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1. Pmart v. Smlth 37 Phil 809 1. Barzuela, Sol Elvin 2

2. Jarco v. Aguilar 12792 2. Erese, Princess 4

3. Gan v. CA l65 SCRA 3. Raras, Angelica 8

4. Norman Gaid v. People GR No.176360 \ 4. Focasan, Lynai 10

5. China Airline v. CA GR No.46036 5. Roque, Zyster 13

6. Taylor v. Manila Railroad 16 Phil 8 0 Del 6. Ordillo, Nazzel 15

7. Rosario v Manila 57 Phil 697 7. Salazar, Angelica 18

8. Culion v. Philippine GR 326! l 8. Ada-ol, Ruben 19

9. BPlv. CA 216 SCRA 51 INTOXICATION 9. Folante, Yvonne 20

10. Wright v. Manila Electric 28 Phil 122 10. Bolinget, Zoroaster 24

11. US v. Baggay I 20 Phil I42 11. Kindahan, Carla Jeanne 25

12. Marinduque v. WCC 99 Phil 48 12. Bagyon, Joyce 26

13. Layugan v. [AC 167 SCRA 363 O 13. Lopez, Marlon 28

14. Batiquin v. CA 258 SCRA 334 14. Buyuccan, Shannon 30

15. Ramos v. CA 3321 $ 584 (page 3) 15. Barzuela, Sol Elvin 32

16. DM Consunju v CA 357 $ 243 (page 3) 16. Salazar, Angelica 37

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


On December 12, 1912, Amado Picart was riding on his pony over Carlatan Bridge, at San
Fernando, La Union. Before he had gotten half way across, the Frank Smith approached from
the opposite direction in an automobile, with speed of twelve miles per hour and as he neared
the bridge he saw a horseman (Picart) 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

Picart saw the automobile coming and heard the warning signals but being disconcerted by 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 did this because he thought he did not have sufficient time
to get over to the other side.

As Smith approached, he guided his automobile toward his left, that being the proper side of the
road for the machine. In so doing, he 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, Smith, 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, Smith 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 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. (In short, nabangga ni Smith si Picart na nakasakay sa kabayo)

From the evidence adduced, it shows that 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. Picart received contusions which caused
temporary unconsciousness and required medical attention for several days.

Ruling of CFI La Union: Absolved Smith from liability. Hence, Picart appealed. No ruling of
Court of Appeals mentioned. 


1. Whether or not Smith was guilty of negligence which gives rise to a civil obligation to
repair the damage done; and
2. In case of negligence of both parties, who is immediately and directly responsible.


1. Yes, Smith is liable.

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.

Or may also be stated as: Conduct is said to be negligent when a prudent man in the position of
the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to
warrant his foregoing conduct or guarding against its consequences.

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.

Applying this test, Smith’s negligence is clearly established. A prudent man, placed in the
position of the Smith, would 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.

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.

Also, it goes without saying that Picart himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road.

2. Smith is immediately and directly responsible liable on the doctrine of last fair chance.

It will be noted that the negligent acts of the two parties were not simultaneous, since the
negligence of Smith succeeded the negligence of Picart 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.

 Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) – the Court 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.

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.

The judgment of the lower court is reversed and Picart should recover from the defendant the
sum of two hundred pesos (P200), with costs of other instances.



 CONRADO C. AGUILAR and CRISELDA R. AGUILAR (private respondents)

1. Jarco Marketing Corporation is the owner of Syvel’s Department Store located in
Makati City.
2. Leonard Kong, Jose Tiope and Elisa Panelo are the store’s branch manager,
operations manager, and supervisor, respectively.
3. Conrado and Criselda Aguilar are spouses and the parents of Zhieneth Aguilar (6
years old girl).
4. In 1983, Criselda and Zhieneth were at the 2nd floor of Syvel’s Department Store, Makati
City branch. Criselda was signing her credit card slip at the payment counter when she
felt a sudden strong wind and a loud thud. When she looked behind her, she saw her
daughter Zhieneth on the floor pinned by the bulk of the store’s gift-wrapping counter.
Zhieneth was crying and screaming for help. Criselda was shocked and was quick to ask
the assistance of the people around in lifting the counter and rescuing Zhieneth on the
5. Zhieneth was quickly rushed to the Makati Medical Center where she was operated on.
The next day, Zhieneth lost her speech and communicated with Criselda by writing on a
magic slate. She died on the hospital bed 14 days after the accident.
6. The cause of her death was attributed to the injuries she sustained.
7. After Zhieneth’s burial, her parents demanded upon petitioners reimbursement of the
hospitalization, medical bills, wake and funeral expenses they incurred. Petitioners
refused to pay. So, spouses Aguilar filed a complaint for damages (actual, moral,
attorney’s fees, loss of income, and exemplary damages).

Petitioners’ Answer/Contention:
 Petitioners claimed that Criselda was negligent in exercising care and diligence over her
daughter by allowing her to freely roam around the store filled with glassware and
 They also claimed that Zhieneth was also guilty of contributory negligence since she
climbed the counter, triggering its eventual collapse on her.
 They also claimed that the counter was made of sturdy wood with a strong support and it
never fell nor collapsed for the past 15 years since its construction.
 Jarco also claimed that it observed the diligence of a good father of a family in the
selection, supervision and control of its employees.
 The other petitioners also raised due care and diligence in the performance of their duties
and countered that the complaint was malicious for which they suffered besmirched
reputation and mental anguish. They sought the dismissal of the complaint and an award
of moral and exemplary damages and attorney’s fees.

Trial Court Decision:

 The trial court finds that the preponderance of evidence favoured the petitoners.
 The trial court ruled that the proximate cause of the fall of the counter on Zhieneth was
her act of clinging to it.
 It believed the testimonies of witnesses that Zhieneth clung to the counter and the counter
and Zhieneth fell, with the counter falling on top of her and pinning her stomach. None of
private respondents’ witness testified on how the counter fell.
 The trial court also ruled that Criselda’s negligence contributed to Zhieneth’s accident.
 The trial court reasoned that the counter was located at the corner of the 2 nd floor as a
precautionary measure, hence it could NOT be an attractive nuisance. The counter was
higher than Zhieneth. Its structure was safe and well-balanced. Zhieneth had no business
climbing on and clinging to it.

Spouses Aguilar appealed the trial court’s decision.

Spouses Aguilar’s Contention:

 They asserted that Zhieneth should be entitled to the conclusive presumption that a child
below 9 years of age is incapable of contributory negligence. Assuming that she was
already capable of contributory negligence, it was physically impossible for her to propped
herself on the counter. She had a small frame (4 ft. high and 70 pounds) and the counter
was much higher than she was.
 Also, the testimony of Gerardo Gonzales, former store’s employee, who accompanied
Zhieneth when she was brought to the hospital belied petitioners’ claim that Zhieneth
climbed the counter. Gonzales claimed that when Zhieneth was asked by the doctor,
Zhieneth said that she did not come near the counter and the counter just fell on her.
 Respondents further claimed that negligence could NOT be imputed to Criselda for it was
reasonable for her to have let go of Zhieneth when she was signing the credit card slip.
 They also claimed that the proximate cause of Zhieneth’s death was petitioners’
negligence in failing to institute measures to have the counter permanently nailed.

Court of Appeals’ Decision:
 The CA ruled in favor of private respondents.
 It found that petitioners were negligent in maintaining a structurally dangerous counter.
The counter was shaped like and inverted “L” with a top wider than the base. Thus, the
counter was defective, unstable and dangerous. A push from the front could cause the
counter to fall.
 2 former employees of petitioners already previously brought to the attention of the
management the danger the counter could cause BUT the management ignored their
concern. Hence, the incident could have been avoided if petitioners repaired the defective
 Also, it ruled that Zhieneth who was below 7 years old at the time of the incident was
absolutely incapable of negligence or other tort. It reasoned that since a child under 9
years could NOT be held liable for an intentional wrong, then the 6-year old Zhieneth
could NOT be held liable for a mere mischief or reckless act.
 The CA also absolved Criselda of any negligence.
 It also rejected the testimonies of the petitioners’ witnesses for being biased. It instead
gave credit to the testimony of Gonzales.
 The CA awarded actual damages for the hospitalization expenses, moral and exemplary
damages, attorney’s fees, and a compensatory damage for the death of Zhieneth.

1. Whether the death of Zhieneth was accidental or attributable to negligence.
2. In case of a finding of negligence, whether the same was attributable to the petitioners for
maintaining a defective counter or to Criselda and Zhieneth for failing to exercise due and
reasonable care while inside the store premises.

1. The SC ruled that the incident was NOT an accident and Zhieneth’s death could only
be attributed to negligence.

An accident refers to an unforeseen event in which NO fault or negligence attaches to the

defendant. It is a “fortuitous circumstance, event or happening; an event happening without any
human agency, or if happening wholly or partly through human agency, and event which under
the circumstances is unusual or unexpected by the person to whom it happens.”

On the other hand, negligence refers to the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable man would NOT do.
Negligence is “the failure to observe, for the protection of the interest of another person, that
degree of care, precaution and vigilance which the circumstances justly demand, whereby such
other person suffers injury.”

