FIRST DIVISION

G.R. No. 160709 February 23, 2005

NELEN LAMBERT, assisted by her husband, GLENROY ALOYSUIS LAMBERT, petitioners,

vs.
HEIRS OF RAY CASTILLON, Represented by MARILOU T. CASTILLON and SERGIO LABANG, respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking the reversal of the decision 1 of the Court of
Appeals dated October 21, 2002 in CA-G.R. CV No. 43734, which affirmed the June 29, 1993 decision of the Regional
Trial Court of Iligan City, Branch 06, in Civil Case No. 06-2086.

In the evening of January 13, 1991, Ray Castillon visited the house of his brother Joel Castillon at Tambo, Iligan City
and borrowed his motorcycle. He then invited his friend, Sergio Labang, to roam around Iligan City. Ray drove the
motorcycle with Sergio as the backrider.2

At around past 10:00 p.m., after eating supper at Hona’s Restaurant and imbibing a bottle of beer, they traversed the
highway towards Tambo at a high speed. Upon reaching Brgy. Sto. Rosario, they figured in an accident with a Tamaraw
jeepney, owned by petitioner Nelen Lambert and driven by Reynaldo Gamot, which was traveling on the same direction
but made a sudden left turn. The incident resulted in the instantaneous death of Ray and injuries to Sergio. 3

Respondents, the heirs of Ray Castillon, thus filed an action for damages with prayer for preliminary attachment against
the petitioner Nelen Lambert. The complaint was docketed as Civil Case No. 06-2086 of the RTC of Iligan City, Branch
06.4 The complaint was subsequently amended to include the claim by Joel Castillon for the damages caused to the
motorcycle.5 1ªvvphi1. nét

On June 29, 1993, after a full-blown trial, the court a quo rendered a decision in favor of herein private respondents but
reduced petitioner’s liability by 20% in view of the contributory negligence of Ray. The dispositive portion of the decision
reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants, directing the latter,
jointly and severally, to pay the former the following:

1. The sum of SIX HUNDRED THIRTY-THREE THOUSAND AND NINETY-ONE (P633,091) PESOS,
representing loss of support, death indemnity, funeral and related expenses, moral damages and attorney’s
fees and

2. Costs of the suit.

For lack of merit, defendants’ counterclaim is dismissed.

On the claim of Joel Castillon, the evidence shows that he is not the real owner of the motorcycle. He is not the real
party in interest. Accordingly, his complaint is dismissed.

On the third-party complaint, the third-party defendant Zenith Insurance Corporation is ordered to pay the sum of
P16,500.00 directly to the plaintiffs. This sum, if paid, should be deducted from the amount adjudged in par. 1 above.

SO ORDERED.6
The Court of Appeals affirmed the decision of the trial court. 7 Hence the present petition, based on the following
arguments:

1. The Honorable Court of Appeals committed serious error of law and grave abuse of discretion when it did
not apply the ruling of this Honorable Court in the case of Philippine Rabbit Bus Lines vs. The Honorable
Intermediate Appellate Court and Casiano Pascua, Et. Al., [189 SCRA 168, August 30, 1990], as reiterated
recently in the case of Edna A. Raynera vs. Freddie Hiceta and Jimmy Orpilla [306 SCRA 102, April 21, 1999],
in which this Honorable Court enunciated that drivers of vehicles "who bump the rear of another vehicle" are
presumed to be the cause of the accident.

2. The erroneous conclusion of the Honorable Trial Court as affirmed by the Honorable Court of Appeals that
the act of tailgating, at high speed, constitutes contributory negligence only, is contrary to the rulings of this
Honorable Court in the case of Sanitary Steam Laundry, INC. vs. The Honorable Court of Appeals [300 SCRA
20, December 10, 1998] and the case of Edna A. Raynera vs. Freddie Hiceta and Jimmy Orpilla [306 SCRA
102, April 21, 1999].

3. The Honorable Court of Appeals grossly erred in its conclusion that petitioner’s driver was negligent, without
taking into consideration the presumptions enunciated by this Honorable Court in the case of Philippine Rabbit
Bus Lines vs. The Honorable Intermediate Appellate Court and Casiano Pascua, Et. Al., [189 SCRA 168,
August 30, 1990], and the case of Edna A. Raynera vs. Freddie Hiceta and Jimmy Orpilla [306 SCRA 102, April
21, 1999].

4. As an alternative relief, petitioner most respectfully assigns as error the Honorable Trial Court’s computation
as to the loss of earning capacity of Ray Castillon. Such computation is contrary to the formula enunciated by
this Honorable Court in the case of Villa Rey Transit, Inc. vs. The Honorable Court of Appeals [31 SCRA 511
(1970)].

5. The Honorable Trial Court’s award of moral damages is contrary to the pronunciation of this Honorable Court
in the case of Ace Haulers Corporation vs. The Honorable Court of Appeals and Abiva [338 SCRA 572, August
23, 2000], wherein the award of moral damages was disallowed absent any evidence of bad faith or ill-motive.8

Petitioner insists that the negligence of Ray Castillon was the proximate cause of his unfortunate death and therefore
she is not liable for damages.

In petitions for review on certiorari under Rule 45 of the Rules of Court, only questions of law may be put into issue.
Questions of fact cannot be entertained. The finding of negligence by the Court of Appeals is a question of fact which
we cannot pass upon as it would entail going into factual matters on which the finding of negligence was based. As a
rule, factual findings of the trial court, especially those affirmed by the Court of Appeals, are conclusive on this Court
when supported by the evidence on record.9

Our examination of the records shows that both the trial court and the Court of Appeals carefully considered the factual
backdrop of the case. No cogent reason exists for disturbing the following findings of the trial court, which the Court of
Appeals affirmed:

… To the mind of the court, this is exactly what happened. When Reynaldo Gamot was approaching the side road, he
slightly veered to the right for his allowance. Ray Castillon, who was following closely behind, instinctively veered to
the left but it was also the moment when Reynaldo Gamot sharply turned to the left towards the side road. At this
juncture both were moving obliquely to the left. Thus the motorcycle sliced into the side of the jeepney throwing the
l^vvphi 1.ne t

driver forward so that his forehead hit the angle bar on the left front door of the jeepney even as the motorcycle shot
forward and the jeepney veered back to the right and sped away.

