Republic of the Philippines or the rapidity of the approach, he pulled the pony so liable.
pony so liable. As the defendant started across the
SUPREME COURT
Manila
EN BANC
G.R. No. L-12219            March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to
recover of the defendant, Frank Smith, jr., the sum
of P31,000, as damages alleged to have been
caused by an automobile driven by the defendant.
From a judgment of the Court of First Instance of
the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution
of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It
appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge.
Before he had gotten half way across, the
defendant approached from the opposite direction
in an automobile, going at the rate of about ten or
twelve miles per hour. As the defendant neared
the bridge he saw a horseman on it and blew his
horn to give warning of his approach. He
continued his course and after he had taken the
bridge he gave two more successive blasts, as it
appeared to him that the man on horseback before
him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile
coming and heard the warning signals. However,
being perturbed by the novelty of the apparition
closely up against the railing on the right side of
the bridge instead of going to the left. He says that
the reason he did this was that he thought he did
not have sufficient time to get over to the other
side. The bridge is shown to have a length of about
75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it
toward his left, that being the proper side of the
road for the machine. In so doing the defendant
assumed that the horseman would move to the
other side. The pony had not as yet exhibited
fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was
apparently quiet, the defendant, instead of veering
to the right while yet some distance away or
slowing down, continued to approach directly
toward the horse without diminution of speed.
When he had gotten quite near, there being then
no possibility of the horse getting across to the
other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse
alongside of the railing where it as then standing;
but in so doing the automobile passed in such
close proximity to the animal that it became
frightened and turned its body across the bridge
with its head toward the railing. In so doing, it as
struck on the hock of the left hind leg by the flange
of the car and the limb was broken. The horse fell
and its rider was thrown off with some violence.
From the evidence adduced in the case we believe
that when the accident occurred the free space
where the pony stood between the automobile
and the railing of the bridge was probably less
than one and one half meters. As a result of its
injuries the horse died. The plaintiff received
contusions which caused temporary
unconsciousness and required medical attention
for several days.
The question presented for decision is whether or
not the defendant in maneuvering his car in the
manner above described was guilty of negligence
such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is
bridge, he had the right to assume that the horse
and the rider would pass over to the proper side;
but as he moved toward the center of the bridge it
was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived
that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature
of things this change of situation occurred while
the automobile was yet some distance away; and
from this moment it was not longer within the
power of the plaintiff to escape being run down by
going to a place of greater safety. The control of
the situation had then passed entirely to the
defendant; and it was his duty either to bring his
car to an immediate stop or, seeing that there
were no other persons on the bridge, to take the
other side and pass sufficiently far away from the
horse to avoid the danger of collision. Instead of
doing this, the defendant ran straight on until he
was almost upon the horse. He was, we think,
deceived into doing this by the fact that the horse
had not yet exhibited fright. But in view of the
known nature of horses, there was an appreciable
risk that, if the animal in question was
unacquainted with automobiles, he might get
exited and jump under the conditions which here
confronted him. When the defendant exposed the
horse and rider to this danger he was, in our
opinion, negligent in the eye of the law.
The test by which to determine the existence of
negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that person would have used in
the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the
standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of
the Roman law. The existence of negligence in a
given case is not determined by reference to the
personal judgment of the actor in the situation
before him. The law considers what would be
reckless, blameworthy, or negligent in the man of
1|TORTS
ordinary intelligence and prudence and
determines liability by that.
The question as to what would constitute the
conduct of a prudent man in a given situation
must of course be always determined in the light
of human experience and in view of the facts
involved in the particular case. Abstract
speculations cannot here be of much value but this
much can be profitably said: Reasonable men
govern their conduct by the circumstances which
are before them or known to them. They are not,
and are not supposed to be, omniscient of the
future. Hence they can be expected to take care
only when there is something before them to
suggest or warn of danger. Could a prudent man,
in the case under consideration, foresee harm as a
result of the course actually pursued? If so, it was
the duty of the actor to take precautions to guard
against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this
prevision, is always necessary before negligence
can be held to exist. Stated in these terms, the
proper criterion for determining the existence of
negligence in a given case is this: Conduct is said
to be negligent when a prudent man in the
position of the tortfeasor would have foreseen
that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or
guarding against its consequences.
