained of, the insurance company is
subrogated to the rights of the insured against the
wrongdoer or the person who violated the contract. If the
amount paid by the insurance company does not fully
cover the injury or loss, the aggrieved party shall be
entitled to recover the deficiency from the person causing
the loss or injury. (Emphasis supplied.]
The law is clear and needs no interpretation. Having been indemnified by
their insurer, private respondents are only entitled to recover the
deficiency from petitioner.
On the other hand, the insurer, if it is so minded, may seek reimbursement
of the amount it indemnified private respondents from petitioner. This is
the essence of its right to be subrogated to the rights of the insured, as
expressly provided in Article 2207. Upon payment of the loss incurred by
the insured, the insurer is entitled to be subrogated pro tanto to any right
of action which the insured may have against the third person whose
negligence or wrongful act caused the loss [Fireman's Fund Insurance Co.
v. Jamila & Co., Inc., G.R. No. L-27427, April 7, 1976, 70 SCRA 323.]
Under Article 2207, the real party in interest with regard to the indemnity
received by the insured is the insurer [Phil. Air Lines, Inc. v. Heald Lumber
Co., 101 Phil. 1031, (1957).] Whether or not the insurer should exercise
the rights of the insured to which it had been subrogated lies solely within
the former's sound discretion. Since the insurer is not a party to the case,
its identity is not of record and no claim is made on its behalf, the private

respondent's insurer has to claim his right to reimbursement of the


P35,000.00 paid to the insured.
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals
is hereby AFFIRMED with the following modifications as to the damages
awarded for the loss of private respondents' house, considering their
receipt of P35,000.00 from their insurer: (1) the damages awarded for the
loss of the house is reduced to P35,000.00; and (2) the right of the insurer
to subrogation and thus seek reimbursement from petitioner for the
P35,000.00 it had paid private respondents is recognized.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.
THIRD DIVISION

demand retribution. Some 4,000 years ago, the Code of Hammurabi[1]then


already provided: "If a physician make a deep incision upon a man with his
bronze lancet and cause the man's death, or operate on the eye socket of
a man with his bronze lancet and destroy the man's eyes, they shall cut off
his hand."[2] Subsequently, Hippocrates[3] wrote what was to become part
of the healer's oath: "I will follow that method of treatment which
according to my ability and judgment, I consider for the benefit of my
patients, and abstain from whatever is deleterious and
mischievous . . . . While I continue to keep this oath unviolated may it be
granted me to enjoy life and practice the art, respected by all men at all
times but should I trespass and violate this oath, may the reverse be my
lot." At present, the primary objective of the medical profession is the
preservation of life and maintenance of the health of the people. [4]
Needless to say then, when a physician strays from his sacred duty
and endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it and this Court, as
this case would show, let the act go uncondemned.
The petitioners appeal from the decision[5] of the Court of Appeals of
11 May 1994 in CA-G.R. CV No. 30851, which reversed the decision [6] of
21 December 1990 of Branch 30 of the Regional Trial Court (RTC) of
Negros Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:

[G.R. No. 118231. July 5, 1996]

Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial


Hospital, Dumaguete City from January 9, 1978 to September
1989. Between 1987 and September, 1989 she was also the Actg. Head of
the Department of Obstetrics and Gynecology at the said Hospital.

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs.


COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and
FLOTILDE G. VILLEGAS, respondents.

Mrs. Villegas is a married woman who submitted to Dr. Batiquin for


prenatal care as the latter's private patient sometime before September
21, 1988.

DECISION

In the morning of September 21, 1988 Dr. Batiquin, with the


assistance of Dr. Doris Teresita Sy who was also a Resident Physician at
the same Hospital, C.I. and O.R. Nurse Arlene Diones and some student
nurses performed a simple cesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered
her first child, Rachel Acogido, at about 11:45 that morning. Thereafter,

DAVIDE, JR., J.:


Throughout history, patients have consigned their fates and lives to
the skill of their doctors. For a breach of this trust, men have been quick to

Plaintiff remained confined at the Hospital until September 27, 1988 during
which period of confinement she was regularly visited by Dr. Batiquin. On
September 28, 1988, Mrs. Villegas checked out of the Hospital . . . and on
the same day she paid Dr. Batiquin, thru the latter's secretary, the amount
of P1,500.00 as "professional fee" . . . .