Accident and negligence are intrinsically contradictory; one CANNOT exist with the
other. Accident occurs when the person concerned is exercising ordinary care, which is NOT

caused by fault of any person and which could NOT have been prevented by any means
suggested by common prudence.

The test in determining the existence of negligence is enunciated in the landmark

case of Plicart vs. Smith: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinary prudent person would have used in the same
situation? If NOT, then he is GUILTY OF NEGLIGENCE.

The testimony of Gonzales pertaining to Zhieneth’s statement that she did not come near
the counter and it just fell on her was admitted by the SC and formed part of the res gestae
under Rule 130 of the Rules of Court.

[FYI: Rule 130, Sec. 42, ROC: Part of the res gestae – Statements made by a
person while a startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may be
received as part of the res gestae.]

All that is required for their admissibility as part of the res gestae is that they be made or
uttered under the influence of a startling event before the declarant had the time to think and
concoct a falsehood as witnessed by the person who testified in court. Under the circumstances,
it is unthinkable for Zhieneth, a child of such tender age and in extreme pain, to have lied to a
doctor whom she trusted with her life.

2. The SC ruled that the petitioners were negligent in failing to secure or make stable the
counter’s base.

Also, Gonzales’ earlier testimony on petitioners’ insistence to keep and maintain the
structurally unstable gift-wrapping counter proved their negligence. Gonzales stated that when
he was still working in the store, he used to clean the counter every morning and according to
him, it was NOT nailed and shaky. He also stated that at the time of the incident, the counter
was standing beside the payment counter and since the top of it was heavy and NOT nailed, it
can collapse anytime. Gonzales also claimed that he previously informed the company about
the counter’s bad condition but the company did not do anything about it. Gonzales’ testimony
was corroborated by another former employee of the store, Ramon Guevarra.

Petitioner Panelo and another store supervisor were personally informed of the danger that
may be caused by the unstable counter. Yet, no one initiated any action to remedy the situation
nor ensure the safety of the store's employees and patrons as a reasonable and ordinary prudent
man would have done. Thus, petitioners failed to discharge the due diligence required of a good
father of a family.

About the negligence imputed to Zhieneth, the SC applied the conclusive

presumption that favors children below 9 years old in that they are incapable of
contributory negligence.

Assuming that Zhieneth can be held liable for contributory negligence, even if she climbed
over the counter, no injury should have occurred if petitioners’ claim that the counter was stable
and sturdy is true.

Criselda should also be absolved from any contributory negligence. Initially, Zhieneth
held on to Criselda's waist, later to the Criselda’s hand. She momentarily released the child’s
hand from her clutch when she signed her credit card slip. At this moment, it was reasonable
and usual for Criselda to let go of her child. Also. At the time Zhieneth was pinned down by the
counter, she was just a foot away from her mother; and the gift-wrapping counter was just 4
meters away from Criselda. The time and distance were both significant. Zhieneth was near her
mother and did not loiter as petitioners would want to impress upon us. She even admitted to
the doctor who treated her at the hospital that she did not do anything; the counter just fell on

Hedy Gan vs CA and the people of the Phil

In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was driving a Toyota
car along North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of North Bay
Boulevard, there were two vehicles, a truck and a jeepney parked on one side of the road, one
following the other about two to three meters from each other. As the car driven by the accused
approached the place where the two vehicles were parked, there was a vehicle coming from the
opposite direction, followed by another which tried to overtake and bypass the one in front of it
and thereby encroached the lane of the car driven by the accused. To avoid a head-on collision
with the oncoming vehicle, the defendant swerved to the right and as a consequence, the front
bumper of the Toyota Crown Sedan hit an old man who was about to cross the boulevard from
south to north, pinning him against the rear of the parked jeepney. The force of the impact caused
the parked jeepney to move forward hitting the rear of the parts truck ahead of it. The pedestrian
was injured, the Toyota Sedan was damaged on its front, the jeep suffered damages on its rear
and front paints, and the truck sustained scratches at the wooden portion of its rear. The body
of the old man who was later Identified as Isidoro Casino was immediately brought to the Jose
Reyes Memorial Hospital but was pronounced DOA.
Eventually, an information for Homicide thru Reckless Imprudence was filed against petitioner.
Trial ensued.
*** meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal on the
grounds of lack of interest on the part of the complaining witness to prosecute the case as
evidenced by an affidavit of desistance submitted to the trial court and lack of eyewitness to
sustain the charge. She also filed a motion to dismiss on the ground of insufficiency of evidence
but it was denied by the TC.**

On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond
reasonable doubt of the offense charged.
Petitioner appealed to the Court of Appeals.
Accused Hedy Gan is guilty beyond reasonable doubt of the crime of homicide thru simple
imprudence and to indemnify the heirs of Isidoro Casino in the sum of Twelve Thousand Pesos
(Pl2,000.00) without, however, any subsidiary imprisonment in case of insolvency, and to pay
the costs.
Petitioner appealed to SC for want of a complete reversal of the decision.
Whether petitioner is guilty of negligence thus making her liable.
The test for determining whether or not a person is negligent in doing an act whereby injury or
damage results to the person or property of another is this:
Would a prudent man in the position of the person to whom negligence is attributed foresee harm
to the person injured as a reasonable consequence of the course about to be pursued? If so,
the law imposes the duty oil the doer to take precaution against its mischievous results and the
failure to do so constitutes negligence.
A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who
suddenly finds himself in a place of danger, and is required to act without time to consider the
best means that may be adopted to avoid the impending danger, is not guilty of negligence, if
he fails to adopt what subsequently and upon reflection may appear to have been a better
method, unless the emergency in which he finds himself is brought about by his own negligence.
Applying the above test to the case at bar, we find the petitioner not guilty of the crime of Simple
Imprudence resulting in Homicide.
"Ang masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa
sasakyan na aking kasalubong kung kaya ay aking kinabig sa kanan ang akin kotse subalit siya
naman biglang pagtawid ng tao o victim at hindi ko na ho naiwasan at ako ay wala ng magawa
. Iyan ho ang buong pangyayari nang nasabing aksidente."(NOTEWORTHY)
Under the circumstances narrated by petitioner, we find that the appellate court is asking too
much from a mere mortal like the petitioner who in the blink of an eye had to exercise her best
judgment to extricate herself from a difficult and dangerous situation caused by the driver of the
overtaking vehicle. Petitioner certainly could not be expected to act with all the coolness of a

person under normal conditions. The danger confronting petitioner was real and imminent,
threatening her very existence. She had no opportunity for rational thinking but only enough time
to heed the very powerfull instinct of self-preservation.
Also, the respondent court itself pronounced that the petitioner was driving her car within the
legal limits. We therefore rule that the "emergency rule" enunciated above applies with full force
to the case at bar and consequently absolve petitioner from any criminal negligence in
connection with the incident under consideration.

G.R. No. 171636

NORMAN A. GAID, Petitioner, Vs.

FACTS: Petitioner Norman A. Gaid was charged with the crime of reckless imprudence resulting
in homicide .
At around 12:00 noon on 25 October 2001, petitioner was driving his passenger jeepney along
a two-lane road where the Laguindingan National High School is located toward the direction of
Moog in Misamis Oriental. His jeepney was filled to seating capacity. At the time several students
were coming out of the school premises. Meanwhile, a fourteen year-old student, Michael
Dayata, was seen by eyewitness Artman Bongolto sitting near a store on the left side of the road.
From where he was at the left side of the road, Dayata raised his left hand to flag down petitioners
jeepney which was traveling on the right lane of the road. However, neither did petitioner nor the
conductor, Dennis Mellalos, saw anybody flagging down the jeepney to ride at that point.
The next thing Bongalto saw, Dayatas feet was pinned to the rear wheel of the jeepney, after
which, he laid flat on the ground behind the jeepney. Another prosecution witness, Usaffe Actub,
who was also situated on the left side of the street but directly in front of the school gate, heard
a strong impact coming from the jeep sounding as if the driver forced to accelerate in order to
hurdle an obstacle. Dayata was then seen lying on the ground and caught in between the rear
tires. Petitioner felt that the left rear tire of the jeepney had bounced and the vehicle tilted to the
right side.
Mellalos heard a shout that a boy was run over, prompting him to jump off the jeepney to help
the victim. Petitioner stopped and saw Mellalos carrying the body of the victim. Mellalos loaded
the victim on a motorcycle and brought him to the hospital. Dayata was first brought to the
Laguindingan Health Center, but it was closed. Mellalos then proceeded to the El Salvador
Hospital. Upon advice of its doctors, however, Dayata was brought to the Northern Mindanao
Medical Center where he was pronounced dead on arrival.
MCTC: found petitioner guilty beyond reasonable doubt of the crime charged. The lower court
held petitioner negligent in his driving considering that the victim was dragged to a distance of
5.70 meters from the point of impact. He was also scored for not stopping his vehicle after

noticing that the jeepneys left rear tire jolted causing the vehicle to tilt towards the right. On
appeal, RTC affirmed in toto the decision of the MCTC.