Applying this test to the conduct of the defendant
in the present case we think that negligence is
clearly established. A prudent man, placed in the
position of the defendant, would in our opinion,
have recognized that the course which he was
pursuing was fraught with risk, and would
therefore have foreseen harm to the horse and the
rider as reasonable consequence of that course.
Under these circumstances the law imposed on
the defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff himself
was not free from fault, for he was guilty of
antecedent negligence in planting himself on the
wrong side of the road. But as we have already
stated, the defendant was also negligent; and in
such case the problem always is to discover which
agent is immediately and directly responsible. It
will be noted that the negligent acts of the two
parties were not contemporaneous, since the
negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable
interval. Under these circumstances the law is that
the person who has the last fair chance to avoid
the impending harm and fails to do so is
chargeable with the consequences, without
reference to the prior negligence of the other
party.
The decision in the case of Rkes vs. Atlantic, Gulf
and Pacific Co. (7 Phil. Rep., 359) should perhaps
be mentioned in this connection. This Court there
held that while contributory negligence on the
part of the person injured did not constitute a bar
to recovery, it could be received in evidence to
reduce the damages which would otherwise have
been assessed wholly against the other party. The
defendant company had there employed the
plaintiff, as a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the
company's yards located not far away. The rails
were conveyed upon cars which were hauled
along a narrow track. At certain spot near the
water's edge the track gave way by reason of the
combined effect of the weight of the car and the
insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the
plaintiff's leg was caught and broken. It appeared
in evidence that the accident was due to the
effects of the typhoon which had dislodged one of
the supports of the track. The court found that the
defendant company was negligent in having failed
to repair the bed of the track and also that the
plaintiff was, at the moment of the accident, guilty
of contributory negligence in walking at the side
of the car instead of being in front or behind. It
was held that while the defendant was liable to
the plaintiff by reason of its negligence in having
failed to keep the track in proper repair
nevertheless the amount of the damages should be
reduced on account of the contributory negligence
in the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission
only. The liability of the company arose from its
responsibility for the dangerous condition of its
track. In a case like the one now before us, where
the defendant was actually present and operating
the automobile which caused the damage, we do
not feel constrained to attempt to weigh the
negligence of the respective parties in order to
apportion the damage according to the degree of
their relative fault. It is enough to say that the
negligence of the defendant was in this case the
immediate and determining cause of the accident
and that the antecedent negligence of the plaintiff
was a more remote factor in the case.
A point of minor importance in the case is
indicated in the special defense pleaded in the
defendant's answer, to the effect that the subject
matter of the action had been previously
adjudicated in the court of a justice of the peace. In
this connection it appears that soon after the
accident in question occurred, the plaintiff caused
criminal proceedings to be instituted before a
justice of the peace charging the defendant with
the infliction of serious injuries (lesiones graves).
At the preliminary investigation the defendant
was discharged by the magistrate and the
proceedings were dismissed. Conceding that the
acquittal of the defendant at the trial upon the
merits in a criminal prosecution for the offense
mentioned would be res adjudicata upon the
question of his civil liability arising from
negligence -- a point upon which it is unnecessary
to express an opinion -- the action of the justice of
the peace in dismissing the criminal proceeding
upon the preliminary hearing can have no effect.
(See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep.,
564.)
From what has been said it results that the
judgment of the lower court must be reversed, and
2|TORTS
judgment is her rendered that the plaintiff recover
of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum
here awarded is estimated to include the value of
the horse, medical expenses of the plaintiff, the
loss or damage occasioned to articles of his
apparel, and lawful interest on the whole to the
date of this recovery. The other damages claimed
by the plaintiff are remote or otherwise of such
character as not to be recoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña,

and Fisher, JJ., concur.
Johnson, J., reserves his vote.

3|TORTS
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
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.
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.
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:
4|TORTS
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 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
5|TORTS
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 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 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
6|TORTS
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 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
7|TORTS
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 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.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ.,

concur.

