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Picart saw the automobile coming and heard the warning

signals. However he did not move his horse to the other lane,
TORTS REPORT: NEGLIGENCE AS PROXIMATE CAUSE instead he moved his horse closer to the railing. His reason
was that, he thought he did not have sufficient time to get over
the other side. The horse (pony) did not yet exhibit fright so
Snith, instead of veering to the right while yet some distance
A. Definition away, continued driving towards Picart without slowing down
and when he was already near the horse he quickly turned his
car to the right side to escape. But the horse got scared so it
turned its body across the bridge; the horse was struck on the
hock of the left hind leg by the flange of the car and the limb
Among the elements that the plaintiff suing for negligence will was broken. The horse fell and Picart was thrown out with
have to prove is that the defendant's violation of a duty was the some violence. As a result of its injuries the horse died and
actual and proximate cause of his or her injuries. Picart received contusions which caused temporary
unconsciousness and required medical attention for several
Negligence : is statutorily defined to be the omission of days.
that degree of diligence which is required by
the nature of the obligation and RULING OF THE LOWER COURT:
Frank Smith was absolved from liability
corresponding to the circumstances of
persons, time and place. ISSUE:
Whether or not Smith, in maneuvering his car was guilty of
: Failure to exercise the care that a negligence.
reasonably prudent person would exercise.
: Failure to observe degree of care, Yes.
precaution and vigilance that the To determine the existence of negligence in the particular case
circumstances justly demand, whereby that may be stated as follows: Did the defendant (Smith) in doing
other person suffers injury. the alleged negligent act use what that person would have
used in the same situation? If not, then he is guilty of

Applying this test to the conduct of the defendant in the present

Proximate cause: means “legal cause,” or one that the law case, we (Court) think that negligence is clearly established. A
recognizes as the primary cause of the injury. prudent man, placed in the position of the defendant, would in
our (Court) opinion, have recognized that the course which he
: That cause, which, in natural and was pursuing was fraught with risk and would therefore have
continuous sequence, unbroken by any foreseen harm to the horse and the rider as reasonable
efficient intervening cause, produces the consequence of that course. Under these circumstances the
injury and without which the result would not law imposed on the defendant the duty to guard against the
threatened harm.
have occurred.
But the plaintiff (Picart) was not free from fault, for he was
: It is determined by the facts of each case guilty of antecedent negligence in planting himself on the
upon mixed considerations of logic, common wrong side of the road. But as what was already stated, the
sense, policy and precedent. defendant was also negligent and in such case the problem
always is to discover which agent is immediately and directly

Under these circumstances, the law said that the person who
G.R. No. L-12219March 15, 1918 has the LAST CLEAR CHANCE to avoid the impending harm
AMADO PICART vs FRANK SMITH, JR. and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party. This in this
FACTS: case was Frank Smith.
(An appealed case base on the decision of the lower court -
Court of First Instance of Prov. Of La Union.)

On December 12, 1912, at the Carlatan Bridge, Amado Picart

was riding his horse. Before he had gotten half way across, G.R. No. L-29889 May 31, 1979
Frank Smith approached from the opposite direction in an VICTORINO CUSI and PILAR POBRE vs PHILIPPINE
automobile, going at the rate of about 10 to 12 miles per hour. NATIONAL RAILWAYS
As Smith neared the bridge he saw Picart and blew his horn to
give warning of his approach. He continued his course and FACTS:
after he had taken the bridge he gave 2 more successive blast, On the night of October 5, 1963, Sps. Cusi and Pobre attended
as it appeared to him that Picart was not observing the rule of a birthday party inside the United Housing Subdivision in
the road. Paranaque, Rizal. After the party which broke up at about 11
o'clock that evening, they proceeded home in their Vauxhall car

TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
with Cusi at the wheel. Upon reaching the railroad tracks, whereby such degree of care and vigilance is measured, it is
finding that the level crossing bar was raised and seeing that dependent upon the circumstances in which a person finds
there was no flashing red light, and hearing no whistle from himself so situated. All that the law requires is that it is always
any coming train, Cusi merely slack ened his speed and incumbent upon a person to use that care and diligence
proceeded to cross the tracks. At the same time, a train bound expected of reasonable men under similar circumstances.
for Lucena traversed the crossing, resulting in a collision
between the two. The impact threw the Cusi and Pobre out of Undisputably, the warning devices installed at the railroad
their car which was smashed. One Benjamin Franco, who crossing were manually operated; there were only 2 shifts of
came from the same party and was driving a vehicle right guards provided for the operation thereof. On the night of the
behind them, rushed to their aid and brought them to San Juan accident, the train for Lucena was on an unscheduled trip after
de Dios Hospital for emergency treatment. Later, the Cusi and 11:00 P.M. During that precise hour, the warning devices were
Pobre were transferred to the Philippine General Hospital. A not operating for no one attended to them.
week later, Mrs. Cusi transferred to the Manila Doctors
Hospital where Dr. Manuel Rivera, head of the Orthopedic and The signal devices were wholly manually-operated; there was
Fracture Service of the Philippine General Hospital performed an urgent need for a flagman or guard to man the crossing at
on her a second operation and continued to treat her until her all times. As it was, the crossing was left unattended to after
discharge from the hospital on November 2, 1963. eleven o'clock every night and on the night of the accident. The
Court cannot in all reason justify or condone the act of the
For these injuries, she underwent a total of four surgical opera. defendant-appellant allowing the subject locomotive to travel
Petition run for a period of two years. As a result of the fracture through the unattended crossing with inoperative signal
on her right arm, there was a shortening of about 1 cm. of that devices, but without sending any of its employees to operate
arm. She lost the flexibility of her wrist, elbow and shoulder. Up said signal devices so as to warn oncoming motorists of the
to the time she took the witness stand in August, 1966, she still approach of one of its locomotives. It is not surprising therefore
had an intermedullary nail in the bone of her right arm. that the in operation of the warning devices created a situation
Likewise, Victorino Cusi suffered brain injuries which affected which was misunderstood by the riding public to mean safe
his speech, memory, sense of hearing and neck movement. passage.
For a long period, he also felt pain all over his body. Victorino
Cusi claimed that prior to the accident he was a successful After a thorough perusal of the facts attendant to the case, this
businessman. On the other hand, his wife, Pilar, was a skilled Court is in fun accord with the lower court. Plaintiff-appellee
music and piano teacher. After the accident, she lost the Victorino Cusi had exercised all the necessary precautions
dexterity of her fingers forcing her to quit her profession. She required of him as to avoid injury to -him and to others. We find
also bore ugly scars on several parts of her body, and she no need for him to have made a full stop; relying on his
suffered anxiety of a possible miscarriage being then five (5) faculties of sight and hearing, Victorino Cusi had no reason to
months pregnant at the time of the accident. anticipate the impending danger.

The defense is centered on the proposition that the gross JUDGEMENT:

negligence of Victorino Cusi was the proximate cause of the The judgment of the lower court is hereby AFFIRMED with the
collision; that had he made a full stop before traversing the modification that the total amount of damages shall bear legal
crossing as required by section 56(a) of Act 3992 (Motor interest at six per cent (6%) from the rendition of the decision
Vehicle Law), he could have seen and heard the approach of dated March 26, 1968.
the train, and thus, there would have been no collision.

LOWER COURT’S DECISION: 2. Circumstances to consider in determining Negligence

Court of First Instance of Rizal ordering defendant-appellant to
indemnify the plaintiffs- appellees in the total amount of Two a) Time
Hundred Thirty-Nine Thousand and Six Hundred Forty-Eight
Pesos, and Seventy-Two Centavos (P239,648.72) for injuries Obviously, the time of the day may affect the diligence
received in a collision caused by the gross negligence of required of the actor. (Article 1173, Civil Code). A driver is
defendant-appellant, plus Ten Thousand Pesos (P10,000.00) required to exercise more prudence if he is driving at night. In
as attorney's fees and expenses of litigation. fact, running in a dark place requires a different degree of care
compared to running in the light of day.
ISSUE: In People vs. Ramirez (48 Phil. 204 [1925]), the
Whether or not Victorino Cusi was negligent and such was the accused shot his companion while they were hunting at night.
proximate cause of the collision. He alleged that “he seemed to have seen with his lantern
something like the eyes of a deer, about 50 meters from him
HELD: then he shot it.”
No. The Supreme Court rejected the argument stating that
The judicial pronouncement below that the gross negligence of a person who was carrying a firearmto hunt at nighttime with
defendant-appellant was the proximate cause of the collision the aid of a lantern knowing that he had two companions
has been thoroughly reviewed by this Court and we fully affirm should have exercised all the necessary diligence to avoid
the same. every undesirable accident.