Court of Appeals: affirmed the trial courts judgment with modification in that it found petitioner
guilty only of simple negligence resulting in homicide
The Court of Appeals exonerated petitioner from the charge of reckless imprudence resulting to
homicide on the ground that he was not driving recklessly at the time of the accident. However,
the appellate court still found him to be negligent when he failed to promptly stop his vehicle to
check what caused the sudden jotting of its rear tire.
a. whether petitioner is negligent
b. whether Court of Appeals committed a grave abuse of discretion in convicting him
of the offense of simple negligence resulting in homicide.
Held: The presence or absence of negligence on the part of petitioner is determined by the
operative events leading to the death of Dayata which actually comprised of two phases or
stages. The first stage began when Dayata flagged down the jeepney while positioned on the
left side of the road and ended when he was run over by the jeepney. The second stage covered
the span between the moment immediately after the victim was run over and the point when
petitioner put the jeepney to a halt. During the first stage, petitioner was not shown to be
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from
which material damage results by reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act.
In the instant case, petitioner was driving slowly at the time of the accident, as testified to by two
eyewitnesses. With the foregoing facts, petitioner can not be held liable during the first stage.
Specifically, he cannot be held liable for reckless imprudence resulting in homicide, as found by
the trial court. The proximate cause of the accident and the death of the victim was definitely his
own negligence in trying to catch up with the moving jeepney to get a ride. petitioner had
exercised extreme precaution as he drove slowly upon reaching the vicinity of the school. He
cannot be faulted for not having seen the victim who came from behind on the left side.
Negligence has been defined as the failure to observe for the protection of the interests
of another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.
The elements of simple negligence: are (1) that there is lack of precaution on the part of
the offender; and (2) that the damage impending to be caused is not immediate or the
danger is not clearly manifest.

The standard test in determining whether a person is negligent in doing an act whereby
injury or damage results to the person or property of another is this: could a prudent man,
in the position of the person to whom negligence is attributed, foresee harm to the person
injured as a reasonable consequence of the course actually pursued? If so, the law
imposes a duty on the actor to refrain from that course or to take precautions to guard
against its mischievous results, and the failure to do so constitutes
negligence. Reasonable foresight of harm, followed by the ignoring of the admonition
born of this provision, is always necessary before negligence can be held to exist.
In this case, the courts below zeroed in on the fact that petitioner did not stop the jeepney when
he felt the bouncing of his vehicle, a circumstance which the appellate court equates with
negligence. Petitioner contends that he did not immediately stop because he did not see
anybody go near his vehicle at the time of the incident.
Assuming arguendo that petitioner had been negligent, it must be shown that his negligence
was the proximate cause of the accident. Proximate cause is defined as that which, in the
natural and continuous sequence, unbroken by any efficient, intervening cause,
produces the injury, and without which the result would not have occurred. In order to
establish a motorist's liability for the negligent operation of a vehicle, it must be shown
that there was a direct causal connection between such negligence and the injuries or
damages complained of. Thus, negligence that is not a substantial contributing factor in
the causation of the accident is not the proximate cause of an injury.
The evidence on record do not show that the jeepney dragged the victim after he was hit and
run over by the jeepney. Quite the contrary, the evidence discloses that the victim was not
dragged at all. In fact, it is the other way around. Clearly then, the prosecution was not able to
establish that the proximate cause of the victims death was petitioners alleged negligence, if at
all, even during the second stage of the incident.
If at all again, petitioners failure to render assistance to the victim would constitute
abandonment of ones victim punishable under Article 275 of the Revised Penal Code.
However, the omission is not covered by the information. Thus, to hold petitioner
criminally liable under the provision would be tantamount to a denial of due process.
Therefore, petitioner must be acquitted at least on reasonable doubt. The award of
damages must also be deleted pursuant to Article 2179 of the Civil Code which states that
when the plaintiffs own negligence was the immediate and proximate cause of his injury,
he cannot recover damages.

G.R. No. 45985 and G.R. No. 46036, both May 18, 1990

Plaintiff Jose E. Pagsibigan, then Vice-President and General Manager of Rentokil (Phils.) Inc.,
a local firm dealing in insecticides, pesticides and other services related thereto. Jose purchased
a plane ticket for a Manila-Taipei-Hongkong-Manila flight from the Transaire Travel Agency. The
said agency contacted defendant Philippine Air Lines (PAL at that time was a sales and ticketing
agent of defendant China airlines). Consequently, PAL, through its ticketing clerk defendant
Roberto Espiritu, issued the ticket and booked plaintiff Jose on CAL CI Flight No. 812 to depart
from Manila for Taipei with flight schedule of June 10, 1968 at 5:20 p.m. Now, on June 10, 1968,
Jose found out that CAL CI Flight No. 812 left at 10:20 a.m. which is earlier than the stated
schedule in his booking or in his ticket and so because of that, the employees of PAL made
appropriate arrangements and made Jose take the flight to Taipei the next day. After a month,
Plaintiff formally demanded PAL to pay moral damages in not less than P125,000.00 for what
the plaintiff allegedly suffered as a result of his failure to take the flight as stated in his plane
ticket. Failed to reach an amicable settlement, Jose then filed a complaint against PAL for the
payment of 125K moral damages and 25K Attorney’s fees.

JOSE contends: that he went to the airport being accompanied by his business associates and
that he was suppose to meet with the President of Union Taiwan Chemical Corporation in Taipei
but because he failed to take the flight as scheduled, he suffered besmirched reputation, mental
anguish, embarrassment, and etc. thus, the moral damages allegedly arose from the gross
negligence of defendant Roberto Espiritu (ticketing clerk) in stating on the plane ticket that the
time of departure 5:20pm, instead of 10:20am which was the correct time of departure according
to the revised flight schedule of CAL. (Breach of Contract)

PAL contends: that the departure time indicated by Espiritu in the ticket was furnished and
confirmed by the reservation office of defendant China Air Lines. It further averred that CAL had
not informed PAL of the revised schedule of its flight, nor provided it with revised timetable. PAL
asserted a cross-claim against CAL.

CAL contends: Defendant China Air Lines disclaims liability for the negligence and
incompetence of the employees of PAL. It avers that all airlines, including PAL, were notified
that revised schedule was adopted; and that copies and notices of the official schedule and flight
departure schedules were distributed to all its sales agents, including PAL. Further contending
that PAL's Manila Hotel office branch had been issuing and selling tickets based on the revised
time schedule; and that lastly, assuming that the plaintiff is entitled to recover damages, CAL
cannot be made liable under Article 2180 because of the absence of employer-employee
relationship between it and PAL.

RTC: ordered Espiritu and PAL solidarily liable to Jose for an amount of 20K as exemplary
damage and additional 2K for attorney’s fees. – further ruled that, Jose is not entitled to claim
Moral damages; and the complaint against CAL was dismissed since CAL had no contribution
with the erroneous entry in the ticket.

CA: Espiritu, PAL, and CAL are all liable= Espiritu was an employee of PAL and whatever
negligence was committed by him is attributable to PAL,further, It is an admitted fact that PAL is
an authorized agent of CAL.; the Civil Code permits the employer to escape this liability only
upon proof that all the diligence of a good father of a family to prevent the damage was observed,
however, CAL failed to overcome the presumption of negligence on its part for the act done by
[(Addt’l CA ruling): CA held that the denial of moral damages is correct since Espiritu did not act
with malice or in bad faith in making a wrong entry of the time of departure on the ticket, and that
the mistake committed by Espiritu appears to be an honest one done in good faith. (note: to
claim Moral dam, Bad faith must be proven); however, CA ruled out the claim for exemplary
damages because of lack of legal basis; and so CA awarded nominal damages.]

(1) whether CAL is liable to Jose. (MAIN ISSUE)
(b) whether a principal can be held liable, for the negligence of the sub-agent, where the
former never participated in, ratified or authorized the latter's act or omission. (<-issue raised by
(c) whether CA erred in not holding CAL, being the principal, solely liable to Jose (raised by

Espiritu, for his negligence,is primarily liable under Article 2176 of the Civil Code. The mistake
committed by Espiritu was done in good faith, however, as an employee of PAL, the nature of
his functions requires him to observe for the protection of the interests of another person that
degree of care, precaution and vigilance which the circumstances justly demand. Thus, he
committed a clear neglect of duty.

PAL is also primarily liable under Article 2180, for the failure of PAL to rebut the legal
presumption of negligence in the selection and supervision of its employee.
Per 2180, all that is required is that the employee, by his negligence, committed a quasi-delict
which caused damage to another, and this suffices to hold the employer primarily and solidarity
responsible for the tortious act of the employee. PAL, however, can demand from Espiritu
reimbursement of the amount which it will have to pay the offended party's claim.
(note: PAL cannot use as a defense that he is just an Agent of CAL; because generally, an agent
who duly acts as such is not personally liable to third persons. However, there are admitted
exceptions, as in this case where the agent is being sued for damages arising from a tort
committed by his employee.)