"rubber glove" . . . and which is [sic] also "rubber-drain like . . . . It could


have been a torn section of a surgeon's gloves or could have come from
other sources. And this foreign body was the cause of the infection of the
ovaries and consequently of all the discomfort suffered by Mrs. Villegas
after her delivery on September 21, 1988.[7]

Soon after leaving the Hospital Mrs. Villegas began to suffer


abdominal pains and complained of being feverish. She also gradually lost
her appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines . . . which she had been taking up to
December, 1988.

The piece of rubber allegedly found near private respondent Flotilde


Villegas' uterus was not presented in court, and although Dr. Ma. Salud
Kho testified that she sent it to a pathologist in Cebu City for examination,
[8]
it was not mentioned in the pathologist's Surgical Pathology Report. [9]

In the meantime, Mrs. Villegas was given a Medical Certificate by Dr.


Batiquin on October 31, 1988 . . . certifying to her physical fitness to
return to her work on November 7, 1988. So, on the second week of
November, 1988 Mrs. Villegas returned to her work at the Rural Bank of
Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs.
Villegas no end and despite the medications administered by Dr.
Batiquin. When the pains become unbearable and she was rapidly losing
weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined
Mrs. Villegas at the Holy Child's Hospital on January 20, 1989 she found
Mrs. Villegas to be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger below the umbilicus
which she suspected to be either a tumor of the uterus or an ovarian cyst,
either of which could be cancerous. She had an x-ray taken of Mrs.
Villegas' chest, abdomen and kidney. She also took blood tests of
Plaintiff. A blood count showed that Mrs. Villegas had [an] infection inside
her abdominal cavity. The result of all those examinations impelled Dr. Kho
to suggest that Mrs. Villegas submit to another surgery to which the latter
agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitishyellow discharge inside, an ovarian cyst on each of the left and right
ovaries which gave out pus, dirt and pus behind the uterus, and a piece of
rubber materials on the right side of the uterus embedded on [sic] the
ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material
which Dr. Kho described as a "foreign body" looked like a piece of a

Aside from Dr. Kho's testimony, the evidence which mentioned the
piece of rubber are a Medical Certificate,[10] a Progress Record,[11] an
Anesthesia Record,[12] a Nurse's Record,[13] and a Physician's Discharge
Summary.[14] The trial court, however, regarded these documentary
evidence as mere hearsay, "there being no showing that the person or
persons who prepared them are deceased or unable to testify on the facts
therein stated . . . . Except for the Medical Certificate (Exhibit "F"), all the
above documents were allegedly prepared by persons other than Dr. Kho,
and she merely affixed her signature on some of them to express her
agreement thereto . . . ."[15] The trial court also refused to give weight to
Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho "may
not have had first-hand knowledge" thereof,[16] as could be gleaned from
her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I don't know
where the rubber was.[17]
The trial court deemed vital Dr. Victoria Batiquin's testimony that
when she confronted Dr. Kho regarding the piece of rubber, "Dr. Kho
answered that there was rubber indeed but that she threw it away." [18] This
statement, the trial court noted, was never denied nor disputed by Dr.
Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending
"rubber" (1) that it was sent to the Pathologist in Cebu as testified to in
Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to
Defendant. The failure of the Plaintiffs to reconcile these two different
versions serve only to weaken their claim against Defendant Batiquin. [19]
All told, the trial court held in favor of the petitioners herein.