The testimonies of the witnesses Frias, Opada, Labang and Sumile show that he did not stop even for a second, or
less before making the left turn. On the contrary, he slightly veered to the right immediately followed by the abrupt and
sudden turn to the left in order to enter the side road. It is apparent that Reynaldo Gamot did not keep a lookout for
vehicles or persons following him before proceeding to turn left. He failed to take into account the possibility that others
may be following him. He did not employ the necessary precaution to see to it that the road was clear. 10
Clearly, the abrupt and sudden left turn by Reynaldo, without first establishing his right of way, was the proximate cause
of the mishap which claimed the life of Ray and injured Sergio. 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.11 The cause of the collision is traceable to the negligent act of Reynaldo for, as the trial
court correctly held, without that left turn executed with no precaution, the mishap in all probability would not have
happened.12

Petitioner misunderstood our ruling in Raynera v. Hiceta.13 That case also involved a motorcycle crashing into the left
rear portion of another vehicle, and we declared therein that drivers of vehicles "who bump the rear of another vehicle"
are presumed to be "the cause of the accident, unless contradicted by other evidence".14 In Raynera, the death of
the victim was solely attributable to his own negligence in bumping the rear of the trailer truck which was traveling
ahead of him at 20 to 30 kilometers per hour. Raynera, being the driver of the rear vehicle, had full control of the
situation as he was in a position to observe the vehicle in front of him. The trailer truck therein did not make a sudden
left turn as in the case at bar. Thus, the theory that drivers of vehicles "who bump the rear of another vehicle" are
presumed to be the cause of the accident is, as in this case, sufficiently contradicted by evidence, which is the sudden
left turn made by Reynaldo which proximately caused the collision.

While we agree with the trial court that Ray was likewise guilty of contributory negligence as defined under Article 2179
of the Civil Code, we find it equitable to increase the ratio of apportionment of damages on account of the victim’s
negligence.

Article 2179 reads as follows:

When the plaintiff’s negligence was the immediate and proximate cause of his injury, he cannot recover damages. But
if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant’s lack of
due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should
not be entitled to recover damages in full but must bear the consequences of his own negligence. The defendant must
thus be held liable only for the damages actually caused by his negligence. 15 The determination of the mitigation of the
defendant’s liability varies depending on the circumstances of each case. The Court had sustained a mitigation
of 50% in Rakes v. AG & P;16 20% in Phoenix Construction, Inc. v. Intermediate Appellate Court 17 and LBC Air Cargo,
Inc. v. Court of Appeals;18 and 40% in Bank of the Philippine Islands v. Court of Appeals 19 and Philippine Bank of
Commerce v. Court of Appeals.20 1awp hi1.n ét

In the case at bar, it was established that Ray, at the time of the mishap: (1) was driving the motorcycle at a high speed;
(2) was tailgating the Tamaraw jeepney; (3) has imbibed one or two bottles of beer; and (4) was not wearing a protective
helmet.21 These circumstances, although not constituting the proximate cause of his demise and injury to Sergio,
contributed to the same result. The contribution of these circumstances are all considered and determined in terms of
percentages of the total cause. Hence, pursuant to Rakes v. AG & P, the heirs of Ray Castillon shall recover damages
only up to 50% of the award. In other words, 50% of the damage shall be borne by the private respondents; the
remaining 50% shall be paid by the petitioner.

Anent the award of loss of earning capacity, we agree with the petitioner that the trial court erred in the computation of
the net earnings.

In considering the earning capacity of the victim as an element of damages, the following factors are considered in
determining the compensable amount of lost earnings: (1) the number of years for which the victim would otherwise
have lived; and (2) the rate of loss sustained by the heirs of the deceased. Jurisprudence provides that the first
factor, i.e., life expectancy, is computed by applying the formula (2/3 x [80 - age at death]) adopted in the American
Expectancy Table of Mortality or the Actuarial Combined Experience Table of Mortality. As to the second factor, it is
computed by multiplying the life expectancy by the net earnings of the deceased, i.e., the total earnings less expenses
necessary in the creation of such earnings or income and less living and other incidental expenses. The net earning
is ordinarily computed at fifty percent (50%) of the gross earnings. Thus, the formula used by this Court in
computing loss of earning capacity is: Net Earning Capacity = [2/3 x (80 – age at time of death) x (gross annual
income – reasonable and necessary living expenses)].22
It was established that Ray was 35 at the time of his death and was earning a gross annual income of P31,876.00 as
a driver at the Mindanao State University. In arriving at the net earnings, the trial court deducted from the gross annual
income the annual living expenses in the amount of P9,672.00, broken down as follows: P20.00 a day for travel or
P520.00 per month; P60.00 a month for cigarettes; P26.00 for drinks; and other personal expenses like clothing,
toiletries, etc. estimated at P200.00 per month. 23 The amount of P9,672.00, however, appears unrealistic, and
constitutes only 30.34% of the gross earnings. It even includes expenses for cigarettes which by no means can be
classified as a necessary expense. Using the cited formula with the net earnings computed at 50% of the gross
earnings, a detailed computation is as follows:
1ªvvp hi1.n ét

NET EARNING = LIFE EXPECTANCY [2/3 (80-age x GROSS ANNUAL - LIVING EXPENSES
CAPACITY (X) at the time of death)] INCOME (GAI) (50% of GAI)
X = [2/3 (80-35)] x [P31,876.00 -50% x P31,876.00]
X = [2/3 (45)] x [P31,876.00 - P15,938.00]
X = 30 x 15,938.00
X = P478,140.00

We sustain the awards of P33,215.00 as funeral and burial expenses being supported with receipts; 24 P50,000.00 as
death indemnity; and P50,000.00 as moral damages. However, the award of P20,000.00 as attorney’s fees must be
deleted for lack of basis.

The indemnity for death caused by a quasi-delict used to be pegged at P3,000.00,25 based on Article 2206 of the Civil
Code, which reads:

ART. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand
pesos, even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall
be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court,
unless the deceased on account of permanent physical disability not caused by the defendant, had no earning
capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is
not an heir called to the decedent’s inheritance by the law of testate or intestate succession, may demand
support from the person causing the death, for a period of not exceeding five years, the exact duration to be
fixed by the court;

(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of the deceased.