Negligence has been as "the failure to observe for the b) Place

protection of the interests of another person that degree of
care, precaution, and vigilance which the circumstances justly The place of the incident is also material. A man who
demand, whereby such other person suffers injury." By such a should have occasion to discharge a gun on an open and
test, it can readily be seen that there is no hard and fast rule extensive marsh, or in a forest would be required to use less

TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
circumspection and care, than if he were to do the same thing x x x – Where the particular harm was reasonably foreseeable
in an inhabited town, village, or city. (Brown vs. Kendall, 60 at the time of the defendant’s misconduct, his act or omission
Mass. 292 [1850]; see also People vs. Cusi, CA 68 O.G. 2777). is the legal cause thereof. Foreseeability is the fundamental
test of the law of negligence. To be negligent, the defendant
c) Emergency Rule
The “emergency rule” was applied is McKee vs. must have acted or failed to act in such a way that an ordinary
Intermediate Appellate Court (211 SCRA 517 [1992]). One of reasonable man would have realized that certain interests of
the plaintiffs therein swerved his vehicle in order to avoid certain persons were unreasonably subjected to a general but
hitting two (2) children. The Supreme Court explained that “any definite class of risk which made the actor’s conduct negligent,
reasonable and ordinary prudent man would have tried to it is obviously the consequence for the actor must be held
avoid running over two boys by swerving the car away from legally responsible. Otherwise, the legal duty is entirely
where they where even if this would mean entering the
defeated. Accordingly, the generalization may be formulated
opposite lane.
Exception: the emergency in which that all particular consequences, that is, consequences which
he finds himself is brought about by occur in a manner which was reasonably foreseeable by the
his own negligence. defendant at the time of his misconduct are legally caused by
his breach of duty x x x.
d) Gravity of harm to be avoided
Even if the odds that an injury will result is not high,
harm may still be considered foreseeable if the gravity of harm
to be avoided is great. Thus, in one case (Consolacion Junio
vs. Manila Railroad Company, 58 Phil. 176 [1933]),

e) Alternative course of Action

In McKee vs. Intermediate Appellate Court (supra, at
55), the gravity of injury which will result if the alternative C. Proof of Negligence
course of action was taken by the actor was also considered.
The quantum of proof required in preponderance of
f) Social Value or utility of Activity evidence (RULES OF COURT, RULE 133, Sec 1).
The absence of a viable alternative should also be
examined in the light of the social value of the activity involved. Rule 133: Weight and Sufficiency of Evidence
The diligence which the law requires an individual to observe
and exercise varies according to the nature of the situation SECTION 1. Preponderance of evidence, how
which he happens to be in, and the importance of the act which determined. — In civil cases, the party having burden
he has to perform. (Bulilan vs. Commission of Audit, 285 SCRA of proof must establish his case by a preponderance
445, 453 [1998]). of evidence. In determining where the preponderance
Thus, in Manila Electric Co. vs. Remoquillo, it was or superior weight of evidence on the issues involved
evident that the danger of using uninsulated high voltage wires lies, the court may consider all the facts and
was disregarded because of the social value of providing circumstances of the case, the witnesses’ manner of
electricity to the public. testifying, their intelligence, their means and
opportunity of knowing the facts to which there are
g) Person exposed to Risk testifying, the nature of the facts to which they testify,
The character of the person exposed to the risk is the probability or improbability of their testimony, their
also a circumstance which should be considered in interest or want of interest, and also their personal
determining negligence. Consistent with this rule, a higher credibility so far as the same may legitimately appear
degree of diligence is required if the person involved is a child. upon the trial. The court may also consider the
In United States vs. Clemente (24 Phil. 178), for instance, the number of witnesses, though the preponderance is
Supreme Court explained that greater degree of care in driving not necessarily with the greater number.
is owed to children in the streets.
Burden of Proof

General Rule:

Plaintiff alleging damage due to negligent acts in his

B. “Cause”
complaint has the burden of proving such negligence.
Cause: Act or omission is the legal cause of negligence. (TAYLOR vs. MERALCO, G.R. No. L-8328, May 18,