The Court of Appeals reviewed the entirety of Dr. Kho's testimony


and, even without admitting the private respondents' documentary
evidence, deemed Dr. Kho's positive testimony to definitely establish that a
piece of rubber was found near private respondent Villegas' uterus. Thus,
the Court of Appeals reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by
preponderance of evidence. The trial court itself had narrated what
happened to appellant Flotilde after the cesarean operation made by
appellee doctor . . . . After the second operation, appellant Flotilde became
well and healthy. Appellant Flotilde's troubles were caused by the infection
due to the "rubber" that was left inside her abdomen. Both appellants
testified that after the operation made by appellee doctor, they did not go
to any other doctor until they finally decided to see another doctor in
January, 1989 when she was not getting any better under the care of
appellee Dr. Batiquin . . . . Appellee Dr. Batiquin admitted on the witness
stand that she alone decided when to close the operating area; that she
examined the portion she operated on before closing the same . . . . Had
she exercised due diligence, appellee Dr. Batiquin would have found the
rubber and removed it before closing the operating area. [20]
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit
of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together
with doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for
the second operation that saved her life.
For the miseries appellants endured for more than three (3) months, due
to the negligence of appellee Dr. Batiquin, they are entitled to moral
damages in the amount of P100,000.00; exemplary damages in the
amount of P20,000.00 and attorney's fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her
uterus and ovaries were removed by Dr. Kho is not taken into
consideration as it is not shown that the removal of said organs were the
direct result of the rubber left by appellee Dr. Batiquin near the
uterus. What is established is that the rubber left by appellee cause
infection, placed the life of appellant Flotilde in jeopardy and caused
appellants fear, worry and anxiety . . . .

WHEREFORE, the appealed judgment, dismissing the complaint for


damages is REVERSED and SET ASIDE. Another judgment is hereby
entered ordering defendants-appellees to pay plaintiffs-appellants the
amounts of P17,000.00 as and for actual damages; P100,000.00 as and
for moral damages; P20,000.00 as and for exemplary damages; and
P25,000.00 as and for attorney's fees plus the cost of litigation.
SO ORDERED.[21]
From the above judgment, the petitioners appealed to this Court
claiming that the appellate court; (1) committed grave abuse of discretion
by resorting to findings of fact not supported by the evidence on record,
and (2) exceeded its discretion, amounting to lack or excess of jurisdiction,
when it gave credence to testimonies punctured with contradictions and
falsities.
The private respondents commented that the petition raised only
questions of fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition
for review on certiorari, there are exceptions, among which are when the
factual findings of the trial court and the appellate court conflict, when the
appealed decision is clearly contradicted by the evidence on record, or
when the appellate court misapprehended the facts. [22]
After deciphering the cryptic petition, we find that the focal point of
the instant appeal is the appreciation of Dr. Kho's testimony. The
petitioners contend that the Court of Appeals misappreciated the following
portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case
this would turn out to be a medico-legal case, I have heard
somebody that [sic] says [sic] there is [sic] a foreign body that
goes with the tissues but unluckily I don't know where the rubber
was. It was not in the Lab, it was not in Cebu.[23] (Italics
supplied)
The petitioners prefer the trial court's interpretation of the above
testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based
on hearsay. The Court of Appeals, on the other hand, concluded that the

underscored phrase was taken out of context by the trial court. According
to the Court of Appeals, the trial court should have likewise considered the
other portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside
the abdomen, there was an ovarian cyst on the left and side and
there was also an ovarian cyst on the right which, on opening up
or freeing it up from the uterus, turned out to be pus. Both
ovaries turned out . . . to have pus. And then, cleaning up the
uterus, at the back of the uterus it was very dirty, it was full of
pus. And there was a [piece of] rubber, we found a [piece of]
rubber on the right side.[24]
We agree with the Court of Appeals. The phrase relied upon by the
trial court does not negate the fact that Dr. Kho saw a piece of rubber in
private respondent Villegas' abdomen, and that she sent it to a laboratory
and then to Cebu City for examination by a pathologist. [25] Not even the
Pathologist's Report, although devoid of any mention of a piece of rubber,
could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the
piece of rubber could not be based on other than first hand knowledge for,
as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.[26]
The petitioners emphasize that the private respondents never
reconciled Dr. Kho's testimony with Dr. Batiquin's claim on the witness
stand that when Dr. Batiquin confronted Dr. Kho about the foreign body,
the latter said that there was a piece of rubber but that she threw it
away. Although hearsay, Dr. Batiquin's claim was not objected to, and
hence, the same is admissible[27] but it carries no probative value.
[28]
Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot
belie the fact that Dr. Kho found a piece of rubber near private respondent
Villegas' uterus. And even if we were to doubt Dr. Kho as to what she did
to the piece of rubber, i.e., whether she threw it away or sent it to Cebu