However, the amount has been gradually increased through the years. At present, prevailing jurisprudence fixes the
amount at P50,000.00.26

Paragraph 3 of the same provision also serves as the basis for the award of moral damages in quasi-delict. The reason
for the grant of moral damages has been explained, thus:

… the award of moral damages is aimed at a restoration, within the limits possible, of the spiritual status quo ante; and
therefore, it must be proportionate to the suffering inflicted. The intensity of the pain experienced by the relatives of the
victim is proportionate to the intensity of affection for him and bears no relation whatsoever with the wealth or means
of the offender.27

While it is true that there can be no exact or uniform rule for measuring the value of human life and the m easure of
damages cannot be arrived at by a precise mathematical calculation, 28 we hold that the trial court’s award of moral
damages of P50,000.00 for the death of Ray Castillon is in accord with the prevailing jurisprudence. 29
With respect to attorney’s fees, it is well settled that the same should not be awarded in the absence of stipulation
except under the instances enumerated in Article 2208 of the Civil Code. The trial court did not indicate the basis for
its award. As we have held in Rizal Surety and Insurance Company v. Court of Appeals:30

"Article 2208 of the Civil Code allows attorney’s fess to be awarded by a court when its claimant is compelled to litigate
with third persons or to incur expenses to protect his interest by reason of an unjustified act or omission of the party
from whom it is sought. While judicial discretion is here extant, an award thereof demands, nevertheless, a factual,
l^vvphi1 .net

legal or equitable justification. The matter cannot and should not be left to speculation and conjecture (Mirasol vs. De
1a\^/phi 1.net

la Cruz, 84 SCRA 337; Stronghold Insurance Company, Inc. vs. Court of Appeals, 173 SCRA 619).

In the case at bench, the records do not show enough basis for sustaining the award for attorney’s fees and to adjudge
its payment by petitioner…"

Likewise, this Court held in Stronghold Insurance Company, Inc. vs. Court of Appeals that:

"In Abrogar v. Intermediate Appellate Court [G.R. No. 67970, January 15, 1988, 157 SCRA 57] the Court had occasion
to state that ‘[t]he reason for the award of attorney’s fees must be stated in the text of the court’s decision, otherwise,
if it is stated only in the dispositive portion of the decision, the same must be disallowed on appeal.’ …1awphi1. nét

WHEREFORE, in view of the foregoing, the petition is DENIED. The assailed decision of the Court of Appeals is
AFFIRMED with the MODIFICATION that the net earnings is computed at 50% of the gross annual income to conform
with the prevailing jurisprudence, and the FURTHER MODIFICATION that petitioner NELEN LAMBERT is ordered to
pay the heirs of Ray Castillon only 50% of the damages herein awarded, except attorney’s fees which is DELETED for
lack of basis.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, Carpio, and Azcuna, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-45637 May 31, 1985

ROBERTO JUNTILLA, petitioner,

vs.
CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL CAMORO, respondents.

Valentin A. Zozobrado for petitioner.

Ruperto N. Alfarara for respondents.

GUTIERREZ, JR., J.:

This is a petition for review, on questions of law, of the decision of the Court of First Instance of Cebu which reversed
the decision of the City Court of Cebu and exonerated the respondents from any liability arising from a vehicular
accident.

The background facts which led to the filing of a complaint for breach of contract and damages against the respondents
are summarized by the Court of First Instance of Cebu as follows:

The facts established after trial show that the plaintiff was a passenger of the public utility jeepney
bearing plate No. PUJ-71-7 on the course of the trip from Danao City to Cebu City. The jeepney was
driven by defendant Berfol Camoro. It was registered under the franchise of defendant Clemente
Fontanar but was actually owned by defendant Fernando Banzon. When the jeepney reached Mandaue
City, the right rear tire exploded causing the vehicle to turn turtle. In the process, the plaintiff who was
sitting at the front seat was thrown out of the vehicle. Upon landing on the ground, the plaintiff
momentarily lost consciousness. When he came to his senses, he found that he had a lacerated wound
on his right palm. Aside from this, he suffered injuries on his left arm, right thigh and on his back. (Exh.
"D"). Because of his shock and injuries, he went back to Danao City but on the way, he discovered that
his "Omega" wrist watch was lost. Upon his arrival in Danao City, he immediately entered the Danao
City Hospital to attend to his injuries, and also requested his father-in-law to proceed immediately to the
place of the accident and look for the watch. In spite of the efforts of his father-in-law, the wrist watch,
which he bought for P 852.70 (Exh. "B") could no longer be found.

xxx xxx xxx

Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with damages before the City Court of
Cebu City, Branch I against Clemente Fontanar, Fernando Banzon and Berfol Camoro.

The respondents filed their answer, alleging inter alia that the accident that caused losses to the petitioner was beyond
the control of the respondents taking into account that the tire that exploded was newly bought and was only slightly
used at the time it blew up.

After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in favor of the petitioner and against
the respondents. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants and the
latter are hereby ordered, jointly and severally, to pay the plaintiff the sum of P750.00 as reimbursement
for the lost Omega wrist watch, the sum of P246.64 as unrealized salary of the plaintiff from his
 employer, the further sum of P100.00 for the doctor's fees and medicine, an additional sum of P300.00
for attorney's fees and the costs.

The respondents appealed to the Court of First Instance of Cebu, Branch XIV.

Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a finding that the accident in question
was due to a fortuitous event. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered exonerating the defendants from any liability to the plaintiff
without pronouncement as to costs.

A motion for reconsideration was denied by the Court of First Instance.

The petitioner raises the following alleged errors committed by the Court of First Instance of Cebu on appeal—

a. The Honorable Court below committed grave abuse of discretion in failing to take cognizance of the
fact that defendants and/or their employee failed to exercise "utmost and/or extraordinary diligence"
required of common carriers contemplated under Art. 1755 of the Civil Code of the Philippines.

b. The Honorable Court below committed grave abuse of discretion by deciding the case contrary to
the doctrine laid down by the Honorable Supreme Court in the case of Necesito et al. v. Paras, et al.

We find the petition impressed with merit.

The City Court and the Court of First Instance of Cebu found that the right rear tire of the passenger jeepney in which
the petitioner was riding blew up causing the vehicle to fall on its side. The petitioner questions the conclusion of the
respondent court drawn from this finding of fact.

The Court of First Instance of Cebu erred when it absolved the carrier from any liability upon a finding that the tire blow
out is a fortuitous event. The Court of First Instance of Cebu ruled that:

After reviewing the records of the case, this Court finds that the accident in question was due to a
fortuitous event. A tire blow-out, such as what happened in the case at bar, is an inevitable accident
that exempts the carrier from liability, there being absence of a showing that there was misconduct or
negligence on the part of the operator in the operation and maintenance of the vehicle involved. The
fact that the right rear tire exploded, despite being brand new, constitutes a clear case of caso fortuito
which can be a proper basis for exonerating the defendants from liability. ...