CAL is not the employer of PAL or Espiritu, because the contractual relation between both
airlines is one of agency. In Duavit vs. The Hon. Court of Appeals, it was stressed that ee-er
relationship must first be established before an employer may be vicariously liable under Article
2180 NCC. It was not proven that the employees of PAL had contributed to the erroneous entry
in Jose’s ticket for Taipei which placed his time of departure to 5:20 o'clock in the afternoon of
June10, 1968. Only defendant Roberto Espiritu appears to be solely and exclusively responsible

for such error and therefore CAL must be absolved from any blame because defendant Roberto
Espiritu who committed the error is not an employee or agent of the defendant CAL.

[re: DAMAGES ->SC held affirmed the award of Nominal damages, however, the amount of
P20,000.00 must be reduced to an amount equal or at least commensurate to the injury
sustained. It appearing that the wrong committed was immediately rectified when PAL promptly
booked Jose for the next morning's flight to Taipei where he arrived before noon of June 11,
1968 and was able to attend his scheduled conference.]
[note: nominal damages is awarded ONLY for recognition of a technical injury based on a
violation of a legal right, and NOT for purposes of indemnification ]

DAVID TAYLOR, plaintiff-appellee, vs.

FACTS: On the 30th of September, 1905, plaintiff David Taylor (was at the time when he
received the injuries complained of, 15 years of age, the son of a mechanical engineer,
more mature than the average boy of his age, and having considerable aptitude and
training in mechanics), with a boy named Manuel Claparols, about 12 years of age, crossed
the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of
the defendant, who and promised to make them a cylinder for a miniature engine. Finding on
inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent
some time in wandering about the company's premises.
Here they found some brass fulminating caps scattered on the ground which are intended for
use in the explosion of blasting charges of dynamite, and have in themselves a considerable
explosive power. The boys picked up all they could find and carried them home. After crossing
the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went
to the home of the boy Manuel. The boys then made a series of experiments with the caps. They
opened one of the caps with a knife, and finding that it was filled with a yellowish
substance they got matches, and David held the cap while Manuel applied a lighted match
to the contents. An explosion followed, causing more or less serious injuries to all three.
Thus an action to recover damages for the loss of an eye and other instituted by David Taylor,
a minor, by his father, his nearest relative.
Trial Court Ruling: The trial Judge ruled in favor of the plaintiff upon the provisions of article 1089
of the Civil Code read together with articles 1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and
omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is fault
or negligence shall be obliged to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal
acts and omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by the
minors who live with them.
Owners or directors of an establishment or enterprise are equally liable for damages caused by
their employees in the service of the branches in which the latter may be employed or on account
of their duties.
The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused
By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper

On appeal to the Supreme Court the appellant- defendant contends that the facts
proven at the trial do not established the liability of the defendant company under
the provisions of the above articles

Plaintiff’s Contention: Plaintiff's youth and inexperience, his entry upon defendant
company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted
in his injury should not be held to have contributed in any wise to the accident, which
should be deemed to be the direct result of defendant's negligence in leaving the caps
exposed at the place where they were found by the plaintiff, and this latter the proximate
cause of the accident which occasioned the injuries sustained by him.

1. Whether Manila electric rail road and Light Company is negligent?
2. Whether Manila electric rail road and Light Company is liable for the injuries sustained by
1. YES, Manila electric rail road and Light Company is negligent. The owner's
failure to take reasonable precautions to prevent the child from entering his
premises at a place where he knows or ought to know that children are

accustomed to roam about of to which their childish instincts and impulses are
likely to attract them is at least equivalent to an implied license to enter, and
where the child does enter under such conditions the owner's failure to take
reasonable precautions to guard the child against injury from unknown or
unseen dangers, placed upon such premises by the owner, is clearly a breach
of duty, responsible, if the child is actually injured, without other fault on its part
than that it had entered on the premises of a stranger without his express
invitation or permission.

2. NO, while we hold that the entry of the plaintiff upon defendant's property without
defendant's express invitation or permission would not have relieved defendant from
responsibility for injuries incurred there by plaintiff, without other fault on his part, if
such injury were attributable to the negligence of the defendant, we are of opinion
that under all the circumstances of this case the negligence of the defendant in
leaving the caps exposed on its premises was not the proximate cause of the
injury received by the plaintiff, which therefore was not, properly speaking,
"attributable to the negligence of the defendant," and, on the other hand, we are
satisfied that plaintiffs action in cutting open the detonating cap and putting
match to its contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is
not civilly responsible for the injuries thus incurred.

NOTE: Manila Electric was negligent but not liable.

Further plaintiff at the time of the accident was a well-grown youth of 15, more mature both
mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred;
and the record discloses throughout that he was exceptionally well qualified to take care of
We are satisfied that the plaintiff in this case had sufficient capacity and understanding
to be sensible of the danger to which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that his age and his experience
qualified him to understand and appreciate the necessity for the exercise of that degree
of caution which would have avoided the injury which resulted from his own deliberate
act; and that the injury incurred by him must be held to have been the direct and
immediate result of his own willful and reckless act, so that while it may be true that these
injuries would not have been incurred but for the negligence act of the defendant in
leaving the caps exposed on its premises, nevertheless plaintiff's own act was the
proximate and principal cause of the accident which inflicted the injury.

Del Rosario vs. Manila Electric Company
A wire used by Manila Electric Company for the transmission of electricity burned, parted
and one of the ends of the wire fell to the ground. Jose Noguera who first noticed that the wire
was burning asked Jose Soco, a timekeeper, to inform Manila Electric Company that the
electrical wire was burning. Soco notified the company at 2:25 pm and received an answer that
they will send an inspector. At 4pm, the neighborhood was dismissed. Alberto Del Rosario, Jose
Salvador and Saturnino Edrina, all members of the second grade in the public school neared the
place where the wire was down. Saturnino made a motion as if he will touch it. Jose stopped
Saturnino as his father cautioned him not to touch a broken electrical wire as it might have
current. Alberto, on the other hand, said that he has a habit of touching wires, feeling challenged,
put out his index finger and touch the wire. Upon being taken to St. Luke’s the child was
pronounced dead.
Julian Del Rosario, plaintiff herein, filed an action to recover damages from Manila Electric
Company for the death of his son, Alberto from a shock from a wire used by the defendant for
the transmission of electricity.
Issue: Whether Manila Electric Company should be held liable for negligence that caused the
death of Alberto.

Yes. The presumption of negligence on the part of the company from the breakage of this
wire has not been overcome, and the defendant is responsible for the accident. Furthermore,
when notice was received at 2.25 p. m., somebody should have been dispatched to the scene
of the trouble at once, or other measures taken to guard the point of danger; but more than an
hour and a half passed before anyone representing the company appeared on the scene, and
in the meantime this child had been claimed as a victim.

It is doubtful whether contributory negligence can properly be imputed to the deceased,

owing to his immature years and the natural curiosity which a child would feel to do something
out of the ordinary, and the mere fact that the deceased ignored the caution of a companion of
the age of 8 years does not, in our opinion, alter the case. But even supposing that contributory
negligence could in some measure be properly imputed to the deceased, — a proposition upon
which the members of the court do not all agree, — yet such negligence would not be wholly
fatal to the right of action in this case, not having been the determining cause of the accident.

FACTS: Both plaintiff and defendant are domestic corporations. Culion is the owner of a motor
schooner a boat named Gwendoline. It is decided by H.D Cranston, the representative of Culion
in Manila to have the engine of Gwendoline to be converted from gasoline to crude oil burner to
save the costs in running the boat.
H.D Cranston had a conference with the C.E Quest, the manager of Philippine motors which
is a corporation engaged in machinery engines and motors engines, who agrees to do the job,
with the understanding that payment shall be made upon completion of work.
Upon inspection of the engine of a boat Quest concluded that a Carburetor was needed to
made the plan, thus it was installed. In the course of the work, it was observed that the
carburettor was flooding and that the gasoline and other fuel was trickling freely to the floor but
this concern was ignored by the defendant, saying that, when the engine had gotten to running
well, the flooding would disappear.
Then the boat was taken out into the bay for a trial run. The engine stopped a few minutes
during the first run because of the use of a improper mixture of fuel. In the second run, when the
boat was coming from this run and passing near Cavite, the engine stopped and connection
again had to be made with the gasoline to get a new start. After had been done by the mechanic
and engineer, switched to the tube connecting with the line to get a new mixture. A moment later
a back fire occurred in the chamber and destroy the boat.
As a result of the incident, the plaintiff filed an action for recovery from the defendant the sum
of 11,350, with interest and costs before the RTC of Manila. The trial court rendered its decision
in favor of the plaintiff and ordering the defendant to pay the plaintiff an amount of 9,850 with 6%
interest per annum.
ISSUE: whether or not the Quest is negligence to the loss of the boat.
RULING: Yes the Quest is negligence to the loss of the boat.
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 ordinary skilled in
the particular work which he attempts to do.
Proof shows that the Quest had ample experience in fixing the engines of automobiles and
tractors, but it does not appear that he was experience in the doing of similar work on boats.
Possibly the dripping of the mixture from the tank on deck and the flooding of the carburettor did
not convey to his mind an adequate impression of the danger. Quest did not use the skill that
would have been exhibited by one ordinary expert in repairing gasoline engines on boats. There
was here, 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 incident. It would not have occurred
but for Quest’s carelessness or lack of skill.
Therefore, the judgment appealed from , awarding damages to the plaintiff in the amount of
9,850, with 6% interest, must be affirmed.