City, we are not justified in distrusting her as to her recovery of a piece of


rubber from private respondent Villegas' abdomen. On this score, it is
perfectly reasonable to believe the testimony of a witness with respect to
some facts and disbelieve his testimony with respect to other facts. And it
has been aptly said that even when a witness is found to have deliberately
falsified in some material particulars, it is not required that the whole of
his uncorroborated testimony be rejected, but such portions thereof
deemed worthy of belief may be credited.[29]
It is here worth nothing that the trial court paid heed to the following
portions of Dr. Batiquin's testimony: that no rubber drain was used in the
operation,[30] and that there was neither any tear on Dr. Batiquin's gloves
after the operation nor blood smears on her hands upon removing her
gloves.[31] Moreover, the trial court pointed out that the absence of a
rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant
during the operation on private respondent Villegas.[32] But the trial court
failed to recognize that the assertions of Drs. Batiquin and Sy were denials
or negative testimonies. Well-settled is the rule that positive testimony is
stronger than negative testimony.[33] Of course, as the petitioners
advocate, such positive testimony must come from a credible source,
which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured
Dr. Kho's testimony, a reading of the said testimony reveals no such
infirmity and establishes Dr. Kho as a credible witness. Dr. Kho was frank
throughout her turn on the witness stand. Furthermore, no motive to state
any untruth was ever imputed against Dr. Kho, leaving her trustworthiness
unimpaired.[34] The trial court's following declaration shows that while it
was critical of the lack of care with which Dr. Kho handled the piece of
rubber, it was not prepared to doubt Dr. Kho's credibility, thus only
supporting out appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about
her findings, but it can also be said that she did not take the most
appropriate precaution to preserve that "piece of rubber" as an eloquent
evidence of what she would reveal should there be a "legal problem" which
she claim[s] to have anticipated.[35]
Considering that we have assessed Dr. Kho to be a credible witness,
her positive testimony [that a piece of rubber was indeed found in private
respondent Villegas' abdomen] prevails over the negative testimony in
favor of the petitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court has
had occasion to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing
which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it
affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." Or as Black's Law
Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or
inference that defendant was negligent, which arises upon proof that [the]
instrumentality causing injury was in defendant's exclusive control, and
that the accident was one which ordinary does not happen in absence of
negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of
[the] alleged wrongdoer may be inferred from [the] mere fact that [the]
accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the] absence
of negligence it would not have occurred and that thing which caused
injury is shown to have been under [the] management and control of [the]
alleged wrongdoer . . . . Under [this] doctrine . . . the happening of an
injury permits an inference of negligence where plaintiff produces
substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of
defendant, and that the occurrence [sic] was such that in the ordinary
course of things would not happen if reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the
law of negligence which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for specific
proof of negligence. The doctrine is not a rule of substantive law, but
merely a mode of proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a particular case, is not
intended to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and
regulates what shall be prima facie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the duty of due care. The doctrine
can be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available.[36]

In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the cesarean section were under
the exclusive control of Dr. Batiquin. In this light, the private respondents
were bereft of direct evidence as to the actual culprit or the exact cause of
the foreign object finding its way into private respondent Villegas' body,
which, needless to say, does not occur unless through the intervention of
negligence. Second, since aside from the cesarean section, private
respondent Villegas underwent no other operation which could have
caused the offending piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of the cesarean
section performed by Dr. Batiquin. The petitioners, in this regard, failed to
overcome the presumption of negligence arising from resort to the
doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently
leaving behind a piece of rubber in private respondent Villegas' abdomen
and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role
the medical profession plays in the lives of the people, [37] and State's
compelling interest to enact measures to protect the public from "the
potentially deadly effects of incompetence and ignorance in those who
would undertake to treat our bodies and minds for disease or
trauma."[38] Indeed, a physician is bound to serve the interest of his
patients "with the greatest of solicitude, giving them always his best talent
and skill."[39] Through her tortious conduct, the petitioner endangered the
life of Flotilde Villegas, in violation of her profession's rigid ethical code and
in contravention of the legal standards set forth for professionals, in the
general,[40] and members of the medical profession,[41] in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of
Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban,
JJ., concur.