The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v. Red Line Transportation Co., CA
G.R. No. 8136, December 29, 1954, where the Court of Appeals ruled that:

A tire blow-out does not constitute negligence unless the tire was already old and should not have been
used at all. Indeed, this would be a clear case of fortuitous event.

The foregoing conclusions of the Court of First Instance of Cebu are based on a misapprehension of overall facts from
which a conclusion should be drawn. The reliance of the Court of First Instance on the Rodriguez case is not in order.
In La Mallorca and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that:

Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence,
citing the rulings of the Court of Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No.
8136, December 29, 1954, and People v. Palapad, CA-G.R. No. 18480, June 27, 1958. These rulings,
however, not only are not binding on this Court but were based on considerations quite different from
those that obtain in the case at bar. The appellate court there made no findings of any specific acts of
negligence on the part of the defendants and confined itself to the question of whether or not a tire blow-
out, by itself alone and without a showing as to the causative factors, would generate liability. ...
In the case at bar, there are specific acts of negligence on the part of the respondents. The records show that the
passenger jeepney turned turtle and jumped into a ditch immediately after its right rear tire exploded. The evidence
shows that the passenger jeepney was running at a very fast speed before the accident. We agree with the observation
of the petitioner that a public utility jeep running at a regular and safe speed will not jump into a ditch when its right rear
tire blows up. There is also evidence to show that the passenger jeepney was overloaded at the time of the accident.
The petitioner stated that there were three (3) passengers in the front seat and fourteen (14) passengers in the rear.

While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible, this fact
alone does not make the explosion of the tire a fortuitous event. No evidence was presented to show that the accident
was due to adverse road conditions or that precautions were taken by the jeepney driver to compensate for any
conditions liable to cause accidents. The sudden blowing-up, therefore, could have been caused by too much air
pressure injected into the tire coupled by the fact that the jeepney was overloaded and speeding at the time of the
accident.

In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics of caso fortuito:

xxx xxx xxx

... In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following
essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure
of the debtor to comply with his obligation, must be independent of the human will. (2) It must be
impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be
impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill
his obligation in a normal manner. And (4) the obligor (debtor) must be free from any participation in the
aggravation of the injury resulting to the creditor. (5 Encyclopedia Juridica Espanola, 309.)

In the case at bar, the cause of the unforeseen and unexpected occurrence was not independent of the human will.
The accident was caused either through the negligence of the driver or because of mechanical defects in the tire.
Common carriers should teach their drivers not to overload their vehicles, not to exceed safe and legal speed limits,
and to know the correct measures to take when a tire blows up thus insuring the safety of passengers at all times.
Relative to the contingency of mechanical defects, we held in Necesito, et al. v. Paras, et al. (104 Phil. 75), that:

... The preponderance of authority is in favor of the doctrine that a passenger is entitled to recover
damages from a carrier for an injury resulting from a defect in an appliance purchased from a
manufacturer, whenever it appears that the defect would have been discovered by the carrier if it had
exercised the degree of care which under the circumstances was incumbent upon it, with regard to
inspection and application of the necessary tests. For the purposes of this doctrine, the manufacturer
is considered as being in law the agent or servant of the carrier, as far as regards the work of
constructing the appliance. According to this theory, the good repute of the manufacturer will not relieve
the carrier from liability' (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co. v. Roy, 102 U.S. 451;
20 L. Ed. 141; Southern R. Co. v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.:
Ann. Cas. 1916E 929).

The rationale of the carrier's liability is the fact that the passenger has neither choice nor control over
the carrier in the selection and use of the equipment and appliances in use by the carrier. Having no
privity whatever with the manufacturer or vendor of the defective equipment, the passenger has no
remedy against him, while the carrier usually has. It is but logical, therefore, that the carrier, while not
an insurer of the safety of his passengers, should nevertheless be held to answer for the flaws of his
equipment if such flaws were at all discoverable. ...

It is sufficient to reiterate that the source of a common carrier's legal liability is the contract of carriage, and by entering
into the said contract, it binds itself to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of a very cautious person, with a due regard for all the circumstances. The records show
that this obligation was not met by the respondents.

The respondents likewise argue that the petitioner cannot recover any amount for failure to prove such damages during
the trial. The respondents submit that if the petitioner was really injured, why was he treated in Danao City and not in
Mandaue City where the accident took place. The respondents argue that the doctor who issued the medical certificate
was not presented during the trial, and hence not cross-examined. The respondents also claim that the petitioner was
not wearing any wrist watch during the accident.

It should be noted that the City Court of Cebu found that the petitioner had a lacerated wound on his right palm aside
from injuries on his left arm, right thigh and on his back, and that on his way back to Danao City, he discovered that his
"Omega" wrist watch was lost. These are findings of facts of the City Court of Cebu which we find no reason to disturb.
More so when we consider the fact that the Court of First Instance of Cebu impliedly concurred in these matters when
it confined itself to the question of whether or not the tire blow out was a fortuitous event.

WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV appealed from is hereby REVERSED
and SET ASIDE, and the decision of the City Court of Cebu, Branch I is REINSTATED, with the modification that the
damages shall earn interest at 12% per annum and the attorney's fees are increased to SIX HUNDRED PESOS
(P600.00). Damages shall earn interests from January 27, 1975.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and Alampay, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-47772 August 31, 1978

INOCENCIO TUGADE, petitioner,

vs.
COURT OF PEALS, and PEOPLE OF THE PHILIPPINES, respondents.

Manuel M. Camacho for petitioner.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Nathanael P. de Pano, Jr. and Solicitor Francisco
J. Bautista for respondents.

FERNANDO, J.:

There is nothing impressive about this petition sinking to justify a review of a decision of respondent Court of Appeals
on the ground that instead of relying on what counsel considers applicable rulings of: respondent Court,. the judgment
was based, on a case decided by this Tribunal Moreover, counsel for petitioner ignored earlier doctrines of this Court
consistently holding that a mishap caused by defective brakes could not be considered as fortuitous in character and
thus caged for an acquittal of the driver if subsequently haled to court. This Court, nonetheless, was persuaded to give
due course to the petition primarily for clarifying the state of the law and thus hopefully avoid any further lurking doubt
on the matter. It is quite evident that the reversal of the decision sought to be reviewed is not justified.

