Batch 2TORTS AND DAMAGES CASES

TORTS AND DAMAGES CASES BATCH 2
III. Defenses Against Charge of Negligence

A. Plaintiff’s Negligence is the Proximate Cause
a. Bernardo vs. Legaspi, 29 Phil 12
b. PLDT vs CA, GR No. 57079, Sept 29, 1989
c. Manila Electric vs. Remoquillo, supra (review the doctrine of the case as to this
topic)
B. Contributory Negligence (Art. 2179)

a. Rakes vs. Atlantic Gulf,
GR L-1719, January 23, 1907
b. Taylor vs. Manila Electric & Railroad, supra (review the doctrine of the case as to this
topic)
c. Cadiente vs. Macas, GR NO. 161946,
November 14, 2008
 Limitations on Contributory Negligence Last Clear Chance

Picart vs. Smith, supra (review the doctrine of the case as to this topic)
Lapanda vs. Angala, 525 SCRA 229
 Attractive Nuisance
Hidalgo vs. Balandan, 91 Phil 488 Taylor, supra (review the doctrine of the case as to this topic)
Res Ipsa Loquitor Capili, supra (review the doctrine of the case as to this topic)
C. Assumption of Risk a. Aflaida vs. Hisole, GR L-2075, November 29, 1949
D. Last Clear Chance

a. Picart vs. Smith, supra (review the doctrine of the case as to this topic)
b. Sps.Ong vs. MWD, GR No. L-7664, August 29, 1958
c. Glan People’s Lumber vs. IAC, R No. 70493, May 18, 1989
d. Pantranco vs Baesa, GR No. 79050-51, november 14, 1989
E. Prescription (Art. 1146)

a. Ferrer vs. Ericta, GR NO. L-41767, August 23, 1978
b. Kramer vs. CA, GR No. 83524, October 13, 1989
F. Fortuitious Event (Art. 1174)

a. Hernandez vs. CA, GR No. 71871, November 6, 1989
b. Southeastern College vs. CA,GR No. L-87584
G. Exercise of Diligence (Art. 2180)
H. Mistake and Waiver a. Gatchalian vs. CA, GR No. 56487, October 21, 1991
I. Damnum Absque Injuria

a. NAPOCOR vs. CA, GR No. 96410, July 3 1992
J. Emergency Rule
a. McKee vs IAC, 211 SCRA 519
1
K. Volenti Non Fit Injuria

a. INERCO vs. CA, 179 SCRA 5
[G.R. No. 9308. December 23, 1914. ]
JUAN BERNARDO, Plaintiff-Appellant, v. M. B. LEGASPI, Defendant-Appellee.
Roman de Jesus for Appellant.
No appearance for Appellee.
SYLLABUS
1. NEGLIGENCE; AUTOMOBILES; COLLISION TROUGH MUTUAL NEGLIGENCE. — Where two automobiles, going in
opposite directions, collide on turning a street corner, and it appears from the evidence and is found by the trial court
that the drivers thereof were equally negligent and contributed equally to the principal occurrence as determining
causes thereof, neither can recover of the other for the damages suffered.
DECISION
MORELAND, J. :
This is an appeal from a judgment of the Court of First Instance of the city of Manila dismissing the complaint on the
merits filed in an action to recover damages for injuries sustained by plaintiff’s automobile by reason of defendant’s
negligence in causing a collision between his automobile and that of plaintiff. The court in its judgment also dismissed a
cross-complaint filed by the defendant, praying for damages against the plaintiff on the ground that the injuries
sustained by defendant’s automobile in the collision referred to, as well as those to plaintiff’s machine, were caused by
the negligence of the plaintiff in handling his automobile.
The court found upon the evidence that both the plaintiff and the defendant were negligent in handling their
automobiles and that said negligence was of such a character and extent on the part of both as to prevent either from
recovering.
Upon the facts, as they appear of record, the judgment must be affirmed, as the evidence clearly supports the decision
of the trial court. The law applicable to the facts also requires an affirmance of the judgment appealed from. Where the
plaintiff in a negligence action, by his own carelessness contributes to the principal occurrence, that is, to the accident,
as one of the determining causes thereof, he cannot recover. This is equally true of the defendant; and as both of them,
by their negligent acts, contributed to the determining cause of the accident, neither can recover.
The judgment appealed from is affirmed, with costs against the Appellant.
2
G.R. No. L-57079 September 29, 1989
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,

vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.
REGALADO, J.:
This case had its inception in an action for damages instituted in the former Court of First Instance of Negros
Occidental 1 by private respondent spouses against petitioner Philippine Long Distance Telephone Company
(PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968 when their jeep ran over a
mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of
its underground conduit system. The complaint alleged that respondent Antonio Esteban failed to notice the
open trench which was left uncovered because of the creeping darkness and the lack of any warning light or
signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and
face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the
windshield of the jeep was shattered.2
PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were
the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte
and Company (Barte, for short), an independent contractor which undertook the construction of the manhole
and the conduit system.3 Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the
terms of their agreement, PLDT should in no manner be answerable for any accident or injuries arising from
the negligence or carelessness of Barte or any of its employees.4 In answer thereto, Barte claimed that it was
not aware nor was it notified of the accident involving respondent spouses and that it had complied with the
terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the
work site, with barricades at both ends of the excavation and with red lights at night along the excavated area
to warn the traveling public of the presence of excavations.5
On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of
which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance

Telephone Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum of
P20,000.00 as moral damages and P5,000.00 exemplary damages; to plaintiff Antonio Esteban
the sum of P2,000.00 as moral damages and P500.00 as exemplary damages, with legal rate of
interest from the date of the filing of the complaint until fully paid. The defendant is hereby
ordered to pay the plaintiff the sum of P3,000.00 as attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-
third party plaintiff has paid to the plaintiff. With costs against the defendant. 6
From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said
appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the decision of the lower court and
dismissing the complaint of respondent spouses. It held that respondent Esteban spouses were negligent and
consequently absolved petitioner PLDT from the claim for damages.7 A copy of this decision was received by
private respondents on October 10, 1979. 8 On October 25, 1979, said respondents filed a motion for
3
reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the Court of
Appeals denied said motion for reconsideration.10 This resolution was received by respondent spouses on
February 22, 1980.11
On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to
file a second motion for reconsideration, dated February 27, 1980. 12 On March 11, 1980, respondent court, in
a resolution likewise penned by Justice Agrava, allowed respondents to file a second motion for
reconsideration, within ten (10) days from notice thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private respondents had already filed their second motion for
reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of the divergent opinions on the resolution of the second
motion for reconsideration, designated two additional justices to form a division of five. 16 On September 3,
1980, said division of five promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the resolution dated, January 24,1980, and affirming in toto the
decision of the lower court.17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution
of September 3, 1980, contending that the second motion for reconsideration of private respondent spouses
was filed out of time and that the decision of September 25, 1979 penned by Justice Agrava was already final.
It further submitted therein that the relationship of Barte and petitioner PLDT should be viewed in the light of
the contract between them and, under the independent contractor rule, PLDT is not liable for the acts of an
independent contractor.18 On May 11, 1981, respondent Court of Appeals promulgated its resolution denying
said motion to set aside and/or for reconsideration and affirming in toto the decision of the lower court dated
October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration
on the ground that the decision of the Special Second Division, dated September 25, 1979, and the resolution
of the Special Ninth Division, dated January 24, 1980, are already final, and on the additional ground that said
second motion for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the
independent contractor rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the records and
admitted by both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava
as ponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was received by private respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by
private respondents
4
(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;
(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for
reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original
decision dated September 25, 1979 and setting aside the resolution dated January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for
reconsideration and, consequently, said second motion for reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second
motion for reconsideration may be presented within fifteen (15) days from notice of the order or judgment
deducting the time in which the first motion has been pending. 20 Private respondents having filed their first
motion for reconsideration on the last day of the reglementary period of fifteen (15) days within which to do so,
they had only one (1) day from receipt of the order denying said motion to file, with leave of court, a second
motion for reconsideration. 21 In the present case, after their receipt on February 22, 1980 of the resolution
denying their first motion for reconsideration, private respondents had two remedial options. On February 23,
1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for leave
of court to file a second motion for reconsideration, conceivably with a prayer for the extension of the period
within which to do so. On the other hand, they could have appealed through a petition for review on certiorari to
this Court within fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a
second motion 'for reconsideration on February 29, 1980, and said second motion for reconsideration on
March 7, 1980, both of which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of
which was suspended during the pendency of the first motion for reconsideration, the Court of Appeals could
no longer validly take further proceedings on the merits of the case, much less to alter, modify or reconsider its
aforesaid decision and/or resolution. The filing of the motion for leave to file a second motion for
reconsideration by herein respondents on February 29, 1980 and the subsequent filing of the motion itself on
March 7, 1980, after the expiration of the reglementary period to file the same, produced no legal effects. Only
a motion for re-hearing or reconsideration filed in time shall stay the final order or judgment sought to be re-
examined. 23
The consequential result is that the resolution of respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to file a second motion
for reconsideration, is null and void. The period for filing a second motion for reconsideration had already
expired when private respondents sought leave to file the same, and respondent court no longer had the power
to entertain or grant the said motion. The aforesaid extension of ten (10) days for private respondents to file
their second motion for reconsideration was of no legal consequence since it was given when there was no
more period to extend. It is an elementary rule that an application for extension of time must be filed prior to the
expiration of the period sought to be extended. 24 Necessarily, the discretion of respondent court to grant said
extension for filing a second motion for reconsideration is conditioned upon the timeliness of the motion
seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979,
became final and executory on March 9, 1980. The subsequent resolutions of respondent court, dated March
11, 1980 and September 3, 1980, allowing private respondents to file a second motion for reconsideration and
reversing the original decision are null and void and cannot disturb the finality of the judgment nor restore
jurisdiction to respondent court. This is but in line with the accepted rule that once a decision has become final
and executory it is removed from the power and jurisdiction of the court which rendered it to further alter or
amend, much less revoke it.25 The decision rendered anew is null and void.26 The court's inherent power to
correct its own errors should be exercised before the finality of the decision or order sought to be corrected,
otherwise litigation will be endless and no question could be considered finally settled. Although the granting or
5
denial of a motion for reconsideration involves the exercise of discretion,27 the same should not be exercised
whimsically, capriciously or arbitrarily, but prudently in conformity with law, justice, reason and equity.28
Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the
findings of the respondent court in its original decision that the accident which befell private respondents was
due to the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the
part of petitioner PLDT. Such findings were reached after an exhaustive assessment and evaluation of the
evidence on record, as evidenced by the respondent court's resolution of January 24, 1980 which we quote
with approval:
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on
that inside lane, it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep
swerving from the left that is, swerving from the inside lane. What caused the swerving is not
disclosed; but, as the cause of the accident, defendant cannot be made liable for the damages
suffered by plaintiffs. The accident was not due to the absence of warning signs, but to the
unexplained abrupt swerving of the jeep from the inside lane. That may explain plaintiff-
husband's insistence that he did not see the ACCIDENT MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT
MOUND could have been corroborated by a picture showing Lacson Street to the south of the
ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street had already been covered except the 3
or 4 meters where the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on
Lacson Street north of the ACCIDENT MOUND had already been covered, but not in such a
way as to allow the outer lane to be freely and conveniently passable to vehicles. The situation
could have been worse to the south of the ACCIDENT MOUND for which reason no picture of
the ACCIDENT MOUND facing south was taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At
that speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND. The
jeep would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks
in Exhibit B. The jeep must have been running quite fast. If the jeep had been braked at 25
kilometers an hour, plaintiff's would not have been thrown against the windshield and they
would not have suffered their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on the inside
lane and for some reason or other it had to swerve suddenly to the right and had to climb over
the ACCIDENT MOUND, then plaintiff-husband had not exercised the diligence of a good father
of a family to avoid the accident. With the drizzle, he should not have run on dim lights, but
should have put on his regular lights which should have made him see the ACCIDENT MOUND
in time. If he was running on the outside lane at 25 kilometers an hour, even on dim lights, his
failure to see the ACCIDENT MOUND in time to brake the car was negligence on his part. The
ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If
he did not see the ACCIDENT MOUND in time, he would not have seen any warning sign
either. He knew of the existence and location of the ACCIDENT MOUND, having seen it many
previous times. With ordinary precaution, he should have driven his jeep on the night of the
accident so as to avoid hitting the ACCIDENT MOUND.29
The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory
to his injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right to recover damages.30 The perils of the road were known
6
to, hence appreciated and assumed by, private respondents. By exercising reasonable care and prudence,
respondent Antonio Esteban could have avoided the injurious consequences of his act, even
assuming arguendo that there was some alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only purpose of said
signs was to inform and warn the public of the presence of excavations on the site. The private respondents
already knew of the presence of said excavations. It was not the lack of knowledge of these excavations which
caused the jeep of respondents to fall into the excavation but the unexplained sudden swerving of the jeep
from the inside lane towards the accident mound. As opined in some quarters, the omission to perform a duty,
such as the placing of warning signs on the site of the excavation, constitutes the proximate cause only when
the doing of the said omitted act would have prevented the injury.31 It is basic that private respondents cannot
charge PLDT for their injuries where their own failure to exercise due and reasonable care was the cause
thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his
own protection. Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the
accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had knowledge of the presence and location of the excavations
there. It was his negligence that exposed him and his wife to danger, hence he is solely responsible for the
consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was
insufficient evidence to prove any negligence on the part of PLDT. We have for consideration only the self-
serving testimony of respondent Antonio Esteban and the unverified photograph of merely a portion of the
scene of the accident. The absence of a police report of the incident and the non-submission of a medical
report from the hospital where private respondents were allegedly treated have not even been satisfactorily
explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —
(a) There was no third party eyewitness of the accident. As to how the accident occurred, the
Court can only rely on the testimonial evidence of plaintiffs themselves, and such evidence
should be very carefully evaluated, with defendant, as the party being charged, being given the
benefit of any doubt. Definitely without ascribing the same motivation to plaintiffs, another
person could have deliberately engineered a similar accident in the hope and expectation that
the Court can grant him substantial moral and exemplary damages from the big corporation that
defendant is. The statement is made only to stress the disadvantageous position of defendant
which would have extreme difficulty in contesting such person's claim. If there were no witness
or record available from the police department of Bacolod, defendant would not be able to
determine for itself which of the conflicting testimonies of plaintiffs is correct as to the report or
non-report of the accident to the police department.32
A person claiming damages for the negligence of another has the burden of proving the existence of such fault
or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by
competent evidence.33 Whosoever relies on negligence for his cause of action has the burden in the first
instance of proving the existence of the same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980,
are hereby SET ASIDE. Its original decision, promulgated on September 25,1979, is hereby REINSTATED and
AFFIRMED.
SO ORDERED.
G.R. No. 1719 January 23, 1907
7
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,
8
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.
9
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.
10
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
11
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
12
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).
13
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.
14
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
15
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
16
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.
17
Separate Opinions
WILLARD, J., dissenting:
The knowledge which the plaintiff had in regard to the condition of the track is indicated by his
own evidence. He testified, among other things, as follows:
Q. Now, describe the best you can the character of the track that ran from the place
where you loaded the irons from the barge up to the point where you unloaded them on
the ground.
A. — Well, it was pretty bad character.
xxx xxx xxx
Q. And you were familiar with the track before that its construction?
A. Familiar with what?
Q. Well, you have described it here to the court.
A. Oh, yes; I knew the condition of the track.
Q. You knew its conditions as you have described it here at the time you were
working around there?
A. Yes, sir.
xxx xxx xxx
Q. And while operating it from the side it was necessary for you to step from board
to board on the cross-ties which extended out over the stringers?
A. Yes, sir.
Q. And these were very of irregular shape, were they not?
A. They were in pretty bad condition.
xxx xxx xxx
Q. And it was not safe to walk along on the outside of these crosspieces?
A. It was safe if the car stayed on the track. We didn't try to hold the load on. We
tried to hold the car back, keep it from going too fast, because we knew the track was in
18
bad condition just here, and going down too fast we could be liable to run off most any
time.
Q. You knew the track was in bad condition when you got hold?
A. Sure, it was in bad condition.
xxx xxx xxx
Q. And the accident took place at that point where you believed it to be so
dangerous?
A. Yes, sir.
Q. But you knew it was dangerous?
A. Why certainly, anybody could see it; but a workingman had to work in those days
or get arrested for a vag here in Manila.
The court below, while it found that the plaintiff knew in a general way of the bad condition of
the track, found that he was not informed of the exact cause of the accident, namely, the
washing away of the large crosspiece laid upon the ground or placed upon the posts as the
foundation upon which the stripers rested. This finding of fact to my mind is plainly and
manifestly against the weight of the evidence. Ellis, a witness for the plaintiff, testified that on
the morning of the accident he called the attention of McKenna, the foreman, to the defective
condition of the track at his precise point where the accident happened. His testimony in part
is as follows:
A. I called Mr. McKenna. I showed him the track and told him I didn't think it was
safe working, and that if he didn't fix it he was liable to have an accident; I told him I
thought if he put fish plates on it would it. He said, you keep on fishing around here for
fish plates and you will be fishing for another job the first thing you know." He says,
"You see to much."
xxx xxx xxx
Q. Who else was present at the time you had this conversation with Mr. McKenna?
A. Well, at that conversation as far as I can remember, we were all walking down
the track and I know that McCoy and Mr. Blakes was along at the time. I remember
them two, but we were all walking down the track in a bunch, but I disremember them.
xxx xxx xxx
Q. Was that the exact language that you used, that you wanted some fish plates put
on?
19
A. No, sir: I told him to look at that track. I says get some fish plates. I says if there
was any fish plates we would fix that.
Q. What did the fish plates have to do with that?
A. It would have strengthened that joint.
Q. Why didn't you put the 8 by 8 which was washed crossways in place?
A. That would have been taken the raising of the track and digging out along this
upright piece and then putting it up again.
The plaintiff himself testified that he was present with Ellis at the time this conversation was
had with McKenna. It thus appears that on the morning in question the plaintiff and McKenna
were standing directly over the place where the accident happened later in the day. The
accident was caused, as the court below found, by the washing away or displacement of the
large 8 by 8 piece of timber. This track was constructed as all other tracks are, all of it open
work, with no floor over the ties, and of course see the ground and the entire construction of
the road, including these large 8 by 8 pieces, the long stringers placed thereon, the ties
placed on these stringers, and the rails placed on the ties. The plaintiff himself must have
seen that the 8 by 8 piece of timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement was more
markedly apparent even than it would appear from the testimony of the defendant's
witnesses. According to the plaintiff's witnesses, the water at high tide reached the place in
question and these 8 by 8 pieces were therefore not laid upon the ground but were placed
upon posts driven into the ground, the height of the posts at this particular place being,
according to the testimony of the plaintiff's witnesses, from a foot to two feet and a half. As
has been said, Ellis testified that the reason why they did not put the 8 by 8 back in its place
was because that would have required the raising up of the track and digging out along this
upright piece and then putting it up again.
It conclusively appears from the evidence that the plaintiff, before the accident happened,
knew the exact condition of the track and was informed and knew of the defect which caused
the accident. There was no promise on the part of McKenna to repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the side of the car
where he knew that he would be injured by the falling of the rails from the car when they
reached this point in the track where the two stringers were without any support of their ends.
He either should have refused to work at all or he should have placed himself behind the car,
on the other side of it, or in front of it, drawing it with a rope. He was guilty of contributory
negligence and is not entitled to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a case like this is
no defense under the law in force in these Islands. To this proposition I can not agree. The
liability of the defendant is based in the majority opinion upon articles 1101 and 1103 of the
Civil Code.
20
In order to impose such liability upon the defendant, it must appear that its negligence caused
the accident. The reason why contradictory negligence on the part of the plaintiff is a defense
in this class of cases is that the negligence of the defendant did not alone cause the accident.
If nothing but that negligence had existed, the accident would not have happened and, as I
understand it, in every case in which contradictory negligence is a defense it is made so
because the negligence of the plaintiff is the cause of the accident, to this extent, that if the
plaintiff had not been negligent the accident would not have happened, although the
defendant was also negligent. In other words, the negligence of the defendant is not alone
sufficient to cause the accident. It requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The
rule of the Roman law was: "Quod quis ex culap sua damnum sentit, no intelligitur damnum
sentire." (Digest, book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his
own fault, and that he can not demand reparation therefor from another. (Law 25, tit.
5, partida 3.)
And they even said that when a man received an injury through his own acts, the
grievance should be against himself and not against another. (Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that the plaintiff
was himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the
20th of February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th
of March, 1876, and the 6th of October, 1882. These cases do not throw much light upon the
subject. The judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however,
directly in point. In that case the supreme court of Spain said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the injury
thereby caused there exists the relation of cause and effect; but in the injury caused
should not be the result of acts or omissions of a third party, the latter has no obligation
to repair the same, even though such acts or omissions were imprudent or unlawful,
and much less when it is shown that the immediate cause of the injury was the
negligence of the injured person party himself.
Found the reasons above stated, and the court below having found that the death of
the deceased was due to his own imprudence, and not therefore due to the absence of
a guard at the grade crossing where the accident occurred, it seems clear that court in
acquitting the railroad company of the complaint filed by the widow did not violate the
provisions of the aforesaid article of the Civil Code.
For the same reason, although the authority granted to the railroad company to open
the grade crossing without a special guard was nullified by the subsequent
promulgation of the railroad police law and the regulations for the execution of the
21
same, the result would be identical, leaving one of the grounds upon which the
judgment of acquittal is based, to wit, that the accident was caused by the imprudence
of the injured party himself, unaffected.
It appears that the accident in this case took place at a grade crossing where, according to
the claim of the plaintiff, it was the duty of the railroad company to maintain husband was
injured by a train at this crossing, his negligence contributing to the injury according to the
ruling of the court below. This judgment, then, amounts to a holding that a contributory
negligence is a defense according to the law of Spain. (See also judgment of the 21st of
October, 1903, vol. 96 p. 400, Jurisprudencia Civil.)
Although in the Civil Code there is no express provision upon the subject, in the Code of
Commerce there is found a distinct declaration upon it in reference to damages caused by
collission at sea. Article 827 of the Code of Commerce is as follows:
If both vessels may be blamed for the collission, each one shall for liable for his own
damages, and both shall jointly responsible for the loss and damages suffered to their
cargoes.
That article is an express recognition of the fact that in collision cases contributory negligence
is a defense,
I do not think that this court is justified in view of the Roman law, of the provisions of
the Partidas, of the judgment of March 7, 1902, of article 827 of the Code of Commerce, and
in the absence of any declaration upon the subject in the Civil Code, in saying that it was the
intention rule announced in the majority opinion, a rule dimetrically opposed to that put in
force by the Code of Commerce.
The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory
negligence is not a defense seems to be that such is the holding of the later French decisions.
As to whether, if any liability existed in this case, it would be necessary in accordance with the
provisions of the Penal Code, or primary, in accordance with the provision of the Civil Code, I
express no opinion.
The judgment should, I think, be reversed and the defendant acquitted of the complaint.
Carson, J., concurs.
[G.R. NO. 161946 : November 14, 2008]
MEDARDO AG. CADIENTE, Petitioner, v. BITHUEL MACAS, Respondent.
DECISION
QUISUMBING, Acting C.J.:
22
For review on certiorari are the Decision1 dated September 16, 2002 and the
Resolution2 dated December 18, 2003 of the Court of Appeals in CA-G.R. CV
No. 64103, which affirmed the Decision3 of the Regional Trial Court (RTC) of
Davao City, Branch 10, in Civil Case No. 23,723-95.
The facts are undisputed.
Eyewitness Rosalinda Palero testified that on July 19, 1994, at about 4:00
p.m., at the intersection of Buhangin and San Vicente Streets in Davao City,
15-year old high school student Bithuel Macas, herein respondent, was
standing on the shoulder of the road. She was about two and a half meters
away from the respondent when he was bumped and run over by a Ford Fiera,
driven by Chona C. Cimafranca. Rosalinda and another unidentified person
immediately came to the respondent's rescue and told Cimafranca to take the
victim to the hospital. Cimafranca rushed the respondent to the Davao Medical
Center.
Dr. Hilario Diaz, the orthopedic surgeon who attended to the respondent,
testified that the respondent suffered severe muscular and major vessel
injuries, as well as open bone fractures in both thighs and other parts of his
legs. In order to save his life, the surgeon had to amputate both legs up to the
groins.4
Cimafranca had since absconded and disappeared. Records showed that the
Ford Fiera was registered in the name of herein petitioner, Atty. Medardo Ag.
Cadiente. However, Cadiente claimed that when the accident happened, he
was no longer the owner of the Ford Fiera. He alleged that he sold the vehicle
to Engr. Rogelio Jalipa on March 28, 1994,5 and turned over the Certificate of
Registration and Official Receipt to Jalipa, with the understanding that the
latter would be the one to cause the transfer of the registration.
The victim's father, Samuel Macas, filed a complaint6 for torts and damages
against Cimafranca and Cadiente before the RTC of Davao City, Branch 10.
Cadiente later filed a third-party complaint7 against Jalipa.
In answer, Jalipa claimed that he was no longer the owner of the Ford Fiera at
the time of the accident. He alleged that he sold the vehicle to Abraham
Abubakar on June 20, 1994.8 He thus filed a fourth-party complaint9 against
Abubakar.
After trial, the court ruled:
WHEREFORE, judgment is rendered in favor of the plaintiff declaring Atty.