216 SCRA 51
In the afternoon of October 9, 1981, a phone call to BPI's Money Market Department by a
woman who identified herself as Eligia G. Fernando who had a money market placement as
evidenced by a promissory note with a maturity date of November 11, 1981 and a maturity value
of P2,462,243.19. The caller wanted to preterminate the placement, but Reginaldo Eustaquio,
Dealer Trainee in BPI's Money Market Department, who received the call, told her "trading time"
was over for the day, which was a Friday, and suggested that she call again the following week.
The promissory note the caller wanted to preterminate was a roll-over of an earlier 50-day money
market placement that had matured on September 24, 1981.
Later that afternoon, Eustaquio conveyed the request for pretermination to the officer who
before had handled Fernando's account, Penelope Bulan, but he was left to attend to the
pretermination process.
The next Monday, the caller followed up with Eustaquio, he made certain that the caller was
the real Fernando by verifying that the details the caller gave about the placement tallied with
the details in the ledger of the account. Eustaquio knew the real Eligia G. Fernando to be the
Treasurer of Philippine American Life Insurance Company since he was handling Philamlife's
corporate money market account. But neither Eustaquio nor Bulan, nor anybody else at BPI,
bothered to call up Fernando at her Philamlife office to verify the request for pretermination.
Despite being informed that the placement would yield less than the maturity value, Elgia
insisted on the pretermination. and asked that two checks be issued for the proceeds, one for
P1,800,000.00 and the second for the balance, and that the checks be delivered to her office at
Eustaquio proceeded to prepare the purchase order slip for the requested pretermination
as required by office procedure. The 2 cashier’s check together with the papers consisting of the
money market placement was to be preterminated and the promissory note to be preterminated,
were sent to Gerlanda E. Castro (Manager) and Celestino Sampiton Jr. (Administrative
Assistant) in both signatories from BPI’s treasury department.
The same caller changed the delivery instructions; instead of the checks being delivered
to her office, she would herself pick up the checks or send her niece, Rosemarie Fernando, to
pick them up. Eustaquio then told her that if it were her niece who was going to get the checks,

her niece would have to bring an authorization letter. Thus, Eustaquio directed the dispatcher,
Bernardo Laderas, that a new delivery instructions for the checks; in fact, he changed the
delivery instruction on the purchase order slip, writing "Rosemarie Fernando release only with
authority to pick up.
On October 13 a woman who represented herself to be Eligia G. Fernando applied at
China Banking Corporation's Head Office for the opening of a current account. The final approval
of the new current account is indicated on the application form by the initials of Regina Dy,
cashier, who did not interview the client but affixed her initials on the application form after
renewing it.
The following day the woman holding herself out as Eligia G. Fernando deposited the
two checks in controversy with Current Account No. 126310-3. Her endorsement on the two
checks was found to conform with the depositor's signature. CBC's guaranty of prior
endorsements or lack of endorsement was then stamped on the two checks, which CBC
forthwith sent to clearing and which BPI cleared on the same day.
Two days after, withdrawals began on Current Account No. 26310-3. These withdrawals
were allowed on the basis of the verification of the drawer's signature with the signature on file
and the sufficiency of the funds in the account.The last withdrawal on November 4, 1981 left
Current Account No. 26310-3 with a balance of only P571.61.
On the maturity date of Eligia G. Fernado's money market placement with BPI, when the
real Eligia G. Fernando went to BPI for the roll-over of her placement. She disclaimed having
preterminated her placement on October 12, 1981. She executed an affidavit stating that while
she was the payee of the two checks in controversy, she never received nor endorsed them and
that her purported signature on the back of the checks was not hers but forged. On November
12, 1981, supported by Eligia G. Fernando's affidavit, BPI returned the two checks in controversy
to CBC for the reason "Payee's endorsement forged". A ping-pong started when CBC, in turn,
returned the checks for reason "Beyond Clearing Time", and the stoppage of this ping-pong,
prompted the filing of this case.
Investigation of the fraud by the Presidential Security Command led to the filing of criminal
actions for "Estafa Thru Falsification of Commercial Documents" against four employees of BPI,
namely Quirino Victorio, Virgilio Gayon, Bernardo Laderas and Jorge Atayan, and the woman
who impersonated Eligia G. Fernando, Susan Lopez San Juan. Victorio and Gayon were both
bookkeepers in BPI's Money Market Operations Department, Laderas was a dispatcher in the
same department.
The Arbitration Committee ruled in favor of petitioner BPI.
“WHEREFORE, we adjudge in favor of the Bank of the Philippine Islands and hereby order China
Banking Corporation to pay the former the amount of P1,206,607.58…xx”
Upon motion for reconsideration filed by respondent CBC, the Board of Directors of the PCHC
reversed the Arbitration Committee's decision in its Order:

“WHEREFORE, the Board hereby reconsiders the Decision of the Arbitration Committee dated
March 24, 1986 in Arbicom Case No. 183-029 and in lieu thereof, one is rendered modifying the
decision so that the Complaint of BPI is dismissed, and on the Counterclaim of CBC, BPI is
sentenced to pay CBC the sum of P1,206,607.58.”
BPI then filed a petition for review of the order with the Regional Trial Court of Makati.
The trial court dismissed the petition.
Not satisfied with the trial court's decision petitioner BPI filed with the SC a petition for
review on certiorari under Rule 45 of the Rules of Court. The case was docketed as G.R. No.
96376. However, in a Resolution dated February 6, 1991, SC referred the case to the Court of
Appeals for proper determination and disposition. The appellate court affirmed the trial court's
Whose negligence was the proximate cause of the payment of the forged checks by an impostor.
Banks handle daily transactions involving millions of pesos. By the very nature of their
work the degree of responsibility, care and trustworthiness expected of their employees and
officials is far greater than those of ordinary clerks and employees. For obvious reasons, the
banks are expected to exercise the highest degree of diligence in the selection and supervision
of their employees.
In the present case, there is no question that the banks were negligent in the selection
and supervision of their employees. The Arbitration Committee, the PCHC Board of Directors
and the lower court, however disagree in the evaluation of the degree of negligence of the banks.
While the Arbitration Committee declared the negligence of respondent CBC graver, the PCHC
Board of Directors and the lower courts declared that petitioner BPI's negligence was graver. To
the extent that the degree of negligence is equated to the proximate cause of the loss, we rule
that the issue as to whose negligence is graver is relevant. No matter how many justifications
both banks present to avoid responsibility, they cannot erase the fact that they were both guilty
in not exercising extraordinary diligence in the selection and supervision of their employees.
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.(DOCTRINE OF LAST CLEAR CHANCE-Picart v Smith)
Applying these principles, petitioner BPI's reliance on the doctrine of last clear chance to
clear it from liability is not well-taken. CBC had no prior notice of the fraud perpetrated by BPI's
employees on the pretermination of Eligia G. Fernando's money market placement. Moreover,
Fernando is not a depositor of CBC. Hence, a comparison of the signature of Eligia G. Fernando
with that of the impostor Eligia G. Fernando, which respondent CBC did, could not have resulted

in the discovery of the fraud. Hence, unlike in the Picart case herein the defendant, had he used
reasonable care and caution, would have recognized the risk he was taking and would have
foreseen harm to the horse and the plaintiff but did not, respondent CBC had no way to discover
the fraud at all. In fact the records fail to show that respondent CBC had knowledge, actual or
implied, of the fraud perpetrated by the impostor and the employees of BPI.

Applying the doctrine of proximate cause, petitioner BPI's contention that CBC alone should bear
the loss must fail. The gap of one day between the issuance and delivery of the checks bearing
the impostor's name as payee and the impostor's negotiating the said forged checks by opening
an account and depositing the same with respondent CBC is not controlling. It is not unnatural
or unexpected that after taking the risk of impersonating Fernando with the connivance of BPI's
employees, the impostor would complete her deception by encashing the forged checks. There
is therefore, greater reason to rule that the proximate cause of the payment of the forged checks
by an impostor was due to the negligence of BPI. This finding, notwithstanding, we are not
inclined to rule that petitioner BPI must solely bear the loss of P2,413,215.16, the total amount
of the two forged checks. Due care on the part of CBC could have prevented any loss.
The Court cannot ignore the fact that the CBC employees closed their eyes to the suspicious
circumstances of huge over-the-counter withdrawals made immediately after the account was
opened. The opening of the account itself was accompanied by inexplicable acts clearly showing
negligence. And while we do not apply the last clear chance doctrine as controlling in this case,
still the CBC employees had ample opportunity to avoid the harm which befell both CBC and
BPI. They let the opportunity slip by when the ordinary prudence expected of bank employees
would have sufficed to seize it.
Both banks were negligent in the selection and supervision of their employees resulting in the
encashment of the forged checks by an impostor. Both banks were not able to overcome the
presumption of negligence in the selection and supervision of their employees. It was the gross
negligence of the employees of both banks which resulted in the fraud and the subsequent loss.
While it is true that petitioner BPI's negligence may have been the proximate cause of the loss,
respondent CBC's negligence contributed equally to the success of the impostor in encashing
the proceeds of the forged checks. Under these circumstances, we apply Article 2179 of the Civil
Code to the effect that while respondent CBC may recover its losses, such losses are subject to
mitigation by the courts.
Considering the comparative negligence of the two banks, we rule that the demands of
substantial justice are satisfied by allocating the loss of P2,413,215.16 and the costs of the
arbitration proceeding in the amount of P7,250.00 and the cost of litigation on a 60-40 ratio.