The decision of respondent Court, with Justice Julia Agrava as ponente, set forth the relevant facto thus: "At about 9:15
o'clock in the morning of January 4,, 1972, Rodolfo [Rayan- dayan] was driving a Hodlen Kingswood car (the [Holden]
car), plate No. 52-19V (L-Rizal '71) owned by the Sta. Ines Corp. and assigned for use of its manager, an Ayala Avenue
in Makati, Rizal, going northwards. At the intersection of Ayala Avenue will Mabati Avenue, [Rayan-dayan] was going
to turn left on Makati Avenue but he stopped to wait for the left-turn signal and because a jeep in front of him was also
at a stop ... While in that sup position, the [Holden] car was bumped from behind by Blue Car Taxi bearing Plate No.
55-71R (TX-QC '71) and by Inocencio [Tugade] causing damage to the [Holden] car, the repairs of which cost P778.10
... [Tugade] was then charged with Reckless Imprudence Resulting in Damage to Property. He pleaded not guilty and
while admitting that the collision was caused by faulty brakes of his taxicab, sought to expeculate himself with an
explanation that this fault could not and should not be traced to him. after trial, the lower court held: '[Accordingly], the
court finds that accused Inocencio Tugade guilty beyond reasonable doubt of the crime of reckless imprudence resulting
in damage to property and hereby sentences him to pay a [fine of one thousand (P1,000.00) pesos], with subsidiary
imprisonment in case of insolvency in accordance with the provisions of Article 39 of the Revised, Penal Code, as
amended, to indemnify the Sta. Ines Mining Corporation in the amount of P778.10 by way of actual damages; and to
pay the costs.' While [Tugade] admitted the facts of the case as set out above, he, nevertheless, appealed from the
judgment reiterating that 'the malfunctioning of the brakes at the time of the accident was due to a mechanical defect
which even the exercise of due diligence of a good father of a family cannot have prevented.' As the lower court had
found: "this witness ([Tugade]) testified that after the accident, he admitted that his taxicab bumped the car on his front
because the brakes of his vehicle malfunctioned; and that the document, ..., is the handwritten statement he prepared
to this effect." 1 Respondent Court of Appeals, after stating that upon review of the record, it agreed with the trial court,
its decision affirming in toto their judgment appealed from.

As noted at the outset, petitioner is not entitled to acquittal. His plea for the reversal of the decision reached by
respondent Court is not impressed with merit. At the most, as was likewise previously mentioned, the fine imposed
could be reduced.

1. Counsel for petitioner vigorously contends that respondent Court of Appeals ought not to have applied the
pronouncement in La Mallorca and Pampanga Bus Co. vs. De Jesus 2 on the ground that it was obiter dictum. That is
not the case at all. A little more time and attention in the study of the above decision could have resulted in its correct
appraisal He would have realized then that respondent Court acted correctly. This Tribunal passed squarely on the
specific issue raised. The opinion penned by the then Justice, later Chief Justice, Makalintal, is categorical: "Petitioner
maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence, citing the rulings of the
Court of Appeals in Rodriguez V. Red Line Transportation Co., CA-G.R. No. 8136, December 29, 1954, and People v.
Palapal, CA-G.R. No. 18480, June 27, 1958. These rulings, however, not only are not binding on this Court but were
based on considerations, quite different from those that obtain in the case at bar." 3 The above doctrine is controlling.
The reference to the Court of appeals decisions is of no moment. 4 It may be printed out that they were not ignored in
the opinion of Justice Agrava, six of its nine pages being devoted to distinguishing them. Even without the La Mallorca
ruling then, the decision of respondent Court sought to be reviewed can stand the test of strict scrutiny. It is this Tribunal,
not respondent Court of Appeals, that speaks authoritatively.

2. Respondent Court of Appeals really was devoid of any choice at all. It could not have ruled in any other way on the
legal question raised. This Tribunal having spoken, its duty was to obey. It is as simple as that. There is relevance to
this excerpt from Barrera v. Barrera: 5 "The delicate task of ascertaining the significance that attaches to a constitutional
or statutory provision, an executive order, a procedural norm or a municipal ordinance is committed to the judiciary. It
thus discharges a role no less crucial than that appertaining to the other two departments in the maintenance of the
rule of law. To assure stability in legal relations and avoid confusion, it has to speak with one voice. It does so with
finality, logically and rightly, through the highest judicial organ, this Court. What it says then should be definitive and
authoritative, binding on those occupying the lower ranks in the judicial heirarchy. They have to defer and to
submit." 6 The ensuing paragraph of the opinion in Barrera further emphasizes the point: "Such a thought was reiterated
in an opinion of Justice J.B.L. Reyes and further emphasized in these words: "Judge Gaudencio Cloribel need not be
reminded that the Supreme Court, by tradition and in our system of judicial administration, has the last word on what
the law is it is the final arbiter of any justifiable controversy. There is only one Supreme Court from whose decisions all
other courts should take their bearings." 7

3. The lack of merit in this petition becomes even more obvious when it is recalled that the La Mallorca decision did not
enunciate a new principle. As far back as Lasam v. Smith, 8 promulgated more than half a century ago, in 1924 to be
exact, this Court has been committed to such a doctrine. Thus; "As will be seen, these authorities agree that some
extraordinary circumstance independent of the will of the obligor, or of his employees, is an essential element of a caso
fortuito. Turning to the present case, it is at once apparent that this element is lacking. It is not suggested that the
accident in question was due to an act of God or to adverse road conditions which could not have been foreseen. As
far as the record shows, the accident was caused either by defects in the automobile or else through the negligence of
its driver. That is not a caso fortuito." 9 Lasam was cited with approval in the two subsequent cases of Son v. Cebu
Autobus Co. 10 and Necesito v. Paras. 11

WHEREFORE, The decision of respondent Court of Appeals of December 15, 1977 is affirmed. No costs.

Barredo, Antonio, Aquino, Concepcion, Jr., and Santos, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 1719 January 23, 1907

M. H., RAKES, plaintiff-appellee,

vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.

A. D. Gibbs for appellant.

F. G. Waite, & Thimas Kepner for appellee.

TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment of the defendant,
was at work transporting iron rails from a barge in the harbor to the company's yard near the malecon in Manila. Plaintiff
claims that but one hand car was used in this work. The defendant has proved that there were two immediately following
one another, upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay
upon two crosspieces or sills secured to the cars, but without side pieces or guards to prevent them from slipping off.
According to the testimony of the plaintiff, the men were either in the rear of the car or at its sides. According to that
defendant, some of them were also in front, hauling by a rope. At a certain spot at or near the water's edge the track
sagged, the tie broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which
was afterwards amputated at about the knee.