8|TORTS
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 89880             February 6, 1991
EMMA ADRIANO BUSTAMANTE, in her own
behalf as Guardian-Ad-Litem of minors:
ROSSEL, GLORIA, YOLANDA, ERIC SON and
EDERIC, all surnamed BUSTAMANTE, Spouses
SALVADOR JOCSON and PATRIA BONE-JOCSON,
Spouses JOSE RAMOS and ENRIQUETA CEBU-
RAMOS, Spouses NARCISO-HIMAYA and
ADORACION MARQUEZ-HIMAYA, and Spouses
JOSE BERSAMINA and MA. COMMEMORACION
PEREA-BUSTAMANTE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS,
FEDERICO DEL PILAR AND EDILBERTO
MONTESIANO, respondents.
Dolorfino and Dominguez Law Offices for
petitioners.
J.C. Baldoz & Associates for private respondents.
MEDIALDEA, J.:
This is a petition for review on certiorari seeking
the reversal of the decision of the respondent
Court of Appeals dated February 15, 1989 which
reversed and set aside the decision of the Regional
Trial Court of Cavite, Branch XV ordering the
defendants to pay jointly and severally the
plaintiffs indemnity for death and damages; and in
further dismissing the complaint insofar as
defendants-appellants Federico del Pilar and
Edilberto Montesiano are concerned; and its
resolution dated August 17, 1989 denying the
motion for reconsideration for lack of merit.
The facts giving rise to the controversy at bar are
recounted by the trial court as follows:
At about 6:30 in the morning of April 20,
1983, a collision occurred between a
gravel and sand truck, with Plate No. DAP
717, and a Mazda passenger bus with
Motor No. Y2231 and Plate No. DVT 259
along the national road at Calibuyo,
Tanza, Cavite. The front left side portion
(barandilla) of the body of the truck
sideswiped the left side wall of the
passenger bus, ripping off the said wall
from the driver's seat to the last rear seat.
Due to the impact, several passengers of
the bus were thrown out and died as a
result of the injuries they sustained,
Among those killed were the following:
1. Rogelio Bustamante, 40, husband of
plaintiff Emma Adriano Bustamante and
father of plaintiffs Rossel, Gloria, Yolanda,
Ericson, and Ederic, all surnamed
Bustamante;
2. Maria Corazon Jocson, 16, daughter of
plaintiffs spouses Salvador and Patria
Jocson;
3. Jolet C. Ramos, 16, daughter of plaintiffs
spouses Jose and Enriqueta Ramos;
4. Enrico Himaya, 18, son of plaintiffs
spouses Narciso and Adoracion Himaya;
and
5. Noel Bersamina, 17, son of plaintiffs
spouses Jose and Ma. Commemoracion
Bersamina. (Rollo, p. 48)
During the incident, the cargo truck was driven by
defendant Montesiano and owned by defendant
Del Pilar; while the passenger bus was driven by
defendant Susulin. The vehicle was registered in
the name of defendant Novelo but was owned
and/or operated as a passenger bus jointly by
defendants Magtibay and Serrado, under a
franchise, with a line from Naic, Cavite, to
Baclaran, Paranaque, Metro Manila, and vice
versa, which Novelo sold to Magtibay on
November 8, 1981, and which the latter
transferred to Serrado (Cerrado) on January 18,
1983.