Medardo Ag. Cadiente and Engr. Rogelio Jalipa jointly and severally liable for
23
damages to the plaintiff for their own negligence as stated above, and ordering
them to indemnify the plaintiff jointly and severally as follows:
(a) P300,000.00 as compensatory damages for the permanent and almost

total disability being suffered by him;
(b) P150,000.00 for moral damages;
(c) P18,982.85 as reimbursement of medical expenses;
(d) P30,000.00 for attorney's fees; and cralawlibra ry
(e) costs of suit.
SO ORDERED.10
On appeal, the Court of Appeals held that the findings of the trial court were in
accordance with the established facts and was supported by the evidence on
record. Thus, it decreed as follows:
WHEREFORE, premises considered, the instant appeal is DENIED and the

decision of the Regional Trial Court of Davao City in Civil Case No. 23723-95 is
hereby AFFIRMED.
SO ORDERED.11
From the aforequoted decision of the Court of Appeals and the subsequent
denial of the motion for reconsideration, only Cadiente appealed to this Court.
The instant petition alleges that the Court of Appeals committed serious errors
of law in affirming the decision of the trial court. Petitioner Cadiente raises the
following as issues:
I.
WAS THERE - CONTRIBUTORY NEGLIGENCE ON THE PART OF THE INJURED

PARTY?
II.
ARE BOTH DEFENDANT CADIENTE AND THIRD-PARTY DEFENDANT JOINTLY

AND SEVERALLY LIABLE TO THE INJURED PARTY?
III.
24
THE HONORABLE COURT OF APPEAL[S] COMMIT[T]ED GRAVE LEGAL ERROR

IN ORDERING DEFENDANT CADIENTE AND THIRD-PARTY DEFENDANT JALIPA
JOINTLY AND SEVERALLY LIABLE.12
Essentially, the issues to be resolved are: (1) Whether there was contributory
negligence on the part of the victim; and (2) whether the petitioner and third-
party defendant Jalipa are jointly and severally liable to the victim.
The petitioner contends that the victim's negligence contributed to his own
mishap. The petitioner theorizes that if witness Rosalinda Palero, who was only
two and a half meters away from the victim, was not hit by the Ford Fiera,
then the victim must have been so negligent as to be bumped and run over by
the said vehicle.13
The petitioner further argues that having filed a third-party complaint against
Jalipa, to whom he had sold the Ford Fiera, the Court of Appeals should have
ordered the latter to reimburse him for any amount he would be made to pay
the victim, instead of ordering him solidarily liable for damages.14
The respondent, for his part, counters that the immediate and proximate
cause of the injuries he suffered was the recklessly driven Ford Fiera, which
was registered in the petitioner's name. He insists that when he was hit by the
vehicle, he was standing on the uncemented portion of the highway, which
was exactly where pedestrians were supposed to be.15
The respondent stresses that as the registered owner of the Ford Fiera which
figured in the accident, the petitioner is primarily liable for the injury caused
by the said vehicle. He maintains that the alleged sale of the vehicle to Jalipa
was tainted with irregularity, which indicated collusion between the petitioner
and Jalipa.16
After a careful consideration of the parties' submissions, we find the petition

without merit.
Article 2179 of the Civil Code provides:
When the plaintiff's own 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
25
in full, but must proportionately bear the consequences of his own negligence.
The defendant is thus held liable only for the damages actually caused by his
negligence.17
In this case, records show that when the accident happened, the victim was
standing on the shoulder, which was the uncemented portion of the highway.
As noted by the trial court, the shoulder was intended for pedestrian use
alone. Only stationary vehicles, such as those loading or unloading passengers
may use the shoulder. Running vehicles are not supposed to pass through the
said uncemented portion of the highway. However, the Ford Fiera in this case,
without so much as slowing down, took off from the cemented part of the
highway, inexplicably swerved to the shoulder, and recklessly bumped and ran
over an innocent victim. The victim was just where he should be when the
unfortunate event transpired.
Cimafranca, on the other hand, had no rightful business driving as recklessly

as she did. The respondent cannot be expected to have foreseen that the Ford
Fiera, erstwhile speeding along the cemented part of the highway would
suddenly swerve to the shoulder, then bump and run him over. Thus, we are
unable to accept the petitioner's contention that the respondent was negligent.
Coming now to the second and third issues, this Court has recently reiterated
in PCI Leasing and Finance, Inc. v. UCPB General Insurance Co., Inc.,18 that
the registered owner of any vehicle, even if he had already sold it to someone
else, is primarily responsible to the public for whatever damage or injury the
vehicle may cause. We explained,
'Were a registered owner allowed to evade responsibility by proving who the

supposed transferee or owner is, it would be easy for him, by collusion with
others or otherwise, to escape said responsibility and transfer the same to an
indefinite person, or to one who possesses no property with which to respond
financially for the damage or injury done. A victim of recklessness on the
public highways is usually without means to discover or identify the person
actually causing the injury or damage. He has no means other than by a
recourse to the registration in the Motor Vehicles Office to determine who is
the owner. The protection that the law aims to extend to him would become
illusory were the registered owner given the opportunity to escape liability by
disproving his ownership.19
In the case of Villanueva v. Domingo,20 we said that the policy behind vehicle
registration is the easy identification of the owner who can be held responsible
in case of accident, damage or injury caused by the vehicle. This is so as not
26
to inconvenience or prejudice a third party injured by one whose identity

cannot be secured.21
Therefore, since the Ford Fiera was still registered in the petitioner's name at
the time when the misfortune took place, the petitioner cannot escape liability
for the permanent injury it caused the respondent, who had since stopped
schooling and is now forced to face life with nary but two remaining limbs.
WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision
dated September 16, 2002 and Resolution dated December 18, 2003 of the
Court of Appeals in CA-G.R. CV No. 64103 are hereby AFFIRMED. Costs
against the petitioner.
SO ORDERED.
G.R. No. 153076 June 21, 2007
LAPANDAY AGRICULTURAL and DEVELOPMENT CORPORATION (LADECO), HENRY

BERENGUEL, and APOLONIO R. DEOCAMPO, petitioners,
vs.
MICHAEL RAYMOND ANGALA, respondent.
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review1 assailing the 25 July 2001 Decision2 and 11 March
2002 Resolution3 of the Court of Appeals in CA-G.R. CV No. 51134.
The Antecedent Facts
On 4 May 1993, at about 2:45 p.m., a Datsun crewcab with plate no. PEC-903 driven by
Apolonio Deocampo (Deocampo) bumped into a 1958 Chevy pick-up with plate no. MAM-475
owned by Michael Raymond Angala (respondent) and driven by Bernulfo Borres (Borres).
Lapanday Agricultural and Development Corporation (LADECO) owned the crewcab which
was assigned to its manager Manuel Mendez (Mendez). Deocampo was the driver and
bodyguard of Mendez. Both vehicles were running along Rafael Castillo St., Agdao, Davao
City heading north towards Lanang, Davao City. The left door, front left fender, and part of the
front bumper of the pick-up were damaged.
Respondent filed an action for Quasi-Delict, Damages, and Attorney’s Fees against LADECO,
its administrative officer Henry Berenguel4 (Berenguel) and Deocampo. Respondent alleged
that his pick-up was slowing down to about five to ten kilometers per hour (kph) and was
making a left turn preparatory to turning south when it was bumped from behind by the
27
crewcab which was running at around 60 to 70 kph. The crewcab stopped 21 meters from the
point of impact. Respondent alleged that he heard a screeching sound before the impact.
Respondent was seated beside the driver and was looking at the speedometer when the
accident took place. Respondent testified that Borres made a signal because he noticed a
blinking light while looking at the speedometer.5
Respondent sent a demand letter to LADECO for the payment of the damages he incurred
because of the accident but he did not receive any reply. Thus, respondent filed the case
against LADECO, Berenguel, and Deocampo.
Deocampo alleged that the pick-up and the crewcab he was driving were both running at
about 40 kph. The pick-up was running along the outer lane. The pick-up was about 10
meters away when it made a U-turn towards the left. Deocampo testified that he did not see
any signal from the pick-up.6 Deocampo alleged that he tried to avoid the pick-up but he was
unable to avoid the collision. Deocampo stated that he did not apply the brakes because he
knew the collision was unavoidable. Deocampo admitted that he stepped on the brakes only
after the collision.
The Ruling of the Trial Court
In its 3 March 1995 Decision,7 the Regional Trial Court of Davao City, Branch 15 (trial court)
ruled:
WHEREFORE, judgment is hereby rendered ordering the defendants LADECO and

Apolonio Deocampo to solidarily pay the plaintiffs the following sums:
1. Twenty three thousand two hundred (P23,200.00) pesos as actual damages.
2. Ten thousand (P10,000.00) pesos as moral damages.
3. Ten thousand (P10,000.00) pesos as attorney’s fees.
4. Costs of suit.
SO ORDERED.8
The trial court found that the crewcab was running very fast while following the pick-up and
that the crewcab’s speed was the proximate cause of the accident. The trial court observed
that the crewcab stopped 21 meters away from the point of impact despite Deocampo’s claim
that he stepped on the brakes moments after the collision. The trial court ruled that
Deocampo had the last opportunity to avoid the accident.
The trial court found that Berenguel was not liable because he was not the owner of the
crewcab.
LADECO and Deocampo (petitioners)9 filed a motion for reconsideration. The trial court
denied petitioners’ motion in its 13 June 1995 Order.10
28
Petitioners filed an appeal before the Court of Appeals.
The Ruling of the Court of Appeals
The Court of Appeals affirmed in toto the trial court’s decision.
The Court of Appeals sustained the finding of the trial court that Deocampo was negligent.
The Court of Appeals applied the doctrine of last clear chance and ruled that Deocampo had
the responsibility of avoiding the pick-up.
The Court of Appeals also sustained the solidary liability of LADECO and Deocampo. The
Court of Appeals ruled that under Article 2180 of the Civil Code, the negligence of the driver is
presumed to be the negligence of the owner of the vehicle.
The dispositive portion of the Court of Appeals’ Decision reads:
WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit, and
the assailed Decision of the Court a quo in Civil Case No. 22067-93 is AFFIRMED
in toto. Costs against defendants-appellants.
SO ORDERED.11
Petitioners filed a motion for reconsideration. In its 11 March 2002 Resolution, the Court of
Appeals denied the motion for lack of merit.
Hence, the petition before this Court.
The Issues
The issues before the Court are the following:
1. Whether the provisions of Section 45(b) of Republic Act No. 413612 (RA 4136) and
Article 2185 of the Civil Code apply to this case; and
2. Whether respondent is entitled to the damages awarded.
The Ruling of this Court
The petition is partly meritorious.
Both Drivers are Negligent
Both the trial court and the Court of Appeals found that Deocampo was at fault because he
was driving very fast prior to the collision. The Court of Appeals sustained the trial court’s
finding that Deocampo was running more than the normal cruising speed. Both the trial court
and the Court of Appeals noted that the crewcab stopped 21 meters away from the point of
impact. Deocampo admitted that he stepped on the brakes only after the collision.
29
Petitioners allege that Borres did not take the proper lane before executing the U-turn.
Petitioners allege that Borres violated Section 45(b) of RA 4136 and it was his recklessness
that was the proximate cause of the accident.
Section 45(b) of RA 4136 states:
Sec. 45. Turning at intersections. x x x
(b) The driver of a vehicle intending to turn to the left shall approach such intersection
in the lane for traffic to the right of and nearest to the center line of the highway, and, in
turning, shall pass to the left of the center of the intersection, except that, upon
highways laned for traffic and upon one-way highways, a left turn shall be made from
the left lane of traffic in the direction in which the vehicle is proceeding.
Petitioners further allege that since Borres was violating a traffic rule at the time of the
accident, respondent and Borres were the parties at fault. Petitioners cite Article 2185 of the
Civil Code, thus:
Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a
motor vehicle has been negligent if at the time of the mishap, he was violating any
traffic regulation.
We rule that both parties were negligent in this case. Borres was at the outer lane when he
executed a U-turn. Following Section 45(b) of RA 4136, Borres should have stayed at the
inner lane which is the lane nearest to the center of the highway. However, Deocampo was
equally negligent. Borres slowed down the pick-up preparatory to executing the U-turn.
Deocampo should have also slowed down when the pick-up slowed down. Deocampo
admitted that he noticed the pick-up when it was still about 20 meters away from
him.13 Vehicular traffic was light at the time of the incident. The pick-up and the crewcab were
the only vehicles on the road.14 Deocampo could have avoided the crewcab if he was not
driving very fast before the collision, as found by both the trial court and the Court of Appeals.
We sustain this finding since factual findings of the Court of Appeals affirming those of the
trial court are conclusive and binding on this Court.15 Further, the crewcab stopped 21 meters
from the point of impact. It would not have happened if Deocampo was not driving very fast.
Doctrine of Last Clear Chance Applies
Since both parties are at fault in this case, the doctrine of last clear chance applies.
The doctrine of last clear chance states that where both parties are negligent but the
negligent act of one is appreciably later than that of the other, or where it is impossible to
determine whose fault or negligence caused the loss, the one who had the last clear
opportunity to avoid the loss but failed to do so is chargeable with the loss. 16 In this case,
Deocampo had the last clear chance to avoid the collision. Since Deocampo was driving the
rear vehicle, he had full control of the situation since he was in a position to observe the
vehicle in front of him.17 Deocampo had the responsibility of avoiding bumping the vehicle in
front of him.18 A U-turn is done at a much slower speed to avoid skidding and overturning,
30
compared to running straight ahead.19 Deocampo could have avoided the vehicle if he was
not driving very fast while following the pick-up. Deocampo was not only driving fast, he also
admitted that he did not step on the brakes even upon seeing the pick-up. He only stepped on
the brakes after the collision.
Petitioners are Solidarily Liable
LADECO alleges that it should not be held jointly and severally liable with Deocampo
because it exercised due diligence in the supervision and selection of its employees. Aside
from this statement, LADECO did not proffer any proof to show how it exercised due diligence
in the supervision and selection of its employees. LADECO did not show its policy in hiring its
drivers, or the manner in which it supervised its drivers. LADECO failed to substantiate its
allegation that it exercised due diligence in the supervision and selection of its employees.
Hence, we hold LADECO solidarily liable with Deocampo.
Respondent is Entitled to Moral Damages
We sustain the award of moral damages. Moral damages are awarded to allow a plaintiff to
obtain means, diversion, or amusement that will serve to alleviate the moral suffering he has
undergone due to the defendant’s culpable action.20 The trial court found that respondent,
who was on board the pick-up when the collision took place, suffered shock, serious anxiety,
and fright when the crewcab bumped his pick-up. We sustain the trial court and the Court of
Appeals in ruling that respondent sufficiently showed that he suffered shock, serious anxiety,
and fright which entitle him to moral damages.
Both the trial court and the Court of Appeals failed to give any justification for the award of
attorney’s fees. Awards of attorney’s fees must be based on findings of fact and of law and
stated in the decision of the trial court.21 Further, no premium should be placed on the right to
litigate.22 Hence, we delete the award of attorney’s fees.
WHEREFORE, we AFFIRM the 25 July 2001 Decision and 11 March 2002 Resolution of the
Court of Appeals in CA-G.R. CV No. 51134 with MODIFICATION by deleting the award of
attorney’s fees.
SO ORDERED.
G.R. No. L-3422 June 13, 1952
HIDALGO ENTERPRISES, INC., petitioner,

vs.
GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF
APPEALS, respondents.
Quisumbing, Sycip, Quisumbing and Salazar for petitioner.

Antonio M. Moncado for respondents.
31
BENGZON, J.:
This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo
Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for
the death of their son Mario.
It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory
in the City of San Pablo, Laguna, in whose premises were installed two tanks full of water,
nine feet deep, for cooling purposes of its engine. While the factory compound was
surrounded with fence, the tanks themselves were not provided with any kind of fence or top
covers. The edges of the tanks were barely a foot high from the surface of the ground.
Through the wide gate entrance, which is continually open, motor vehicles hauling ice and
persons buying said commodity passed, and any one could easily enter the said factory, as
he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948,
plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of
other boys of his age entered the factory premises through the gate, to take a bath in one of
said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be fished out
later, already a cadaver, having been died of "asphyxia secondary to drowning."
The Court of Appeals, and the Court of First Instance of Laguna, took the view that the
petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary
precautions to avoid accidents to persons entering its premises. It applied the doctrine of
attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs. Manila
Electric 16 Phil., 8.
The doctrine may be stated, in short, as follows: One who maintains on his premises
dangerous instrumentalities or appliances of a character likely to attract children in play, and
who fails to exercise ordinary care to prevent children from playing therewith or resorting
thereto, is liable to a child of tender years who is injured thereby, even if the child is
technically a trespasser in the premises. (See 65 C.J.S., p. 455.)
The principle reason for the doctrine is that the condition or appliance in question although its
danger is apparent to those of age, is so enticing or alluring to children of tender years as to
induce them to approach, get on or use it, and this attractiveness is an implied invitation to
such children (65 C.J.S., p. 458).
Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little
children in play? In other words is the body of water an attractive nuisance?
The great majority of American decisions say no.
The attractive nuisance doctrine generally is not applicable to bodies of water, artificial
as well as natural, in the absence of some unusual condition or artificial feature other
than the mere water and its location.
There are numerous cases in which the attractive nuisance doctrine has not been held
not to be applicable to ponds or reservoirs, pools of water, streams, canals, dams,
32
ditches, culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing
decisions of California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss.,
Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska,
Wisconsin.)
In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris
Secundum was published in 1950, whereas its decision was promulgated on September 30,
1949.
The reason why a swimming pool or pond or reservoir of water is not considered an attractive
nuisance was lucidly explained by the Indiana Appellate Court as follows:
Nature has created streams, lakes and pools which attract children. Lurking in their
waters is always the danger of drowning. Against this danger children are early
instructed so that they are sufficiently presumed to know the danger; and if the owner of
private property creates an artificial pool on his own property, merely duplicating the
work of nature without adding any new danger, . . . (he) is not liable because of having
created an "attractive nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184,
185; 112 Ind. App., 170.
Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether
the petitioner had taken reasonable precautions becomes immaterial. And the other issue
submitted by petitioner — that the parents of the boy were guilty of contributory negligence
precluding recovery, because they left for Manila on that unlucky day leaving their son under
the care of no responsible individual — needs no further discussion.
The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability.
No costs.
Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur.
Separate Opinions
PABLO, J., disidente:
La recurrente tiene dos estanques de agua, de nueve pies de profundidad, como anexos
indispensables a su fabrica de hielo; estan constuidos dentro de un solar que esta cercado
pero con una puerta de entrada siempre abierta en donde pasan libremente los coches que
distribuyen hielo y las personas que lo compran de la fabrica; cualquiera puede entrar sin
distincion alguna, no hay ningun guardia en la puerta que impida la entrada de cualquiera
persona. A dichos dos entanques tiene libre acceso el publico.
Es evidente que la recurrente debio haber cercado dichos estanques como medida ordinaria
de precaucion para que los ninos de corta edad no pueden entrar, tanto mas cuanto que los
33
bordes de esos estanques solo tienen un pie de altura la superficie del terreno. El cerco
puesto en el perimento del solar, con puerta continuamente abierta, no es suficiente medida
para impedir que los ninos puedan meterse en los entanques. Ese cerco con su puerta
abierta es como un velo transparente con que se cubre una mujer semidesnuda en un teatro,
pica la curiosidad y atrae la atencion del publico.
Los niños son curiosos por naturaleza y los de ocho años no tienen perfecto conocimiento de
las cosas. Alucinados por la natural atraccion de las aguas, se meteran en ellas con peligro
de sus vidas, a menos que exista algo que les impida.
Voto con la confirmacion de la decision apelada.
G.R. No. L-2075 November 29, 1949
MARGARITA AFIALDA, plaintiff-appellant,

vs.
BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.
Nicolas P. Nonato for appellant.

Gellada, Mirasol and Ravena for appellees.
REYES, J.:
This is an action for damages arising from injury caused by an animal. The complaint alleges
that the now deceased, Loreto Afialda, was employed by the defendant spouses as caretaker
of their carabaos at a fixed compensation; that while tending the animals he was, on March
21, 1947, gored by one of them and later died as a consequence of his injuries; that the
mishap was due neither to his own fault nor to force majeure; and that plaintiff is his elder
sister and heir depending upon him for support.
Before filing their answer, defendants moved for the dismissal of the complaint for lack of a
cause of action, and the motion having been granted by the lower court, plaintiff has taken
this appeal.
Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:
The possessor of an animal, or the one who uses the same, is liable for any damages it
may cause, even if such animal should escape from him or stray away.
This liability shall cease only in case, the damage should arise from force majeure or
from the fault of the person who may have suffered it.
The question presented is whether the owner of the animal is liable when damage is caused
to its caretaker.
The lower court took the view that under the above-quoted provision of the Civil Code, the
owner of an animal is answerable only for damages caused to a stranger, and that for
34
damage caused to the caretaker of the animal the owner would be liable only if he had been
negligent or at fault under article 1902 of the same code. Claiming that the lower court was in
error, counsel for plaintiff contends that the article 1905 does not distinguish between damage
caused to the caretaker and makes the owner liable whether or not he has been negligent or
at fault. For authority counsel cites the following opinion which Manresa quotes from a
decision of the Spanish Supreme Court:
El articulo 1905 del codigo Civil no consienta otra interpretacion que la que, clara y
evidentemente, se deriva de sus terminos literales, bastando, segun el mismo, que un
animal cause perjuicio para que nasca la responsibilidad del dueno, aun no
imputandose a este ninguna clase de culpa o negligencia, habida,sin duda, cuenta por
el lgislador de que tal concepto de dueno es suficiente para que arrastre las
consecuencias favorables o adversas de esta clase de propiedad, salvo la exception
en el mismo contenida. (12 Manresa, Commentaries on the Spanish CivilCode, 573.)
This opinion, however, appears to have been rendered in a case where an animal caused
injury to a stranger or third person. It is therefore no authority for a case like the present
where the person injured was the caretaker of the animal. The distinction is important. For the
statute names the possessor or user of the animal as the person liable for "any damages it
may cause," and this for the obvious reason that the possessor or user has the custody and
control of the animal and is therefore the one in a position to prevent it from causing damage.
In the present case, the animal was in custody and under the control of the caretaker, who
was paid for his work as such. Obviously, it was the caretaker's business to try to prevent the
animal from causing injury or damage to anyone, including himself. And being injured by the
animal under those circumstances, was one of the risks of the occupation which he had
voluntarily assumed and for which he must take the consequences.
In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12,
p. 578), the death of an employee who was bitten by a feline which his master had asked him
to take to his establishment was by said tribunal declared to be "a veritable accident of labor"
which should come under the labor laws rather than under article 1905 of the Civil Code. The
present action, however, is not brought under the Workmen's Compensation Act, there being
no allegation that, among other things, defendant's business, whatever that might be, had a
gross income of P20,000. As already stated, defendant's liability is made to rest on article
1905 of the Civil Code. but action under that article is not tenable for the reasons already
stated. On the other hand, if action is to be based on article 1902 of the Civil Code, it is
essential that there be fault or negligence on the part of the defendants as owners of the
animal that caused the damage. But the complaint contains no allegation on those points.
There being no reversible error in the order appealed from, the same is hereby affirmed, but
without costs in view of the financial situation of the appellant.
Moran, C.J., Ozaeta, Paras, Bengzon, Padilla, Tuason, Montemayor and Torres, JJ., concur.
G.R. No. L-7664 August 29, 1958
35
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.

Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum
of P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the
death of their son Dominador Ong in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but
avers that his death was caused by his own negligence or by unavoidable accident.
Defendant also avers that it had exercised due diligence in the selection of, and supervision
over, its employees and that it had observed the diligence required by law under the
circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the
complaint without pronouncement as to costs. Plaintiffs took the case on appeal directly to
this Court because the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman,
Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and
P0.20 for children is charged. The main pool it between two small pools of oval shape known
as the "Wading pool" and the "Beginners Pool." There are diving boards in the big pools and
the depths of the water at different parts are indicated by appropriate marks on the wall. The
care and supervision of the pools and the users thereof is entrusted to a recreational section
composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards who
had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila.
For the safety of its patrons, defendant has provided the pools with a ring buoy, toy roof,
towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in charge of
a clinic established for the benefit of the patrons. Defendant has also on display in a
conspicuous place certain rules and regulations governing the use of the pools, one of which
prohibits the swimming in the pool alone or without any attendant. Although defendant does
not maintain a full-time physician in the swimming pool compound, it has however a nurse
and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if
the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high
school student and boy scout, and his brothers Ruben and Eusebio, went to defendant's
swimming pools. This was not the first time that the three brothers had gone to said
natatorium for they had already been there four or five times before. They arrived at the
natatorium at about 1:45 p.m. After paying the requisite admission fee, they immediately went
to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong
told his brothers that he was going to the locker room in an adjoining building to drink a bottle
36
of coke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in
the small pool and so they did not see the latter when he left the pool to get a bottle of coke.
In that afternoon, there were two lifeguards on duty in the pool compound, namely, Manuel
Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the morning
and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from
12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty bathers
inside the pool area and Manuel Abaño was going around the pools to observe the bathers in
compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the
name of Andres Hagad, Jr., that somebody was swimming under water for quite a long time.
Another boy informed lifeguard Manuel Abaño of the same happening and Abaño
immediately jumped into the big swimming pool and retrieved the apparently lifeless body of
Dominador Ong from the bottom. The body was placed at the edge of the pool and Abaño
immediately applied manual artificial respiration. Soon after, male nurse Armando Rule came
to render assistance, followed by sanitary inspector Iluminado Vicente who, after being called
by phone from the clinic by one of the security guards, boarded a jeep carrying with him the
resuscitator and a medicine kit, and upon arriving he injected the boy with camphorated oil.
After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the University of the
Philippines. Meanwhile, Abaño continued the artificial manual respiration, and when this failed
to revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Not
long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of no use
because he found the boy already dead. The doctor ordered that the body be taken to the
clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the Police
Department of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr.
gave written statements. On the following day, July 6, 1952, an autopsy was performed by Dr.
Enrique V. de los Santos, Chief, Medico Legal Division, National Bureau of Investigation, who
found in the body of the deceased the following: an abrasion on the right elbow lateral aspect;
contusion on the right forehead; hematoma on the scalp, frontal region, right side; a
congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the
face and on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in
the heart; congestion in the visceral organs, and brownish fluid in the stomach. The death
was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be
attributed to the negligence of defendant and/or its employees so as to entitle plaintiffs to
recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new Civil
Code. The first article provides that "whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damages done." Such fault or
negligence is called quasi-delict. Under the second article, this obligation is demandable not
only for one's own acts or omissions but also for those of persons for whom one is
responsible. In addition, we may quote the following authorities cited in the decision of the trial
court:
37
"The rule is well settled that the owners of resorts to which people generally are
expressly or by implication invited are legally bound to exercise ordinary care and
prudence in the management and maintenance of such resorts, to the end of making
them reasonably safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac.
686).
"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from
lack of ordinary care in providing for his safety, without the fault of the patron, he is not,
however, in any sense deemed to be the insurer of the safety of patrons. And the death
of a patron within his premises does not cast upon him the burden of excusing himself
from any presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R.
635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs.
Kinnare, supra, it was held that there could be no recovery for the death by drowning of
a fifteen-year boy in defendant's natatorium, where it appeared merely that he was
lastly seen alive in water at the shallow end of the pool, and some ten or fifteen minutes
later was discovered unconscious, and perhaps lifeless, at the bottom of the pool, all
efforts to resuscitate him being without avail.
Since the present action is one for damages founded on culpable negligence, the principle to
be observed is that the person claiming damages has the burden of proving that the damage
is caused by the fault or negligence of the person from whom the damage is claimed, or of
one of his employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil.,
517). The question then that arises is: Have appellants established by sufficient evidence the
existence of fault or negligence on the part of appellee so as to render it liable for damages
for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to take the
necessary precaution to protect the lives of its patrons by not placing at the swimming pools
efficient and competent employees who may render help at a moment's notice, and they
ascribed such negligence to appellee because the lifeguard it had on the occasion minor Ong
was drowning was not available or was attending to something else with the result that his
help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr.
and Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning
person in the bottom of the big swimming pool and shouted to the lifeguard for help, lifeguard
Manuel Abaño did not immediately respond to the alarm and it was only upon the third call
that he threw away the magazine he was reading and allowed three or four minutes to elapse
before retrieving the body from the water. This negligence of Abaño, they contend, is
attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but
is belied by the written statements given by them in the investigation conducted by the Police
Department of Quezon City approximately three hours after the happening of the accident.
Thus, these two boys admitted in the investigation that they narrated in their statements
everything they knew of the accident, but, as found by the trial, nowhere in said statements do
they state that the lifeguard was chatting with the security guard at the gate of the swimming
pool or was reading a comic magazine when the alarm was given for which reason he failed
to immediately respond to the alarm. On the contrary, what Ruben Ong particularly
38
emphasized therein was that after the lifeguard heard the shouts for help, the latter
immediately dived into the pool to retrieve the person under water who turned out to be his
brother. For this reason, the trial court made this conclusion: "The testimony of Ruben Ong
and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to immediately respond
to their call may therefore be disregarded because they are belied by their written statements.
(Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has taken all necessary
precautions to avoid danger to the lives of its patrons or prevent accident which may cause
their death. Thus, it has been shown that the swimming pools of appellee are provided with a
ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of
the pools is painted with black colors so as to insure clear visibility. There is on display in a
conspicuous place within the area certain rules and regulations governing the use of the
pools. Appellee employs six lifeguards who are all trained as they had taken a course for that
purpose and were issued certificates of proficiency. These lifeguards work on schedule
prepared by their chief and arranged in such a way as to have two guards at a time on duty to
look after the safety of the bathers. There is a male nurse and a sanitary inspector with a
clinic provided with oxygen resuscitator. And there are security guards who are available
always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the bottom of the
pool, the employees of appellee did everything possible to bring him back to life. Thus, after
he was placed at the edge of the pool, lifeguard Abaño immediately gave him manual artificial
respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector
Iluminado Vicente who brought with him an oxygen resuscitator. When they found that the
pulse of the boy was abnormal, the inspector immediately injected him with camphorated oil.
When the manual artificial respiration proved ineffective they applied the oxygen resuscitator
until its contents were exhausted. And while all these efforts were being made, they sent for
Dr. Ayuyao from the University of the Philippines who however came late because upon
examining the body he found him to be already dead. All of the foregoing shows that appellee
has done what is humanly possible under the circumstances to restore life to minor Ong and
for that reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of appellee may not be of much help,
appellants now switch to the theory that even if it be assumed that the deceased is partly to
be blamed for the unfortunate incident, still appellee may be held liable under the doctrine of
"last clear chance" for the reason that, having the last opportunity to save the victim, it failed
to do so.
We do not see how this doctrine may apply considering that the record does not show how
minor Ong came into the big swimming pool. The only thing the record discloses is that minor
Ong informed his elder brothers that he was going to the locker room to drink a bottle of coke
but that from that time on nobody knew what happened to him until his lifeless body was
retrieved. The doctrine of last clear chance simply means that the negligence of a claimant
does not preclude a recovery for the negligence of defendant where it appears that the latter,
by exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who
39
has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent
acts of his opponent or the negligence of a third person which is imputed to his opponent, is
considered in law solely responsible for the consequences of the accident." (38 Am. Jur. pp.
900-902)
It goes without saying that the plaintiff himself was not free from fault, for he was guilty
of antecedent negligence in planting himself in the wrong side of the road. But as we
have already stated, the defendant was also negligent; and in such case the problem
always is to discover which agent is immediately and directly responsible. It will be
noted that the negligent acts of the two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances, the law is that a person who has the last clear
chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party. (Picart vs.
Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming pool and it being apparent
that he went there without any companion in violation of one of the regulations of appellee as
regards the use of the pools, and it appearing that lifeguard Aba_¤_o responded to the call for
help as soon as his attention was called to it and immediately after retrieving the body all
efforts at the disposal of appellee had been put into play in order to bring him back to life, it is
clear that there is no room for the application of the doctrine now invoked by appellants to
impute liability to appellee..
The last clear chance doctrine can never apply where the party charged is required to
act instantaneously, and if the injury cannot be avoided by the application of all means
at hand after the peril is or should have been discovered; at least in cases in which any
previous negligence of the party charged cannot be said to have contributed to the
injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest,
Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the trial court, which we find
supported by the evidence: "There is (also) a strong suggestion coming from the expert
evidence presented by both parties that Dominador Ong might have dived where the water
was only 5.5 feet deep, and in so doing he might have hit or bumped his forehead against the
bottom of the pool, as a consequence of which he was stunned, and which to his drowning.
As a boy scout he must have received instructions in swimming. He knew, or have known that
it was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law and the evidence, we
hereby affirm the same, without pronouncement as to costs.
G.R. No. 70493 May 18, 1989
GLAN PEOPLE'S LUMBER AND HARDWARE, GEORGE LIM, FABIO S. AGAD, FELIX
LIM and PAUL ZACARIAS y INFANTE, petitioners,
vs.
40
INTERMEDIATE APPELLATE COURT, CECILIA ALFEREZ VDA. DE CALIBO, Minors