This first point for the plaintiff to establish was that the accident happened through the negligence of the defendant.
The detailed description by the defendant's witnesses of the construction and quality of the track proves that if was up
to the general stranded of tramways of that character, the foundation consisting on land of blocks or crosspieces of
wood, by 8 inches thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right angle rested
stringers of the same thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the blocks
were the ties to which the tracks were fastened. After the road reached the water's edge, the blocks or crosspieces
were replaced with pilling, capped by timbers extending from one side to the other. The tracks were each about 2 feet
wide and the two inside rails of the parallel tracks about 18 inches apart. It was admitted that there were no side pieces
or guards on the car; that where no ends of the rails of the track met each other and also where the stringers joined,
there were no fish plates. the defendant has not effectually overcome the plaintiff's proof that the joints between the
rails were immediately above the joints between the underlying stringers.

The cause of the sagging of the tracks and the breaking of the tie, which was the immediate occasion of the accident,
is not clear in the evidence, but is found by the trial court and is admitted in the briefs and in the argument to have been
the dislodging of the crosspiece or piling under the stringer by the water of the bay raised by a recent typhoon. The
superintendent of the company attributed it to the giving way of the block laid in the sand. No effort was made to repair
the injury at the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying from one
half inch to one inch and a half, was therafter apparent to the eye, and a fellow workman of the plaintiff swears that the
day before the accident he called the attention of McKenna, the foreman, to it and asked by simply straightening out
the crosspiece, resetting the block under the stringer and renewing the tie, but otherwise leaving the very same timbers
as before. It has not proven that the company inspected the track after the typhoon or had any proper system of
inspection.

In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part in failing either
to properly secure the load on iron to vehicles transporting it, or to skillfully build the tramway or to maintain it in proper
condition, or to vigilantly inspect and repair the roadway as soon as the depression in it became visible. It is upon the
failure of the defendant to repair the weakened track, after notice of its condition, that the judge below based his
judgment.

This case presents many important matters for our decision, and first among them is the standard of duty which we
shall establish in our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to enact designed to put these relations
on a fair basis in the form of compensation or liability laws or the institution of insurance. In the absence of special
legislation we find no difficulty in so applying the general principles of our law as to work out a just result.

Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the Penal Code.

And article 568 of the latter code provides:

He who shall execute through reckless negligence an act that if done with malice would constitute a grave
crime, shall be punished.

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of regulations, shall cause
an injury which, had malice intervened, would have constituted a crime or misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants and representatives
is declared to be civil and subsidiary in its character.

It is contented by the defendant, as its first defense to the action, that the necessary conclusion from these collated
laws is that the remedy for injuries through negligence lies only in a criminal action in which the official criminally
responsible must be made primarily liable and his employer held only subsidiarily to him. According to this theory the
plaintiff should have procured the arrest of the representative of the company accountable for not repairing the tract,
and on his prosecution a suitable fine should have been imposed, payable primarily by him and secondarily by his
employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code makes
obligations arising from faults or negligence not punished by the law, subject to the provisions of Chapter 11 of Title
XVI. Section 1902 of that chapter reads:

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.

SEC. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they should be responsible.

The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors who live
with them.

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for the damages caused by their
employees in the service of the branches in which the latter may be employed or in the performance of their
duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove that they employed
all the diligence of a good father of a family to avoid the damages.

As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our general
statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen. His obligation
therefore is one "not punished by the law " and falls under civil rather than criminal jurisprudence. But the answer may
be a broader one. We should be reluctant, under any conditions, to adopt a forced construction of these scientific codes,
such as is proposed by the defendant, that would rob some of these articles of effect, would shut out litigants their will
from the civil courts, would make the assertion of their rights dependent upon the selection for prosecution of the proper
criminal offender, and render recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even
if these articles had always stood alone, such a construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though
n ever in actual force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this
law, both classes of action, civil and criminal, might be prosecuted jointly or separately, but while the penal action was
pending the civil was suspended. According to article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or been expressly reserved by him for civil proceedings
for the future. If the civil action alone was prosecuted, arising out of a crime that could be enforced by only on private
complaint, the penal action thereunder should be extinguished. These provisions are in harmony with those of articles
23 and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citations of these articles suffices to show that the
civil liability was not intended to be merged in the criminal nor even to be suspended thereby, except as expressly
provided by law. Where an individual is civilly liable for a negligent act or omission, it is not required that the inured
party should seek out a third person criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of
criminal actions against his employees only while they are process of prosecution, or in so far as they determinate the
existence of the criminal act from which liability arises, and his obligation under the civil law and its enforcement in the
civil courts is not barred thereby unless by election of the injured person. Inasmuch as no criminal in question, the
provisions of the Penal Code can not affect this action. This construction renders it unnecessary to finally determine
here whether this subsidiary civil liability in penal actions survived the laws that fully regulated it or has been abrogated
by the American civil and criminal procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to have
arisen from the interpretation of the words of article 1093, "fault or negligence not punished by law," as applied to the
comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that the liability of
an employer arising out of his relation to his employee who is the offender is not to be regarded as derived from
negligence punished by the law, within the meaning of articles 1092 and 1093. More than this, however, it can not be
said to fall within the class of acts unpunished by the law, the consequences of which are regulated by articles 1902
and 1903 of the Civil Code. The acts to which these articles are applicable are understood to be those and growing out
of preexisting duties of the parties to one another. But were relations already formed give rise to duties, whether
springing from contract or quasi contract, then breaches of those duties are subject to articles 1101, 1103, and 1104,
of the same code. A typical application of the distinction may be found in the consequences of a railway accident due
to defective machinery supplied by the employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage. while that to that injured bystander would originate
in the negligent act itself. This distinction is thus clearly set forth by Manresa in his commentary on article 1093.

We are with reference to such obligations, that culpa, or negligence, may be understood in two difference
senses; either as culpa, substantive and independent, which on account of its origin arises in an obligation
between two persons not formerly bound by any other obligation; or as an incident in the performance of an
obligation; or as already existed, which can not be presumed to exist without the other, and which increases
the liability arising from the already exiting obligation.