Immediately before the collision, the cargo truck
and the passenger bus were approaching each
other, coming from the opposite directions of the
highway. While the truck was still about 30 meters
away, Susulin, the bus driver, saw the front wheels
of the vehicle wiggling. He also observed that the
truck was heading towards his lane. Not minding
this circumstance due to his belief that the driver
of the truck was merely joking, Susulin shifted
from fourth to third gear in order to give more
power and speed to the bus, which was ascending
the inclined part of the road, in order to overtake
or pass a Kubota hand tractor being pushed by a
person along the shoulder of the highway. While
the bus was in the process of overtaking or
passing the hand tractor and the truck was
approaching the bus, the two vehicles sideswiped
each other at each other's left side. After the
impact, the truck skidded towards the other side
of the road and landed on a nearby residential lot,
hitting a coconut tree and felling it." (Rollo, pp. 48-
50)
After a careful perusal of the circumstances of the
case, the trial court reached the conclusion "that
the negligent acts of both drivers contributed to or
combined with each other in directly causing the
accident which led to the death of the
aforementioned persons. It could not be
determined from the evidence that it was only the
9|TORTS
negligent act of one of them which was the
proximate cause of the collision. In view of this,
the liability of the two drivers for their negligence
must be solidary. (Rollo, pp. 50-51) Accordingly,
the trial court rendered a decision on March 7,
1986, the dispositive portion is hereunder quoted
as follows:
WHEREFORE, defendants Valeriano
Magtibay, Simplicio Serrado, Ricardo
Susulin, Efren Novelo, Federico del Pilar
and Edilberto Montesiano are hereby
ordered to pay jointly and severally to the
plaintiffs, as follows:
1. To plaintiffs Emma Adriano
Bustamante and her minor children, the
sum of P30,000.00 as indemnity for the
death of Rogelio Bustamante; U.S.
$127,680.00 as indemnity for the loss of
the earning capacity of the said deceased,
at its prevailing rate in pesos at the time
this decision shall have become final and
executory; P10,000.00 as moral damages;
and P5,000.00 as exemplary damages;
2. To plaintiffs Salvador and Patria Jocson,
the sum of P30,000.00 as indemnity for
the death of their daughter, Maria
Corazon Jocson; P10,000.00 as moral
damages; and P5,000.00 as exemplary
damages;
3. To plaintiffs Jose and Enriqueta Ramos,
the sum of P30,000.00 as indemnity for
the death of their daughter, Jolet Ramos;
P10,000.00 as moral damages; and
P5,000.00 as exemplary damages; and
4. To plaintiffs Narciso and Adoracion
Himaya, the amount of P30,000.00 as
indemnity for the death of their son,
Enrico Himaya, P10,000.00 as moral
damages; and P5,000.00 as exemplary
damages; and
5. To plaintiffs Jose and Ma.
Commemoracion Bersamina, the sum of
P30,000.00 as indemnity for the death of
their son, Noel Bersamina, P10,000.00 as
moral damages and P5,000.00 as
exemplary damages.
The defendants are also required to pay
the plaintiffs the sum of P10,000.00 as
attorney's fees and to pay the costs of the
suit.
The cross-claim of defendant Novelo is
hereby allowed, and defendants Magtibay
and Serrado, the actual owners and/or
operators of the passenger bus
concerned, are hereby ordered to
indemnify Novelo in such amount as he
may be required to pay as damages to the
plaintiffs.
The cross-claims and counter-claims of
the other defendants are hereby
dismissed for lack of merit.
SO ORDERED. (pp. 55-57, Rollo)
From said decision, only defendants Federico del
Pilar and Edilberto Montesiano, owner and driver,
respectively, of the sand and gravel truck have
interposed an appeal before the respondent Court
of Appeals. The Court of Appeals decided the
appeal on a different light. It rendered judgment
on February 15, 1989, to wit:
WHEREFORE, the appealed judgment is
hereby REVERSED and SET ASIDE and the
complaint dismissed insofar as
defendants-appellants Federico del Pilar
and Edilberto Montesiano are concerned.
No costs in this instance.
SO ORDERED. (p. 96, Rollo)
On March 9, 1989, the plaintiffs-appellees filed a
motion for reconsideration of the aforementioned
Court of Appeals' decision. However, respondent
Court of Appeals in a resolution dated August 17,
1989 denied the motion for lack of merit. Hence,
this petition.
Petitioners raised the following questions of law,
namely:
First. Whether the respondent Court can
legally and validly absolve defendants-
appellants from liability despite its own
finding, as well as that of the trial court
that defendant-appellant Edilberto
Montesiano, the cargo truck driver, was
driving an old vehicle very fast, with its
wheels already wiggling, such that he had
no more control of his truck.