Manila Electric is a corporation engaged in operating an electric street railway and
Wright’s residence fronts on the streets along which the tracks run. So to enter his premises, the
plaintiff must cross defendant’s tracks.
One night, plaintiff drove home in a calesa and in crossing the tracks, the horse stumbled
and fell, throwing him from the vehicle and suffering injuries. This was because the rails were
above-ground and its ties projected from one-third to one-half of their depth out of the ground,
making the tops of the rails some 5 or 6 inches above the level of the street.
Contention of the DEFENDANT: The defendant admitted that it was negligent in
maintaining its tracks but also contends that the plaintiff was also negligent because he was
intoxicated and which is the primary cause of the accident.
Ruling of the Trial Court Only: The trial court held both negligent but it awarded the
plaintiff damages because his negligence was not as great as the defendant’s.
Whether or not the plaintiff was negligent.
Explain here contention of the PLAINTIFF: Because a) if the negligence of the plaintiff
was the primary cause of the accident then he cannot recover b) if his negligence had nothing
to do with the accident but contributed to his injury, then the court was right in apportioning the
damages, but c) if there was no negligence on the part of the plaintiff, then he should be awarded
damages which adequate to the injury sustained.
No. Intoxication in itself is not negligence. Mere intoxication establishes a want of ordinary
care. It is but a circumstance to be considered with the other evidence tending to prove
negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want
of ordinary care or prudence can be imputed to him, and no greater degree of care is required
than by a sober one. If one's conduct is characterized by a proper degree of care and prudence,
it is immaterial whether he is drunk or sober.
The conclusion that if he had been sober he would not have been injured is not warranted
by the facts as found. It is impossible to say that a sober man would not have fallen from the
vehicle under the conditions described. A horse crossing the railroad tracks with not only the
rails but a portion of the ties themselves aboveground, stumbling by reason of the unsure footing
and falling, the vehicle crashing against the rails with such force as to break a wheel, this might
be sufficient to throw a person from the vehicle no matter what his condition; and to conclude
that, under such circumstances, a sober man would not have fallen while a drunken man did, is
to draw a conclusion which enters the realm of speculation and guesswork.

However, based on the facts, it does not warrant additional damages to be awarded to
the plaintiff.

FACTS: Several persons assembled in defendant’s house to hold a song service called
“buni”. However, the non-christian Baggay without provocation, suddenly attacked a woman with
a bolo which killed her. He also inflicted various wounds to other persons.
Baggay was charged with murder. After trial and proof that the defendant was insane, the
judge exempted him from criminal liability but was obliged to indemnify the heirs of the murdered
ISSUES: (This is the contention of the Defendant which was raised as an issue)
1. Whether or not an insane person, exempt from criminal liability can still be civilly liable.
2. Can the relatives of Baggay be held civilly liable?
Basis of the Ruling is from the following provisions:
Every person criminally liable for a crime or misdemeanor is also civilly liable. (Art 17 of
"The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10 of article 8 does
not include exemption from civil liability, which shall be enforced, subject to the following:

"(1) In cases 1, 2, and 3, the persons who are civilly liable for acts committed by a lunatic or
imbecile, or a person under 9 years of age, or over this age and under 15, who has not acted
with the exercise of judgment, are those who have them under their authority, legal guardianship
or power, unless they prove that there was no blame or negligence on their part.

"Should there be no person having them under his authority, legal guardianship, or power, or if
such person be insolvent, the said lunatics, imbeciles, or minors shall answer with their own
property, excepting that part which is exempted for their support in accordance with the civil law."
(Art 18 of RPC)
1. Yes, there is still civil liability although the accused was declared exempt from criminal
liability. Such also applies in the case of insane person who is still reasonably and justly liable
with his property for the consequences of his acts for the reason that his fellows not ought to
suffer from the disastrous results of his harmful acts more than is necessary, in spite of his
unfortunate condition.
Law and society are under obligation to protect him during his illness and so when he is
declared to be liable with his property for reparation and indemnification, he is still entitled to the

benefit of what is necessary for his decent maintenance, but this protection does not exclude
liability for damage caused to those who may have the misfortune to suffer the consequences of
his acts.
2. The persons civilly liable for acts committed by an insane person are those who have
the insane party under their care or guardianship, unless they prove that there was no blame or
negligence on their part.
If the demented person or imbecile lack a guardian or some person charged with his care,
or if the latter be insolvent, then his own property must meet the civil liability of indemnifying or
repairing the damage done. (except those property needed for his support)


June 30, 1956
On August 23, 1951 at 6:am, in Mogpog, Marinduque, deceased Mamador together with
other laborers of Marinduque Iron Mines Agents Inc. (MIMA) boarded a truck driven by its
employee Procopio Macunat, also an employee of the corporation. On its way to their place of
work at the mine camp at Talantunan, the truck tried to overtake another truck on the road as a
result it turned over and hit a coconut tree, which caused the death of Mamador and injury to
MAcunat, the driver, was prosecuted, convicted and sentenced to indemnify the heirs of
the deceased. However, he paid nothing to the deceased.
The petitioner MIMA in its first opposition challenged the validity, by Certiorari, of the
proceedings before the Workmen’s Compensation Commission (Commission) asserting it had
not been given the opportunity to cross-examine the opposing witnesses. According to MIMA,
the commission confirmed the referee’s award of compensation to the heirs of Pedro Mamador
for his accidental death, to which the court find petitioner’s contention without basis because
they were given opportunity and notice to examine the witnesses..
MIMA contends in its second opposition that the claim of the heirs of MAMADOR is barred
by Sec. 6 of the Workmen’s compensation Law because:
Macunat was prosecuted and required to indemnify the heirs of the deceased;
The widow of MAMADOR promised “to forgive Macunat for the wrong committed and not
to bring him before the authorities for prosecution an amicable settlement was concluded
between "said heirs and Macunat;

Nava vs. Inchausti Co.: indemnity granted the heirs in a criminal prosecution of the “other
person” does not affect the liability of the employer to pay compensation
"Sec: 6. Liability of third parties. In case an employee suffers an injury for which compensation
is due under this Act by any other person besides his employer, it shall be optional with such
injured employee either to claim compensation from his employer, under this Act, or sue such
other person for damages, in accordance with law; and in case compensation is claimed and
allowed in accordance with this Act, the employer who paid such compensation or was found
liable to pay the same, shall succeed the injured employee to the right of recovering from such
person what he paid: Provided, That in case the employer recovers from such third person
damages in excess of those paid or allowed under this Act, such excess shall be delivered to
the injured employee or any other person entitled thereto, after deduction of the expenses of
the employer and the costs of the proceedings. The sum paid by the employer for
compensation or the amount of compensation to which the employee or his dependents are
entitled, shall not be admissible as evidence in any damage suit or action."
Hence, this appeal to the SC.
1. Whether or not Mamador has a right to be compensated by Marinduque Iron Mines.
2. Whether or not there was notorious negligence by Mamador for having violated the
employer’s prohibition on riding haulage trucks.
1. YES. Marinduque Iron Mines alleged that the criminal case sentencing Macunat to
indemnify the heirs of Mamador was a suit for damages against a third person, thereby
having the effect of releasing the employer from liability. The criminal case, however, was
not a suit for damages against third persons because the heirs did not intervene therein
and they have not received the indemnity ordered by the court.
At any rate, even if the case was against a third person, the court already decided in
Nava vs. Inchausti that criminal prosecution of the "other person" does not affect the liability of
the employer. Marunduque also contended that the amicable settlement entered into by
Mamador's widow and Macunat barred the widow's claim against the employer because she has
already elected one of the remedies. This contention cannot be sustained because what the
widow waived was the offender's criminal prosecution and not all civil action for damages.
2. NO. The SC ruled that mere riding on a haulage truck or stealing a ride thereon is not
negligence, ordinarily. It couldn't be, because transportation by truck is not dangerous per
se. While the employer prohibited its employees to ride the haulage trucks, its violation
does not constitute negligence per se, but it may be an evidence of negligence.
Under the circumstance, the laborer could not be declared to have acted with negligence
since the prevention by the employer in riding the trucks had nothing to do with the personal

DANGER WHICH WAS APPARENT. Notorious negligence means the same as gross
negligence which implies "conscious indifference to consequences,” or "pursuing a course of
conduct which would naturally and probably result in injury."
(Pabasa na lang din tong ART 2231, nasa syllabus kasi ni sir!)