ROYCE STEPHEN, JOYCE JOAN, JANISE MARIE, JACQUELINE BRIGITTE JOCELINE
CORAZON, JULIET GERALDINE, JENNIFER JILL, all surnamed CALIBO, represented
by their mother, CECILIA A. VDA. DE CALIBO, respondents.
Rufino Mayor and Isidro M. Ampig for petitioners.
Manuel L. Hontanosas for private respondents.
NARVASA, J.:
There is a two-fold message in this judgment that bears stating at the outset. The first, an
obvious one, is that it is the objective facts established by proofs presented in a controversy
that determine the verdict, not the plight of the persons involved, no matter how deserving of
sympathy and commiseration because, for example, an accident of which they are the
innocent victims has brought them to. reduced circumstances or otherwise tragically altered
their lives. The second is that the doctrine laid done many, many years ago in Picart vs.
Smith 1 continues to be good law to this day.
The facts giving rise to the controversy at bar are tersely and quite accurately recounted by
the Trial Court as follows:2
Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the
jeep owned by the Bacnotan Consolidated Industries, Inc., with Calibo at the
wheel, as it approached from the South Lizada Bridge going towards the
direction of Davao City at about 1:45 in the afternoon of July 4,1979. At about
that time, the cargo track, loaded with cement bags, GI sheets, plywood, driven
by defendant Paul Zacarias y Infants, coming from the opposite direction of
Davao City and bound for Glan, South Cotabato, had just crossed said bridge. At
about 59 yards after crossing the bridge, the cargo truck and the jeep collided as
a consequence of which Engineer Calibo died while Roranes and Patos
sustained physical injuries. Zacarias was unhurt. As a result of the impact, the
left side of the truck was slightly damaged while the left side of the jeep, including
its fender and hood, was extensively damaged. After the impact, the jeep fell and
rested on its right side on the asphalted road a few meters to the rear of the
truck, while the truck stopped on its wheels on the road.
On November 27, 1979, the instant case for damages was filed by the surviving
spouse and children of the late Engineer Calibo who are residents of Tagbilaran
City against the driver and owners of the cargo truck.
For failure to file its answer to the third party complaint, third party defendant,
which insured the cargo truck involved, was declared in default.
41
The case filed by the heirs of Engineer Calibo his widow and minor children, private
respondents herein was docketed as
Civil Case No. 3283 of the Court of First Instance of Bohol. 3 Named defendants in the
complaint were "Felix S. Agad, George Lim and Felix Lim . . . (who) appear to be the co-
owners of the Glan People's Lumber and Hardware . . . (and) Paul Zacarias y Infante." 4 The
defendants' answer however alleged that the lumber and hardware business was exclusively
owned by George Y. Lim, this being evidenced by the Certificate of Registration issued by the
Bureau of Domestic Trade; Fabio S. Agad was not a co-owner thereof but "merely employed
by . . . George Y. Lim as bookkeeper"; and Felix Lim had no connection whatever with said
business, "he being a child only eight (8) years of age." 5
"After (trial, and) a careful evaluation of the evidence, both testimonial and documentary," the
Court reached the conclusion "that the plaintiffs failed to establish by preponderance of
evidence the negligence, and thus the liability, of the defendants." Accordingly, the Court
dismissed the complaint (and defendants' counterclaim) "for insufficiency of evidence."
Likewise dismissed was third-party complaint presented by the defendants against the insurer
of the truck. The circumstances leading to the Court's conclusion just mentioned, are detailed
in the Court's decision, as follows:
1. Moments before its collission with the truck being operated by Zacarias, the
jeep of the deceased Calibo was "zigzagging." 6
2. Unlike Zacarias who readily submitted himself to investigation by the police,

Calibo's companions, Roranes (an accountant), and Patos, who suffered injuries
on account of the collision, refused to be so investigated or give statements to
the police officers. This, plus Roranes' waiver of the right to institute criminal
proceedings against Zacarias, and the fact that indeed no criminal case was ever
instituted in Court against Zacarias, were "telling indications that they did not
attribute the happening to defendant Zacarias' negligence or fault."7
3. Roranes' testimony, given in plaintiffs' behalf, was "not as clear and detailed as
that of . . . Zacarias," and was "uncertain and even contradicted by the physical
facts and the police investigators Dimaano and Esparcia."8
4. That there were skid marks left by the truck's tires at the scene, and none by
the jeep, demonstrates that the driver of the truck had applied the brakes and the
jeep's driver had not; and that the jeep had on impact fallen on its right side is
indication that it was running at high speed. Under the circumstances, according
to the Court, given "the curvature of the road and the descending grade of the
jeep's lane, it was negligence on the part of the driver of the jeep, Engr. Calibo,
for not reducing his speed upon sight of the truck and failing to apply the brakes
as he got within collision range with the truck."
5. Even if it be considered that there was some antecedent negligence on the

part of Zacarias shortly before the collision, in that he had caused his truck to run
some 25 centimeters to the left of the center of the road, Engr. Calibo had the
42
last clear chance of avoiding the accident because he still had ample room in his
own lane to steer clear of the truck, or he could simply have braked to a full stop.
The Court of Appeals saw things differently. It rendered judgment 9 on the plaintiffs'
appeal, l0 reversing the decision of the Trial Court. It found Zacarias to be negligent on the basis of the following circumstances, to wit:
1) "the truck driven by defendant Zacarias occupied the lane of the jeep when the
collision occurred,' and although Zacarias saw the jeep from a distance of about
150 meters, he "did not drive his truck back to his lane in order to avoid collision
with the oncoming jeep . . .;" 11 what is worse, "the truck driver suddenly applied
his brakes even as he knew that he was still within the lane of the jeep;"12 had
both vehicles stayed in their respective lanes, the collision would never have
occurred, they would have passed "along side each other safely;"13
2) Zacarias had no license at the time; what he handed to Pfc. Esparcia, on the
latter's demand, was the 'driver's license of his co-driver Leonardo Baricuatro;" 14
3) the waiver of the right to file criminal charges against Zacarias should not be
taken against "plaintiffs" Roranes and Patos who had the right, under the law, to
opt merely to bring a civil suit.15
The Appellate Court opined that Zacarias' negligence "gave rise to the presumption of
negligence on the part of his employer, and their liability is both primary and solidary." It
therefore ordered "the defendants jointly and solidarily to indemnify the plaintiffs the following
amounts:
(1) P30,000.00 for the death of Orlando Calibo;
(2) P378,000.00 for the loss of earning capacity of the deceased
(3) P15,000.00 for attorney's fees;
(4) Cost of suit. 16
The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have appealed to
this Court on certiorari and pray for a reversal of the judgment of the Intermediate Appellate
Court which, it is claimed, ignored or ran counter to the established facts. A review of the
record confirms the merit of this assertion and persuades this Court that said judgment indeed
disregarded facts clearly and undisputably demonstrated by the proofs. The appealed
judgment, consequently, will have to be reversed.
The finding that "the truck driven by defendant Paul Zacarias occupied the lane of the jeep
when the collision occurred" is a loose one, based on nothing more than the showing that at
the time of the accident, the truck driven by Zacarias had edged over the painted center line
of the road into the opposite lane by a width of twenty-five (25) centimeters. It ignores the fact
that by the uncontradicted evidence, the actual center line of the road was not that indicated
by the painted stripe but, according to measurements made and testified by Patrolman
43
Juanita Dimaano, one of the two officers who investigated the accident, correctly lay thirty-six
(36) centimeters farther to the left of the truck's side of said stripe.
The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is
to the effect that the jeep's lane was three (3) meters and seventy-five (75) centimeters wide,
and that of the truck three (3) meters and three (3) centimeters, measured from the center
stripe to the corresponding side lines or outer edges of the road. 17 The total width of the road
being, therefore, six (6) meters and seventy-eight (78) centimeters, the true center line
equidistant from both side lines would divide the road into two lanes each three (meters) and
thirty-nine (39) centimeters wide. Thus, although it was not disputed that the truck overrode
the painted stripe by twenty-five (25) centimeters, it was still at least eleven (11) centimeters
away from its side of the true center line of the road and well inside its own lane when the
accident occurred. By this same reckoning, since it was unquestionably the jeep that rammed
into the stopped truck, it may also be deduced that it (the jeep) was at the time travelling
beyond its own lane and intruding into the lane of the truck by at least the same 11-centimeter
width of space.
Not only was the truck's lane, measured from the incorrectly located center stripe
uncomfortably narrow, given that vehicle's width of two (2) meters and forty-six (46)
centimeters; the adjacent road shoulder was also virtually impassable, being about three (3)
inches lower than the paved surface of the road and "soft--not firm enough to offer traction for
safe passage — besides which, it sloped gradually down to a three foot-deep ravine with a
river below.18 The truck's lane as erroneously demarcated by the center stripe gave said
vehicle barely half a meter of clearance from the edge of the road and the dangerous
shoulder and little room for maneuver, in case this was made necessary by traffic
contingencies or road conditions, if it always kept to said lane. It being also shown that the
accident happened at or near the point of the truck's approach to a curve,19 which called for
extra precautions against driving too near the shoulder, it could hardly be accounted negligent
on the part of its driver to intrude temporarily, and by only as small as a twenty-five centimeter
wide space (less than ten inches), into the opposite lane in order to insure his vehicle's safety.
This, even supposing that said maneuver was in fact an intrusion into the opposite lane,
which was not the case at all as just pointed out.
Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in
applying his brakes instead of getting back inside his lane upon qqqespying the approaching
jeep. Being well within his own lane, as has already been explained, he had no duty to swerve
out of the jeep's way as said Court would have had him do. And even supposing that he was
in fact partly inside the opposite lane, coming to a full stop with the jeep still thirty (30) meters
away cannot be considered an unsafe or imprudent action, there also being uncontradicted
evidence that the jeep was "zigzagging"20 and hence no way of telling in which direction it
would go as it approached the truck.
Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no
driver's license at the time. The traffic accident report attests to the proven fact that Zacarias
voluntarily surrendered to the investigating officers his driver's license, valid for 1979, that had
been renewed just the day before the accident, on July 3, 1979.21 The Court was apparently
misled by the circumstance that when said driver was first asked to show his license by the
44
investigators at the scene of the collision, he had first inadvertently produced the license of a
fellow driver, Leonardo Baricuatro, who had left said license in Davao City and had asked
Zacarias to bring it back to him in Glan, Cotabato.22
The evidence not only acquits Zacarias of any negligence in the matter; there are also quite a
few significant indicators that it was rather Engineer Calibo's negligence that was the
proximate cause of the accident. Zacarias had told Patrolman Dimaano at the scene of the
collision and later confirmed in his written statement at the police headquarters 23 that the jeep
had been "zigzagging," which is to say that it was travelling or being driven erratically at the
time. The other investigator, Patrolman Jose Esparcia, also testified that eyewitnesses to the
accident had remarked on the jeep's "zigzagging." 24 There is moreover more than a
suggestion that Calibo had been drinking shortly before the accident. The decision of the Trial
Court adverts to further testimony of Esparcia to the effect that three of Calibo's companions
at the beach party he was driving home from when the collision occurred, who, having left
ahead of him went to the scene when they heard about the accident, had said that there had
been a drinking spree at the party and, referring to Calibo, had remarked: "Sabi na huag nang
mag drive . . . . pumipilit," (loosely translated, "He was advised not to drive, but he insisted.")
It was Calibo whose driver's license could not be found on his person at the scene of the
accident, and was reported by his companions in the jeep as having been lost with his wallet
at said scene, according to the traffic accident report, Exhibit "J". Said license unexplainedly
found its way into the record some two years later.
Reference has already been made to the finding of the Trial Court that while Zacarias readily
submitted to interrogation and gave a detailed statement to the police investigators
immediately after the accident, Calibo's two companions in the jeep and supposed
eyewitnesses, Agripino Roranes and Maximo Patos, refused to give any statements.
Furthermore, Roranes who, together with Patos, had sustained injuries as a result of the
collision, waived his right to file a criminal case against Zacarias. 25
Even, however, ignoring these telltale indicia of negligence on the part of Calibo, and
assuming some antecedent negligence on the part of Zacarias in failing to keep within his
designated lane, incorrectly demarcated as it was, the physical facts, either expressly found
by the Intermediate Appellate Court or which may be deemed conceded for lack of any
dispute, would still absolve the latter of any actionable responsibility for the accident under the
rule of the last clear chance.
Both drivers, as the Appellate Court found, had had a full view of each other's vehicle from a
distance of one hundred fifty meters. Both vehicles were travelling at a speed of
approximately thirty kilometers per hour. 26 The private respondents have admitted that the
truck was already at a full stop when the jeep plowed into it. And they have not seen fit to
deny or impugn petitioners' imputation that they also admitted the truck had been brought to a
stop while the jeep was still thirty meters away.27 From these facts the logical conclusion
emerges that the driver of the jeep had what judicial doctrine has appropriately called the last
clear chance to avoid the accident, while still at that distance of thirty meters from the truck,
by stopping in his turn or swerving his jeep away from the truck, either of which he had
sufficient time to do while running at a speed of only thirty kilometers per hour. In those
45
circumstances, his duty was to seize that opportunity of avoidance, not merely rely on a
supposed right to expect, as the Appellate Court would have it, the truck to swerve and leave
him a clear path.
The doctrine of the last clear chance provides as valid and complete a defense to accident
liability today as it did when invoked and applied in the 1918 case of Picart vs. Smith,
supra, which involved a similar state of facts. Of those facts, which should be familiar to every
student of law, it is only necessary to recall the summary made in the syllabus of this Court's
decision that:
(t)he plaintiff was riding a pony on a bridge. Seeing an automobile ahead he

improperly pulled his horse over to the railing on the right. The driver of the
automobile, however guided his car toward the plaintiff without diminution of
speed until he was only few feet away. He then turned to the right but passed so
closely to the horse that the latter being frightened, jumped around and was killed
by the passing car. . . . .
Plaintiff Picart was thrown off his horse and suffered contusions which required several days
of medical attention. He sued the defendant Smith for the value of his animal, medical
expenses and damage to his apparel and obtained judgment from this Court which, while
finding that there was negligence on the part of both parties, held that that of the defendant
was the immediate and determining cause of the accident and that of the plaintiff ". . . the
more remote factor in the case":
It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself on the wrong side of the road.
But as we have already stated, the defendant was also negligent; and in such
case the problem always is to discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances
the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference
to the prior negligence of the other party.
Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-
petitioner) George Lim, an inquiry into whether or not the evidence supports the latter's
additional defense of due diligence in the selection and supervision of said driver is no longer
necessary and wig not be undertaken. The fact is that there is such evidence in the record
which has not been controverted.
It must be pointed out, however, that the Intermediate Appellate Court also seriously erred in
holding the petitioners Pablo S. Agad and Felix Lim solidarily liable for the damages awarded
in its appealed decision, as alleged owners, with petitioner George Lim, of Glan People's
Lumber and Hardware, employer of petitioner Zacarias. This manifestly disregarded, not only
the certificate of registration issued by the Bureau of Domestic Trade identifying Glan
People's Lumber and Hardware as a business name registered by George Lim, 28 but also
46
unimpugned allegations into the petitioners' answer to the complaint that Pablo S. Agad was
only an employee of George Lim and that Felix Lim, then a child of only eight (8) years, was
in no way connected with the business.
In conclusion, it must also be stated that there is no doubt of this Court's power to review the
assailed decision of the Intermediate Appellate Court under the authority of precedents
recognizing exceptions to the familiar rule binding it to observe and respect the latter's
findings of fact. Many of those exceptions may be cited to support the review here
undertaken, but only the most obvious — that said findings directly conflict with those of the
Trial Court — will suffice.29 In the opinion of this Court and after a careful review of the record,
the evidence singularly fails to support the findings of the Intermediate Appellate Court which,
for all that appears, seem to have been prompted rather by sympathy for the heirs of the
deceased Engineer Calibo than by an objective appraisal of the proofs and a correct
application of the law to the established facts. Compassion for the plight of those whom an
accident has robbed of the love and support of a husband and father is an entirely natural and
understandable sentiment. It should not, however, be allowed to stand in the way of, much
less to influence, a just verdict in a suit at law.
WHEREFORE, the appealed judgment of the Intermediate Appellate Court is hereby

REVERSED, and the complaint against herein petitioners in Civil Case No. 3283 of the Court
of First Instance of Bohol, Branch IV, is DISMISSED. No pronouncement as to costs.
SO ORDERED.
[G.R. Nos. 79050-51. November 14, 1989.]
PANTRANCO NORTH EXPRESS, INC., Petitioner, v. MARICAR BASCOS

BAESA, thru her personal guardian FRANCISCA O. BASCOS, FE O. ICO, in
her behalf and in behalf of her minor children, namely ERWIN, OLIVE,
EDMUNDO and SHARON ICO, Respondents.
Efren N. Ambrosio & Associates for petitioner PNEI.
Emiliano S. Micu for Respondents.
SYLLABUS
1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN APPLICABLE.

— The doctrine of last clear chance applies only in a situation where the
defendant, having the last fair chance to avoid the impending harm and failed to
do so, becomes liable for all the consequences of the accident notwithstanding
the prior negligence of the plaintiff.
2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. — In order that

47
the doctrine of last clear chance may be applied, it must be shown that the
person who allegedly had the last opportunity to avert the accident was aware of
the existence of the peril or with exercise of due care should have been aware of
it.
3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY

AVAILABLE MEANS. — This doctrine of last chance has no application to a case
where a person is to act instantaneously, and if the injury cannot be avoided by
using all means available after the peril is or should have been discovered.
4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A THROUGH

HIGHWAY OR A STOP INTERSECTION. — Section 43 (c), Article III, Chapter IV of
Republic Act No. 1436 cannot apply to case a bar where at the time of the
accident, the jeepney had already crossed the intersection.
5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. — A

finding of negligence on the part of the driver establishes a presumption that the
employer has been negligent and the latter has the burden of proof that it has
exercised due negligence not only in the selection of its employees but also in
adequately supervising their work.
6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR DAMAGES.

— Plaintiff’s failure to present documentary evidence to support their claim for
damages for loss of earning capacity of the deceased victim does not bar
recovery of the damages, if such loss may be based sufficiently on their
testimonies.
7. ID.; ID.; INDEMNITY FIXED AT P30,000. — The indemnity for the death of a
person was fixed by this Court at (P30,000.00).
DECISION
CORTES, J.:
In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the Court to
review the decision of the Court of Appeals in CA-G.R. No. 05494-95 which
affirmed the decisions of the Court of First Instance of Rosales, Pangasinan in
Civil Case No. 561-R and Civil Case No. 589-R wherein PANTRANCO was ordered
to pay damages and attorney’s fees to herein private respondents. c hanro bles vi rt ual lawli bra ry
The pertinent fact are as follows: c hanro b1es vi rtua l 1aw li bra ry
48
At about 7:00 o’clock in the morning of June 12, 1981, the spouses Ceasar and
Marilyn Baesa and their children Harold Jim, Marcelino and Maricar, together with
spouses David Ico and Fe O. Ico with their son Erwin Ico and seven other
persons, were aboard a passenger jeepney on their way to a picnic at Malalam
River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and
Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in the passenger jeepney driven
by David Ico, who was also the registered owner thereof. From Ilagan, Isabela,
they proceeded to Barrio Capayacan to deliver some viands to one Mrs. Bascos
and thenceforth to San Felipe, taking the highway going to Malalam River. Upon
reaching the highway, the jeepney turned right and proceeded to Malalam River
at a speed of about 20 kph. While they were proceeding towards Malalam River, a
speeding PANTRANCO bus from Aparri, on its regular route to Manila, encroached
on the jeepney’s lane while negotiating a curve, and collided with it.
As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa
and their children, Harold Jim and Marcelino Baesa, died while the rest of the
passengers suffered injuries. The jeepney was extensively damaged. After the
accident the driver of the PANTRANCO Bus, Ambrosio Ramirez, boarded a car and
proceeded to Santiago, Isabela. From that time on up to the present, Ramirez has
never been seen and has apparently remained in hiding.
All the victims and/or their surviving heirs except herein private respondents
settled the case amicably under the "No Fault" insurance coverage of
PANTRANCO.
Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself
and for her minor children, filed separate actions for damages arising from quasi-
delict against PANTRANCO, respectively docketed as Civil Case No. 561-R and
589-R of the Court of First Instance of Pangasinan.
In its answer, PANTRANCO, aside from pointing to the late David Ico’s alleged
negligence as the proximate cause of the accident, invoked the defense of due
diligence in the selection and supervision of its driver, Ambrosio Ramirez.
chan roble svirtualawl ibra ry
On July 3, 1984, the CFI of Pangasinan rendered a decision against PANTRANCO

awarding the total amount of Two Million Three Hundred Four Thousand Six
Hundred Forty-Seven (P2,304,647.00) as damages, plus 10% thereof as
attorney’s fees and costs to Maricar Baesa in Civil Case No. 561-R, and the total
amount of Six Hundred Fifty Two Thousand Six Hundred Seventy-Two Pesos
(P652,672.00) as damages, plus 10% thereof as attorney’s fees and costs to Fe
Ico and her children in Civil Case No. 589-R. On appeal, the cases were
49
consolidated and the Court of Appeals modified the decision of the trial court by
ordering PANTRANCO to pay the total amount of One Million One Hundred Eighty-
Nine Thousand Nine Hundred Twenty Seven Pesos (P1,189,927.00) as damages,
plus Twenty Thousand Pesos (P20,000.00) as attorney’s fees to Maricar Baesa,
and the total amount of Three Hundred Forty-Four Thousand Pesos
(P344,000.00) plus Ten Thousand Pesos (P10,000.00) as attorney’s fees to Fe Ico
and her children, and to pay the costs in both cases. The dispositive portion of
the assailed decision reads as follows: cha nrob 1es vi rtua l 1aw lib rary
WHEREFORE, the decision appealed from is hereby modified by ordering the

defendant PANTRANCO North Express, Inc. to pay: chan rob1e s virtual 1aw lib rary
I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa, the following
damages: cha nrob 1es vi rtua l 1aw lib rary
A) As compensatory damages for the death of Ceasar Baesa — P30,000.00;
B) As compensatory damages for the death of Marilyn Baesa — P30,000.00;
C) As compensatory damages for the death of Harold Jim Baesa and Marcelino
Baesa — P30,000.00;
D) For the loss of earnings of Ceasar Baesa — P630,000.00;
E) For the loss of earnings of Marilyn Bascos Baesa — P375,000.00;
F) For the burial expenses of the deceased Ceasar and Marilyn Baesa —
P41,200.00;
G) For hospitalization expenses of Maricar Baesa — P3,727.00;
H) As moral damages — P50,000.00;
I) As attorney’s fees — P20,000.00;
II. The plaintiffs in Civil Case No. 589-R, the following damages: cha nrob 1es vi rtua l 1aw lib rary
A) As compensatory damages for the death of David Ico — P30,000.00;
B) For loss of earning capacity of David Ico — P252,000.00;
C) As moral damages for the death of David Ico and the injury of Fe Ico —
P30,000.00
50
D) As payment for the jeepney — P20,000.00;
E) For the hospitalization of Fe Ico — P12,000.000;
F) And for attorney’s fees — P10,000.00;
and to pay the costs in both cases.
The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in Civil Case No.
561-R, and the medical expenses in the sum of P3,273.55, should be deducted
from the award in her favor. c han robles v irt ual lawl ibra ry
All the foregoing amounts herein awarded except the costs shall earn interest at
the legal rate from date of this decision until fully paid. [CA Decision, pp. 14-15;
Rollo, pp. 57-58.]
PANTRANCO filed a motion for reconsideration of the Court of Appeal’s decision,

but on June 26, 1987, it denied the same for lack of merit. PANTRANCO then filed
the instant petition for review.
Petitioner faults the Court of Appeals for not applying the doctrine of the "last
clear chance" against the jeepney driver. Petitioner claims that under the
circumstances of the case, it was the driver of the passenger jeepney who had
the last clear chance to avoid the collision and was therefore negligent in failing
to utilize with reasonable care and competence his then existing opportunity to
avoid the harm.
The doctrine of the last clear chance was defined by this Court in the case of Ong
v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise: cha nrob 1es vi rtua l 1aw lib rary
The doctrine of the last clear chance simply, means that the negligence of a
claimant does not preclude a recovery for the negligence of defendant where it
appears that the latter, by exercising reasonable care and prudence, might have
avoided injurious consequences to claimant notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was guilty of prior or
antecedent negligence but the defendant, who had the last fair chance to avoid
the impending harm and failed to do so, is made liable for all the consequences of
the accident notwithstanding the prior negligence of the plaintiff [Picart v. Smith,
37 Phil. 809 (1918); Glan People’s Lumber and Hardware, Et. Al. v. Intermediate
Appellate Court, Cecilia Alferez Vda. de Calibo, Et Al., G.R. No. 70493, May 18,
51
1989]. The subsequent negligence of the defendant in failing to exercise ordinary

care to avoid injury to plaintiff becomes the immediate or proximate cause of the
accident which intervenes between the accident and the more remote negligence
of the plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith,
supra].
Generally, the last clear chance doctrine is invoked for the purpose of making a
defendant liable to a plaintiff who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat claim for damages. chan roble s lawli bra ry : rednad
To avoid liability for the negligence of its driver, petitioner claims that the original
negligence of its driver was not the proximate cause of the accident and that the
sole proximate cause was the supervening negligence of the jeepney driver David
Ico in failing to avoid the accident. It is petitioner’s position that even assuming
arguendo, that the bus encroached into the lane of the jeepney, the driver of the
latter could have swerved the jeepney towards the spacious dirt shoulder on his
right without danger to himself or his passengers.
The above contention of petitioner is manifestly devoid of merit.
Contrary to the petitioner’s contention, the doctrine of "last clear chance" finds no
application in this case. For the doctrine to be applicable, it is necessary to show
that the person who allegedly had the last opportunity to avert the accident was
aware of the existence of the peril or should, with exercise of due care, have been
aware of it. One cannot be expected to avoid an accident or injury if he does not
know or could not have known the existence of the peril. In this case, there is
nothing to show that the jeepney driver David Ico knew of the impending danger.
When he saw at a distance that the approaching bus was encroaching on his lane,
he did not immediately swerve the jeepney to the dirt shoulder on his right since
he must have assumed that the bus driver will return the bus to its own lane
upon seeing the jeepney approaching from the opposite direction. As held by this
Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31,
1970, 34 SCRA 618, a motorist who is properly proceeding on his own side of the
highway is generally entitled to assume that an approaching vehicle coming
towards him on the wrong side, will return to his proper lane of traffic. There was
nothing to indicate to David Ico that the bus could not return to its own lane or
was prevented from returning to the proper lane by anything beyond the control
of its driver. Leo Marantan, an alternate driver of the Pantranco bus who was
seated beside the driver Ramirez at the time of the accident, testified that
Ramirez had no choice but to swerve the steering wheel to the left and encroach
on the jeepney’s lane because there was a steep precipice on the right [CA
Decision, p. 2; Rollo, p. 45]. However, this is belied by the evidence on record
which clearly shows that there was enough space to swerve the bus back to its
own lane without any danger [CA Decision, p. 7; Rollo, p. 50].
52
Moreover, both the trial court and the Court of Appeals found that at the time of
the accident the Pantranco bus was speeding towards Manila [CA Decision, p. 2;
Rollo, p. 45]. By the time David Ico must have realized that the bus was not
returning to its own lane, it was already too late to swerve the jeepney to his
right to prevent an accident. The speed at which the approaching bus was
running prevented David Ico from swerving the jeepney to the right shoulder of
the road in time to avoid the collision. Thus, even assuming that the jeepney
driver perceived the danger a few seconds before the actual collision, he had no
opportunity to avoid it. This Court has held that the last clear chance doctrine
"can never apply where the party charged is required to act instantaneously, and
if the injury cannot be avoided by the application of all means at hand after the
peril is or should have been discovered" [Ong v. Metropolitan Water District,
supra].chan roble s.com : vi rtua l law lib rary
Petitioner likewise insists that David Ico was negligent in failing to observe
Section 43 (c), Article III Chapter IV of Republic Act No. 4136 * which provides
that the driver of a vehicle entering a through highway or a stop intersection shall
yield the right of way to all vehicles approaching in either direction on such
through highway.
Petitioner’s misplaced reliance on the aforesaid law is readily apparent in this

case. The cited law itself provides that it applies only to vehicles entering a
through highway or a stop intersection. At the time of the accident, the jeepney
had already crossed the intersection and was on its way to Malalam River.
Petitioner itself cited Fe Ico’s testimony that the accident occurred after the
jeepney had travelled a distance of about two (2) meters from the point of
intersection [Petition p. 10; Rollo, p. 27]. In fact, even the witness for the
petitioner, Leo Marantan, testified that both vehicles were coming from opposite
directions [CA Decision, p. 7; Rollo, p. 50], clearly indicating that the jeepney had
already crossed the intersection.
Considering the foregoing, the Court finds that the negligence of petitioner’s
driver in encroaching into the lane of the incoming jeepney and in failing to return
the bus to its own lane immediately upon seeing the jeepney coming from the
opposite direction was the sole and proximate cause of the accident without
which the collision would not have occurred. There was no supervening or
intervening negligence on the part of the jeepney driver which would have made
the prior negligence of petitioner’s driver a mere remote cause of the accident.
II
On the issue of its liability as an employer, petitioner claims that it had observed
53
the diligence of a good father of a family to prevent damage, conformably to the