Second. Whether the respondent court
can validly and legally disregard the
findings of fact made by the trial court
which was in a better position to observe
the conduct and demeanor of the
witnesses, particularly appellant
Edilberto Montesiano, cargo truck driver,
and which conclusively found appellant
Montesiano as jointly and severally
negligent in driving his truck very fast
and had lost control of his truck.
Third. Whether the respondent court has
properly and legally applied the doctrine
of "last clear chance" in the present case
despite its own finding that appellant
cargo truck driver Edilberto Montesiano
was admittedly negligent in driving his
cargo truck very fast on a descending
road and in the presence of the bus driver
coming from the opposite direction.
Fourth. Whether the respondent court
has applied the correct law and the
correct doctrine so as to reverse and set
10 | T O R T S
 aside the judgment with respect to
defendants-appellants. (Rollo, pp. 133-
134)
As a rule, findings of fact of the Court of Appeals
are final and conclusive and cannot be reviewed
on appeal, provided, they are borne out by the
record or are based on substantial evidence
However, this rule admits of certain exceptions, as
when the findings of facts are conclusions without
citation of specific evidence on which they are
based; or the appellate court's findings are
contrary to those of the trial court. (Sese v.
Intermediate Appellate Court, G.R. 66168, 31 July
1987, 152 SCRA 585).
Furthermore, only questions of law may be raised
in a petition for review on certiorari under Rule 45
of the Revised Rules of Court. The jurisdiction of
the Supreme 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. It is not the
function of the Supreme Court to analyze or weigh
such evidence all over again, its jurisdiction being
limited to reviewing errors of law that might have
been committed. Barring, therefore, a showing
that the findings complained of are totally devoid
of support in the records, or that they are so
glaringly erroneous as to constitute serious abuse
of discretion, such findings must stand for the
Supreme Court is not expected or required to
examine or contrast the oral and documentary
evidence submitted by the parties. (Andres v.
Manufacturers Hanover and Trust Corp., G.R.
82670, 15 September 1989, 177 SCRA 618).
Bearing in mind these basic principles, We have
opted to re-examine the findings of fact mainly
because the appellate court's findings are contrary
to those of the trial court.
The trial court, in declaring that the negligent acts
of both drivers directly caused the accident which
led to the death of the aforementioned persons,
considered the following:
It was negligent on the part of driver
Montesiano to have driven his truck fast,
considering that it was an old vehicle,
being a 1947 model as admitted by its
owner, defendant Del Pilar; that its front
wheels were wiggling; that the road was
descending; and that there was a
passenger bus approaching it. Likewise,
driver Susulin was also guilty of
negligence in not taking the necessary
precaution to avoid the collision, in the
light of his admission that, at a distance of
30 meters, he already saw the front
wheels of the truck wiggling and that the
vehicle was usurping his lane coming
towards his direction. Had he exercised
ordinary prudence, he could have stopped
his bus or swerved it to the side of the
road even down to its shoulder. And yet,
Susulin shifted to third gear so as to, as
claimed by him, give more power and
speed to his bus in overtaking or passing
a hand tractor which was being pushed
along the shoulder of the road. (Rollo, p.
50)
The respondent Court of Appeals ruling on the
contrary, opined that "the bus driver had the last
clear chance to avoid the collision and his reckless
negligence in proceeding to overtake the hand
tractor was the proximate cause of the collision."
(Rollo, p. 95). Said court also noted that "the
record also discloses that the bus driver was not a
competent and responsible driver. His driver's
license was confiscated for a traffic violation on
April 17, 1983 and he was using a ticket for said
traffic violation on the day of the accident in
question (pp. 16-18, TSN, July 23, 1984). He also
admitted that he was not a regular driver of the
bus that figured in the mishap and was not given
any practical examination. (pp. 11, 96, TSN,
supra)." (Rollo, p96)
The respondent Court quoting People v. Vender,
CA-G.R. 11114-41-CR, August 28, 1975 held that
"We are not prepared to uphold the trial court's
finding that the truck was running fast before the
impact. The national road, from its direction, was
descending. Courts can take judicial notice of the
fact that a motor vehicle going down or
descending is more liable to get out of control
than one that is going up or ascending for the
simple reason that the one which is going down
gains added momentum while that which is going
up loses its initial speeding in so doing."