COOPERATIVE, INC. (ANECO) vs.BALEN When the rules or the law provide for cases when
negligence is presumed (AQUINO, Torts and
G.R. No. 173146 November 25, 2009, the court held: Damages, supra at 135-136)

TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
Jurisprudence incurred but for the negligent act of the defendant in leaving
the caps exposed on its premises, nevertheless plaintiff’s
TAYLOR vs. MERALCO, G.R. No. L-8328, May 18, 1956 own act was the proximate and principal cause of the
accident which inflicted the injury.
We think it is quite clear that the immediate cause of
An action to recover damages for the loss of an eye the explosion ,the accident which resulted in plaintiff’s injury
and other injuries, instituted by David Taylor, a minor, by his ,was his own act in putting a match to the contents of the cap,
father, his nearest relative. The defendant is a foreign and that having “ contributed to the principal occurrence,
corporation engaged in the operation of a street railway and an as one of its determining factors, he cannot recover”.
electric light system in the city of Manila. The plaintiff, David
Taylor, was at the time when he received the injuries SO ORDERED. Judgment of the court below
complained of, 15 years of age. reversed.

On the 30th of September, 1905 David together with

his companion Manuel Claparols went to the company’s
premises and found some twenty or thirty brass fulminating Note:
caps scattered on the ground. They tried to break the cap with
a stone and hammer but failed, so they opened one of the Doctrine of Contributory Negligence
caps with a knife and finding that it was filed with a yellowish
substance they lighted it with a match and explosion followed If the negligence of the plaintiff cooperated with the
causing them more or less injuries and to the removal of the negligence of the defendant in bringing about the accident
right eye of David. causing the injury complained of, such negligence of the
plaintiff would be an absolute bar to recovery.
So this action arises and the trial court ruled in favor
of the plaintiff. If the negligence of the plaintiff was merely
contributory to his injury, the immediate and proximate cause
RULING OF THE LOWER COURT: of the accident causing the injury being the defendant’s
negligence, such negligence would not be a bar to recovery,
The claim of the plaintiff shows that evidence in the but the amount recoverable shall be mitigated by the court.
record sufficiently establishes the contrary, and justifies the
court in drawing the reasonable inference that the caps found Contributory Negligence
on its premises were its property.
Conduct on the part of the injured party, contributing
Thus, applying the provisions of the Articles 1089 of as a legal cause to the harm he has suffered, which falls below
the Civil Code read together with articles 1902, 1903, and 1908 the standard which he is required to conform for his own
of that Code, the company is liable for the damage which was protection.
There is contributory negligence when the party’s act
Not satisfied with the decision of lower court, counsel showed lack of ordinary care and foresight that such act could
for defendant and appellant rests his appeal strictly upon his cause him harm or put his life in danger. A plaintiff who is partly
contention that the facts proven at the trial do not establish the responsible for his own injury should not be entitled to recover
liability of the company under the provisions of these articles. damages but must bear the consequences of his own

Whether or not David is entitled to damages?