last paragraph of Article 2180 of the Civil Code. Petitioner adduced evidence to
show that in hiring its drivers, the latter are required to have professional driver’s
license and police clearance. The drivers must also pass written examinations,
interviews and practical driving tests, and are required to undergo a six-month
training period. Rodrigo San Pedro, petitioner’s Training Coordinator, testified on
petitioner’s policy of conducting regular and continuing training programs and
safety seminars for its drivers, conductors, inspectors and supervisors at a
frequency rate of at least two (2) seminars a month.
On this point, the Court quotes with approval the following findings of the trial
court which was adopted by the Court of Appeals in its challenged decision: chan rob 1es vi rtual 1aw lib rary
When an injury is caused by the negligence of an employee, there instantly arises

a presumption that the employer has been negligent either in the selection of his
employees or in the supervision over their acts. Although this presumption is only
a disputable presumption which could be overcome by proof of diligence of a good
father of a family, this Court believes that the evidence submitted by the
defendant to show that it exercised the diligence of a good father of a family in
the case of Ramirez, as a company driver is far from sufficient. No support
evidence has been adduced. The professional driver’s license of Ramirez has not
been produced. There is no proof that he is between 25 to 38 years old. There is
also no proof as to his educational attainment, his age, his weight and the fact
that he is married or not. Neither are the result of the written test, psychological
and physical test, among other tests, have been submitted in evidence [sic]. His
NBI or police clearances and clearances from previous employment were not
marked in evidence. No evidence was presented that Ramirez actually and really
attended the seminars. Vital evidence should have been the certificate of
attendance or certificate of participation or evidence of such participation like a
logbook signed by the trainees when they attended the seminars. If such records
are not available, the testimony of the classmates that Ramirez was their
classmate in said seminar (should have been presented) [CA Decision, pp. 8-9;
Rollo, pp. 51-52].cha nrob les l aw libra ry
Petitioner contends that the fact that Ambrosio Ramirez was employed and
remained as its driver only means that he underwent the same rigid selection
process and was subjected to the same strict supervision imposed by petitioner
on all applicants and employees. It is argued by the petitioner that unless proven
otherwise, it is presumed that petitioner observed its usual recruitment procedure
and company polices on safety and efficiency [Petition, p. 20; Rollo, p. 37].
The Court finds the above contention unmeritorious.
The finding of negligence on the part of its driver Ambrosio Ramirez gave rise to
54
the presumption of negligence on the part of petitioner and the burden of proving
that it exercised due diligence not only in the selection of its employees but also
in adequately supervising their work rests with the petitioner [Lilius v. Manila
Railroad Company, 59 Phil. 758 (1934); Umali v. Bacani, G.R. No. L-40570, June
30, 1976, 69 SCRA 623]. Contrary to petitioner’s claim, there is no presumption
that the usual recruitment procedures and safety standards were observed. The
mere issuance of rules and regulations and the formulation of various company
policies on safety, without showing that they are being complied with, are not
sufficient to exempt petitioner from liability arising from the negligence of its
employee. It is incumbent upon petitioner to show that in recruiting and
employing the erring driver, the recruitment procedures and company policies on
efficiency and safety were followed. Petitioner failed to do this. Hence, the Court
finds no cogent reason to disturb the finding of both the trial court and the Court
of Appeals that the evidence presented by the petitioner, which consists mainly of
the uncorroborated testimony of its Training Coordinator, is insufficient to
overcome the presumption of negligence against petitioner. c ralawnad
III
On the question of damages, petitioner claims that the Court of Appeals erred in
fixing the damages for the loss of earning capacity of the deceased victims.
Petitioner assails respondent court’s findings because no documentary evidence in
support thereof, such as income tax returns, pay-rolls, pay slips or invoices
obtained in the usual course of business, were presented [Petition, p. 22; Rollo,
p. 39]. Petitioner argues that the "bare and self-serving testimonies of the wife of
the deceased David Ico and the mother of the deceased Marilyn Baesa . . . have
no probative value to sustain in law the Court of Appeals’ conclusion on the
respective earnings of the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-
39.] It is petitioner’s contention that the evidence presented by the private
respondent does not meet the requirements of clear and satisfactory evidence to
prove actual and compensatory damages.
The Court finds that the Court of Appeals committed no reversible error in fixing
the amount of damages for the loss of earning capacity of the deceased victims.
While it is true that private respondents should have presented documentary
evidence to support their claim for damages for loss of earning capacity of the
deceased victims, the absence thereof does not necessarily bar the recovery of
the damages in question. The testimony of Fe Ico and Francisca Bascos as to the
earning capacity of David Ico, and the spouses Baesa, respectively, are sufficient
to establish a basis from which the court can make a fair and reasonable estimate
of the damages for the loss of earning capacity of the three deceased victims.
Moreover, in fixing the damages for loss of earning capacity of a deceased victim,
the court can consider the nature of his occupation, his educational attainment
55
and the state of his health at the time of death.
In the instant case, David Ico was thirty eight (38) years old at the time of his
death in 1981 and was driving his own passenger jeepney. The spouses Ceasar
and Marilyn Baesa were both thirty (30) years old at the time of their death.
Ceasar Baesa was a commerce degree holder and the proprietor of the Cauayan
Press, printer of the Cauayan Valley Newspaper and the Valley Times at Cauayan,
Isabela. Marilyn Baesa graduated as a nurse in 1976 and at the time of her
death, was the company nurse, personnel manager, treasurer and cashier of the
Ilagan Press at Ilagan, Isabela. Respondent court duly considered these factors,
together with the uncontradicted testimonies of Fe Ico and Francisca Bascos, in
fixing the amount of damages for the loss of earning capacity of David Ico and
the spouses Baesa. chan roble s.com:c ralaw:re d
However, it should be pointed out that the Court of Appeals committed error in
fixing the compensatory damages for the death of Harold Jim Baesa and
Marcelino Baesa. Respondent court awarded to plaintiff (private respondent)
Maricar Baesa Thirty Thousand Pesos (P30,000.00) as "compensatory damages
for the death of Harold Jim Baesa and Marcelino Baesa." [CA Decision, p. 14;
Rollo, 57]. In other words, the Court of Appeals awarded only Fifteen Thousand
Pesos (P15,000.00) as indemnity for the death of Harold Jim Baesa and another
Fifteen Thousand Pesos (P15,000.00) for the death of Marcelino Baesa. This is
clearly erroneous. In the case of People v. de la Fuente, G.R. Nos. 63251-52,
December 29, 1983, 126 SCRA 518, the indemnity for the death of a person was
fixed by this Court at Thirty Thousand Pesos (P30,000.00). Plaintiff Maricar Baesa
should therefore be awarded Sixty Thousand Pesos (P60,000.00) as indemnity for
the death of her brothers, Harold Jim Baesa and Marcelino Baesa or Thirty
Thousand Pesos (P30,000.00) for the death of each brother.
The other items of damages awarded by respondent court which were not
challenged by the petitioner are hereby affirmed.
WHEREFORE, premises considered, the petition is DENIED, and the decision of

respondent Court of Appeals is hereby AFFIRMED with the modification that the
amount of compensatory damages for the death of Harold Jim Baesa and
Marcelino Baesa are increased to Thirty Thousand Pesos (P30,000.00) each. chan roble s law lib ra ry
SO ORDERED.
G.R. No. L-41767 August 23, 1978
MR. AND MRS. ROMEO FERRER and ANNETTE FERRER, petitioners,

vs.
HON. VICENTE G. ERICTA, in his capacity as Presiding Judge of the Court of First
56
Instance of Rizal, Quezon City, Branch XVIII, MR. AND MRS. FRANCIS PFLEIDER and
DENNIS PFLEIDER, respondents.
Delano F. Villaruz for petitioners.
Porderio C. David for private respondents.
ANTONIO, J:
Mandamus to compel the immediate execution of the Decision of the Court of First Instance
of Quezon City, Branch XVIII, presided over by respondent Judge, in Civil Case No. Q-19647,
dated July 21, 1975. The pertinent facts are as follows:
In a complaint for damages against respondents, dated December 27, 1974 but actually filed
on January 6, 1975 (Civil Case No. Q-19647), and assigned to the sala of respondent Judge,
it was alleged that defendants Mr. and Mrs. Francis Pfleider, residents of Bayawan, Negros
Oriental, were the owners or operators of a Ford pick-up car; that at about 5:00 o'clock in the
afternoon of December 31, 1970, in the streets of Bayawan, Negros Oriental, their son,
defendant Dennis Pfleider, who was then only sixteen (16) years of age, without proper
official authority, drove the above-described vehicle, without due regard to traffic rules and
regulations, and without taking the necessary precaution to prevent injury to persons or
damage to property, and as a consequence the pickup car was overturned, causing physical
injuries to plaintiff Annette Ferrer, who was then a passenger therein, which injuries paralyzed
her and required medical treatment and confinement at different hospitals for more than two
(2) years; that as a result of the physical injuries sustained by Annette, she suffered
unimaginable physical pain, mental anguish, and her parents also suffered mental anguish,
moral shock and spent a considerable sum of money for her treatment. They prayed that
defendants be ordered to reimburse them for actual expenses as well as other damages.
In due time, defendants filed their answer, putting up the affirmative defense that defendant
Dennis Pfleider exercised due care and utmost diligence in driving the vehicle aforementioned
and alleging that Annette Ferrer and the other persons aboard said vehicle were not
passengers in the strict sense of the term, but were merely joy riders and that, consequently,
defendants had no obligation whatsoever to plaintiffs.
At the pre-trial on May 12, 1975, only plaintiffs-petitioners and their counsel were present.
Consequently, defendants-private respondents were declared in default and the plaintiff
petitioners were allowed to present their evidence ex parte. On May 21, 1975, petitioners
moved that they be granted an extension of ten (10) days from May 22, 1975 to present her
evidence, which was granted by the court a quo. The presentation of petitioners' evidence
was later continued by the trial court to June 16, 1975, when the deposition of Annette Ferrer
was submitted by petitioners and admitted by the trial court.
On June 26, 1975, private respondents filed a motion to "set aside the order of default and
subsequent pleadings" on the ground that "defendants' failure to appear for pre-trial was due
57
to accident or excusable neglect." This was opposed by petitioners on the ground that the
said pleading was not under oath, contrary to the requirements of Sec. 3, Rule 18 of the
Rules, and that it was not accompanied by an affidavit of merit showing that the defendants
have a good defense. In view of this, the motion of private respondents was denied by
respondent Judge on July 21, 1975. On the same date, respondent Judge rendered judgment
against private respondents, finding that the minor Dennis Pfleider, was allowed by his
parents to operate a Ford pick-up car and because of his reckless negligence caused the
accident in question, resulting in injuries to Annette, and ordering the defendants, as a result
thereof, to pay jointly and severally the plaintiffs the following amounts: (1) P24,500.00 for
actual expenses, hospitalization and medical expenses; (2) P24,000.00 for actual expenses
for the care, medicines of plaintiff Annette for helps from December 31, 1970 to December 31,
1974; (3) P50,000.00 for moral damages; (4) P10,000.00 for exemplary damages; (5)
P5,000.00 for attorney's fees; and (6) costs of suit.
On September 1, 1975, private respondents filed a Motion for Reconsideration 1 of the

decision and of the order denying the motion to set aside order of default, based on the
following grounds: (1) the complaint states no cause of action insofar as Mr. and Mrs. Pfleider
are concerned because it does not allege that at the time of the mishap, defendant Dennis
Pfleider was living with them, the fact being that at such time he was living apart from them,
hence, there can be no application of Article 2180 of the Civil Code, upon which parents'
liability is premised; and (2) that tile complaint shows on its face "that it was filed only
on January 6, 1975, or after the lapse of MORE THAN FOUR YEARS from the date of the
accident on December 31, 1970", likewise appearing from the complaint and, therefore, the
action has already prescribed under Article 1146 of the Civil Code.
A Supplemental Motion for Reconsideration 2 was subsequently filed by defendants-private

respondents on September 10, 1975, alleging that their defense of prescription has not been
waived and may be raised even at such stage of the proceedings because on the face of the
complaint, as well as from the plaintiff's evidence, their cause of action had already
prescribed, citing as authority the decision of this Court in Philippine National Bank v. Pacific
Commission House, 3 as well as the decisions quoted therein. The Opposition 4 to the above
supplemental motion interposed by plaintiffs-petitioners averred that: (a) the defense of
prescription had been waived while the defense that the complaint states no cause of action
"is available only at any time not later than the trial and prior to the decision"; (b) inasmuch as
defendants have been declared in default for failure to appear at the pretrial conference, they
have lost their standing in court and cannot be allowed to adduce evidence nor to take part in
the trial, in accordance with Section 2 of Rule 18 of the Rules of Court; and (c) the motion and
supplemental motion for reconsideration are pro forma because the defenses raised therein
have been previously raised and passed upon by respondent court in resolving defendants'
motion to set aside order of default. Being pro forma, said motion and supplemental motion
do not suspend the running of the thirty-day period to appeal, which was from August 5, 1975,
when defendants received a copy of the decision, to September 4, 1975, and hence the
decision has already become final and executory. Plaintiffs-petitioners accordingly prayed that
a writ of execution be issued to enforce the judgment in their favor.
On September 23, 1975, respondent judge, without setting aside the order of default, issued
an order absolving defendants from any liability on the grounds that: (a) the complaint states
58
no cause of action because it does not allege that Dennis Pfleider was living with his parents
at the time of the vehicular accident, considering that under Article 2180 of the Civil Code, the
father and, in case of his death or incapacity the mother, are only responsible for the
damages caused by their minor children who live in their company; and (b) that the defense of
prescription is meritorious, since the complaint was filed more than four (4) years after the
date of the accident, and the action to recover damages based on quasi-delict prescribes in
four (4) years. Hence, the instant petition for mandamus.
The basic issue is whether the defense of prescription had been deemed waived by private
respondents' failure to allege the same in their answer.
As early as Chua Lamko v. Dioso, et al., 5 this Court sustained the dismissal of a counterclaim
on the ground of prescription, although such defense was not raised in the answer of the
plaintiff. Thus, this Court held that where the answer does not take issue with the complaint
as to dates involved in the defendant's claim of prescription, his failure to specifically plead
prescription in the answer does not constitute a waiver of the defense of prescription. It was
explained that the defense of prescription, even if not raised in a motion to dismiss or in the
answer, is not deemed waived unless such defense raises issues of fact not appearing upon
the preceding pleading.
In Philippine National Bank v. Perez, et al.,6 which was an action filed by the Philippine
National Bank on March 22, 1961 for revival of a judgment rendered on December 29, 1949
against Amando Perez, Gregorio Pumuntoc and Virginia de Pumuntoc pursuant to Section 6,
Rule 39 of the rules of court the defendants were declared in default for their failure to file
their answer. There upon, the plaintiff submitted its evidence, but when the case was
submitted for decision, the court a quo dismissed the complaint on the ground that plaintiff's
cause of action had already prescribed under Articles 1144 and 1152 of the Civil Code. The
plaintiff in said case, contending that since prescription is a defense that can only be set up by
defendants, the court could not motu proprio consider it as a basis for dismissal, moved to
reconsider the order, but its motion was denied. When the issue was raised to this Court, We
ruled:
It is true that the defense of prescription can only be considered if the same is
invoked as such in the answer of the defendant and that in this particular
instance no such defense was invoked because the defendants had been
declared in default, but such rule does riot obtain when the evidence shows that
the cause of action upon which plaintiff's complaint is based is already barred by
the statute of limitations. (Emphasis supplied.)
Again, in Philippine National Bank v. Pacific Commission House, 7 where the action sought to
revive a judgment rendered by the Court of First Instance of Manila on February 3, 1953 and
it was patent from the stamp appearing on the first page of the complaint that the complaint
was actually filed on May 31, 1963, this Court sustained the dismissal of the complaint on the
ground of prescription, although such defense was not raised in the answer, overruling the
appellants' invocation of Section 2 of Rule 9 of the Rules of Court that "defenses and
objections not pleaded either in a motion to dismiss or in tile answer are deemed waived." We
held therein that "... the fact that the plaintiff's own allegation in tile complaint or the evidence
59
it presented shows clearly that the action had prescribed removes this case from the rule
regarding waiver of the defense by failure to plead the same."
In the present case, there is no issue of fact involved in connection with the question of
prescription. The complaint in Civil Case No. Q-19647 alleges that the accident which caused
the injuries sustained by plaintiff Annette Ferrer occured on December 31, 1970. It is
undisputed that the action for damages was only filed on January 6, 1975. Actions for
damages arising from physical injuries because of a tort must be filed within four years. 8 The
four-year period begins from the day the quasi-delict is committed or the date of the
accident. 9
WHEREFORE, the instant petition for mandamus is hereby DISMISSED, without

pronouncement as to costs.
G.R. No. L-83524 October 13, 1989
ERNESTO KRAMER, JR. and MARIA KRAMER, petitioners,

vs.
HON. COURT OF APPEALS and TRANS-ASIA SHIPPING LINES, INC., respondents.
Rodolfo D. Mapile for petitioners.
Jose Al. Perez for private respondent.
GANCAYCO, J.:
The principal issue in this Petition for Review is whether or not a Complaint for damages
instituted by the petitioners against the private respondent arising from a marine collision is
barred by the statute of limitations.
The record of the case discloses that in the early morning of April 8, 1976, the F/B Marjolea, a
fishing boat owned by the petitioners Ernesto Kramer, Jr. and Marta Kramer, was navigating
its way from Marinduque to Manila. Somewhere near Maricabon Island and Cape Santiago,
the boat figured in a collision with an inter-island vessel, the M/V Asia Philippines owned by
the private respondent Trans-Asia Shipping Lines, Inc. As a consequence of the collision, the
F/B Marjolea sank, taking with it its fish catch.
After the mishap, the captains of both vessels filed their respective marine protests with the
Board of Marine Inquiry of the Philippine Coast Guard. The Board conducted an investigation
for the purpose of determining the proximate cause of the maritime collision.
On October 19, 1981, the Board concluded that the loss of the F/B Marjolea and its fish catch
was attributable to the negligence of the employees of the private respondent who were on
board the M/V Asia Philippines during the collision. The findings made by the Board served as
the basis of a subsequent Decision of the Commandant of the Philippine Coast Guard dated
60
April 29, 1982 wherein the second mate of the M/V Asia Philippines was suspended from
pursuing his profession as a marine officer.1
On May 30, 1985, the petitioners instituted a Complaint for damages against the private
respondent before Branch 117 of the Regional Trial Court in Pasay City.2 The suit was
docketed as Civil Case No. 2907-P.
The private respondent filed a Motion seeking the dismissal of the Complaint on the ground of
prescription. He argued that under Article 1146 of the Civil Code, 3 the prescriptive period for
instituting a Complaint for damages arising from a quasi-delict like a maritime collision is four
years. He maintained that the petitioners should have filed their Complaint within four years
from the date when their cause of action accrued, i.e., from April 8, 1976 when the maritime
collision took place, and that accordingly, the Complaint filed on May 30, 1985 was instituted
beyond the four-year prescriptive period.
For their part, the petitioners contended that maritime collisions have peculiarities and
characteristics which only persons with special skill, training and experience like the members
of the Board of Marine Inquiry can properly analyze and resolve. The petitioners argued that
the running of the prescriptive period was tolled by the filing of the marine protest and that
their cause of action accrued only on April 29, 1982, the date when the Decision ascertaining
the negligence of the crew of the M/V Asia Philippines had become final, and that the four-
year prescriptive period under Article 1146 of the Civil Code should be computed from the
said date. The petitioners concluded that inasmuch as the Complaint was filed on May 30,
1985, the same was seasonably filed.
In an Order dated September 25, 1986,4 the trial court denied the Motion filed by the private
respondent. The trial court observed that in ascertaining negligence relating to a maritime
collision, there is a need to rely on highly technical aspects attendant to such collision, and
that the Board of Marine Inquiry was constituted pursuant to the Philippine Merchant Marine
Rules and Regulations, which took effect on January 1, 1975 by virtue of Letter of Instruction
No. 208 issued on August 12, 1974 by then President Ferdinand E. Marcos, precisely to
answer the need. The trial court went on to say that the four-year prescriptive period provided
in Article 1146 of the Civil Code should begin to run only from April 29, 1982, the date when
the negligence of the crew of the M/V Asia Philippines had been finally ascertained. The
pertinent portions of the Order of the trial court are as follows —
Considering that the action concerns an incident involving a collision at sea of

two vehicles and to determine negligence for that incident there is an absolute
need to rely on highly technical aspects attendant to such collisions. It is
obviously to answer such a need that the Marine Board of Inquiry (Sic) was
constituted pursuant to the Philippine Merchant Marine Rules and Regulations
which became effective January 1, 1975 under Letter of Instruction(s) No. 208
dated August 12, 1974. The relevant section of that law (Art. XVI/b/ provided as
follow(s):
1. Board of Marine Inquiry (BMI) — Shall have the

jurisdiction to investigate marine accidents or casualties
61
relative to the liability of shipowners and officers,

exclusive jurisdiction to investigate cases/complaints
against the marine officers; and to review all
proceedings or investigation conducted by the Special
Boards of Marine Inquiry.
2. Special Board of Marine Inquiry. — Shall have

original jurisdiction to investigate marine casualties and
disasters which occur or are committed within the limits
of the Coast Guard District concerned or those referred
by the Commandant.
The Court finds reason in the argument of the plaintiff that marine incidents have
those 'peculiarities which only persons of special skill, training and exposure can
rightfully decipher and resolve on the matter of the negligence and liabilities of
parties involved and inasmuch as the report of the Board of Inquiry (sic)
admittedly came out only on April 29, 1982, the prescriptive period provided x x x
under Art. 1146 of the Civil Code should begin to run only from that date. The
complaint was filed with this Court on May 10, 1985, hence the statute of
limitations can not constitute a bar to the filing of this case.5
The private respondent elevated the case to the Court of Appeals by way of a special civil
action for certiorari and prohibition, alleging therein that the trial court committed a grave
abuse of discretion in refusing to dismiss the Complaint filed by the petitioners. The case was
assigned to the Second Division of the appellate court and was docketed as Case No. CA-
G.R. SP No. 12032.6
In a Decision dated November 27, 1987,7 and clarified in a Resolution dated January 12,
1988,8 the Court of Appeals granted the Petition filed by the private respondent and ordered
the trial court to dismiss the Complaint. The pertinent portions of the Decision of the appellate
court are as follows —
It is clear that the cause of action of private respondent (the herein petitioners
Ernesto Kramer, Jr. and Marta Kramer) accrued from the occurrence of the
mishap because that is the precise time when damages were inflicted upon and
sustained by the aggrieved party and from which relief from the court is presently
sought. Private respondents should have immediately instituted a complaint for
damages based on a quasi-delict within four years from the said marine incident
because its cause of action had already definitely ripened at the onset of the
collision. For this reason, he (sic) could cite the negligence on the part of the
personnel of the petitioner to exercise due care and lack of (sic) diligence to
prevent the collision that resulted in the total loss of their x x x boat.
We can only extend scant consideration to respondent judge's reasoning that in

view of the nature of the marine collision that allegedly involves highly technical
aspects, the running of the prescriptive period should only commence from the
finality of the investigation conducted by the Marine Board of Inquiry (sic) and the
62
decision of the Commandant, Philippine Coast Guard, who has original

jurisdiction over the mishap. For one, while it is true that the findings and
recommendation of the Board and the decision of the Commandant may be
helpful to the court in ascertaining which of the parties are at fault, still the former
(court) is not bound by said findings and decision. Indeed, the same findings and
decision could be entirely or partially admitted, modified, amended, or
disregarded by the court according to its lights and judicial discretion. For
another, if the accrual of a cause of action will be made to depend on the action
to be taken by certain government agencies, then necessarily, the tolling of the
prescriptive period would hinge upon the discretion of such agencies. Said
alternative it is easy to foresee would be fraught with hazards. Their
investigations might be delayed and lag and then witnesses in the meantime
might not be available or disappear, or certain documents may no longer be
available or might be mislaid. ... 9
The petitioners filed a Motion for the reconsideration of the said Decision but the same was
denied by the Court of Appeals in a Resolution dated May 27, 1988.10
Hence, the instant Petition wherein the arguments raised by the petitioner before the trial
court are reiterated.11 In addition thereto, the petitioner contends that the Decision of the Court
of Appeals 12 The private respondent filed its Comment on the Petition seeking therein the
dismissal of the same.13 It is also contended by the private respondent that the ruling of the
Court in Vasquez is not applicable to the case at bar because the said case involves a
maritime collision attributable to a fortuitous event. In a subsequent pleading, the private
respondent argues that the Philippine Merchant Marine Rules and Regulations cannot have
the effect of repealing the provisions of the Civil Code on prescription of actions.14
On September 19,1988, the Court resolved to give due course to the petition.15 After the
parties filed their respective memoranda, the case was deemed submitted for decision.
The petition is devoid of merit. Under Article 1146 of the Civil Code, an action based upon a
quasi-delict must be instituted within four (4) years. The prescriptive period begins from the
day the quasi-delict is committed. In Paulan vs. Sarabia,16 this Court ruled that in an action for
damages arising from the collision of two (2) trucks, the action being based on a quasi-delict,
the four (4) year prescriptive period must be counted from the day of the collision.
In Espanol vs. Chairman, Philippine Veterans Administration, 17

this Court held as follows-
The right of action accrues when there exists a cause of action, which consists of
3 elements, namely: a) a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created; b) an obligation on the part of
defendant to respect such right; and c) an act or omission on the part of such
defendant violative of the right of the plaintiff ... It is only when the last element
occurs or takes place that it can be said in law that a cause of action has arisen
... .
63
From the foregoing ruling, it is clear that the prescriptive period must be counted when the
last element occurs or takes place, that is, the time of the commission of an act or omission
violative of the right of the plaintiff, which is the time when the cause of action arises.
It is therefore clear that in this action for damages arising from the collision of two (2) vessels
the four (4) year prescriptive period must be counted from the day of the collision. The
aggrieved party need not wait for a determination by an administrative body like a Board of
Marine Inquiry, that the collision was caused by the fault or negligence of the other party
before he can file an action for damages. The ruling in Vasquez does not apply in this case.
Immediately after the collision the aggrieved party can seek relief from the courts by alleging
such negligence or fault of the owners, agents or personnel of the other vessel.
Thus, the respondent court correctly found that the action of petitioner has prescribed. The
collision occurred on April 8, 1976. The complaint for damages was filed iii court only on May
30, 1 985, was beyond the four (4) year prescriptive period.
WHEREFORE, the petition is dismissed. No costs.
SO ORDERED.
G.R. No. 71871 November 6, 1989
TEODORO M. HERNANDEZ, petitioner,

vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, respondent.
Al-Fred O. Concepcion for petitioner.
CRUZ, J.:
It was one of those prosaic decisions not requiring deep thought or long deliberation. The
petitioner arrived at it almost as a matter of course, applying what he believed then to be
common sense. Little did he realize until later that it would cause him much anguish, even
endanger his life, and ultimately lead to this litigation. But such are the quirks of fate.
At the time of the incident in question, Teodoro M. Hernandez was the officer-in-charge and
special disbursing officer of the Ternate Beach Project of the Philippine Tourism Authority in
Cavite. As such, he went to the main office of the Authority in Manila on July 1, 1983, to
encash two checks covering the wages of the employees and the operating expenses of the
Project. He estimated that the money would be available by ten o'clock in the morning and
that he would be back in Ternate by about two o'clock in the afternoon of the same day. For
some reason, however, the processing of the checks was delayed and was completed only at
three o'clock that afternoon. The petitioner decided nevertheless to encash them because the
Project employees would be waiting for their pay the following day. He thought he had to do
this for their benefit as otherwise they would have to wait until the following Tuesday at the
64
earliest when the main office would reopen. And so, on that afternoon of July 1, 1983, he
collected the cash value of the checks and left the main office with not an insubstantial
amount of money in his hands. 1
What would he do with the money in the meantime? The petitioner had two choices, to wit: (1)
return to Ternate, Cavite, that same afternoon and arrive there in the early evening; or (2)
take the money with him to his house in Marilao, Bulacan, spend the night there, and leave for
Ternate the following morning. He opted for the second, thinking it the safer one. And so, on
that afternoon of July 1, 1983, at a little past three o'clock, he took a passenger jeep bound
for his house in Bulacan.
It was while the vehicle was along Epifanio de los Santos Avenue that two persons boarded
with knives in hand and robbery in mind. One pointed his weapon at the petitioner's side while
the other slit his pocket and forcibly took the money he was carrying. The two then jumped
out of the jeep and ran. Hernandez, after the initial shock, immediately followed in desperate
pursuit. He caught up with Virgilio Alvarez and overcame him after a scuffle. The petitioner
sustained injuries in the lip arms and knees. Alvarez was subsequently charged with robbery
and pleaded guilty. But the hold-upper who escaped is still at large and the stolen money he
took with him has not been recovered. 2
On July 5, 1983, the petitioner, invoking the foregoing facts, filed a request for relief from
money accountability under Section 638 of the Revised Administrative Code. This was
favorably indorsed by the General Manager of the Philippine Tourism Authority the same
day 3 and by its Corporate Auditor on July 27, 1983. 4 The Regional Director, National Capital
Region, of the Commission on Audit, made a similar recommendation on January 17, 1984,
and also absolved Hernandez of negligence. 5 On June 29, 1984, however, the Commission
on Audit, through then Chairman Francisco S. Tantuico, jr. denied the petitioner's request,
observing inter alia:
In the instant case, the loss of the P10,175.00 under the accountability of Mr.
Hernandez can be attributed to his negligence because had he brought the cash
proceeds of the checks (replenishment fund) to the Beach Park in Ternate,
Cavite, immediately after encashment for safekeeping in his office, which is the
normal procedure in the handling of public funds, the loss of said cash thru
robbery could have been aborted. 6
In the petition at bar, Hernandez claims that the respondent Commission on Audit acted with
grave abuse of discretion in denying him relief and in holding him negligent for the loss of the
stolen money. He avers he has done only what any reasonable man would have done and
should not be held accountable for a fortuitous event over which he had no control.
The petitioner stresses that he decided to encash the checks in the afternoon of July 1, 1983,
which was a Friday, out of concern for the employees of the Project, who were depending on
him to make it possible for them to collect their pay the following day. July 2 and 3 being non-
working days and July 4 being a holiday, they could receive such payment only on the
following Tuesday unless he brought the encashed checks on July 1, 1983, and took it to
Ternate the following day.
65
On his decision to take the money home that afternoon instead of returning directly to
Ternate, he says that the first course was more prudent as he saw it, if only because his
home in Marilao, Bulacan, was much nearer than his office in Ternate, Cavite. The drive to
Ternate would take three hours, including a 30-minute tricycle ride along the dark and lonely
Naic-Ternate road; and as he would be starting after three o'clock in the afternoon, it was not
likely that he would reach his destination before nightfall. By contrast, the road to Marilao was
nearer and safer (or so he reasonably thought) and there was less risk involved in his taking
the money the following morning to Ternate rather than on that same afternoon of July 1.
The petitioner maintains that the likelihood of robbery during the time in question was stronger
in Ternate than in Marilao, so he should not be blamed if the robbery did occur while he was
on the way to Marilao that afternoon. That was a fortuitous event that could not have
reasonably been foreseen, especially on that busy highway. At any rate, he contends, he had
not been remiss in protecting the money in his custody; in fact, he immediately pursued the
hold-uppers and succeeded in catching one of them who was subsequently prosecuted and
convicted. It might have been different if he had simply resigned himself to the robbery and
allowed the culprits to go scot-free. But he acted. His action after the robbery only goes to
show his vigilance over the money entrusted to his custody and his readiness to protect it
even at great personal risk.
In his Comment, then Solicitor-General Sedfrey A. Ordonez supported the denial of the
petitioner's request, arguing that Hernandez was negligent in the safekeeping of the stolen
funds as correctly found by the Commission on Audit. 7 Later, however, his successor,
Solicitor General Francisco I. Chavez, submitted a Manifestation in Lieu of Memorandum in
which he sided with the petitioner, agreeing that Hernandez had not committed any
negligence or, assuming he was guilty of contributory negligence, had made up for it with his
efforts to retrieve the money and his capture of one of the robbers, who was eventually
convicted. 8 This prompted the respondent Commission on Audit to submit its own
memorandum.
The Commission on Audit insists in this memorandum that the petitioner should not be
relieved from his money accountability because it was his own negligence that led to the loss
of the cash he had sought to take not to Ternate in Cavite but to Marilao.
Its contention is that the petitioner should not have encashed the cheeks on July 1, 1983, as
the hour was already late and he knew he could not return to Ternate before nightfall.
Knowing this, he should have prudently deferred encashing the checks until the morning of
the next working day on July 5, 1983, when he could have safely taken the money to Ternate.
His alleged concern for the convenience of his fellow workers was not really a valid reason
because one of the checks he had encashed, in the greater amount of P6,964.00, was in fact
not for salaries and wages but for the operating expenses of the Project. There was no
urgency to encash that check. Moreover, if it is true that he had that much concern for the
employees, he should have gone to the main office earlier than July 1, 1983, since the
vouchers representing the checks had already been prepared as of June 29, 1983.
The memorandum concludes that in deciding to take the money with him to Marilao after
imprudently withdrawing it from the main office, the petitioner was assuming a risk from which
66
he cannot now be excused after the loss of the money as a result of the robbery to which it
was unreasonably exposed. In any event, the burden of proof in petitions for relief from
money accountability rests with the petitioner, who has not clearly established that the loss of
the money was not the result of his negligence.
Section 638 of the Revised Administrative Code reads as follows:
Section 638. Credit for loss occurring in transit or due to casualty — Notice to
Auditor. — When a loss of government funds or property occurs while the same
is in transit or is caused by fire, theft, or other casualty, the officer accountable
therefor or having custody thereof shall immediately notify the Auditor General, or
the provincial auditor, according as a matter is within the original jurisdiction of
the one or the other, and within thirty days or such longer period as the Auditor,
or provincial auditor, may in the particular case allow, shall present his
application for relief, with the available evidence in support thereof. An officer
who fails to comply with this requirement shall not be relieved of liability or
allowed credit for any such loss in the settlement of his accounts.
This provision has since then been reiterated, with some slight modification, in Section 73 of
P.D. No. 1445, otherwise known as the "Government Auditing Code of the Philippines," which
was promulgated on June 11. 1978.
Applying the letter and spirit of the above-mentioned laws, and after considering the
established facts in the light of the arguments of the parties, this Court inclines in favor of the
petitioner.
Hindsight is a cruel judge. It is so easy to say, after the event, that one should have done this
and not that or that he should not have acted at all, or else this problem would not have arisen
at all. That is all very well as long as one is examining something that has already taken
place. One can hardly be wrong in such a case. But the trouble with this retrospective
assessment is that it assumes for everybody an uncanny prescience that will enable him by
some mysterious process to avoid the pitfalls and hazards that he is expected to have
foreseen. It does not work out that way in real life. For most of us, all we can rely on is a
reasoned conjecture of what might happen, based on common sense and our own
experiences, or our intuition, if you will, and without any mystic ability to peer into the future.
So it was with the petitioner.
It is pointless to argue that Hernandez should have encashed the vouchers earlier because
they were dated anyway on June 29, 1983. He was not obliged to encash the checks earlier
and then again there might have been any number of reasons why he did so only on July 1,
1983. The point is that he did encash the checks on that date and took the money to Marilao
and not Ternate in view of the lateness of the hour. The question before us is whether these
acts are so tainted with negligence or recklessness as to justify the denial of the petitioner's
request for relief from accountability for the stolen money.
It seems to us that the petitioner was moved only by the best of motives when he encashed
the checks on July 1, 1983, so his co-employees in Ternate could collect their salaries and
67
wages the following day. Significantly, although this was a non-working day, he was intending
to make the trip to his office the following day for the unselfish purpose of accommodating his
fellow workers. The other alternative was to encash the check is on July 5, 1983, the next
working day after July 1, 1983, which would have meant a 5-day wait for the payment of the
said salaries and wages. Being a modest employee himself, Hernandoz must have realized
the great discomfort it would cause the laborer who were dependent on their wages for their
sustenance and were anxious to collect their pay as soon as possible.
For such an attitude, Hernandez should be commended rather than faulted.
As for Hernandez's choice between Marilao, Bulacan, and Ternate, Cavite, one could easily
agree that the former was the safer destination, being nearer, and in view of the comparative
hazards in the trips to the two places. It is true that the petitioner miscalculated, but the Court
feels he should not be blamed for that. The decision he made seemed logical at that time and
was one that could be expected of a reasonable and prudent person. And if, as it happened,
the two robbers attacked him in broad daylight in the jeep while it was on a busy highway, and
in the presence of other passengers, it cannot be said that all this was the result of his
imprudence and negligence. This was undoubtedly a fortuitous event covered by the said
provisions, something that could not have been reasonably foreseen although it could have
happened, and did.
We find, in sum, that under the circumstances as above narrated, the petitioner is entitled to
be relieved from accountability for the money forcibly taken from him in the afternoon of July
1, 1983. To impose such liability upon him would be to read the law too sternly when it should
be softened by the proven facts.
ACCORDINGLY, the petition is GRANTED, without any pronouncement as to costs. It is so

ordered.
G.R. No. L-87584 June 16, 1992
GOTESCO INVESTMENT CORPORATION, petitioner,

vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.
DAVIDE. JR., J.:
Assailed in this petition for review under Rule 45 of the Rules of Court are both the
Decision 1 promulgated on 27 July 1988 and the Resolution dated 14 March 1989 2 of the
respondent Court of Appeals in CA-G.R. CV No. 09699 which, respectively affirmed in
toto the decision of Branch XXI of the Regional Trial Court of Cebu in Civil Case No. R-22567
entitled "Gloria Chatto, et al. versus Gotesco Investment Corporation", and denied petitioner's
motion to reconsider the same.
68
The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza E.
Chatto the sum of P10,000.00 as moral damages and the plaintiff Gloria E. Chatto the sum of
P49,050.00 as actual and consequential damages, P75,000.00 as moral damages and
P20,000.00 as attorney's fees, plus the cost of the suit. These awards, except for the
attorney's fees, were to earn interest at the rate of twelve per cent (12%) per annum
beginning from the date the complaint was filed, 16 November 1982, until the amounts were
fully paid.
The antecedent facts, as found by the trial court and affirmed by the respondent Court, are
summarized by the latter in the challenged decision as follows:
The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E.
Chatto, and her 15-year old daughter, plaintiff Lina Delza E. Chatto went to see
the movie "Mother Dear" at Superama I theater, owned by defendant Gotesco
Investment Corporation. They bought balcony tickets but even then were unable
to find seats considering the number of people patronizing the movie. Hardly ten
(10) minutes after entering the theater, the ceiling of its balcony collapsed. The
theater was plunged into darkness and pandemonium ensued. Shocked and
hurt, plaintiffs managed to crawl under the fallen ceiling. As soon as they were
able to get out to the street they walked the nearby FEU Hospital where they
were confined and treated for one (1) day.
The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was
treated in said hospital from June 5 to June 19 and plaintiff Lina Delza Chatto
from June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued by Dr. Ernesto
G. Brion, plaintiff Lina Delza Chatto suffered the following injuries:
Physical injuries:
Contusions:
forehead and drental region, scalp left with hematoma;

chest anterior upper bilateral; back right, scapular
region; back, mid-portion, thoraco-lumbar regions,
bilateral
Abrasions:
back lumbar region, horizontal, across midline, from left

to right; hand right, palm, near wrist; hand left, index
finger, dorsum, proximal phalanx.
Conclusion, cerebral.
X-Ray — Skull; Thoraco-lumbar

region — All negative.
69
CONCLUSIONS
1. Physical injuries rioted on the subject.
2. That under normal condition in the

absence of complication, said physical
injuries will require medical attendance
and/or incapacitate the subject for a period
of from two to four weeks.
On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal
Certificate (Exh. "D") of Dr. Brion are as follows:
xxx xxx xxx
Physical injuries:
Lacerated wounds:
scalp vertex, running across suggittal line, from left to

right, 3.0 cm sutured;
Contusion, forearm right, anterior aspect, upper third.
Abrasions:
Shoulder and upper third, arm right, posterior aspect,

linear; backright, scapular region, two in number, linear;
elbow right, posterior aspect; forearm right, anterior
aspect, middle third.
Concusion (sic), cerebral.
X-Ray — Skull — Negative.

Cervical spines Straightening of cervical spine, probably to muscular
spasm.
CONCLUSIONS:
1. Physical injuries noted on subject.
2. That under normal condition, in the absence of complication, said

physical injuries will require medical attendance and/or incapacitate
the subject for a period of from two to four weeks.
Due to continuing pain in the neck, headache and dizziness, plaintiff went to
Illinois, USA in July 1982 for further treatment (Exh "E"). She was treated at the
Cook County Hospital in Chicago, Illinois. She stayed in the U.S. for about three
70
(3) months during which time she had to return to the Cook County Hospital five
(5) or, six (6) times.
Defendant tried to avoid liability by alleging that the collapse of the ceiling of its
theater was done due to force majeure. It maintained that its theater did not
suffer from any structural or construction defect. (Exh. 1, 2, 3, 4, & 5)3
In justifying its award of actual or compensatory and moral damages and attorney's fees, the
trial court said:
It has been established thru the uncontradicted testimony of Mrs. Chatto that
during the chaos and confusion at the theater she lost a pair of earrings worth
P2,500 and the sum of P1,000.00 in cash contained in her wallet which was lost;
and that she incurred the following expenses: P500.00 as transportation fare
from Cebu City to Manila on the first leg of her trip to the United States; P350.00
for her passport; and P46,978.00 for her expense relative to her treatment in the
United States, including the cost of a round-trip ticket (P11,798.00) hospital and
medical bills and other attendant expenses. The total is P51,328.00, which is
more than the sum of P49,050.00 claimed in the complaint, hence should be
reduced accordingly.
The same testimony has also established that Mrs. Chatto contracted to pay her
counsel the sum of P20,000.00, which this court considers reasonable
considering, among other things, the professional standing of work (sic) involved
in the prosecution of this case. Such award of attorney's fees is proper because
the defendant's omission to provide the plaintiffs proper and adequate safeguard
to life and limb which they deserved as patrons to (sic) its theater had compelled
the plaintiffs to hire the services of a counsel, file this case and prosecute it, thus
incurring expenses to protect their interest.
The plaintiffs are entitled to moral damages, which are the direct and proximate
result of the defendants gross negligence and omission. Such moral damages
include the plaintiffs' physical suffering, mental anguish, fright and serious
anxiety. On the part of Mrs. Chatto, who obviously suffered much more pain,
anguish, fright and anxiety than her daughter Lina Delza, such damages are
compounded by the presence of permanent deformities on her body consisting of
a 6-inch scar on the head and a 2-inch scar on one arm. The court believes that
the sum of P75,000.00 for plaintiff Gloria E. Chatto and the sum of P10,000.00
for plaintiff Lina Delza E. Chatto would be reasonable. 4
Petitioner submitted before the respondent Court the following assignment of errors:
I. THE LOWER COURT ERRED IN ADMITTING PATENTLY — INADMISSIBLE

EVIDENCE PRESENTED BY PLAINTIFF-APPELLEES AND IN GIVING LESS
PROBATIVE VALUE TO PUBLIC DOCUMENTS AND CERTIFICATIONS OF
THE CONDITION OF THE BUILDING, PARTICULARLY THE CERTIFICATE OF
OCCUPANCY ISSUED BY THE CITY ENGINEER'S OFFICE OF MANILA.
71
II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF THE
BALCONY COLLAPSED DUE TO SOME STRUCTURAL CONSTRUCTION OR
ARCHITECTURAL DEFECT," AND NOT DUE TO AN ACT OF GOD OR FORCE
MAJEURE.
III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS
GROSSLY NEGLIGENT IN FAILING "TO CAUSE PROPER AND ADEQUATE
INSPECTION MAINTENANCE AND UPKEEP OF THE BUILDING." 5
In its decision, respondent Court found the appeal to be without merit. As to the first assigned
error, it ruled that the trial court did not err in admitting the exhibits in question in the light of
the ruling in Abrenica vs. Gonda 6 on waiver of objections arising out of failure to object at the
proper time Thus:
Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to
the Administrator of UST Hospital expressing their willingness to guaranty the
payment of the hospital bills of the plaintiffs-appellees was not objected to in trial
court for lack of authentication. It is too late to raise that objection on appeal.
Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and
Cook County Hospital. It may be true that the doctors who prepared them were
not presented as witnesses. Nonetheless, the records will show that counsel for
defendant-appellant cross examined plaintiff-appellee Gloria Chatto on the
matter especially the content of Exhibits "F" to F-13", Consequently, defendant-
appellant is estopped from claiming lack of opportunity to verify their textual truth.
Moreover, the record is full of the testimony of plaintiffs-appellees on the injuries
they sustained from the collapse of the ceiling of defendant-appellant's theater.
Their existence is crystal clear.
Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-
appellee Gloria Chatto from the Philippines to the U.S. (Manila-Chicago-Manila).
Certainly, this is relevant evidence on whether or not she actually travelled (sic)
to the U.S. for further medical treatment. Defendant-appellant's contention that
the best evidence on the issue is her passport is off the mark. The best evidence
rule applies only if the contents of the writing are directly in issue. In any event,
her passport is not the only evidence on the matter.
Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in the U.S
in her own handwriting. Defendant-appellant's objection that it is self serving
goes to the weight of the evidence. The truth of Exh. "G" could be and should
have been tested by cross examination. It cannot be denied however that such
expenses are within the personal knowledge of the witness.
Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as
part of her treatment in the U.S. Defendant-appellant objects to its admission
because it is self-serving. The objection is without merit in view of the evidence
on record that plaintiff-appellee Gloria Chatto sustained head injuries from the
72
collapse of the ceiling of defendant-appellant's theater. In fact, counsel for

defendant-appellant cross examined the said witness on the medical finding of
Cook County Hospital that she was suffering from neck muscle spasm. (TSN,
April 17, 1984, p. 11) The wearing of a surgical neckwear has proper basis.
Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing
the use of her surgical neckwear. Defendant-appellant objects to this exhibit its
hearsay because the photographer was not presented as a witness. The
objection is incorrect. In order that photographs or pictures may be given in
evidence, they must be shown to be a true and faithful representation of the
place or objects to which they refer. The photographs may be verified either by
the photographer who took it or by any person who is acquainted with the object
represented and testify (sic) that the photograph faithfully represents the object.
(Moran, Comments in the Rules of Court, Vol. V, 1980 ed., p. 80 citing New York
Co vs. Moore, 105 Fed. 725) In the case at bar, Exh. "I" was identified by plaintiff
appellee Gloria Chatto. 7
As to the, other assigned errors, the respondent Court ruled:
The lower court did not also err in its finding that the collapse of the ceiling of the
theater's balcony was due to construction defects and not to force majeure. It
was the burden defendant-appellant to prove that its theater did not suffer from
any structural defect when it was built and that it has been well maintained when
the incident occurred. This is its Special and Affirmative Defense and it is
incumbent on defendant-appellant to prove it. Considering the collapse of the
ceiling of its theater's balcony barely four (4) years after its construction, it
behooved defendant-appellant to conduct an exhaustive study of the reason for
the tragic incident. On this score, the effort of defendant-appellant borders
criminal nonchalance. Its witness Jesus Lim Ong testified:
Atty. Barcelona:
Q By the way, you made mention a while ago that your staff of
engineer and architect used to make round inspection of the building
under your construction the of these buildings is Gotesco Cinema 1
and 2, subject matter of this case, and you also made a regular
round up or inspection of the theater. Is that right?
A Yes, sir.
Q And do you personally inspect these buildings under your

construction?
A Yes, whenever I can.
Q In the case of Gotesco Cinema 1 and 2, had you any chance to

inspect this building?
73
A Yes, sir.
Q Particularly in the months of May and June of 1982?
A Yes, in that (sic) months.
Q Now, you said also that sometime in June 1982 you remember
that one of these theaters.
Atty. Barcelona: continuing
particularly Superama 1 the ceiling had collapsed?
A Yes, sir.
Q Did you conduct an investigation?
A Yes, sir.
Q What was your finding?
A There was really nothing, I cannot explain. I could not give any
reason why the ceiling collapsed.
Q Could it not be due to any defect of the plant?
Atty. Florido:
Already answered, Your Honor, he could not give any reason.
COURT:
Objection sustained.
Atty. Barcelona:
Q When that incident happened, did the owner Gotesco Investment

Corporation went (sic) to you to call your attention?
A Yes, sir.
Atty. Florido:
Your Honor, we noticed (sic) series of leading questions, but this

time we object.
COURT:
74
Sustained.
Atty. Barcelona;
Q What did the owner of Gotesco do when the ceiling collapsed,

upon knowing that one of the cinemas you maintained collopsed?
A He asked for a thorough investigation.
Q And as a matter of fact as asked you to investigate?
A Yes, sir.
Q Did you come out with any investigation report.
A There was nothing to report.
Clearly, there was no authoritative investigation conducted by impartial civil and

structural engineers on the cause of the collapse of the theater's ceiling, Jesus
Lim Ong is not an engineer, He is a graduate of architecture from the St. Louie
(sic) University in Baguio City. It does not appear he has passed the government
examination for architects. (TSN, June 14, 1985 p. 4) In fine, the ignorance of Mr.
Ong about the cause of the collapse of the ceiling of their theater cannot be
equated, as an act, of God. To sustain that proposition is to introduce sacrilege in
our jurisprudence. 8
Its motion for reconsideration of the decision having been denied by the respondent Court, petitioner filed this petition assailing therein the challenged decision on
the following grounds:
1. The basis of the award for damages stems from medical reports issued by
private physicians of local hospitals without benefit of cross-examination and
more seriously, xerox copies of medical findings issued by American doctors in
the United States without the production of originals, without the required
consular authentication for foreign documents, and without the opportunity for
cross-examination.
2. The damage award in favor of respondents is principally, made depend on

such unreliable, hearsay and incompetent evidence for which an award of more
than P150,000.00 in alleged actual, moral and I "consequential" damages are
awarded to the prejudice of the right of petitioner to due process. . . .
3. Unfortunately, petitioners evidence of due diligence in the care and

maintenance of the building was not seriously considered by the Court of
Appeals, considering that frequent inspections and maintenance precautions had
to be observed by hired engineers of petitioner, which enjoys an unsullied
reputation in the business of exhibiting movies in a chain of movie houses in
Metro Manila. 9
75
After the private respondents filed their Comment as required in the Resolution of 17 May
1989, this Court resolved to give due course to the petition and required the parties to file
their respective Memoranda. Subsequently, private respondents, in a motion, prayed for leave
to adopt their Comment as their Memorandum, which this Court granted on 6 December
1989. Petitioner filed its Memorandum on 10 January 1990.
The petition presents both factual and legal issues. The first relates to the cause of the
collapse of the ceiling while the latter involves the correctness of the admission of the exhibits
in question.
We find no merit in the petition.
The rule is well-settled that the jurisdiction of this Court in cases brought to it from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact
being conclusive, 10 except only where a case is shown as coming under the accepted
exception. 11 None of the exceptions which this Court has painstakingly summarized in several
cases 12 has been shown to exist in this petition. Petitioner's claim that the collapse of the
ceiling of the theater's balcony was due to force majeure is not even founded on facts
because its own witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason
why the ceiling collapsed." Having interposed it as a defense, it had the burden to prove that
the collapse was indeed caused by force majeure. It could not have collapsed without a
cause. That Mr. Ong could not offer any explanation does not imply force majeure. As early
as eighty-five (85) years ago, this Court had the occasion to define force majeure. In Pons y
Compañia vs. La Compañia Maritima 13 this Court held:
An examination of the Spanish and American authorities concerning the meaning

of force majeure shows that the jurisprudence of these two countries practically
agree upon the meaning of this phrase.
Blackstone, in his Commentaries on English Law, defines it as —
Inevitable accident or casualty; an accident produced by any

physical cause which is irresistible; such as lightning. tempest, perils
of the sea, inundation, or earthquake; the sudden illness or death of
a person. (2 Blackstone's Commentaries, 122; Story in Bailments,
sec. 25.)
Escriche, in his Diccionario de Legislacion y Jurisprudencia, defines fuerza

mayor as follows.
The event which we could neither foresee nor resist; as for example,
the lightning stroke, hail, inundation, hurricane, public enemy, attack
by robbers; Vis major est, says Cayo, ea quae consilio humano
neque provideri neque vitari potest. Accident and mitigating
circumstances.
Bouvier defines the same as —

76
Any accident due to natural cause, directly exclusively without

human intervention, such as could not have been prevented by any
kind of oversight, pains and care reasonably to have been expected.
(Law Reports, 1 Common Pleas Division, 423; Law Reports, 10
Exchequer, 255.)
Corkburn, chief justice, in a well considered English case (1 Common Pleas

Division, 34, 432), said that were a captain —
Uses all the known means to which prudent and experienced

captains ordinarily have recourse, he does all that can be
reasonably required of him; and if, under such circumtances, he is
overpowered by storm or other natural agency, he is within the rule
which gives immunity from the effects of such vis major.
The term generally applies, broadly speaking, to natural accidents, such as those
caused by lightning, earthquake, tempests, public enemy ,etc.
Petitioner could have easily discovered the cause of the collapse if indeed it were due to force
majeure. To Our mind, the real reason why Mr. Ong could not explain the cause or reason is
that either he did not actually conduct the investigation or that he is, as the respondent Court
impliedly held, incompetent. He is not an engineer, but an architect who had not even passed
the government's examination. Verily, post-incident investigation cannot be considered as
material to the present proceedings. What is significant is the finding of the trial court, affirmed
by the respondent Court, that the collapse was due to construction defects. There was no
evidence offered to overturn this finding. The building was constructed barely four (4) years
prior to the accident in question. It was not shown that any of the causes denominates
as force majeure obtained immediately before or at the time of the collapse of the ceiling.
Such defects could have been easily discovered if only petitioner exercised due diligence and
care in keeping and maintaining the premises. But as disclosed by the testimony of Mr. Ong,
there was no adequate inspection of the premises before the date of the accident. His
answers to the leading questions on inspection disclosed neither the exact dates of said.
inspection nor the nature and extent of the same. That the structural designs and plans of the
building were duly approved by the City Engineer and the building permits and certificate of
occupancy were issued do not at all prove that there were no defects in the construction,
especially as regards the ceiling, considering that no testimony was offered to prove that it
was ever inspected at all.
It is settled that:
The owner or proprietor of a place of public amusement impliedly warrants that

the premises, appliances and amusement devices are safe for the purpose for
which they are designed, the doctrine being subject to no other exception or
qualification than that he does not contract against unknown defects not
discoverable by ordinary or reasonable means. 14
This implied warranty has given rise to the rule that:

77
Where a patron of a theater or other place of public amusement is injured, and

the thing that caused the injury is wholly and exclusively under the control and
management of the defendant, and the accident is such as in the ordinary course
of events would not have happened if proper care had been exercised, its
occurrence raises a presumption or permits of an inference of negligence on the
part of the defendant. 15
That presumption or inference was not overcome by the petitioner.
Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the
cause of the collapse was due to force majeure, petitioner would still be liable because it was
guilty of negligence, which the trial court denominated as gross. As gleaned from Bouvier's
definition of and Cockburn's elucidation on force majeure for one to be exempt from any
liability because of it, he must have exercised care, i.e., he should not have been guilty of
negligence.
Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of
the respondent Court, but in the sweeping conclusion of petitioner. We agree with the
respondent Court that petitioner offered no reasonable objection to the exhibits. More than
this, however, We note that the exhibits were admitted not as independent evidence, but,
primarily, as part of the testimony of Mrs. Gloria Chatto. Neither were the exhibits made the
main basis for the award of damages. As to the latter, including the award for attorney's fees,
the testimonial evidence presented is sufficient to support the same; moreover, petitioner was
not deprived of its right to test the, truth or falsity of private respondents' testimony through
cross-examination or refute their claim by its own evidence. It could not then be successfully
argued by petitioner that the admission of the exhibits violated the hearsay rule. As this Court
sees it, the trial court admitted such merely as independently relevant statements, which was
not objectionable, for:
Where, regardless of the truth or the falsity of a statement, the fact that it has
been made is relevant, the hearsay rule does not apply, but the statement may
be shown. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact; in issue, or be
circumstantially relevant as to the existence of such a fact. 16
Furthermore, and with particular reference to the documents issued in the United States of
America (Exhibits "F", "F-1" to "F-13", inclusive), the main objection thereto was not that they
are hearsay. In its written comment and/or opposition to documentary exhibits, petitioner
objected to their admission on the following grounds only:
. . . for being incompetent evidence considering that the same were not duly
authenticated by the responsible consular and/or embassy officials authorized to
authenticate the said documents. 17
All told, the instant petition is without merit.
78
WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs against
petitioner.
SO ORDERED
G.R. No. 126389 July 10, 1998
SOUTHEASTERN COLLEGE INC., petitioner,
vs.
COURT OF APPEALS, JUANITA DE JESUS VDA. DE DIMAANO, EMERITA DIMAANO,