On the other hand, the trial court found and We
are convinced that the cargo truck was running
fast. It did not overlook the fact that the road was
descending as in fact it mentioned this
circumstance as one of the factors disregarded by
the cargo truck driver along with the fact that he
was driving an old 1947 cargo truck whose front
wheels are already wiggling and the fact that there
is a passenger bus approaching it. In holding that
the driver of the cargo truck was negligent, the
trial court certainly took into account all these
factors so it was incorrect for the respondent
court to disturb the factual findings of the trial
court, which is in a better position to decide the
question, having heard the witness themselves
and observed their deportment.
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. As the doctrine is usually stated, a
person who has the last clear chance or
opportunity of avoiding an accident,
11 | T O R T S
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 plaintiffs peril, or according to some
authorities, should have been aware of it in the
reasonable exercise of due case, had in fact an
opportunity later than that of the plaintiff to avoid
an accident (57 Am. Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines,
Inc. v. Intermediate Appellate Court, et al. (G.R.
Nos. 66102-04, August 30, 1990), the
Court citing the landmark decision held in the case
of Anuran, et al. v. Buno, et al. (123 Phil. 1073)
ruled that the principle of "last clear chance"
applies "in a suit between the owners and drivers
of colliding vehicles. It does not arise where a
passenger demands responsibility from the
carrier to enforce its contractual obligations. For it
would be inequitable to exempt the negligent
driver of the jeepney and its owners on the
ground that the other driver was likewise guilty of
negligence."
Furthermore, "as between defendants: The
doctrine cannot be extended into the field of joint
tortfeasors as a test of whether only one of them
should be held liable to the injured person by
reason of his discovery of the latter's peril, and it
cannot be invoked as between defendants
concurrently negligent. As against third persons, a
negligent actor cannot defend by pleading that
another had negligently failed to take action which
could have avoided the injury." (57 Am. Jur. 2d, pp.
806-807).
All premises considered, the Court is convinced
that the respondent Court committed an error of
law in applying the doctrine of last clear chance as
between the defendants, since the case at bar is
not a suit between the owners and drivers of the
colliding vehicles but a suit brought by the heirs of
the deceased passengers against both owners and
drivers of the colliding vehicles. Therefore, the
respondent court erred in absolving the owner
and driver of the cargo truck from liability.
Pursuant to the new policy of this Court to grant
an increased death indemnity to the heirs of the
deceased, their respective awards of P30,000.00
are hereby increased to P50,000.00.
ACCORDINGLY, the petition is GRANTED; the
appealed judgment and resolution of the Court of
Appeals are hereby REVERSED and SET ASIDE
and the judgment of the lower court is
REINSTATED with the modification on the
indemnity for death of each of the victims which is
hereby increased to P50,000.00 each. No
pronouncement as to costs.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ.,
concur.
12 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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
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 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
of
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,
13 | T O R T S
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 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
14 | T O R T S
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 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.
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)
15 | T O R T S
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 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
16 | T O R T S
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."
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 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
17 | T O R T S
 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).
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
18 | T O R T S
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:
. . .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.
Melencio-Herrera (Chairperson), Padilla,
Sarmiento and Regalado, JJ., concur.
19 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-39587             March 24, 1934
ALEKO E. LILIUS, ET AL., plaintiffs-appellants,
vs.
THE MANILA RAILROAD COMPANY, defendant-
appellant.
Harvey and O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
VILLA-REAL, J.:
This case involves two appeals, one by the
defendant the Manila Railroad Company, and the
other by the plaintiffs Aleko E. Lilius et al., from
the judgment rendered by the Court of First
Instance of Manila, the dispositive part of which
reads as follows:
Wherefore, judgment is rendered
ordering the defendant company to pay to
the plaintiffs, for the purposes above
stated, the total amount of P30,865, with
the costs of the suit. And although the suit
brought by the plaintiffs has the nature of
a joint action, it must be understood that
of the amount adjudicated to the said
plaintiffs in this judgment, the sum of
P10,000 personally belongs to the
plaintiff Sonja Maria Lilius; the sum of
P5,000, to the plaintiff Brita Marianne
Lilius; the sum of P250, to Dr. Marfori of
the Calauan Hospital, Province of Laguna,
and the balance to the plaintiff Aleko E.