Of these two species of culpa the first one mentioned, existing by itself, may be also considered as a real source
of an independent obligation, and, as chapter 2, title 16 of this book of the code is devoted to it, it is logical to
presume that the reference contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which we will discuss later. (Vol. 8,
p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of negligence may be somewhat
inexactly described as contractual and extra-contractual, the letter being the culpa aquiliana of the Roman law and not
entailing so strict an obligation as the former. This terminology is unreservedly accepted by Sanchez-Roman (Derecho
Civil, fourth section, Chapter XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme
court of Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia
Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30, 1900, throws uncertain
light on the relation between master and workman. Moved by the quick industrial development of their people, the
courts of France early applied to the subject the principles common to the law of both countries, which are lucidly
discussed by the leading French commentators.

The original French theory, resting the responsibility of owners of industrial enterprises upon articles 1382, 1383, and
1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon yielded to
the principle that the true basis is the contractual obligation of the employer and employee. (See 18 Dalloz, 196,
Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led to the discovery of a
third basis for liability in an article of he French Code making the possessor of any object answerable for damage done
by it while in his charge. Our law having no counterpart of this article, applicable to every kind of object, we need
consider neither the theory growing out of it nor that of "professional risk" more recently imposed by express legislation,
but rather adopting the interpretation of our Civil Code above given, find a rule for this case in the contractual obligation.
This contractual obligation, implied from the relation and perhaps so inherent in its nature to be invariable by the parties,
binds the employer to provide safe appliances for the use of the employee, thus closely corresponding to English and
American Law. On these principles it was the duty of the defendant to build and to maintain its track in reasonably
sound condition, so as to protect its workingmen from unnecessary danger. It is plain that in one respect or the other it
failed in its duty, otherwise the accident could not have occurred; consequently the negligence of the defendant is
established.

Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his employment and, as
such, one assumed by him. It is evident that this can not be the case if the occurrence was due to the failure to repair
the track or to duly inspect, it for the employee is not presumed to have stipulated that the employer might neglect his
legal duty. Nor may it be excused upon the ground that the negligence leading to the accident was that of a fellow -
servant of the injured man. It is not apparent to us that the intervention of a third person can relieve the defendant from
the performance of its duty nor impose upon the plaintiff the consequences of an act or omission not his own. Sua
cuique culpa nocet. This doctrine, known as "the fellow-servant, rule," we are not disposed to introduce into our
jurisprudence. Adopted in England by Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837,
it has since been effectually abrogated by "the Employers' Liability Acts" and the "Compensation Law." The American
States which applied it appear to be gradually getting rid of it; for instance, the New York State legislature of 1906 did
away with it in respect to railroad companies, and had in hand a scheme for its total abolition. It has never found place
in the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804.
Also more recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)

The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28, 1841, in the case of
Reygasse, and has since adhered to it.

The most controverted question in the case is that of the negligence of the plaintiff, contributing to the accident, to what
extent it existed in fact and what legal effect is to be given it. In two particulars is he charged with carelessness:

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either before or
behind it.

As to the first point, the depression in the track night indicate either a serious or a rival difficulty. There is nothing in the
evidence to show that the plaintiff did or could see the displaced timber underneath the sleeper. The claim that he must
have done so is a conclusion drawn from what is assumed to have been a probable condition of things not before us,
rather than a fair inference from the testimony. While the method of construction may have been known to the men
who had helped build the road, it was otherwise with the plaintiff who had worked at this job less than two days. A man
may easily walk along a railway without perceiving a displacement of the underlying timbers. The foreman testified that
he knew the state of the track on the day of the accident and that it was then in good condition, and one Danridge, a
witness for the defendant, working on the same job, swore that he never noticed the depression in the track and never
saw any bad place in it. The sagging of the track this plaintiff did perceive, but that was reported in his hearing to the
foreman who neither promised nor refused to repair it. His lack of caution in continuing at his work after noticing the
slight depression of the rail was not of so gross a nature as to constitute negligence, barring his recovery under the
severe American rule. On this point we accept the conclusion of the trial judge who found as facts that "the plaintiff did
not know the cause of the one rail being lower than then other" and "it does not appear in this case that the plaintiff
knew before the accident occurred that the stringers and rails joined in the same place."

Were we not disposed to agree with these findings they would, nevertheless, be binding upon us, because not "plainly
and manifestly against the weight of evidence," as those words of section 497, paragraph 3 of the Code of Civil
Procedure were interpreted by the Supreme Court of the United States in the De la Rama case (201 U. S., 303).

In respect of the second charge of negligence against the plaintiff, the judgment below is not so specific. While the
judge remarks that the evidence does not justify the finding that the car was pulled by means of a rope attached to the
front end or to the rails upon it, and further that the circumstances in evidence make it clear that the persons necessary
to operate the car could not walk upon the plank between the rails and that, therefore, it was necessary for the
employees moving it to get hold upon it as best they could, there is no specific finding upon the instruction given by the
defendant to its employees to walk only upon the planks, nor upon the necessity of the plaintiff putting himself upon the
ties at the side in order to get hold upon the car. Therefore the findings of the judge below leave the conduct of the
plaintiff in walking along the side of the loaded car, upon the open ties, over the depressed track, free to our inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way, but were
expressly directed by the foreman to do so, both the officers of the company and three of the workmen testify that there
was a general prohibition frequently made known to all the gang against walking by the side of the car, and the foreman
swears that he repeated the prohibition before the starting of this particular load. On this contradiction of proof we think
that the preponderance is in favor of the defendant's contention to the extent of the general order being made known
to the workmen. If so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the
injury as a proximate, although not as its primary cause. This conclusion presents sharply the question, What effect is
to be given such an act of contributory negligence? Does it defeat a recovery, according to the American rule, or is it
to be taken only in reduction of damages?

While a few of the American States have adopted to a greater or less extent the doctrine of comparative negligence,
allowing a recovery by a plaintiff whose own act contributed to his injury, provided his negligence was slight as
compared with that of the defendant, and some others have accepted the theory of proportional damages, reducing
the award to a plaintiff in proportion to his responsibility for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any negligence, however slight, on the part of the person
injured which is one of the causes proximately contributing to his injury, bars his recovery. (English and American
Encyclopedia of law, Titles "Comparative Negligence" and Contributory Negligence.")

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the United States thus
authoritatively states the present rule of law:

Although the defendant's' negligence may have been the primary cause of the injury complained of, yet an
action for such injury can not be maintained if the proximate and immediate cause of the injury can be traced
to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up
in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory
negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise
of reasonable care and prudence, have avoided the consequences of the injured party's negligence.