REMEDIOS DIMAANO, CONSOLACION DIMAANO and MILAGROS
DIMAANO, respondents.
PURISIMA, J.:
Petition for review under Rule 45 of the Rules of Court seeking to set aside the
Decision 1 promulgated on July 31, 1996, and Resolution 2 dated September 12, 1996 of
the Court of Appeals 3 in CA-G.R. No. 41422, entitled "Juanita de Jesus vda. de
Dimaano, et al. vs. Southeastern College, Inc.", which reduced the moral damages
awarded below from P1,000,000.00 to P200,000.00. 4 The Resolution under attack
denied petitioner's motion for reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while
petitioner owns a four-storey school building along the same College Road. On
October 11, 1989, at about 6:30 in the morning, a powerful typhoon "Saling" hit Metro
Manila. Buffeted by very strong winds, the roof of petitioner's building was partly
ripped off and blown away, landing on and destroying portions of the roofing of private
respondents' house. After the typhoon had passed, an ocular inspection of the
destroyed building was conducted by a team of engineers headed by the city building
official, Engr. Jesus L. Reyna. Pertinent aspects of the latter's Report 5 dated October
18, 1989 stated, as follows:
5. One of the factors that may have led to this calamitous event is the
formation of the building in the area and the general direction of the wind.
Situated in the peripheral lot is an almost U-shaped formation of 4-storey
building. Thus, with the strong winds having a westerly direction, the
general formation of the building becomes a big funnel-like structure, the
one situated along College Road, receiving the heaviest impact of the
strong winds. Hence, there are portions of the roofing, those located on
both ends of the building, which remained intact after the storm.
6. Another factor and perhaps the most likely reason for the dislodging of
the roofing structural trusses is the improper anchorage of the said trusses
79
to the roof beams. The 1/2' diameter steel bars embedded on the concrete
roof beams which serve as truss anchorage are not bolted nor nailed to the
trusses. Still, there are other steel bars which were not even bent to the
trusses, thus, those trusses are not anchored at all to the roof beams.
It then recommended that "to avoid any further loss and damage to lives, limbs
and property of persons living in the vicinity," the fourth floor of subject school
building be declared as a "structural hazard."
In their Complaint 6 before the Regional Trial Court of Pasay City, Branch 117, for
damages based on culpa aquiliana, private respondents alleged that the damage to
their house rendered the same uninhabitable, forcing them to stay temporarily in
others' houses. And so they sought to recover from petitioner P117,116.00, as actual
damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages and
P100,000.00, for and as attorney's fees; plus costs.
In its Answer, petitioner averred that subject school building had withstood several
devastating typhoons and other calamities in the past, without its roofing or any
portion thereof giving way; that it has not been remiss in its responsibility to see to it
that said school building, which houses school children, faculty members, and
employees, is "in tip-top condition"; and furthermore, typhoon "Saling" was "an act of
God and therefore beyond human control" such that petitioner cannot be answerable
for the damages wrought thereby, absent any negligence on its part.
The trial court, giving credence to the ocular inspection report to the effect that subject
school building had a "defective roofing structure," found that, while typhoon "Saling"
was accompanied by strong winds, the damage to private respondents' houses "could
have been avoided if the construction of the roof of [petitioner's] building was not
faulty." The dispositive portion of the lower court's decision 7 reads, thus:
WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in

favor of the plaintiff (sic) and against the defendants, (sic) ordering the
latter to pay jointly and severally the former as follows:
a) P117,116.00, as actual damages, plus litigation

expenses;
b) P1,000,000.00 as moral damages;
c) P100,000.00 as attorney's fees;
d) Costs of the instant suit.
The claim for exemplary damages is denied for the reason that the
defendants (sic) did in a wanton fraudulent, reckless, oppressive or
malevolent manner.
80
In its appeal to the Court of Appeals, petitioner assigned as errors, 8 that:
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON "SALING", AS AN

ACT OF GOD, IS NOT "THE SOLE AND ABSOLUTE REASON" FOR THE
RIPPING-OFF OF THE SMALL PORTION OF THE ROOF OF
SOUTHEASTERN'S FOUR (4) STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT "THE CONSTRUCTION OF

THE ROOF OF DEFENDANT'S SCHOOL BUILDING WAS FAULTY"
NOTWITHSTANDING THE ADMISSION THAT THERE WERE TYPHOONS
BEFORE BUT NOT AS GRAVE AS TYPHOON "SALING" WHICH IS THE
DIRECT AND PROXIMATE CAUSE OF THE INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL

DAMAGES AS WELL AS ATTORNEY'S FEES AND LITIGATION EXPENSES
AND COSTS OF SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED
ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE ALREADY SOLD THEIR
PROPERTY, AN INTERVENING EVENT THAT RENDERS THIS CASE MOOT
AND ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF

EXECUTION INSPITE OF THE PERFECTION OF SOUTHEASTERN'S
APPEAL WHEN THERE IS NO COMPELLING REASON FOR THE ISSUANCE
THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the trial
court's disposition by reducing the award of moral damages from P1,000,000.00 to
P200,000.00. Hence, petitioner's resort to this Court, raising for resolution the issues
of:
1. Whether or not the award of actual damages [sic] to respondent

Dimaanos on the basis of speculation or conjecture, without proof or
receipts of actual damage, [sic] legally feasible or justified.
2. Whether or not the award of moral damages to respondent Dimaanos,

with the latter having suffered, actual damage has legal basis.
3. Whether or not respondent Dimaanos who are no longer the owner of the
property, subject matter of the case, during its pendency, has the right to
81
pursue their complaint against petitioner when the case was already moot
and academic by the sale of the property to third party.
4. Whether or not the award of attorney's fees when the case was already
moot academic [sic] legally justified.
5. Whether or not petitioner is liable for damage caused to others by

typhoon "Saling" being an act of God.
6. Whether or not the issuance of a writ of execution pending appeal, ex-

parte or without hearing, has support in law.
The pivot of inquiry here, determinative of the other issues, is whether the damage on
the roof of the building of private respondents resulting from the impact of the falling
portions of the school building's roof ripped off by the strong winds of typhoon
"Saling", was, within legal contemplation, due to fortuitous event? If so, petitioner
cannot be held liable for the damages suffered by the private respondents. This
conclusion finds support in Article 1174 of Civil Code, which provides:
Art 1174. Except in cases expressly specified by the law, or when it is

otherwise declared by stipulation, or when the nature of the obligation
requires the assumption of risk, no person shall be responsible for those
events which could not be foreseen, or which, though foreseen, were
inevitable.
The antecedent of fortuitous event or caso fortuito is found in the Partidas which
defines it as "an event which takes place by accident and could not have been
foreseen." 9 Escriche elaborates it as "an unexpected event or act of God which could
neither be foreseen nor resisted." 10 Civilist Arturo M. Tolentino adds that "[f]ortuitous
events may be produced by two general causes: (1) by nature, such as earthquakes,
storms, floods, epidemics, fires, etc. and (2) by the act of man, such as an armed
invasion, attack by bandits, governmental prohibitions, robbery, etc." 11
In order that a fortuitous event may exempt a person from liability, it is necessary that
he be free from any previous negligence or misconduct by reason of which the loss
may have been occasioned. 12 An act of God cannot be invoked for the protection of a
person who has been guilty of gross negligence in not trying to forestall its possible
adverse consequences. When a person's negligence concurs with an act of God in
producing damage or injury to another, such person is not exempt from liability by
showing that the immediate or proximate cause of the damages or injury was a
fortuitous event. When the effect is found to be partly the result of the participation of
man — whether it be from active intervention, or neglect, or failure to act — the whole
occurrence is hereby humanized, and removed from the rules applicable to acts of
God. 13
In the case under consideration, the lower court accorded full credence to the finding
of the investigating team that subject school building's roofing had "no sufficient
82
anchorage to hold it in position especially when battered by strong winds." Based on

such finding, the trial court imputed negligence to petitioner and adjudged it liable for
damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court believes
otherwise, notwithstanding the general rule that factual findings by the trail court,
especially when affirmed by the appellate court, are binding and conclusive upon this
Court. 14 After a careful scrutiny of the records and the pleadings submitted by the
parties, we find exception to this rule and hold that the lower courts misappreciated
the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural occurrence

which may be foreseen but is unavoidable despite any amount of foresight, diligence
or care. 15 In order to be exempt from liability arising from any adverse consequence
engendered thereby, there should have been no human participation amounting to a
negligent act. 16 In other words; the person seeking exoneration from liability must not
be guilty of negligence. Negligence, as commonly understood, is conduct which
naturally or reasonably creates undue risk or harm to others. It may be the failure to
observe that degree of care, precaution, and vigilance which the circumstances justify
demand, 17 or the omission to do something which a prudent and reasonable man,
guided by considerations which ordinarily regulate the conduct of human affairs,
would
do. 18 From these premises, we proceed to determine whether petitioner was negligent,
such that if it were not, the damage caused to private respondents' house could have
been avoided?
At the outset, it bears emphasizing that a person claiming damages for the negligence
of another has the burden of proving the existence of fault or negligence causative of
his injury or loss. The facts constitutive of negligence must be affirmatively
established by competent evidence, 19 not merely by presumptions and conclusions
without basis in fact. Private respondents, in establishing the culpability of petitioner,
merely relied on the aforementioned report submitted by a team which made
an ocular inspection of petitioner's school building after the typhoon. As the term
imparts, an ocular inspection is one by means of actual sight or viewing. 20 What is
visual to the eye through, is not always reflective of the real cause behind. For
instance, one who hears a gunshot and then sees a wounded person, cannot always
definitely conclude that a third person shot the victim. It could have been self-inflicted
or caused accidentally by a stray bullet. The relationship of cause and effect must be
clearly shown.
In the present case, other than the said ocular inspection, no investigation was
conducted to determine the real cause of the partial unroofing of petitioner's school
building. Private respondents did not even show that the plans, specifications and
design of said school building were deficient and defective. Neither did they prove any
substantial deviation from the approved plans and specifications. Nor did they
conclusively establish that the construction of such building was basically flawed. 21
83
On the other hand, petitioner elicited from one of the witnesses of private respondents,
city building official Jesus Reyna, that the original plans and design of petitioner's
school building were approved prior to its construction. Engr. Reyna admitted that it
was a legal requirement before the construction of any building to obtain a permit from
the city building official (city engineer, prior to the passage of the Building Act of
1977). In like manner, after construction of the building, a certification must be secured
from the same official attesting to the readiness for occupancy of the edifice. Having
obtained both building permit and certificate of occupancy, these are, at the very
least, prima facie evidence of the regular and proper construction of subject school
building. 22
Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon
"Saling", the same city official gave the go-signal for such repairs — without any
deviation from the original design — and subsequently, authorized the use of the entire
fourth floor of the same building. These only prove that subject building suffers from
no structural defect, contrary to the report that its "U-shaped" form was "structurally
defective." Having given his unqualified imprimatur, the city building official is
presumed to have properly performed his duties 23 in connection therewith.
In addition, petitioner presented its vice president for finance and administration who
testified that an annual maintenance inspection and repair of subject school building
were regularly undertaken. Petitioner was even willing to present its maintenance
supervisor to attest to the extent of such regular inspection but private respondents
agreed to dispense with his testimony and simply stipulated that it would be
corroborative of the vice president's narration.
Moreover, the city building official, who has been in the city government service since
1974, admitted in open court that no complaint regarding any defect on the same
structure has ever been lodged before his office prior to the institution of the case at
bench. It is a matter of judicial notice that typhoons are common occurrences in this
country. If subject school building's roofing was not firmly anchored to its trusses,
obviously, it could not have withstood long years and several typhoons even stronger
than "Saling."
In light of the foregoing, we find no clear and convincing evidence to sustain the
judgment of the appellate court. We thus hold that petitioner has not been shown
negligent or at fault regarding the construction and maintenance of its school building
in question and that typhoon "Saling" was the proximate cause of the damage suffered
by private respondents' house.
With this disposition on the pivotal issue, private respondents' claim for actual and
moral damages as well as attorney's fees must fail. 24 Petitioner cannot be made to
answer for a purely fortuitous event. 25 More so because no bad faith or willful act to
cause damage was alleged and proven to warrant moral damages.
Private respondents failed to adduce adequate and competent proof of the pecuniary
loss they actually incurred. 26 It is not enough that the damage be capable of proof but
84
must be actually proved with a reasonable degree of certainty, pointing out specific
facts that afford a basis for measuring whatever compensatory damages are
borne. 27 Private respondents merely submitted an estimated amount needed for the
repair of the roof their subject building. What is more, whether the "necessary repairs"
were caused ONLY by petitioner's alleged negligence in the maintenance of its school
building, or included the ordinary wear and tear of the house itself, is an essential
question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by
the trial court is hereby nullified and set aside. Private respondents are ordered to
reimburse any amount or return to petitioner any property which they may have
received by virtue of the enforcement of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED.

The complaint of private respondents in Civil Case No. 7314 before the trial court a
quo is ordered DISMISSED and the writ of execution issued on April 1, 1993 in said
case is SET ASIDE. Accordingly, private respondents are ORDERED to return to
petitioner any amount or property received by them by virtue of said writ. Costs
against the private respondents.
SO ORDERED.
G.R. No. L-56487 October 21, 1991
REYNALDA GATCHALIAN, petitioner,

vs.
ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.
Pedro G. Peralta for petitioner.
Florentino G. Libatique for private respondent.
FELICIANO, J.:
At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying

passenger, respondent's "Thames" mini bus at a point in San Eugenio, Aringay, La Union,
bound for Bauang, of the same province. On the way, while the bus was running along the
highway in Barrio Payocpoc, Bauang, Union, "a snapping sound" was suddenly heard at one
part of the bus and, shortly thereafter, the vehicle bumped a cement flower pot on the side of
the road, went off the road, turned turtle and fell into a ditch. Several passengers, including
petitioner Gatchalian, were injured. They were promptly taken to Bethany Hospital at San
Fernando, La Union, for medical treatment. Upon medical examination, petitioner was found
85
to have sustained physical injuries on the leg, arm and forehead, specifically described as
follows: lacerated wound, forehead; abrasion, elbow, left; abrasion, knee, left; abrasion,
lateral surface, leg, left. 1
On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for
their hospitalization and medical expenses. She also gave petitioner P12.00 with which to pay her transportation expense in going home from
the hospital. However, before Mrs. Delim left, she had the injured passengers, including petitioner, sign an already prepared Joint Affidavit
which stated, among other things:
That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said Thames met an accident at Barrio
Payocpoc Norte, Bauang, La Union while passing through the National Highway No. 3;
That after a thorough investigation the said Thames met the accident due to mechanical defect and went off the road and turned turtle
to the east canal of the road into a creek causing physical injuries to us;
xxx xxx xxx
That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it
was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our
injuries.
xxx xxx xxx 2
(Emphasis supplied)
Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union an action extra contractu to recover
compensatory and moral damages. She alleged in the complaint that her injuries sustained from the vehicular mishap had left her with a
conspicuous white scar measuring 1 by 1/2 inches on the forehead, generating mental suffering and an inferiority complex on her part; and that
as a result, she had to retire in seclusion and stay away from her friends. She also alleged that the scar diminished her facial beauty and
deprived her of opportunities for employment. She prayed for an award of: P10,000.00 for loss of employment and other opportunities;
P10,000.00 for the cost of plastic surgery for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's
fees.
In defense, respondent averred that the vehicular mishap was due to force majeure, and that petitioner had already been paid and moreover
had waived any right to institute any action against him (private respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit
on 14 July 1973.
86
After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed the Joint Affidavit, she relinquished
any right of action (whether criminal or civil) that she may have had against respondent and the driver of the mini-bus.
On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a valid waiver, but affirmed the dismissal
of the case by denying petitioner's claim for damages:
We are not in accord, therefore, of (sic) the ground of the trial court's dismissal of the complaint, although we conform to the trial
court's disposition of the case — its dismissal.
IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in dismissing the plaintiff-
appellant's complaint, the judgment of dismissal is hereby affirmed.
Without special pronouncement as to costs.
SO ORDERED. 3
In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of Appeals and ask this Court to award her
actual or compensatory damages as well as moral damages.
We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had been made by petitioner. The
relevant language of the Joint Affidavit may be quoted again:
That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it
was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our
injuries. (Emphasis supplied)
A
A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to him. 4
waiver may not casually be attributed to a person when the terms thereof do not explicitly and
clearly evidence an intent to abandon a right vested in such person.
The degree of explicitness which this Court has required in purported waivers is illustrated
in Yepes and Susaya v. Samar Express Transit (supra), where the Court in reading and
rejecting a purported waiver said:
. . . It appears that before their transfer to the Leyte Provincial Hospital, appellees were
asked to sign as, in fact, they signed the document Exhibit I wherein they stated that "in
consideration of the expenses which said operator has incurred in properly giving us
the proper medical treatment, we hereby manifest our desire to waive any and all
claims against the operator of the Samar Express Transit."
87
xxx xxx xxx
Even a cursory examination of the document mentioned above will readily show
that appellees did not actually waive their right to claim damages from appellant for the
latter's failure to comply with their contract of carriage. All that said document proves is
that they expressed a "desire" to make the waiver — which obviously is not the same
as making an actual waiver of their right. A waiver of the kind invoked by appellant must
be clear and unequivocal (Decision of the Supreme Court of Spain of July 8, 1887) —
which is not the case of the one relied upon in this appeal. (Emphasis supplied)
If we apply the standard used in Yepes and Susaya, we would have to conclude that the
terms of the Joint Affidavit in the instant case cannot be regarded as a waiver cast in "clear
and unequivocal" terms. Moreover, the circumstances under which the Joint Affidavit was
signed by petitioner Gatchalian need to be considered. Petitioner testified that she was still
reeling from the effects of the vehicular accident, having been in the hospital for only three
days, when the purported waiver in the form of the Joint Affidavit was presented to her for
signing; that while reading the same, she experienced dizziness but that, seeing the other
passengers who had also suffered injuries sign the document, she too signed without
bothering to read the Joint Affidavit in its entirety. Considering these circumstances there
appears substantial doubt whether petitioner understood fully the import of the Joint Affidavit
(prepared by or at the instance of private respondent) she signed and whether she actually
intended thereby to waive any right of action against private respondent.
Finally, because what is involved here is the liability of a common carrier for injuries sustained
by passengers in respect of whose safety a common carrier must
exercise extraordinary diligence, we must construe any such purported waiver most strictly
against the common carrier. For a waiver to be valid and effective, it must not be contrary to
law, morals, public policy or good
customs. 5 To uphold a supposed waiver of any right to claim damages by an injured
passenger, under circumstances like those exhibited in this case, would be to dilute and
weaken the standard of extraordinary diligence exacted by the law from common carriers and
hence to render that standard unenforceable. 6 We believe such a purported waiver is
offensive to public policy.
Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held that
there was no enforceable waiver of her right of action, should have awarded her actual or
compensatory and moral damages as a matter of course.
We have already noted that a duty to exercise extraordinary diligence in protecting the safety
of its passengers is imposed upon a common carrier. 7 In case of death or injuries to
passengers, a statutory presumption arises that the common carrier was at fault or had acted
negligently "unless it proves that it [had] observed extraordinary diligence as prescribed in
Articles 1733 and 1755." 8 In fact, because of this statutory presumption, it has been held that
a court need not even make an express finding of fault or negligence on the part of the
common carrier in order to hold it liable. 9 To overcome this presumption, the common carrier
must slow to the court that it had exercised extraordinary diligence to prevent the
injuries. 10 The standard of extraordinary diligence imposed upon common carriers is
88
considerably more demanding than the standard of ordinary diligence, i.e., the diligence of a
good paterfamilias established in respect of the ordinary relations between members of
society. A common carrier is bound to carry its passengers safely" as far as human care and
foresight can provide, using the utmost diligence of a very cautious person, with due regard to
all the circumstances". 11
Thus, the question which must be addressed is whether or not private respondent has successfully proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. The records before the
Court are bereft of any evidence showing that respondent had exercised the extraordinary diligence required by law. Curiously, respondent did not even attempt, during the trial before the court a quo, to prove that he had
indeed exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by alleging that the mishap was the result of force majeure. But allegation is not proof and here again, respondent
utterly failed to substantiate his defense of force majeure. To exempt a common carrier from liability for death or physical injuries to passengers upon the ground of force majeure, the carrier must clearly show not only that
the efficient cause of the casualty was entirely independent of the human will, but also that it was impossible to avoid. Any participation by the common carrier in the occurrence of the injury will defeat the defense of force
the Court summed up the essential characteristics of force

majeure. In Servando v. Philippine Steam Navigation Company, 12
majeure by quoting with approval from the Enciclopedia Juridica Española:
Thus, where fortuitous event or force majeure is the immediate and proximate cause of
the loss, the obligor is exempt from liability non-performance. The Partidas, the
antecedent of Article 1174 of the Civil Code, defines "caso fortuito" as 'an event that
takes place by accident and could not have been foreseen. Examples of this are
destruction of houses, unexpected fire, shipwreck, violence of robber.
In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica Española says:
'In 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 occurence, 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 must be free from any participation in
the aggravation of the injury resulting to the creditor.
Upon the other hand, the record yields affirmative evidence of fault or negligence on the part
of respondent common carrier. In her direct examination, petitioner Gatchalian narrated that
shortly before the vehicle went off the road and into a ditch, a "snapping sound" was suddenly
heard at one part of the bus. One of the passengers, an old woman, cried out, "What
happened?" ("Apay addan samet nadadaelen?"). The driver replied, nonchalantly, "That is
only normal" ("Ugali ti makina dayta"). The driver did not stop to check if anything had gone
wrong with the bus. Moreover, the driver's reply necessarily indicated that the same
"snapping sound" had been heard in the bus on previous occasions. This could only mean
that the bus had not been checked physically or mechanically to determine what was causing
the "snapping sound" which had occurred so frequently that the driver had gotten accustomed
to it. Such a sound is obviously alien to a motor vehicle in good operating condition, and even
a modicum of concern for life and limb of passengers dictated that the bus be checked and
repaired. The obvious continued failure of respondent to look after the roadworthiness and
safety of the bus, coupled with the driver's refusal or neglect to stop the mini-bus after he had
heard once again the "snapping sound" and the cry of alarm from one of the passengers,
constituted wanton disregard of the physical safety of the passengers, and hence gross
negligence on the part of respondent and his driver.
89
We turn to petitioner's claim for damages. The first item in that claim relates to revenue which
petitioner said she failed to realize because of the effects of the vehicular mishap. Petitioner
maintains that on the day that the mini-bus went off the road, she was supposed to confer
with the district supervisor of public schools for a substitute teacher's job, a job which she had
held off and on as a "casual employee." The Court of Appeals, however, found that at the
time of the accident, she was no longer employed in a public school since, being a casual
employee and not a Civil Service eligible, she had been laid off. Her employment as a
substitute teacher was occasional and episodic, contingent upon the availability of vacancies
for substitute teachers. In view of her employment status as such, the Court of Appeals held
that she could not be said to have in fact lost any employment after and by reason of the
accident. 13 Such was the factual finding of the Court of Appeals, a finding entitled to due
respect from this Court. Petitioner Gatchalian has not submitted any basis for overturning this
finding of fact, and she may not be awarded damages on the basis of speculation or
conjecture. 14
Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another matter. A person is entitled to the physical integrity of his or her body; if that integrity is violated or diminished, actual injury
is suffered for which actual or compensatory damages are due and assessable. Petitioner Gatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap. A scar, especially one on
the face of the woman, resulting from the infliction of injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for restoration to her conditio ante. If the scar is relatively small and does not grievously
disfigure the victim, the cost of surgery may be expected to be correspondingly modest. In Araneta, et al. vs. Areglado, et al., 15 this Court awarded actual or compensatory damages for, among other things, the surgical
removal of the scar on the face of a young boy who had been injured in a vehicular collision. The Court there held:
We agree with the appellants that the damages awarded by the lower court for the injuries suffered by Benjamin Araneta are
inadequate. In allowing not more than P1,000.00 as compensation for the "permanent deformity and — something like an inferiority
complex" as well as for the "pathological condition on the left side of the jaw" caused to said plaintiff, the court below overlooked the
clear evidence on record that to arrest the degenerative process taking place in the mandible and restore the injured boy to a nearly
normal condition, surgical intervention was needed, for which the doctor's charges would amount to P3,000.00, exclusive of
hospitalization fees, expenses and medicines. Furthermore, the operation, according to Dr. Diño, would probably have to be repeated
in order to effectuate a complete cure, while removal of the scar on the face obviously demanded plastic surgery.
xxx xxx xxx
The father's failure to submit his son to a plastic operation as soon as possible does not prove that such treatment is not called for.
The damage to the jaw and the existence of the scar in Benjamin Araneta's face are physical facts that can not be reasoned out of
existence. That the injury should be treated in order to restore him as far as possible to his original condition is undeniable. The
father's delay, or even his negligence, should not be allowed to prejudice the son who has no control over the parent's action nor
impair his right to a full indemnity.
. . . Still, taking into account the necessity and cost of corrective measures to fully repair the damage; the pain suffered by the injured
party; his feelings of inferiority due to consciousness of his present deformity, as well as the voluntary character of the injury inflicted;
and further considering that a repair, however, skillfully conducted, is never equivalent to the original state, we are of the opinion that
the indemnity granted by the trial court should be increased to a total of P18,000.00. (Emphasis supplied)
Upon the other hand, Dr. Fe Tayao

Petitioner estimated that the cost of having her scar surgically removed was somewhere between P10,000.00 to P15,000.00. 16
Lasam, a witness presented as an expert by petitioner, testified that the cost would probably
be between P5,000.00 to P10,000.00. 17 In view of this testimony, and the fact that a
90
considerable amount of time has lapsed since the mishap in 1973 which may be expected to
increase not only the cost but also very probably the difficulty of removing the scar, we
consider that the amount of P15,000.00 to cover the cost of such plastic surgery is not
unreasonable.
Turning to petitioner's claim for moral damages, the long-established rule is that moral
damages may be awarded where gross negligence on the part of the common carrier is
shown. 18 Since we have earlier concluded that respondent common carrier and his driver had
been grossly negligent in connection with the bus mishap which had injured petitioner and
other passengers, and recalling the aggressive manuevers of respondent, through his wife, to
get the victims to waive their right to recover damages even as they were still hospitalized for
their injuries, petitioner must be held entitled to such moral damages. Considering the extent
of pain and anxiety which petitioner must have suffered as a result of her physical injuries
including the permanent scar on her forehead, we believe that the amount of P30,000.00
would be a reasonable award. Petitioner's claim for P1,000.00 as atttorney's fees is in fact
even more modest. 19
WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the then Court of First Instance of La
Union dated 4 December 1975 are hereby REVERSED and SET ASIDE.Respondent is hereby ORDERED to pay petitioner Reynalda
Gatchalian the following sums: 1) P15,000.00 as actual or compensatory damages to cover the cost of plastic surgery for the removal of the
scar on petitioner's forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the aggregate amount to bear interest at
the legal rate of 6% per annum counting from the promulgation of this decision until full payment thereof. Costs against private respondent.
SO ORDERED.
G.R. No. 96410 July 3, 1992
NATIONAL POWER CORPORATION and BENJAMIN CHAVEZ, petitioners,

vs.
THE COURT OF APPEALS, RICARDO CRUZ, DOMINGO CRUZ, FERNANDO CRUZ,
LEOPOLDO CRUZ, MARIA CRUZ, MAURA MARCIAL, JUAN PALAD, NICANOR PALAD,
ZOSIMO PALAD, NICASIO SAN PEDRO, FELIMON SANTOS, ISAIAS SANTOS,
JEREMIAS SANTOS, and JOSE SANTOS, respondents.
NOCON, J.:
Before Us is a petition for review on certiorari instituted by the National Power Corporation
(NPC) and Benjamin Chavez, Plant Superintendent of
NPC, from the decision of the Court of Appeals promulgated on September 18, 1990. 1 The
appellate court affirmed in toto the decision in Civil Case No.
SM-1552 of the Regional Trial Court of Malolos, Bulacan, Branch XVI, which awarded
damages, interest, attorney's fees and litigation expenses against petitioners in the following
amounts with interest at 12% per annum from the date of filing of the complaint until fully paid:
91
Ricardo Cruz P 22,800.00

Zosimo Palad 24,200.00
Isaias T. Santos 45,500.00
Felimon Santos 42,900.00
Maura T. Marcial 49,280.00
Domingo Cruz 121,900.00
Leopoldo Cruz 21,000.00
Maria R. Cruz 34,000.00
Nicanor Palad 28,768.00
Nicasio San Pedro 16,950.00
Juan Palad 27,600.00
Jose T. Santos 38,410.00
Jeremias T. Santos 11,500.00
Fernando Cruz 55,780.00
The petitioners were further ordered to pay the private respondents 30% of the amounts
payable by them as attorney's fees and P10,000.00 as litigation expenses, and to pay the
costs of suit. 2
It appears that in the early morning hours of October 27, 1978, at the height of typhoon
"Kading", a massive flood covered the towns near Angat Dam, particularly the town of
Norzagaray, causing several deaths and the loss and destruction of houses, farms, plants,
working animals and other properties of the people residing near the Angat River. Private
respondents recalled that on the said day, they were awakened by the sound of rampaging
water all around them. The water came swiftly and strongly that before they could do anything
to save their belongings, their houses had submerged, some even swept away by the strong
current. A number of people were able to save their lives only by climbing trees.
Private respondents blamed the sudden rush of water to the reckless and imprudent opening
of all the three (3) floodgates of the Angat Dam spillway, without prior warning to the people
living near or within the vicinity of the
dam. 3
Petitioners denied private respondents' allegations and, by way of defense, contended that
they have maintained the water in the Angat Dam at a safe level and that the opening of the
spillways was done gradually and after all precautionary measures had been taken. Petitioner
NPC further contended that it had always exercised the diligence of a good father in the
selection of its officials and employees and in their supervision. It also claimed that written
warnings were earlier sent to the towns concerned. At the time typhoon "Kading" hit Bulacan
with its torrential rain, a great volume of flood water flowed into the dam's reservoir
necessitating the release of the water therein in order to prevent the dam from collapsing and
causing the loss of lives and tremendous damage to livestock and properties.
Petitioners further contended that there was no direct causal relationship between the alleged
damages suffered by the respondents and the acts and omissions attributed to the former.
That it was the respondents who assumed the risk of residing near the Angat River, and even
assuming that respondents suffered damages, the cause was due to a fortuitous event and
92
such damages are of the nature and character of damnum absque injuria, hence,
respondents have no cause of action against them.
As assignment of errors of the appellate court, petitioners raised the following:
(a) IN HOLDING THAT THE RULING IN JUAN F. NAKPIL & SONS VS. COURT OF
APPEALS, 4 IS APPLICABLE TO THE INSTANT CASE UNDER WHICH PETITIONERS ARE
LIABLE EVEN THOUGH THE COMING OF A TYPHOON WAS FORCE MAJEURE;
(b) IN NOT HOLDING THAT THE GIVING OF THE WRITTEN NOTICE OF WARNING BY
PETITIONERS ABSOLVED THEM FROM LIABILITY;
(c) IN NOT HOLDING THAT ANY DAMAGE SUFFERED BY PRIVATE RESPONDENTS