Lilius.
In support of its appeal, the appellant the Manila
Railroad Company assigns nine alleged errors
committed by the trial court in its said judgment,
which will be discussed in the course of this
decision.
As a ground of their appeal, the appellants Aleko
E. Lilius et al., in turn, assign two alleged errors as
committed by the same court a quo in its
judgment in question, which will be discussed
later.
This case originated from a complaint filed by
Aleko E. Lilius et al., praying, under the facts
therein alleged, that the Manila Railroad Company
be ordered to pay to said plaintiffs, by way of
indemnity for material and moral damages
suffered by them through the fault and negligence
of the said defendant entity's employees, the sum
of P50,000 plus legal interest thereon from the
date of the filing of the complaint, with costs.
The defendant the Manila Railroad Company,
answering the complaint, denies each and every
allegation thereof and, by way of special defense,
alleges that the plaintiff Aleko E. Lilius, with the
cooperation of his wife and coplaintiff, negligently
and recklessly drove his car, and prays that it be
absolved from the complaint.
The following facts have been proven at the trial,
some without question and the others by a
preponderance of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years,
been a well-known and reputed journalist, author
and photographer. At the time of the collision in
question, he was a staff correspondent in the Far
East of the magazines The American Weekly of
New York and The Sphere of London.
Some of his works have been translated into
various languages. He had others in preparation
when the accident occurred. According to him, his
writings netted him a monthly income of P1,500.
He utilized the linguistic ability of his wife Sonja
Maria Lilius, who translated his articles and books
into English, German, and Swedish. Furthermore,
she acted as his secretary.
At about 7 o'clock on the morning of May 10,
1931, the plaintiff, his wife Sonja Maria Lilius, and
his 4-year old daughter Brita Marianne Lilius, left
Manila in their Studebaker car — driven by the
said plaintiff Aleko E. Lilius — for the municipality
of Pagsanjan, Province of Laguna, on a sight-seeing
trip. It was the first time that he made said trip
although he had already been to many places,
driving his own car, in and outside the Philippines.
Where the road was clear and unobstructed, the
plaintiff drove at the rate of from 19 to 25 miles an
hour. Prior thereto, he had made the trip as far as
Calauan, but never from Calauan to Pagsanjan, via
Dayap. He was entirely unacquainted with the
conditions of the road at said points and had no
knowledge of the existence of a railroad crossing
at Dayap. Before reaching the crossing in question,
there was nothing to indicate its existence and
inasmuch as there were many houses, shrubs and
trees along the road, it was impossible to see an
approaching train. At about seven or eight meters
from the crossing, coming from Calauan, the
plaintiff saw an autotruck parked on the left side
of the road. Several people, who seemed to have
alighted from the said truck, were walking on the
opposite side. He slowed down to about 12 miles
an hour and sounded his horn for the people to get
out of the way. With his attention thus occupied,
he did not see the crossing but he heard two short
whistles. Immediately afterwards, he saw a huge
black mass fling itself upon him, which turned out
to be locomotive No. 713 of the defendant
company's train coming eastward from Bay to
Dayap station. The locomotive struck the
plaintiff's car right in the center. After dragging
the said car a distance of about ten meters, the
locomotive threw it upon a siding. The force of the
20 | T O R T S
impact was so great that the plaintiff's wife and
daughter were thrown from the car and were
picked up from the ground unconscious and
seriously hurt. In spite of the efforts of engineer
Andres Basilio, he was unable to stop the
locomotive until after it had gone about seventy
meters from the crossing.