In the Philippines, the presence of gross negligence is statutorily recognized. Article 2231 of the
Civil Code provides that “(i)n quasi-delicts exemplary damages may be granted if the defendant
acted with gross negligence.” Hence, although it is very difficult, if not impossible, to draw the
line between ordinary negligence and gross negligence, courts are compelled to rule on the
existence of gross negligence. It is also characterized as implying conscious indifference to
consequences; pursuing a course of conduct which would naturally and probably result to injury;
utter disregard of consequences. (Marinduque Iron Mines Agents, Inc. vs. The Workmen’s
Compensation Commission, supra, citing 38 Am. Jur. 691).

Layugan v. CA 167 SCRA 363

Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their
cargo truck which was parked along the right side of the National Highway; that Isidros's truck,
driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was injured
and hospitalized where he incurred and will incur more expenses as he recuperates from said
injuries; Plaintiff's right leg was amputated and that because of said injuries he would be deprived
of a lifetime income.
Defendants claim:
Defendants Isidro [owner] and Serrano [driver] averred that he knows his responsibilities as a
driver and further contends that it was the negligence of plaintiff that was the proximate cause
of the accident. They alleged that plaintiff parked his truck in a manner which occupied a part of
the highway and he did not even put a warningsign.
THE RTC ruled in favor of the Petitioners. Finding that serrano[driver] was negligent.
THE CA reversed the decision, stating that it is the petitioners who were negligent since they did
not exercise caution by putting warning signs that their truck is park on the

ISSUE: Whether Isidro is liable.

Yes! The CA erroneously appreciated the evidence. It was proven that the petitioner placed a

warning sign within 3 to 4 meters from their truck in the form of a lighted kerosene lamp. The
existence of this warning sings was corroborated by Serrano, respondent's driver, and further
stated that when he saw a parked truck, he kept on stepping on the brake pedal but it did not
function. Thus despite this warning signs, the truck recklessly driven by Serrano and owned by
Respondent Isidro bumped the truck of petitioner.
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 the
selection of the servant or employee, or in supervision over him after selection, or both. Such
presumption may be rebutted. If follows necessarily that if the employer shows to the satisfaction
of the court that in the selection and in the 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. In
disclaiming liability for the incident, the private respondent stresses that the negligence of his
employee has already been adequately overcome by his driver's statement that he knew his
responsibilities as a driver and that the truck owner used to instruct him to be careful in driving.

It is clear that the driver did not know his responsibilities because he apparently did not check
his vehicle before he took it on the road. If he did he could have discovered earlier that the brake
fluid pipe on the right was cut, and could have repaired it and thus the accident could have been
avoided. Moveover the fact that the private respondent used to intruct his driver to be careful in
his driving, that the driver was licensed, and the fact that he had no record of any accident, as
found by the respondent court, are not sufficient to destroy the finding of negligence of the
Regional Trial Court given the facts established at the trial. The private respondent or his
mechanic, who must be competent, should have conducted a thorough inspection of his vehicle
before allowing his driver to drive it.
Isidro failed to prove that the diligence of a good father of a family in the supervision of his
employees which would exculpate him from solidary liability with his driver to the petitioner. But
even if we consider that the diligence of a good father of a family was observed by Isidro in the
supervision of his driver, there is not a sigle evidence on record of the observance by Isidro of
the same quantum of diligence in the supervision of his mechanic, if any, who would be directly
in charge in maintaining the road worthiness of his truck. But that is not all. There is paucity of
proof that Isidro exercised the diligence of a good father of a family in the selection of his driver,
Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe
operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro
as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased.


Dr. Batiquin was a Resident Physician and the Acting Head of the Department of Obstetrics
and Gynecology. Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal
care as the latter's private patient. Dr. Batiquin, with some other hospital personnels, performed
a simple cesarean section on Mrs. Villegas. Soon after leaving the Hospital Mrs. Villegas began
to suffer abdominal pains and complained of being feverish. She consulted Dr. Batiquin who
prescribed for her certain medicines. The abdominal pains and fever kept on recurring and
bothered Mrs. Villegas and when the pains become unbearable and she was rapidly losing
weight she consulted Dr. Ma. Salud Kho, from another hospital. After medically examining Mrs.
Villegas, the result urged Dr. Kho to suggest that Mrs. Villegas submit to another surgery. When
Dr. Kho opened the abdomen of Mrs. Villegas, she found a piece of rubber materials on the right
side of the uterus embedded on the ovarian cyst. This piece of rubber material which Dr. Kho
described as a "foreign body" looked like a piece of a "rubber glove". 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.
Mrs. Villegas filed a complaint for damages against Dr. Batiquin.

RTC: Ruled in favor of Petitioner.

The piece of rubber allegedly found near private respondent Flotilde Villegas' uterus was not
presented in court. 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.

CA: Ruled in favor of Private Respondent.

4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of
evidence. Had she exercised due diligence, appellee Dr. Batiquin would have found the rubber
and removed it before closing the operating area.

ISSUE: Appreciation of Dr. Kho’s testimony by the Court of Appeals.

The petitioners contend that the Court of Appeals misappreciated Dr. Kho's testimony (“Just
in case, I was just thinking at the back of my mind, just in case this would turn out to be a
medicolegal 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.”). The petitioners prefer the trial court's interpretation 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. That
the trial court should have likewise considered the other portions of Dr. Kho's testimony (“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.”)
The SC agrees with the CA’s appreciation of Dr. Kho’s testimony.
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. 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 that she was sure she has seen the piece of rubber and that she’s not the
only one who saw it.

Well-settled is the rule that positive testimony is stronger than negative testimony and such
positive testimony must come from a credible source. 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 [that no rubber drain was used in the operation, and that there was neither any tear
on Dr. Batiquin's gloves after the operation nor blood smears on her hands upon removing her

As such, the rule of res ipsa loquitur comes to force.

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.
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 byproduct 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.


G.R. No. 124354. December 29, 1999]

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as
natural guardians of the minors, ROMMEL RAMOS, ROY RODERICK
RAMOS and RON RAYMOND RAMOS, petitioners, vs. COURT OF
and DRA. PERFECTA GUTIERREZ, respondents.

FACTS: (Pagpasensiyahan neo na, mahaba digest ko, 21 pages kasi tong case na to )

Plaintiff Erlinda Ramos is married to Rogelio E. Ramos, an executive of PLDT. She has
occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in
her gall bladder so she sought professional advice. She was advised to undergo an operation
for the removal of a stone in her gall bladder. She underwent a series of examinations which
included blood and urine tests which indicated she was fit for surgery.

She and her husband Rogelio met for the first time Dr. Orlino Hozaka on June 10, 1985. They
agreed that their date at the operating table at the De Los Santos Medical Center( DLSMC,
another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a cholecystectomy operation after examining the documents presented to him.

On June 17, Erlinda was prepared for the operation by the hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center, was
also there for moral support. After praying, she was given injections.

At the operating room, there were three nurses and Dr. Perfecta Gutierrez, the other defendant,
who was to administer anesthesia. Dr. Gutierrez called Dr. Hosaka who was not yet in.

At almost 12:00 Dr. Hosaka arrived. Herminda Cruz, who was inside the operating room with the
patient, saw Dr. Gutierrez intubating (intubate - insert a tube into (a person or a body part,
especially the trachea for ventilation)) Erlinda. She thereafter heard Dr. Gutierrez say:

“ ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan”

Herminda thereafter noticed bluish discoloration of the nailbeds of the left hand of Erlinda even
as Dr. Hosaka approached her. Dr. Hosaka issued an order for someone to call Dr. Calderon,
another anesthesiologist. After Dr. Calderon arrived at the operating room, she saw this
anesthesiologist trying to intubate the patient. The patients nailbed became bluish and the

patient was placed in a trendelenburg position - a position where the head of the patient is placed
in a position lower than her feet which is an indication that there is a decrease of blood supply
to the patients brain.

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being
rushed towards the door of the operating room. He also saw several doctors rushing towards
the operating room.

At almost 3:00 P.M. of that fateful day, Herminda saw the patient taken to the Intensive Care
Unit (ICU). About two days thereafter, Rogelio was able to talk to Dr. Hosaka who informed him
that something went wrong during the intubation and reminded the doctor that the condition of
his wife would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist.

Erlinda stayed at the ICU for a month. About four months thereafter or on November 15, 1985,
the patient was released from the hospital.