WAS DAMNUM ABSQUE INJURIA; and
(d) IN NOT AWARDING THE COUNTERCLAIM OF PETITIONERS FOR ATTORNEY'S

FEES AND EXPENSES OF LITIGATION.
We find the petition devoid of merit.
We do not agree with the petitioners that the decision handed down in Juan F. Nakpil & Sons,
supra, is not applicable to the present case. The doctrine laid down in the said case is still
good law, as far as the concurrent liability of an obligor in case of a force majeure, is
concerned.
The case of National Power Corp. v. Court of Appeals, 5 as a matter of fact, reiterated the
ruling in Juan F. Nakpil & Sons. In the former case, this Court ruled that the obligor cannot
escape liability, if upon the happening of a fortuitous event or an act of God, a corresponding
fraud, negligence, delay or violation or contravention in any manner of the tenor of the
obligation as provided in Article 1170 of the Civil Code 6 which results in loss or damage.
Petitioners contended that unlike in Juan F. Nakpil & Sons, there was no privity of contract
between herein petitioners and private respondents. They further alleged that they owed no
specific duty to private respondents in the same way that the architect of a building owed a
specific duty to its owner. Petitioners, however, failed to consider that even if there was no
contractual relation between themselves and private respondents, they are still liable under
the law on quasi-delict. Article 2176 of the Civil Code explicitly provides "whoever by act or
omission causes damage to another there being fault or negligence is obliged to pay for the
damage done."
Neither can petitioners escape liability by invoking force majeure. Act of God or force
majeure, by definition, are extraordinary events not foreseeable or avoidable, events that
could not be foreseen, or which, though foreseen, are inevitable. It is therefore not enough
that the event should not have been foreseen or anticipated, as is commonly believed, but it
must be one impossible to foresee or to avoid. 7 As a general rule, no person shall be
responsible for those events which could not be foreseen or which though foreseen, were
inevitable. 8
93
However, the principle embodied in the act of God doctrine strictly requires that the act must be occasioned solely by the violence of nature. Human intervention is
to be excluded from creating or entering into the cause of the mischief. When the effect is found to be in part the result of the participation of man, whether due to
his active intervention or neglect or failure to act, the whole occurrence is then humanized and removed from the rules applicable to the acts of God. 9
So generally it cannot be said that damage, injury or loss is due to an act of God
where it was caused merely by excessive or heavy rainfall, storms and to
weather conditions which are not unusual in character, those which could have
been reasonably anticipated or where the injury complained of is due rather to
the negligence or mismanagement of man than to the disturbance of the
elements or where such damage, injury or loss might have been mitigated or
prevented by diligence exercised after the occurrence. 10
In the case at bar, although the typhoon "Kading" was an act of God, petitioners can not
escape liability because their negligence was the proximate cause of the loss and damage.
The Court of Appeals found that:
As hereinabove stated, it has been shown that the defendants failed to take the
necessary safeguards to prevent the danger that the Angat Dam posed in a
situation of such nature as that of typhoon "Kading". The representative of the
"PAG-ASA" who testified in these proceedings, Justo Iglesias, Jr., stated that
based on their records the rainfall on October 26 and 27, 1978 is classified only
as moderate, and could not have caused flash floods. He testified that flash
floods exceeds 50 millimeters per hour and lasts for at least two (2) hours. He
stated that typhoon "Yaning" which occurred on October 7 to 14, 1978 gave a
much heavier rainfall than "Kading", and so did other previous typhoons. 11
This was corroborated by the testimonies of private respondents, most of whom have
lived in the area all their lives, but had never before experienced such flooding as would
have placed them on alert, even during previous stronger typhoons such as "Dading"
and "Yoling."
What more, when the evidence shows that as early as October 25, 1978 the newspapers had
announced the expected occurrence of a powerful typhoon code-named "Kading". 12 On
October 26, 1978, Bulletin Today had as its headline the coming of the typhoon. 13 Despite
these announcements, the water level in the dam was maintained at its maximum from
October 21, until midnight of October 26, 1978. 14
At 2100 hrs. of October 26, 1978, NPC started to open the three floodgates simultaneously
from 1 meter to 8 meters at 0100 hrs. of October 27, 1978, until all floodgates were opened to
the maximum of 14 to 14.5 meters by 0600 hrs. of the same day. 15
This was also the finding of the court a quo which We quote:
The defendants contended that the release of water had been "gradual". The
lower court did not find this true. The exhibit presented by the defendants (Exhs.
AA and BB-2) show that on October 26, 1978 there was very little opening of the
spillways, ranging from 1 meter to 2 meters. However, from midnight or from the
first hours of October 27, 1978 the opening of all the three (3) spillways started at
94
5 meters and swiftly went as far up as 14 meters. As observed correctly by the

trial court had the opening of all the three (3) spillways been made earlier and
gradually, there would have been no need to open the same suddenly.
What made the situation worse was that the opening of the spillways was made
at the unholy hours when residents were asleep. The plaintiffs all testified that
they were never given any warning that the spillways would be opened to that
extent. . . . 16
It has been held in several cases that when the negligence of a person concurs with an act of
God producing a loss, such person is not exempt from liability by showing that the immediate
cause of the damage was the act of God. To be exempt he must be free from any previous
negligence or misconduct by which the loss or damage may have been occasioned. 17
Thus, We cannot give credence to petitioners' third assignment of error that the damage
caused by the opening of the dam was in the nature of damnum absque injuria, which
presupposes that although there was physical damage, there was no legal injury in view of
the fortuitous events. There is no question that petitioners have the right, duty and obligation
to operate, maintain and preserve the facilities of Angat Dam, but their negligence cannot be
countenanced, however noble their intention may be. The end does not justify the means,
particularly because they could have done otherwise than simultaneously opening the
spillways to such extent. Needless to say, petitioners are not entitled to counterclaim.
Petitioners insist that their giving of prior written warning should absolve them from liability.
Notice of warning was served by them on "a responsible employee in the office of the mayor
of the municipality, or in the absence of such responsible employee, on a member of the
municipal police force." 18 That being the case, they alleged that the presumption that official
duty has been performed must be credited in their favor. The presumption was, however,
refuted by the evidence and testimonies of respondents who all denied having been given any
warning that the spillways would be opened to such extent and at a short period of time.
The letter 19 itself, addressed merely "TO ALL CONCERNED", would not strike one to be of
serious importance, sufficient enough to set alarm and cause people to take precautions for
their safety's sake. As testified to by driver Leonardo Garcia of the NPC, he was instructed by
Chavez to give notice "to any personnel of the municipality [sic] or even the policemen of the
municipalities concerned regarding the release of water from the reservoir." 20 His instructions
did not specify the municipal officer who should receive the notice, but that priority must be
given to the police. 21 Thus, copies of the notices were given to Pat. Carillo of Norzagaray,
Cicero Castro, municipal employee of Angat, Pat. Jaime Nicholas of Bustos, Cpl. Josefino
Legaspi of Baliwag, Pat. Luzvimin Mariano of Plaridel and Pat. Dantes Manukduk of Calumpit.
As observed by the Court of Appeals:
Clearly, the notices were not delivered, or even addressed to responsible officials
of the municipalities concerned who could have disseminated the warning
properly. They were delivered to ordinary employees and policemen. As it
happened, the said notices do not appear to have reached the people
95
concerned, which are the residents beside the Angat River. The plaintiffs in this
case definitely did not receive any such warning. Indeed, the methods by which
the defendants allegedly sent the notice or warning was so ineffectual that they
cannot claim, as they do in their second assignment of error, that the sending of
said notice has absolved them from liability. 22
WHEREFORE, finding no reversible error in the Decision appealed from, the same is hereby
affirmed in toto, with cost against petitioner.
SO ORDERED.
G.R. No. L-68102 July 16, 1992
GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,

vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH
MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.
DAVIDE, JR., J.:
Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in
C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous
Decision dated 29 November 1983 reversing the Decision of the trial court which dismissed
petitioners' complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of
First Instance (now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia
Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and
Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and
Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for moral
damages, attorney's fees and litigation expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a vehicular
accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused
physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh
McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh
McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while
96
petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and
children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon
the other hand, private respondents are the owners of the cargo truck which figured in the
mishap; a certain Ruben Galang was the driver of the truck at the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along
MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-
collision took place between an International cargo truck, Loadstar, with Plate No. RF912-T
Philippines '76 owned by private respondents, and driven by Ruben Galang, and a Ford
Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted
in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to
George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the
Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of
one and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida
Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons
were seated at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred (200)
cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on
its way to Angeles City from San Fernando. When the northbound car was about (10) meters
away from the southern approach of the bridge, two (2) boys suddenly darted from the right
side of the road and into the lane of the car. The boys were moving back and forth, unsure of
whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car,
swerved to the left and entered the lane of the truck; he then switched on the headlights of the
car, applied the brakes and thereafter attempted to return to his lane. Before he could do so,
his car collided with the truck. The collision occurred in the lane of the truck, which was the
opposite lane, on the said bridge.
The incident was immediately reported to the police station in Angeles City; consequently, a
team of police officers was forthwith dispatched to conduct an on the spot investigation. In the
sketch 1 prepared by the investigating officers, the bridge is described to be sixty (60)
"footsteps" long and fourteen (14) "footsteps" wide — seven (7) "footsteps" from the center
line to the inner edge of the side walk on both sides. 2 Pulong Pulo Bridge, which spans a dry
brook, is made of concrete with soft shoulders and concrete railings on both sides about three
(3) feet high.
The sketch of the investigating officer discloses that the right rear portion of the cargo truck
was two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was
touching the center line of the bridge, with the smashed front side of the car resting on its
front bumper. The truck was about sixteen (16) "footsteps" away from the northern end of the
bridge while the car was about thirty-six (36) "footsteps" from the opposite end. Skid marks
97
produced by the right front tire of the truck measured nine (9) "footsteps", while skid marks
produced by the left front tire measured five (5) "footsteps." The two (2) rear tires of the truck,
however, produced no skid marks.
In his statement to the investigating police officers immediately after the accident, Galang
admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were
filed on 31 January 1977 before the then Court of First Instance of Pampanga and were
raffled to Branch III and Branch V of the said court, respectively. In the first, herein petitioners
in G.R. No. 68103 prayed for the award of P12,000.00 as indemnity for the death of Jose
Koh, P150,000.00 as moral damages, P60,000.00 as exemplary damages, P10,000.00 for
litigation expenses, P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00
for the tomb, plus attorney's fees. 3 In the second case, petitioners in G.R. No. 68102 prayed
for the following: (a) in connection with the death of Kim McKee, the sum of P12,000.00 as
death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for
the tomb, P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00
as miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the
serious physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as
exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the hospitalization
expenses up to the date of the filing of the complaint; and (c) with respect to George McKee,
Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as moral
damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400
payable to the Medical Center, P3,500.00 payable to the St. Francis Medical Center,
P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to
P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total award
plus traveling and hotel expenses, with costs. 4
On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless
Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to
Property" was filed with the trial court. It was docketed as Criminal Case No. 3751 and was
raffled to Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it
was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by
Ruben Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees,
P20,000.00 as actual and liquidated damages, P100,000.00 as moral damages and
P30,000.00 as business losses. 6 In Civil Case No. 4478, private respondents first filed a
motion to dismiss on grounds of pendency of another action (Civil Case No. 4477) and failure
to implead an indispensable party, Ruben Galang, the truck driver; they also filed a motion to
consolidate the case with Civil Case No. 4477 pending before Branch III of the same court,
which was opposed by the plaintiffs. 7 Both motions were denied by Branch V, then presided
over by Judge Ignacio Capulong. Thereupon, private respondents filed their Answer with
Counter-claim 8 wherein they alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by Ruben Galang, . . .
which was on the right lane going towards Manila and at a moderate speed observing all traffic rules and regulations applicable under the circumstances then
prevailing;" in their counterclaim, they prayed for an award of damages as may be determined by the court after due hearing, and the sums of P10,000.00 as
attorney's fees and P5,000.00 as expenses of litigation.
98
Petitioners filed their Answers to the Counterclaims in both cases.
To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a
motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No.
3751, which private respondents opposed and which the court denied. 9 Petitioners
subsequently moved to reconsider the order denying the motion for consolidation, 10 which
Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case
No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided
over by Judge Mario Castañeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuñag,
Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio
Koh, 11 and offered several documentary exhibits. Upon the other hand, private respondents
presented as witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12
In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud
Samia, Pfc. Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson,
Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda,
Benito Caraan and Eugenio Tanhueco, and offered several documentary exhibits. 13 Upon the
other hand, the defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida
Soliman and Roman Dayrit, and offered documentary exhibits. 14
On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang
in the aforesaid criminal case. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the

accused Ruben Galang guilty beyond reasonable doubt of the crime charged in
the information and after applying the provisions of Article 365 of the Revised
Penal Code and indeterminate sentence law, this Court, imposes upon said
accused Ruben Galang the penalty of six (6) months of arresto mayor as
minimum to two (2) years, four (4) months and one (1) day of prision
correccional as maximum; the accused is further sentenced to pay and indemnify
the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death;
to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the
funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00
representing her loss of income; to indemnify and pay the heirs of the deceased
Jose Koh the value of the car in the amount of P53,910.95, and to pay the
costs. 15
The aforecited decision was promulgated only on 17 November 1980; on the same day,
counsel for petitioners filed with Branch III of the court — where the two (2) civil cases were
pending — a manifestation to that effect and attached thereto a copy of the decision. 16
99
Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on 12
November 1980 and awarded the private respondents moral damages, exemplary damages
and attorney's fees. 17 The dispositive portion of the said decision reads as follows:
WHEREFORE, finding the preponderance of evidence to be in favor of the

defendants and against the plaintiffs, these cases are hereby ordered
DISMISSED with costs against the plaintiffs. The defendants had proven their
counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are
hereby awarded moral and exemplary damages in the amount of P100,000.00
plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The
actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for
lack of proof to that effect (sic). 18
A copy of the decision was sent by registered mail to the petitioners on 28 November 1980
and was received on 2 December 1980. 19
Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The
appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third
Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12
November 1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No.
69041-R and C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil
Cases Division.
On 4 October 1982, the respondent Court promulgated its decision 20 in C.A.-G.R. Blg. 24764-
CR affirming the conviction of Galang. 21 The dispositive portion of the decision reads:
DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay

sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng
paghahabol.
A motion for reconsideration of the decision was denied by the respondent Court in
its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its review 23 was filed with
this Court; said petition was subsequently denied. A motion for its reconsideration was denied
with finality in the Resolution of 20 April 1983. 24
On 29 November 1983, respondent Court, by then known as the Intermediate Appellate

Court, promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, 25 the
dispositive portion of which reads:
WHEREFORE, the decision appealed from it hereby reversed and set aside and
another one is rendered, ordering defendants-appellees to pay plaintiffs-
appellants as follows:
For the death of Jose Koh:
P 50,000.00 as moral damages

P 12,000.00 as death indemnity
100
P 16,000.00 for the lot and tomb (Exhs. U and U-1)

P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)
For the death of Kim Koh McKee:

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)
For the physical injuries suffered by George Koh McKee:

P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)
For the physical injuries suffered by Araceli Koh McKee:

P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muñoz Clinic (Exh. MM)
For the physical injuries suffered by Christopher Koh McKee:

P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477
and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED. 26
The decision is anchored principally on the respondent Court's findings that it was Ruben
Galang's inattentiveness or reckless imprudence which caused the accident. The appellate
court further said that the law presumes negligence on the part of the defendants (private
respondents), as employers of Galang, in the selection and supervision of the latter; it was
101
further asserted that these defendants did not allege in their Answers the defense of having
exercised the diligence of a good father of a family in selecting and supervising the said
employee.27 This conclusion of reckless imprudence is based on the following findings of fact:
In the face of these diametrically opposed judicial positions, the determinative

issue in this appeal is posited in the fourth assigned error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE
TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS
HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:
Q What happened after that, as you approached the bridge?
A When we were approaching the bridge, two (2) boys tried to cross
the right lane on the right side of the highway going to San
Fernando. My father, who is (sic) the driver of the car tried to avoid
the two (2) boys who were crossing, he blew his horn and swerved
to the left to avoid hitting the two (2) boys. We noticed the truck, he
switched on the headlights to warn the truck driver, to slow down to
give us the right of way to come back to our right lane.
Q Did the truck slow down?
A No, sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back to the right
lane since the truck is (sic) coming, my father stepped on the brakes
and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-
6, July 22, 1977); or (Exhibit "O" in these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein
accused, Ruben Galang did not reduce its speed before the actual
impact of collision (sic) as you narrated in this Exhibit "1," how did
you know (sic)?
A It just kept on coming, sir. If only he reduced his speed, we could

have got (sic) back to our right lane on side (sic) of the highway, sir.
(tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases)
(pp. 30-31, Appellants' Brief).
102
Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:
1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the

truck stopped only when it had already collided with the car:
xxx xxx xxx
Tanhueco repeated the same testimony during the hearing in the criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation witness because he

was one of the first to arrive at the scene of the accident. As a matter of fact, he
brought one of the injured passengers to the hospital.
We are not prepared to accord faith and credit to defendants' witnesses, Zenaida
Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived
across the street.
Regarding Soliman, experience has shown that in the ordinary course of events
people usually take the side of the person with whom they are associated at the
time of the accident, because, as a general rule, they do not wish to be identified
with the person who was at fault. Thus an imaginary bond is unconsciously
created among the several persons within the same group (People vs. Vivencio,
CA-G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that he is an

accommodation witness. He did not go to the succor of the injured persons. He
said he wanted to call the police authorities about the mishap, but his phone had
no dial tone. Be this (sic) as it may, the trial court in the criminal case acted
correctly in refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang, does not include the claim that Galang
stopped his truck at a safe distance from the car, according to plaintiffs (p. 25,
Appellants' Brief). This contention of appellants was completely passed sub-
silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the
exhibits not included in the record. According to the Table of Contents submitted
by the court below, said Exhibit 2 was not submitted by defendants-appellees. In
this light, it is not far-fetched to surmise that Galang's claim that he stopped was
an eleventh-hour desperate attempt to exculpate himself from imprisonment and
damages.
3. Galang divulged that he stopped after seeing the car about 10 meters away:
ATTY. SOTTO:
103
Q Do I understand from your testimony that inspite of the fact that

you admitted that the road is straight and you may be able to (sic)
see 500-1000 meters away from you any vehicle, you first saw that
car only about ten (10) meters away from you for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters away.
ATTY. SOTTO:
Q So, for clarification, you clarify and state under your oath that you
have (sic) not noticed it before that ten (10) meters? (Tsn. 3 to 5,
Sept. 18, 1979). (p. 16, Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped

only because of the impact. At ten (10) meters away, with the truck running at 30
miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief),
it is well-nigh impossible to avoid a collision on a bridge.
5. Galang's truck stopped because of the collision, and not because he waited for
Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L.
Nuñag, stated that he found skid marks under the truck but there were not (sic)
skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of
skid marks show (sic) that the truck was speeding. Since the skid marks were
found under the truck and none were found at the rear of the truck, the
reasonable conclusion is that the skid marks under the truck were caused by the
truck's front wheels when the trucks (sic) suddenly stopped seconds before the
mishap in an endeavor to avoid the same. But, as aforesaid, Galang saw the car
at barely 10 meters away, a very short distance to avoid a collision, and in his
futile endeavor to avoid the collision he abruptly stepped on his brakes but the
smashup happened just the same.
For the inattentiveness or reckless imprudence of Galang, the law presumes

negligence on the part of the defendants in the selection of their driver or in the
supervision over him. Appellees did not allege such defense of having exercised
the duties of a good father of a family in the selection and supervision of their
employees in their answers. They did not even adduce evidence that they did in
fact have methods of selection and programs of supervision. The inattentiveness
or negligence of Galang was the proximate cause of the mishap. If Galang's
attention was on the highway, he would have sighted the car earlier or at a very
safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to
stop when a collision was already inevitable, because at the time that he entered
the bridge his attention was not riveted to the road in front of him.
On the question of damages, the claims of appellants were amply proven, but the
items must be reduced. 28
104
A motion for reconsideration alleging improper appreciation of the facts was subsequently
filed by private respondents on the basis of which the respondent Court, in its Resolution of 3
April 1984, 29 reconsidered and set aside its 29 November 1983 decision and affirmed in
toto the trial court's judgment of 12 November 1980. A motion to reconsider this Resolution
was denied by the respondent Court on 4 July 1984.30
Hence, this petition.
Petitioners allege that respondent Court:
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY

REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE
"PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS'
DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY
COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER,
IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE
RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS
(ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY
BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE
FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT

DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY
STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE
FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE
TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A

MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT
UPON THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY
MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT
THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF
PRIVATE RESPONDENTS' DRIVER.
IV
. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE

ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY
INAPPLICABLE TO THESE CASES.
V
105
. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS

DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH
ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND
IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE
ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE
RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF

DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO
THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED
BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY
LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF

DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE
ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS
CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND
JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES. 31
In the Resolution of 12 September 1984, We required private respondents to Comment on the

petition. 32 After the said Comment 33 was filed, petitioners submitted a Reply 34 thereto; this
Court then gave due course to the instant petitions and required petitioners to file their
Brief, 35 which they accordingly complied with.
There is merit in the petition. Before We take on the main task of dissecting the arguments
and counter-arguments, some observations on the procedural vicissitudes of these cases are
in order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from
a quasi-delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead
of Criminal Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case
No. 4477 for joint trial in Branch III of the trial court. The records do not indicate any attempt
on the part of the parties, and it may therefore be reasonably concluded that none was made,
to consolidate Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may
have then believed, and understandably so, since by then no specific provision of law or
ruling of this Court expressly allowed such a consolidation, that an independent civil action,
authorized under Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases
in this case, cannot be consolidated with the criminal case. Indeed, such consolidation could
have been farthest from their minds as Article 33 itself expressly provides that the "civil action
shall proceed independently of the criminal prosecution, and shall require only a
preponderance of evidence." Be that as it may, there was then no legal impediment against
such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to avoid a
multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested
106
dockets to simplify the work of the trial court, or in short, attain justice with the least expense
to the parties litigants, 36 would have easily sustained a consolidation, thereby preventing the
unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to their
respective orientation, perception and perhaps even prejudice, the same facts differently, and
thereafter rendering conflicting decisions. Such was what happened in this case. It should not,
hopefully, happen anymore. In the recent case of Cojuangco vs. Court or Appeals, 37 this
Court held that the present provisions of Rule 111 of the Revised Rules of Court allow a
consolidation of an independent civil action for the recovery of civil liability authorized under
Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action subject, however, to the
condition that no final judgment has been rendered in that criminal case.
Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty
of reckless imprudence, although already final by virtue of the denial by no less than this
Court of his last attempt to set aside the respondent Court's affirmance of the verdict of
conviction, has no relevance or importance to this case.
As We held in Dionisio vs. Alvendia, 38 the responsibility arising from fault or negligence in
a quasi-delict is entirely separate and distinct from the civil liability arising from negligence
under the Penal Code. And, as more concretely stated in the concurring opinion of Justice
J.B.L. Reyes, "in the case of independent civil actions under the new Civil Code, the result of
the criminal case, whether acquittal or conviction, would be entirely irrelevant to the civil
action." 39 In Salta vs. De Veyra and PNB vs. Purisima, 40 this Court stated:
. . . It seems perfectly reasonable to conclude that the civil actions mentioned in

Article 33, permitted in the same manner to be filed separately from the criminal
case, may proceed similarly regardless of the result of the criminal case.
Indeed, when the law has allowed a civil case related to a criminal case, to be
filed separately and to proceed independently even during the pendency of the
latter case, the intention is patent to make the court's disposition of the criminal
case of no effect whatsoever on the separate civil case. This must be so because
the offenses specified in Article 33 are of such a nature, unlike other offenses not
mentioned, that they may be made the subject of a separate civil action because
of the distinct separability of their respective juridical cause or basis of action . . .
.
What remains to be the most important consideration as to why the decision in the criminal
case should not be considered in this appeal is the fact that private respondents were not
parties therein. It would have been entirely different if the petitioners' cause of action was for
damages arising from a delict, in which case private respondents' liability could only be
subsidiary pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion,
the judgment of conviction in the criminal case against Galang would have been conclusive in
the civil cases for the subsidiary liability of the private respondents. 41
And now to the merits of the petition.
107
It is readily apparent from the pleadings that the principal issue raised in this petition is
whether or not respondent Court's findings in its challenged resolution are supported by
evidence or are based on mere speculations, conjectures and presumptions.
The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be
raised. The resolution of factual issues is the function of the lower courts whose findings on
these matters are received with respect and are, as a rule, binding on this Court. 42
The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and
the Court of Appeals may be set aside when such findings are not supported by the evidence
or when the trial court failed to consider the material facts which would have led to a
conclusion different from what was stated in its judgment. 43 The same is true where the
appellate court's conclusions are grounded entirely on conjectures, speculations and
surmises 44 or where the conclusions of the lower courts are based on a misapprehension of
facts. 45
It is at once obvious to this Court that the instant case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are based on an misapprehension
of facts and the inferences made therefrom are manifestly mistaken. The respondent Court's
decision of 29 November 1983 makes the correct findings of fact.
In the assailed resolution, the respondent Court held that the fact that the car improperly
invaded the lane of the truck and that the collision occurred in said lane gave rise to the
presumption that the driver of the car, Jose Koh, was negligent. On the basis of this
presumed negligence, the appellate court immediately concluded that it was Jose Koh's
negligence that was the immediate and proximate cause of the collision. This is an
unwarranted deduction as the evidence for the petitioners convincingly shows that the car
swerved into the truck's lane because as it approached the southern end of the bridge, two
(2) boys darted across the road from the right sidewalk into the lane of the car. As testified to
by petitioner Araceli Koh McKee:
Q What happened after that, as you approached the bridge?
A When we were approaching the bridge, two (2) boys tried to cross
the right lane on the right side of the highway going to San
Fernando. My father, who is (sic) the driver of the car tried to avoid
the two (2) boys who were crossing, he blew his horn and swerved
to the left to avoid hitting the two (2) boys. We noticed the truck, he
switched on the headlights to warn the truck driver, to slow down to
give us the right of way to come back to our right lane.
Q Did the truck slow down?
A No sir, it did not, just (sic) continued on its way.
108
Q What happened after that?
A After avoiding the two (2) boys, the car tried to go back to the right
lane since the truck is (sic) coming, my father stepped on the brakes
and all what (sic) I heard is the sound of impact (sic), sir. 46
Her credibility and testimony remained intact even during cross examination. Jose Koh's entry
into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a
greater peril — death or injury to the two (2) boys. Such act can hardly be classified as
negligent.
Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate
Court, 47 thus:
. . . Negligence is the omission to do something which a reasonable man, guided

by those considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable man would
not do (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it,
"(T)he failure to observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury." (Cooley on Torts, Fourth Edition, vol.
3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but
still a sound rule, (W)e held:
The test by which to determine the existence of negligence in a

particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that (reasonable care and caution
which an ordinarily prudent person would have used in the same
situation?) If not, then he is guilty of negligence. The law here in
effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . Negligence is want of the care required by the circumstances. It is a relative

or comparative, not an absolute, term and its application depends upon the
situation of the parties and the degree of care and vigilance which the
circumstances reasonably require. Where the danger is great, a high degree of
care is necessary, and the failure to observe it is a want of ordinary care under
the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts obtaining in this
case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and
ordinary prudent man would have tried to avoid running over the two boys by swerving the car
109
away from where they were even if this would mean entering the opposite lane. Avoiding such
immediate peril would be the natural course to take particularly where the vehicle in the
opposite lane would be several meters away and could very well slow down, move to the side
of the road and give way to the oncoming car. Moreover, under what is known as the
emergency rule, "one who suddenly finds himself in a place of danger, and is required to act
without time to consider the best means that may be adopted to avoid the impending danger,
is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may
appear to have been a better method, unless the emergency in which he finds himself is
brought about by his own negligence." 49
Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that
Jose Koh adopted the best means possible in the given situation to avoid hitting them.
Applying the above test, therefore, it is clear that he was not guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his
negligence was the proximate cause of the collision. Proximate cause has been defined as:
. . . that cause, which, in natural and continuous sequence, unbroken by any