There are may cases in the supreme court of Spain in which the defendant was exonerated, but when analyzed they
prove to have been decided either upon the point that he was not negligent or that the negligence of the plaintiff was
the immediate cause of the casualty or that the accident was due to casus fortuitus. Of the first class in the decision of
January 26, 1887 (38 Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was thrown
therefrom and killed by the shock following the backing up of the engine. It was held that the management of the train
and engine being in conformity with proper rules of the company, showed no fault on its part.

Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of March, 1902, stated
in Alcubilla's Index of that year; and of the third class the decision of the 4th of June, 1888 (64 Jurisprudencia Civil, No.
1), in which the breaking down of plaintiff's dam by the logs of the defendant impelled against it by the Tajo River, was
held due to a freshet as a fortuitous cause.

The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one, that the defendant
was not negligent, because expressly relieved by royal order from the common obligation imposed by the police law of
maintaining a guard at the road crossing; the other, because the act of the deceased in driving over level ground with
unobstructed view in front of a train running at speed, with the engine whistle blowing was the determining cause of the
accident. It is plain that the train was doing nothing but what it had a right to do and that the only fault lay with the
injured man. His negligence was not contributory, it was sole, and was of such an efficient nature that without it no
catastrophe could have happened.

On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining damages was not
free from contributory negligence; for instance, the decision of the 14th of December, 1894 (76 Jurisprudencia Civil,
No. 134), in which the owner of a building was held liable for not furnishing protection to workmen engaged in hanging
out flags, when the latter must have perceived beforehand the danger attending the work.

None of those cases define the effect to be given the negligence of a plaintiff which contributed to his injury as one of
its causes, though not the principal one, and we are left to seek the theory of the civil law in the practice of other
countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness of the victim did
not civilly relieve the person without whose fault the accident could not have happened, but that the contributory
negligence of the injured man had the effect only of reducing the damages. The same principle was applied in the case
of Recullet, November 10, 1888. and that of Laugier of the 11th of November, 1896. (Fuzier-Herman,
Title Responsibilite Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol.
15, 1895, Title Responsibilite, 193, 198).

In the Canadian Province of Quebee, which has retained for the most part the French Civil Law, now embodied in a
code following the Code Napoleon, a practice in accord with that of France is laid down in many cases collected in the
annotations to article 1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La
Revue de Jurisprudence, volume 6, page 90, in which the court of Kings bench, otherwise known as the court of
appeals, the highest authority in the Dominion of Canada on points of French law, held that contributory negligence did
not exonerate the defendants whose fault had been the immediate cause of the accident, but entitled him to a reduction
of damages. Other similar cases in the provincial courts have been overruled by appellate tribunals made up of common
law judges drawn from other provinces, who have preferred to impose uniformally throughout the Dominion the English
theory of contributory negligence. Such decisions throw no light upon the doctrines of the civil law. Elsewhere we find
this practice embodied in legislation; for instance, section 2 of article 2398 of the Code of Portugal reads as follows:

If in the case of damage there was fault or negligence on the part of the person injured or in the part of some
one else, the indemnification shall be reduced in the first case, and in the second case it shall be appropriated
in proportion to such fault or negligence as provided in paragraphs 1 and 2 of section 2372.

And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the accident shall stand
his damages in proportion to his fault, but when that proportion is incapable of ascertainment, he shall share the liability
equally with the person principally responsible. The principle of proportional damages appears to be also adopted in
article 51 of the Swiss Code. Even in the United States in admirality jurisdictions, whose principles are derived from the
civil law, common fault in cases of collision have been disposed of not on the ground of contradictor negligence, but on
that of equal loss, the fault of the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)

The damage of both being added together and the sum equally divided, a decree is entered in favor of the vessel
sustaining the greater loss against the other for the excess of her damages over one-half of the aggregate sum. (The
Manitoba, 122 U. S., 97)

Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of Commerce, article
827, makes each vessel for its own damage when both are the fault; this provision restricted to a single class of the
maritime accidents, falls for short of a recognition of the principle of contributory negligence as understood in American
Law, with which, indeed, it has little in common. This is a plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the civil action of the owner
against the person liable for the damage is reserved, as well as the criminal liability which may appear."

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the parties, appears to
have grown out the original method of trial by jury, which rendered difficult a nice balancing of responsibilities and which
demanded an inflexible standard as a safeguard against too ready symphaty for the injured. It was assumed that an
exact measure of several concurring faults was unattainable.

The reason why, in cases of mutual concurring negligence, neither party can maintain an action against the
other, is, not the wrong of the one is set off against the wrong of the other; it that the law can not measure how
much of the damage suffered is attributable to the plaintiff's own fault. If he were allowed to recover, it might be
that he would obtain from the other party compensation for hiss own misconduct. (Heil vs. Glanding, 42 Penn.
St. Rep., 493, 499.)

The parties being mutually in fault, there can be no appointment of damages. The law has no scales to
determine in such cases whose wrongdoing weighed most in the compound that occasioned the mischief.
(Railroad vs. Norton, 24 Penn. St. 565, 469.)

Experience with jury trials in negligence cases has brought American courts to review to relax the vigor of the rule by
freely exercising the power of setting aside verdicts deemed excessive, through the device of granting new trials, unless
reduced damages are stipulated for, amounting to a partial revision of damages by the courts. It appears to us that the
control by the court of the subject matter may be secured on a moral logical basis and its judgment adjusted with greater
nicety to the merits of the litigants through the practice of offsetting their respective responsibilities. In the civil law
system the desirable end is not deemed beyond the capacity of its tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress and counter stress
of novel schemers of legislation, we find the theory of damages laid down in the judgment the most consistent with the
history and the principals of our law in these Islands and with its logical development.

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes
of the accident. The test is simple. Distinction must be between the accident and the injury, between the event itself,
without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but
contributing under review was the displacement of the crosspiece or the failure to replace it. this produced the event
giving occasion for damages — that is, the shinking of the track and the sliding of the iron rails. To this event, the act
of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came
to himself. Had the crosspiece been out of place wholly or partly thorough his act of omission of duty, the last would
have been one of the determining causes of the event or accident, for which he would have been responsible. Where
he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction
with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible
for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.

Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by the plaintiff at
5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly
attributable to his negligence, and direct judgment to be entered in favor of the plaintiff for the resulting sum of 2,500
pesos, with cost of both instances, and ten days hereafter let the case be remanded to the court below for proper
action. So ordered.

Arellano, C.J. Torres and Mapa, JJ., concur.