Since that fateful afternoon of June 17, 1985, she has been in a comatose condition. She cannot
do anything. She cannot move any part of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result of the absence of oxygen in her brain
for four to five minutes. She was also diagnosed to be suffering from diffuse cerebral
parenchymal damage

Thus, on 8 January 1986, petitioners filed a civil case for damages with the RTC Quezon
City against herein private respondents alleging negligence in the management and care of
Erlinda Ramos.
DURING THE TRIAL, both parties presented evidence as to the possible cause of Erlindas
injury. Plaintiff presented the testimonies of Herminda and Dr. Mariano Gavino to prove that the
damage sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was Erlindas allergic reaction to
the anesthetic agent, Thiopental Sodium (Pentothal).
It rendered judgment in favor of Erlinda holding the defendant liable to plaintiffs for
damages. The defendants were guilty of negligence in the performance of their duty to plaintiff-
patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, RTC finds that she omitted to exercise reasonable care in
not only intubating the patient, but also in not repeating the administration of atropine without
due regard to the fact that the patient was inside the operating room for almost three (3) hours.

On the part of Dr. Orlino Hosaka, RTC finds that he is liable for the acts of Dr. Perfecta Gutierrez
whom he had chosen to administer anesthesia on the patient as part of his obligation to provide
the patient a `good anesthesiologist', and for arriving for the scheduled operation almost three
(3) hours late.

On the part of DLSMC (the hospital), RTC finds that it is liable for the acts of negligence of the
doctors in their `practice of medicine' in the operating room. Moreover, the hospital is liable for
failing through its responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.

Accordingly, the defendants are ordered to pay, jointly and severally, the petitioner. Private
respondents seasonably interposed an appeal to the Court of Appeals.

DECISION OF THE COURT OF APPEALS: Overturned/Reversed the decision of the RTV


1. Whether the CA erred in not applying the Doctrine Of Res Ipsa Loquitur.
2. Whether the alleged negligence of the defendant was the proximate cause of Erlindas
comatose condition.
a. With respect to Dra. Gutierrez;
b. With respect to Dr. Osaka; and
c. With respect to the Hospital, whether it is solidarily liable with respondent
doctors for petitioners condition
1. Yes, the CA erred. The damage sustained by Erlinda in her brain prior to a scheduled gall
bladder operation presents a case for the application of res ipsa loquitur.
Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks
for itself. Before resort to the doctrine may be allowed, the following requisites must be
satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of
someone’s negligence; (so, the accident occurs because of negligence)
2. It is caused by an instrumentality within the exclusive control of the
defendant/s; and
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.
In the above requisites, the fundamental element is the control of the instrumentality which
caused the damage. Such element of control must be shown to be within the dominion of the
defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident.
 All the elements are present in the case at bar.
In the present case, Erlinda submitted herself for cholecystectomy and expected a routine
general surgery to be performed on her gall bladder. On that fateful day she delivered her person
over to the care, custody and control of private respondents who exercised complete and

exclusive control over her. At the time of submission, Erlinda was neurologically sound and,
except for a few minor discomforts, was likewise physically fit in mind and body. However, during
the administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in
the process of a gall bladder operation. In fact, this kind of situation does not happen in the
absence of negligence of someone in the administration of anesthesia and in the use of
endotracheal tube.
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed
while the patient is unconscious and under the immediate and exclusive control of the
physicians, we hold that a practical administration of justice dictates the application of res ipsa

NOTE: Nonetheless, in holding that res ipsa loquitur is available to the present case we are
not saying that the doctrine is applicable in any and all cases where injury occurs to a patient
while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in
its own light and scrutinized in order to be within the res ipsa loquitur coverage.

2. Yes, the negligence of the defendant was the proximate cause of Erlindas comatose
The private respondents were unable to disprove the presumption of negligence on their
part in the care of Erlinda and their negligence was the proximate cause of her piteous condition.
A. With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the
anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly
intubate the patient. This fact was attested to by Prof. Herminda Cruz and petitioner's
sister-in-law, who was in the operating room right beside the patient when the tragic event
Although witness Cruz is not an anesthesiologist, she can very well testify upon matters on which
she is capable of observing such as, the statements and acts of the physician and surgeon,
external appearances, and manifest conditions which are observable by any one. This is
precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses
is not required.
It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-
technical matters or those of which an ordinary person may be expected to have knowledge, or
where the lack of skill or want of care is so obvious as to render expert testimony unnecessary.
Courts take judicial notice of the fact that anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered properly. As such, it would not be too
difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not
require a medical degree to be acceptable.

The pre-operative evaluation of a patient prior to the administration of anesthesia is
universally observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation
and preparation for anesthesia begins when the anesthesiologist reviews the patients medical
records and visits with the patient, traditionally, the day before elective surgery.
Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation
itself, on 17 June 1985and before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Dra. Gutierrez act of seeing her patient for the first time
only an hour before the scheduled operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physicians centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence.
Private respondents themselves admitted in their testimony that the first intubation was a
In view of the evidences, the court is inclined to believe that it was the faulty intubation which
was the proximate cause of Erlindas comatose condition.
NOTE: Proximate cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury, and without which
the result would not have occurred.
B. With regard to the responsibility of respondent Dr. Orlino Hosaka as the head of the
surgical team. As the head, it is his surgeons responsibility to see to it that those under
him perform their task in the proper manner. Respondent Dr. Hosakas negligence can be
found in his failure to exercise the proper authority in not determining if his
anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record
exists to show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us that respondent Dr. Hosaka had
scheduled another procedure in a different hospital at the same time as
Erlindas cholecystectomy, and was in fact over three hours late for the latters
operation. Because of this, he had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he was remiss in his professional
duties towards his patient. Thus, he shares equal responsibility for the events which
resulted in Erlindas condition.
C. With respect to the responsibility of the hospital in this particular incident; Yes, it is
solidarily liable with its physician for Erlinda’s condition.
Article 2180 of the Civil Code which considers a person accountable not only for his
own acts but also for those of others based on the formers responsibility under a
relationship of patria potestas. Such responsibility ceases when the persons or entity
concerned prove that they have observed the diligence of a good father of the family to
prevent damage. In other words, while the burden of proving negligence rests on the
plaintiffs, once negligence is shown, the burden shifts to the respondents (parent,
guardian, teacher or employer) who should prove that they observed the diligence of a
good father of a family to prevent damage.

In the instant case, respondent hospital, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to
discharge its burden under the last paragraph of Article 2180. Having failed to do this,
respondent hospital is consequently solidarily responsible with its physicians for Erlindas

D.M. Consunji, Inc. vs. CA

Jose Juego, a construction worker of D.M. Consunji (petitioner) fell 14 floors from
Renaissance Tower, Pasig City. The investigation disclosed that, while Juego and two others
were performing carpenter works on board a platform, when suddenly, the bolt or pin which was
merely inserted to connect the chain block with the platform, got loose causing the whole
platform assembly and the victim to fall down to the basement of the elevator core crushing
Juego to death.
Juego’s widow, Maria filed before the RTC an action for damages against D.M. Consunji.
The company raised the defense of the widow’s prior availment of benefits from State Insurance
Fund. RTC ruled in favor of Maria Juego. D.M Consunji appealed to CA. CA affirmed the lower
court’s ruling.
The petitioner contends that CA erred in admitting the police report as evidence of the
alleged negligence of the employer. Petitioner maintains that the police report reproduced is
hearsay and, therefore, inadmissible.

Further, petitioner argues that private respondent had previously availed of the death
benefits provided under the Labor Code and is, therefore, precluded from claiming from the
deceased’s employer damages under the Civil Code.

1. Whether D.M. Consunji shall be held liable for negligence
2. Whether the Maria Juego is barred from claiming damages under the Civil Code. After
recovering damages provided under the Labor Code.

1. Yes. Petitioner Employer is liable for negligence under the doctrine of res ipsa loquitor.

There is no dispute that appellee’s husband fell down from the 14 th floor of a building to
the basement while he was working with appellant’s construction project, resulting to his
death. The construction site is within the exclusive control and management of appellant.
It has a safety engineer, a project superintendent, a carpenter leadman and others who

are in complete control of the situation therein. The circumstances of any accident that
would occur therein are peculiarly within the knowledge of the appellant or its employees.
On the other hand, the appellee is not in a position to know what caused the accident. Res
ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily
available, provided the following requisites are present: (1) the accident was of a kind
which does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency which caused the injury was under the exclusive control of the person charged
with negligence; and (3) the injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured.

2. No. The court ruled reiterating previous jurisprudence. The court recognized that a
claimant who had been paid under the Act could still sue under the Civil Code. The Court

In the Robles case, it was held that claims for damages sustained by workers in the course
of their employment could be filed only under the Workmen’s Compensation Law, to the
exclusion of all further claims under other laws. In Floresca, this doctrine was abrogated
in favor of the new rule that the claimants may invoke either the Workmen’s
Compensation Act or the provisions of the Civil Code, subject to the consequence that
the choice of one remedy will exclude the other and that the acceptance of compensation
under the remedy chosen will preclude a claim for additional benefits under the other
remedy. The exception is where a claimant who has already been paid under the
Workmen’s Compensation Act may still sue for damages under the Civil Code on the
basis of supervening facts or developments occurring after he opted for the first remedy.
(Underscoring supplied.)

Here, the CA held that private respondent’s case came under the exception because
private respondent was unaware of petitioner’s negligence when she filed her claim for
death benefits from the State Insurance Fund. Hence, SC affirmed CA’s decision.