efficient intervening cause, produces the injury, and without which the result
would not have occurred. And more comprehensively, the proximate legal cause
is that acting first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor, the final event
in the chain immediately effecting the injury as a natural and probable result of
the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default
that an injury to some person might probably result therefrom. 50
Applying the above definition, although it may be said that the act of Jose Koh, if at all
negligent, was the initial act in the chain of events, it cannot be said that the same caused the
eventual injuries and deaths because of the occurrence of a sufficient intervening event, the
negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the
car into the lane of the truck would not have resulted in the collision had the latter heeded the
emergency signals given by the former to slow down and give the car an opportunity to go
back into its proper lane. Instead of slowing down and swerving to the far right of the road,
which was the proper precautionary measure under the given circumstances, the truck driver
continued at full speed towards the car. The truck driver's negligence becomes more
apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598
meters and the truck, 2.286 meters, in width. This would mean that both car and truck could
pass side by side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a
level sidewalk which could have partially accommodated the truck. Any reasonable man
finding himself in the given situation would have tried to avoid the car instead of meeting it
head-on.
The truck driver's negligence is apparent in the records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed
110
allowed by law on a bridge 52 is only 30 kilometers per hour. Under Article 2185 of the Civil
Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was
violating any traffic regulation. We cannot give credence to private respondents' claim that
there was an error in the translation by the investigating officer of the truck driver's response
in Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The
law presumes that official duty has been regularly performed; 53 unless there is proof to the
contrary, this presumption holds. In the instant case, private respondents' claim is based on
mere conjecture.
The truck driver's negligence was likewise duly established through the earlier quoted
testimony of petitioner Araceli Koh McKee which was duly corroborated by the testimony of
Eugenio Tanhueco, an impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
xxx xxx xxx
Q Mrs. how did you know that the truck driven by the herein
accused, Ruben Galang did not reduce its speed before the actual
impact of collision as you narrated in this Exhibit "1," how did you
know?
A It just kept on coming, sir. If only he reduced his speed, we could

have got (sic) back to our right lane on side (sic) of the highway, sir.
(tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in these Civil Cases)
(pp. 30-31, Appellants' Brief)54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you know what

happened?
A I saw the truck and a car collided (sic), sir, and I went to the place
to help the victims. (tsn. 28, April 19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of the impact, will you
tell us if the said truck ever stopped?
A I saw it stopped (sic) when it has (sic) already collided with the car
and it was already motionless. (tsn. 31, April 19, 1979; Emphasis
Supplied). (p. 27, Appellants' Brief). 55
111
Clearly, therefore, it was the truck driver's subsequent negligence in failing to take the proper
measures and degree of care necessary to avoid the collision which was the proximate cause
of the resulting accident.
Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application
here. Last clear chance is a doctrine in the law of torts which states that the contributory
negligence of the party injured will not defeat the claim for damages if it is shown that the
defendant might, by the exercise of reasonable care and prudence, have avoided the
consequences of the negligence of the injured party. In such cases, the person who had the
last clear chance to avoid the mishap is considered in law solely responsible for the
consequences thereof.56
In Bustamante vs. Court of Appeals, 57 We held:
The respondent court adopted the doctrine of "last clear chance." The doctrine,
stated broadly, is that the negligence of the plaintiff does not preclude a recovery
for the negligence of the defendant where it appears that the defendant, by
exercising reasonable care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the plaintiff's negligence. In other
words, the doctrine of last clear chance means that even though a person's own
acts may have placed him in a position of peril, and an injury results, the injured
person is entitled to recovery (sic). As the doctrine is usually stated, a person
who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or that of a third person
imputed to the opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p.
165).
The practical import of the doctrine is that a negligent defendant is held liable to a
negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing
himself in peril, if he, aware of the plaintiff's peril, or according to some
authorities, should have been aware of it in the reasonable exercise of due care,
had in fact an opportunity later than that of the plaintiff to avoid an accident (57
Am. Jur., 2d, pp. 798-799).
In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:
The doctrine of last clear chance was defined by this Court in the case of Ong v.
Metropolitan Water District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that the
negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his negligence.
112
The doctrine applies only in a situation where the plaintiff was guilty of prior or
antecedent negligence but the defendant, who had the last fair chance to avoid
the impending harm and failed to do so, is made liable for all the consequences
of the accident notwithstanding the prior negligence of the plaintiff [Picart v.
Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware, et al. vs.
Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No.
70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff becomes the immediate or
proximate cause of the accident which intervenes between the accident and the
more remote negligence of the plaintiff, thus making the defendant liable to the
plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the purpose of making a
defendant liable to a plaintiff who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat claim (sic) for damages.
Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck
driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the
proximate cause of the collision. As employers of the truck driver, the private respondents
are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting
damages. The presumption that they are negligent flows from the negligence of their
employee. That presumption, however, is only juris tantum, not juris et de jure. 59 Their only
possible defense is that they exercised all the diligence of a good father of a family to prevent
the damage. Article 2180 reads as follows:
The obligation imposed by Article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family
to prevent damage.
The diligence of a good father referred to means the diligence in the selection and supervision
of employees. 60 The answers of the private respondents in Civil Cases Nos. 4477 and 4478
did not interpose this defense. Neither did they attempt to prove it.
The respondent Court was then correct in its Decision of 29 November 1983 in reversing the
decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed
Resolution of 3 April 1984 finds no sufficient legal and factual moorings.
113
In the light of recent decisions of this Court, 61 the indemnity for death must, however, be
increased from P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent
Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV
Nos. 69040-41 is REINSTATED, subject to the modification that the indemnity for death is
increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh
McKee.
Costs against private respondents.
SO ORDERED.
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,

vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN
YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA
JUAN, respondents.
Herman D. Coloma for petitioner.
Glicerio S. Ferrer for private respondents.
PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals'
First Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos
Norte, with the following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered
in its stead whereby defendant is hereby sentenced to pay plaintiffs actual
damages of P30,229.45; compensatory damages of P50,000.00; exemplary
damages of P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in
both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the
recognition of their respective versions of the scenario from which the disputed claims
originate. The respondent Court of Appeals (CA) summarized the evidence of the parties as
follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the
early morning of June 29, 1967 a strong typhoon by the code name "Gening"
buffeted the province of Ilocos Norte, bringing heavy rains and consequent
114
flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after the
typhoon had abated and when the floodwaters were beginning to recede the
deceased Isabel Lao Juan, fondly called Nana Belen, ventured out of the house
of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and
proceeded northward towards the direction of the Five Sisters Emporium, of
which she was the owner and proprietress, to look after the merchandise therein
that might have been damaged. Wading in waist-deep flood on Guerrero, the
deceased was followed by Aida Bulong, a Salesgirl at the Five Sisters Grocery,
also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the
YJ Cinema, which was partly owned by the deceased. Aida and Linda walked
side by side at a distance of between 5 and 6 meters behind the deceased,
Suddenly, the deceased screamed "Ay" and quickly sank into the water. The two
girls attempted to help, but fear dissuaded them from doing so because on the
spot where the deceased sank they saw an electric wire dangling from a post
and moving in snake-like fashion in the water. Upon their shouts for help, Ernesto
dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the
deceased, but at four meters away from her he turned back shouting that the
water was grounded. Aida and Linda prodded Ernesto to seek help from Antonio
Yabes at the YJ Cinema building which was four or five blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been
electrocuted, he acted immediately. With his wife Jane, together with Ernesto
and one Joe Ros, Yabes passed by the City Hall of Laoag to request the police
to ask the people of defendant Ilocos Norte Electric Company or INELCO to cut
off the electric current. Then the party waded to the house on Guerrero Street.
The floodwater was receding and the lights inside the house were out indicating
that the electric current had been cut off in Guerrero. Yabes instructed his boys
to fish for the body of the deceased. The body was recovered about two meters
from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer
Antonio Juan, Power Plant Engineer of the National Power Corporation at the
Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter
which indicated such abnormalities as grounded or short-circuited lines. Between
6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection.
On the way, he saw grounded and disconnected lines. Electric lines were
hanging from the posts to the ground. Since he could not see any INELCO
lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal
Street by way of Guerrero. As he turned right at the intersection of Guerrero and
Rizal, he saw an electric wire about 30 meters long strung across the street "and
the other end was seeming to play with the current of the water." (p. 64, TSN,
Oct. 24, 1972) Finding the Office of the INELCO still closed, and seeing no
lineman therein, he returned to the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another
inspection trip. Having learned of the death of Isabel Lao Juan, he passed by the
house of the deceased at the corner of Guerrero and M.H. del Pilar streets to
115
which the body had been taken. Using the resuscitator which was a standard
equipment in his jeep and employing the skill he acquired from an in service
training on resuscitation, he tried to revive the deceased. His efforts proved
futile. Rigor mortis was setting in. On the left palm of the deceased, Engr. Juan
noticed a hollow wound. Proceeding to the INELCO Office, he met two linemen
on the way. He told them about the grounded lines of the INELCO In the
afternoon of the same day, he went on a third inspection trip preparatory to the
restoration of power. The dangling wire he saw on Guerrero early in the morning
of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar
after learning that the deceased had been electrocuted. Among the sympathizers
was Dr. Jovencio Castro, Municipal Health Officer of Sarrat, Ilocos Norte. Upon
the request of the relatives of the deceased, Dr. Castro examined the body at
about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical parlance,
cyanotic, which indicated death by electrocution. On the left palm, the doctor
found an "electrically charged wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or
a first degree burn. About the base of the thumb on the left hand was a burned
wound. (Exh. C-2, pp. 102-103, Ibid.) The certificate of death prepared by Dr.
Castro stated the cause of' death as ,'circulatory shock electrocution" (Exh. I; p.
103, Ibid.).
In defense and exculpation, defendant presented the testimonies of its officers

and employees, namely, Conrado Asis, electric engineer; Loreto Abijero,
collector-inspector; Fabico Abijero, lineman; and Julio Agcaoili, president-
manager of INELCO Through the testimonies of these witnesses, defendant
sought to prove that on and even before June 29, 1967 the electric service
system of the INELCO in the whole franchise area, including Area No. 9 which
covered the residence of Antonio Yabes at No. 18 Guerrero Street, did not suffer
from any defect that might constitute a hazard to life and property. The service
lines, devices and other INELCO equipment in Area No. 9 had been newly-
installed prior to the date in question. As a public service operator and in line with
its business of supplying electric current to the public, defendant had installed
safety devices to prevent and avoid injuries to persons and damage to property
in case of natural calamities such as floods, typhoons, fire and others. Defendant
had 12 linesmen charged with the duty of making a round-the-clock check-up of
the areas respectively assigned to them.
Defendant asserts that although a strong typhoon struck the province of Ilocos
Norte on June 29, 1967, putting to streets of Laoag City under water, only a few
known places in Laoag were reported to have suffered damaged electric lines,
namely, at the southern approach of the Marcos Bridge which was washed away
and where the INELCO lines and posts collapsed; in the eastern part near the
residence of the late Governor Simeon Mandac; in the far north near the
defendant's power plant at the corner of Segundo and Castro Streets, Laoag City
and at the far northwest side, near the premises of the Ilocos Norte National High
School. Fabico Abijero, testified that in the early morning before 6 o'clock on
116
June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to
switch off the street lights in Area No. 9. He did not see any cut or broken wires
in or near the vicinity. What he saw were many people fishing out the body of
Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to
show that the deceased could not have died of electrocution Substantially, the
testimony of the doctor is as follows: Without an autopsy on the cadaver of the
victim, no doctor, not even a medicolegal expert, can speculate as to the real
cause of death. Cyanosis could not have been found in the body of the deceased
three hours after her death, because cyanosis which means lack of oxygen
circulating in the blood and rendering the color of the skin purplish, appears only
in a live person. The presence of the elongated burn in the left palm of the
deceased (Exhibits C-1 and C-2) is not sufficient to establish her death by
electrocution; since burns caused by electricity are more or less round in shape
and with points of entry and exit. Had the deceased held the lethal wire for a long
time, the laceration in her palm would have been bigger and the injury more
massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the
deceased with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p.
55, Rollo), petitioner advanced the theory, as a special defense, that the deceased could
have died simply either by drowning or by electrocution due to negligence attributable only to
herself and not to petitioner. In this regard, it was pointed out that the deceased, without
petitioner's knowledge, caused the installation of a burglar deterrent by connecting a wire
from the main house to the iron gate and fence of steel matting, thus, charging the latter with
electric current whenever the switch is on. Petitioner then conjectures that the switch to said
burglar deterrent must have been left on, hence, causing the deceased's electrocution when
she tried to open her gate that early morning of June 29, 1967. After due trial, the CFI found
the facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000
in moral damages and attorney's fees of P45,000. An appeal was filed with the CA which
issued the controverted decision.
In this petition for review the petitioner assigns the following errors committed by the
respondent CA:
1. The respondent Court of Appeals committed grave abuse of

discretion and error in considering the purely hearsay alleged
declarations of Ernesto de la Cruz as part of the res gestae.
2. The respondent Court of Appeals committed grave abuse of

discretion and error in holding that the strong typhoon "Gening"
which struck Laoag City and Ilocos Norte on June 29, 1967 and the
flood and deluge it brought in its wake were not fortuitous events
and did not exonerate petitioner-company from liability for the death
of Isabel Lao Juan.
117
3. The respondent Court of Appeals gravely abused its discretion

and erred in not applying the legal principle of "assumption of risk" in
the present case to bar private respondents from collecting damages
from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused

its discretion in completely reversing the findings of fact of the trial
court.
5. The findings of fact of the respondent Court of Appeals are

reversible under the recognized exceptions.
6. The trial court did not err in awarding moral damages and
attorney's fees to defendant corporation, now petitioner company.
7. Assuming arguendo that petitioner company may be held liable

from the death of the late Isabel Lao Juan, the damages granted by
respondent Court of Appeals are improper and exhorbitant.
(Petitioners Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of
electrocution; (2) whether or not petitioner may be held liable for the deceased's death; and
(3) whether or not the respondent CA's substitution of the trial court's factual findings for its
own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative. By a
preponderance of evidence, private respondents were able to show that the deceased died of
electrocution, a conclusion which can be primarily derived from the photographed burnt
wounds (Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly
point to the fact that the deceased had clutched a live wire of the petitioner. This was
corroborated by the testimony of Dr. Jovencio Castro who actually examined the body of the
deceased a few hours after the death and described the said burnt wounds as a "first degree
burn" (p. 144, TSN, December 11, 1972) and that they were "electrically charged" (p. 102,
TSN, November 28, 1972). Furthermore, witnesses Linda Alonzo Estavillo and Aida Bulong
added that after the deceased screamed "Ay" and sank into the water, they tried to render
some help but were overcome with fear by the sight of an electric wire dangling from an
electric post, moving in the water in a snake-like fashion (supra). The foregoing therefore
justifies the respondent CA in concluding that "(t)he nature of the wounds as described by the
witnesses who saw them can lead to no other conclusion than that they were "burns," and
there was nothing else in the street where the victim was wading thru which could cause a
burn except the dangling live wire of defendant company" (CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased was
electrocuted, if such was really the case when she tried to open her steel gate, which was
electrically charged by an electric wire she herself caused to install to serve as a burglar
deterrent. Petitioner suggests that the switch to said burglar alarm was left on. But this is
mere speculation, not backed up with evidence. As required by the Rules, "each party must
118
prove his own affirmative allegations." (Rule 131, Sec. 1). Nevertheless, the CA significantly
noted that "during the trial, this theory was abandoned" by the petitioner (CA Decision, p. 23,
Rollo).
Furthermore the CA properly applied the principle of res gestae. The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the
deceased during that fateful morning of June 29, 1967. This Court has not been
offered any sufficient reason to discredit the testimonies of these two young
ladies. They were one in the affirmation that the deceased, while wading in the
waist-deep flood on Guerrero Street five or six meters ahead of them, suddenly
screamed "Ay" and quickly sank into the water. When they approached the
deceased to help, they were stopped by the sight of an electric wire dangling
from a post and moving in snake-like fashion in the water. Ernesto dela Cruz also
tried to approach the deceased, but he turned back shouting that the water was
grounded. These bits of evidence carry much weight. For the subject of the
testimonies was a startling occurrence, and the declarations may be considered
part of the res gestae. (CA Decision, p. 21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be present: (1)
that the principal act, the res gestae, be a startling occurrence; (2) that the statements were
made before the declarant had time to contrive or devise; (3) that the statements made must
concern the occurrence in question and its immediately attending circumstances (People vs.
Ner, 28 SCRA 1151; People vs. Balbas, 122 SCRA 959). We do not find any abuse of
discretion on the CA' part in view of the satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence precisely
as an exception to the hearsay rule on the grounds of trustworthiness and necessity.
"Trustworthiness" because the statements are made instinctively (Wesley vs. State, 53 Ala.
182), and "necessity" because such natural and spontaneous utterances are more convincing
than the testimony of the same person on the stand (Mobile vs. Ascraft 48 Ala. 31).
Therefore, the fact that the declarant, Ernesto de la Cruz, was not presented to testify does
not make the testimony of Linda Alonzo Estavillo and Aida Bulong hearsay since the said
declaration is part of the res gestae. Similarly, We considered part of the res gestae a
conversation between two accused immediately after commission of the crime as overheard
by a prosecution witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo),
Ernesto de la Cruz was not an actual witness to the instant when the deceased sank into the
waist-deep water, he acted upon the call of help of Aida Bulong and Linda Alonzo Estavillo
with the knowledge of, and immediately after, the sinking of the deceased. In fact the startling
event had not yet ceased when Ernesto de la Cruz entered the scene considering that the
victim remained submerged. Under such a circumstance, it is undeniable that a state of mind
characterized by nervous excitement had been triggered in Ernesto de la Cruz's being as
anybody under the same contingency could have experienced. As such, We cannot honestly
exclude his shouts that the water was grounded from the res gestae just because he did not
actually see the sinking of the deceased nor hear her scream "Ay."
119
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While
We concede to the submission that the statement must be one of facts rather than opinion,
We cannot agree to the proposition that the one made by him was a mere opinion. On the
contrary, his shout was a translation of an actuality as perceived by him through his sense of
touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by
the private respondents, thus, is presumed to be adverse to them pursuant to Section 5(e),
Rule 131. For the application of said Rule as against a party to a case, it is necessary that the
evidence alleged to be suppressed is available only to said party (People vs. Tulale, L-7233,
18 May 1955, 97 Phil. 953). The presumption does not operate if the evidence in question is
equally available to both parties (StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil.
421). It is clear from the records that petitioner could have called Ernesto de la Cruz to the
witness stand. This, precisely, was Linda Alonzo Estavillo's suggestion to petitioner's counsel
when she testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the
house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p.
30, 26 Sept. 1972)
The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto
de la Cruz which, if truly adverse to private respondent, would have helped its case. However,
due to reasons known only to petitioner, the opportunity was not taken.
Coming now to the second issue, We tip the scales in the private respondents' favor. The
respondent CA acted correctly in disposing the argument that petitioner be exonerated from
liability since typhoons and floods are fortuitous events. While it is true that typhoons and
floods are considered Acts of God for which no person may be held responsible, it was not
said eventuality which directly caused the victim's death. It was through the intervention of
petitioner's negligence that death took place. We subscribe to the conclusions of the
respondent CA when it found:
On the issue whether or not the defendant incurred liability for the electrocution
and consequent death of the late Isabel Lao Juan, defendant called to the
witness-stand its electrical engineer, chief lineman, and lineman to show exercise
of extraordinary diligence and to negate the charge of negligence. The witnesses
testified in a general way about their duties and the measures which
defendant usually adopts to prevent hazards to life and limb. From these
testimonies, the lower court found "that the electric lines and other equipment of
defendant corporation were properly maintained by a well-trained team of
lineman, technicians and engineers working around the clock to insure that these
equipments were in excellent condition at all times." (P. 40, Record on Appeal)
The finding of the lower court, however, was based on what the defendant's
employees were supposed to do, not on what they actually did or failed to do on
120
the date in question, and not on the occasion of the emergency situation brought
about by the typhoon.
The lower court made a mistake in assuming that defendant's employees worked
around the clock during the occurrence of the typhoon on the night of June 28
and until the early morning of June 29, 1967, Engr. Antonio Juan of the National
Power Corporation affirmed that when he first set out on an inspection trip
between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and
disconnected electric lines of the defendant but he saw no INELCO lineman. The
INELCO Office at the Life theatre on Rizal Street was still closed. (pp. 63-64,
TSN, Oct. 24, 1972) Even the witnesses of defendant contradict the finding of the
lower court. Conrado Asis, defendant's electrical engineer, testified that he
conducted a general inspection of the franchise area of the INELCO only on June
30, 1967, the day following the typhoon. The reason he gave for the delay was
that all their vehicles were submerged. (p. 337, TSN, July 20, 1973) According to
Asis, he arrived at his office at 8:00 A.M. on June 30 and after briefing his men
on what to do they started out. (p. 338, lbid) One or two days after the typhoon,
the INELCO people heard "rumors that someone was electrocuted" so he sent
one of his men to the place but his man reported back that there was no
damaged wire. (p. 385, Id.) Loreto Abijero, chief lineman of defendant,
corroborated Engr. Juan. He testified that at about 8:00 A.M. on June 29, 1967
Engr. Juan came to the INELCO plant and asked the INELCO people to inspect
their lines. He went with Engr. Juan and their inspection lasted from 8:00 A.M. to
12:00 noon. (pp. 460, 465, TSN, Jan. 28, 1975) Fabico Abijero lineman of
defendant, testified that at about 6:00 on June 29, 1967 the typhoon ceased. At
that time, he was at the main building of the Divine Word College of Laoag where
he had taken his family for refuge. (pp. 510-511, Ibid.)
In times of calamities such as the one which occurred in Laoag City on the night
of June 28 until the early hours of June 29, 1967, extraordinary diligence requires
a supplier of electricity to be in constant vigil to prevent or avoid any probable
incident that might imperil life or limb. The evidence does not show that
defendant did that. On the contrary, evidence discloses that there were no men
(linemen or otherwise) policing the area, nor even manning its office. (CA
Decision, pp. 24-25, Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no
harm is done to the general public"... considering that electricity is an agency, subtle and
deadly, the measure of care required of electric companies must be commensurate with or
proportionate to the danger. The duty of exercising this high degree of diligence and care
extends to every place where persons have a right to be" (Astudillo vs. Manila Electric, 55
Phil. 427). The negligence of petitioner having been shown, it may not now absolve itself from
liability by arguing that the victim's death was solely due to a fortuitous event. "When an act of
God combines or concurs with the negligence of the defendant to produce an injury, the
defendant is liable if the injury would not have resulted but for his own negligent conduct or
omission" (38 Am. Jur., p. 649).
121
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the
case at bar. It is imperative to note the surrounding circumstances which impelled the
deceased to leave the comforts of a roof and brave the subsiding typhoon. As testified by
Linda Alonzo Estavillo (see TSN, p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26
Sept. 1972), the deceased, accompanied by the former two, were on their way to the latter's
grocery store "to see to it that the goods were not flooded." As such, shall We punish her for
exercising her right to protect her property from the floods by imputing upon her the
unfavorable presumption that she assumed the risk of personal injury? Definitely not. For it
has been held that a person is excused from the force of the rule, that when he voluntarily
assents to a known danger he must abide by the consequences, if an emergency is found to
exist or if the life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or
when he seeks to rescue his endangered property (Harper and James, "The Law of Torts."
Little, Brown and Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as the
deceased's property, a source of her livelihood, was faced with an impending loss.
Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she
had a right to be without regard to petitioner's consent as she was on her way to protect her
merchandise. Hence, private respondents, as heirs, may not be barred from recovering
damages as a result of the death caused by petitioner's negligence (ibid., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely reversing the trial
court's findings of fact, pointing to the testimonies of three of its employees its electrical
engineer, collector-inspector, lineman, and president-manager to the effect that it had
exercised the degree of diligence required of it in keeping its electric lines free from defects
that may imperil life and limb. Likewise, the said employees of petitioner categorically
disowned the fatal wires as they appear in two photographs taken on the afternoon of June
29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just hooked to the electric post
(petitioner's Memorandum, p. 170, Rollo). However, as the CA properly held, "(t)he finding of
the lower court ... was based on what the defendant's employees were supposed to do, not
on what they actually did or failed to do on the date in question, and not on the occasion of
the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as
found by the CA, which We have already reiterated above, petitioner was in fact negligent. In
a like manner, petitioner's denial of ownership of the several wires cannot stand the logical
conclusion reached by the CA when it held that "(t)he nature of the wounds as described by
the witnesses who saw them can lead to no other conclusion than that they were 'burns', and
there was nothing else in the street where the victim was wading thru which could cause a
burn except the dangling live wire of defendant company" (supra).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to
discover and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when
Engineer Antonio Juan of the National Power Corporation set out in the early morning of June
29, 1967 on an inspection tour, he saw grounded and disconnected lines hanging from posts
to the ground but did not see any INELCO lineman either in the streets or at the INELCO
office (vide, CA Decision, supra). The foregoing shows that petitioner's duty to exercise
extraordinary diligence under the circumstance was not observed, confirming the negligence
of petitioner. To aggravate matters, the CA found:
122
. . .even before June 28 the people in Laoag were already alerted about the
impending typhoon, through radio announcements. Even the fire department of
the city announced the coming of the big flood. (pp. 532-534, TSN, March 13,
1975) At the INELCO irregularities in the flow of electric current were noted
because "amperes of the switch volts were moving". And yet, despite these
danger signals, INELCO had to wait for Engr. Juan to request that defendant's
switch be cut off but the harm was done. Asked why the delay, Loreto Abijero
answered that he "was not the machine tender of the electric plant to switch off
the current." (pp. 467-468, Ibid.) How very characteristic of gross inefficiency!
(CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the trial
court's findings but tediously considered the factual circumstances at hand pursuant to its
power to review questions of fact raised from the decision of the Regional Trial Court,
formerly the Court of First Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in private
respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and
P18,229.45 for funeral expenses); P50,000 in compensatory damages, computed in
accordance with the formula set in the Villa-Rey Transit case (31 SCRA 511) with the base of
P15,000 as average annual income of the deceased; P10,000 in exemplary damages; P3,000
attorney's fees; and costs of suit. Except for the award of P12,000 as compensation for the
victim's death, We affirm the respondent CA's award for damages and attorney's fees.
Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196; People vs. Traya,
147 SCRA 381), We increase the said award of P12,000 to P30,000, thus, increasing the total
actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was properly
made by the respondent CA, the charge of malice and bad faith on the part of respondents in
instituting his case being a mere product of wishful thinking and speculation. Award of
damages and attorney's fees is unwarranted where the action was filed in good faith; there
should be no penalty on the right to litigate (Espiritu vs. CA, 137 SCRA 50). If damage results
from a person's exercising his legal rights, it is damnum absque injuria (Auyong Hian vs. CTA,
59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight modification
that actual damages be increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.
123

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TORTS AND DAMAGES CASES BATCH 2

III. Defenses Against Charge of Negligence

B. Contributory Negligence (Art. 2179)

 Limitations on Contributory Negligence Last Clear Chance

C. Assumption of Risk a. Aflaida vs. Hisole, GR L-2075, November 29, 1949

D. Last Clear Chance

E. Prescription (Art. 1146)

F. Fortuitious Event (Art. 1174)

G. Exercise of Diligence (Art. 2180)

I. Damnum Absque Injuria

K. Volenti Non Fit Injuria

[G.R. No. 9308. December 23, 1914. ]

JUAN BERNARDO, Plaintiff-Appellant, v. M. B. LEGASPI, Defendant-Appellee.

Roman de Jesus for Appellant.

No appearance for Appellee.

G.R. No. L-57079 September 29, 1989

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

IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance

G.R. No. 1719 January 23, 1907

M. H., RAKES, plaintiff-appellee,

A. D. Gibbs for appellant.

Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the

And article 568 of the latter code provides:

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for the

xxx xxx xxx

We are with reference to such obligations, that culpa, or negligence, may be

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

WILLARD, J., dissenting:

A. — Well, it was pretty bad character.

xxx xxx xxx

A. Familiar with what?

Q. Well, you have described it here to the court.

A. Oh, yes; I knew the condition of the track.

xxx xxx xxx

Q. And these were very of irregular shape, were they not?

A. They were in pretty bad condition.

xxx xxx xxx

A. Sure, it was in bad condition.

xxx xxx xxx

Q. But you knew it was dangerous?

xxx xxx xxx

xxx xxx xxx

Q. What did the fish plates have to do with that?

A. It would have strengthened that joint.

The partidas contain the following provisions:

Carson, J., concurs.

[G.R. NO. 161946 : November 14, 2008]

MEDARDO AG. CADIENTE, Petitioner, v. BITHUEL MACAS, Respondent.

QUISUMBING, Acting C.J.:

The facts are undisputed.

After trial, the court ruled:

WHEREFORE, judgment is rendered in favor of the plaintiff declaring Atty.

(a) P300,000.00 as compensatory damages for the permanent and almost

(b) P150,000.00 for moral damages;

(c) P18,982.85 as reimbursement of medical expenses;

(d) P30,000.00 for attorney's fees; and cralawlibra ry

(e) costs of suit.

WHEREFORE, premises considered, the instant appeal is DENIED and the

WAS THERE - CONTRIBUTORY NEGLIGENCE ON THE PART OF THE INJURED