In the case at bar, we are satisfied that the plaintiff in

this case had sufficient capacity and understanding to be D. Presumption of Negligence
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 Article 2184, NCC:
the sense that his age and his experience qualified him to
understand and appreciate the necessity for the exercise of In motor vehicle mishaps, the owner is solidarily liable with his
that degree of caution which would have avoided the injury driver, if the former, who was in the vehicle, could have, by the
resulted from his own deliberate act; and that the injury use of the due diligence, prevented the misfortune. It is
incurred by him must be held to have been the direct and disputably presumed that a driver was negligent, if he had
immediate result of his own willful and reckless act, so that been found guilty of reckless driving or violating traffic
while it may be true that these injuries would not have been regulations at least twice within the next preceding two months.
TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
If the owner was not in the motor vehicle, the provisions of Article 2180 of the Civil Code is direct and immediate; it is not
article 2180 are applicable. conditioned upon prior recourse against the negligent
employee and a prior showing of the insolvency of such
Article 2185, NCC: employee. So far as the record shows, petitioner Kapalaran
was unable to rebut the presumption of negligence on its own
Unless there is proof to the contrary, it is presumed that a part.
person driving a motor vehicle has been negligent if at the time
of the mishap, he was violating any traffic regulation. The award of moral damages against petitioner Kapalaran is
not only entirely in order; it is also quite modest considering
(Kapalaran Bus Line v. Coronado) (G.R. No. 85331; August 25, Dionisio Shinyo's death during the pendency of this petition, a
1989) death hastened by, if not directly due to, the grievous injuries
sustained by him in the violent collision.
Legal Issue:
Article 2188, NCC:
Whether or not KAPALARAN BUS LINE is liable for damages
from the said collision There is prima facie presumption of negligence on the part of
the defendant if the death or injury results from his possession
Facts of the Case:
of dangerous weapons or substances, such as firearms and
The jeepney driven by Lope Grajera was then coming from poison, except when the possession or use thereof is
Pila, Laguna and traversing the an old highway towards Sta. indispensable in his occupation or business. (n)
Cruz collided with a KBL bus driven by its regular driver Virgilio
Llamoso. As testified to by Atty. Conrado L. Manicad who was
driving a Mustang car coming from the direction of Sta. Cruz Doctrine of Res ipsa loquitor (The thing speaks for itself)
and proceeding towards the direction of Manila, he stopped at
the intersection to give way to the jeepney driven by Grajera. Black Law’s Dictionary: Res ipsa loquitur is rule of
The sketch marked very clearly that the jeepney had already evidence whereby negligence of alleged wrongdoer may be
traversed the intersection when it met the KBL bus head-on. It inferred from mere fact that accident happened provided
is also obvious that the point of impact was on the right lane of character of accident and circumstances attending it lead
the highway which is the lane properly belonging to the reasonably to belief that in absence of negligence it would not
jeepney. have occurred and that thing which caused injury is shown to
have been under management and control of alleged
Judging from the testimony of Atty. Conrado L. Manicad and wrongdoer.
the sketch (Exhibit 'E'), the sequence of events shows that the
first vehicle to arrive at the intersection was the jeepney. Under doctrine of “res ipsa loquitur” the happening of
Seeing that the road was clear, the jeepney which had stopped an injury permits an inference of negligence where plaintiff
at the intersection began to move forward, and for his part, produces substantial evidence that injury was caused by an
Atty. Manicad stopped his car at the intersection to give way to agency or instrumentality under exclusive control and
the jeepney. The KBL bus had no more room within which to management of defendant, and that the occurrence was such
stop without slamming into the rear of the vehicle behind the that in the ordinary course of things would not happen if
car of Atty. Manicad. The KBL driver chose to gamble on reasonable care had been used.” (Layugan vs. Intermediate
proceeding on its way, unfortunately, the jeepney driven by Appellate Court, G.R. No. 73998, November 14, 1988).
Grajera, which had the right-of-way, was about to cross the
center of the highway and was directly on the path of the KBL The doctrine is not a rule of substantive law but
bus. The impact indicates that the KBL bus was travelling at a merely a mode of proof or a mere procedural convenience.
fast rate of speed because, after the collision, it did not stop; it The rule, when applicable to the facts and circumstances of a
travelled for another 50meters and stopped only when it hit an particular case, is not intended to and does not dispense with
electric post. the requirement of proof of culpable negligence on the part of
the party charged. It merely determines and regulates what
Ruling of the Court: shall be prima facie evidence thereof and facilitates the burden
of plaintiff of proving a breach of the duty of due care.
Resort to the doctrine may be allowed only when (a)
KBL is liable for the damages in the collision. the event is of a kind which does not ordinarily occur in the
absence of negligence; (b) other responsible causes, including
The patent and gross negligence on the part of the petitioner
the conduct of the plaintiff and third persons, are sufficiently
Kapalaran's driver raised the legal presumption that Kapalaran
eliminated by the evidence; and (c) the indicated negligence is
as employer was guilty of negligence either in the selection or
within the scope of the defendant’s duty to the plaintiff. Thus, it
in the supervision of its bus driver, where the employer is held
is not applicable when an unexplained accident may be
liable for damages; it has of course a right of recourse against
its own negligent employee. The liability of the employer under
TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus
attributable to one of several causes, for some of which the
defendant could not be responsible.

Res ipsa loquitur has application only to the law of

negligence (63 AmJur 2d at 721). It is confined only to cases of
pure (non-contractual) tort since obviously the presumption of
negligence in culpa contractual immediately attaches by a
failure of the covenant or its tenor.

TORTS & DAMAGES Section A Group 1: Geonzon, Ledesma, Membreve, Sedurifa, Tampus