On the afternoon of the same day, the plaintiff's
entered St. Paul's Hospital in the City of Manila
where they were treated by Dr. Waterous. The
plaintiff Aleko E. Lilius suffered from a fractured
nose, a contusion above the left eye and a
lacerated wound on the right leg, in addition to
multiple contusions and scratches on various
parts of the body. As a result of the accident, the
said plaintiff was highly nervous and very easily
irritated, and for several months he had great
difficulty in concentrating his attention on any
matter and could not write articles nor short
stories for the newspapers and magazines to
which he was a contributor, thus losing for some
time his only means of livelihood.
The plaintiff Sonja Maria Lilius suffered from
fractures of the pelvic bone, the tibia and fibula of
the right leg, below the knee, and received a large
lacerated wound on the forehead. She underwent
two surgical operations on the left leg for the
purpose of joining the fractured bones but said
operations notwithstanding, the leg in question
still continues deformed. In the opinion of Dr.
Waterous, the deformity is permanent in
character and as a result the plaintiff will have
some difficulty in walking. The lacerated wound,
which she received on her forehead, has left a
disfiguring scar.
The child Brita Marianne Lilius received two
lacerated wounds, one on the forehead and the
other on the left side of the face, in addition to
fractures of both legs, above and below the knees.
Her condition was serious and, for several days,
she was hovering between life and death. Due to a
timely and successful surgical operation, she
survived her wounds. The lacerations received by
the child have left deep scars which will
permanently disfigure her face, and because of the
fractures of both legs, although now completely
cured, she will be forced to walk with some
difficulty and continuous extreme care in order to
keep her balance.
Prior to the accident, there had been no notice nor
sign of the existence of the crossing, nor was there
anybody to warn the public of approaching trains.
The flagman or switchman arrived after the
collision, coming from the station with a red flag
in one hand and a green one in the other, both of
which were wound on their respective sticks. The
said flagman and switchman had many times
absented himself from his post at the crossing
upon the arrival of a train. The train left Bay
station a little late and therefore traveled at great
speed.
Upon examination of the oral as well as of the
documentary evidence which the parties
presented at the trial in support of their
respective contentions, and after taking into
consideration all the circumstances of the case,
this court is of the opinion that the accident was
due to negligence on the part of the defendant-
appellant company, for not having had on that
occasion any semaphore at the crossing at Dayap,
to serve as a warning to passers-by of its existence
in order that they might take the necessary
precautions before crossing the railroad; and, on
the part of its employees — the flagman and
switchman, for not having remained at his post at
the crossing in question to warn passers-by of the
approaching train; the stationmaster, for failure to
send the said flagman and switchman to his post
on time; and the engineer, for not having taken the
necessary precautions to avoid an accident, in
view of the absence of said flagman and
switchman, by slackening his speed and
continuously ringing the bell and blowing the
whistle before arriving at the crossing. Although it
is probable that the defendant-appellant entity
employed the diligence of a good father of a family
in selecting its aforesaid employees, however, it
did not employ such diligence in supervising their
work and the discharge of their duties because,
otherwise, it would have had a semaphore or sign
at the crossing and, on previous occasions as well
as on the night in question, the flagman and
switchman would have always been at his post at
the crossing upon the arrival of a train. The
diligence of a good father of a family, which the
law requires in order to avoid damage, is not
confined to the careful and prudent selection of
subordinates or employees but includes
inspection of their work and supervision of the
discharge of their duties.
However, in order that a victim of an accident may
recover indemnity for damages from the person
liable therefor, it is not enough that the latter has
been guilty of negligence, but it is also necessary
that the said victim has not, through his own
negligence, contributed to the accident, inasmuch
as nobody is a guarantor of his neighbor's
personal safety and property, but everybody
should look after them, employing the care and
diligence that a good father of a family should
apply to his own person, to the members of his
family and to his property, in order to avoid any
damage. It appears that the herein plaintiff-
appellant Aleko E. Lilius took all precautions
which his skill and the presence of his wife and
child suggested to him in order that his pleasure
trip might be enjoyable and have a happy ending,
driving his car at a speed which prudence
demanded according to the circumstances and
conditions of the road, slackening his speed in the
face of an obstacle and blowing his horn upon
seeing persons on the road, in order to warn them
of his approach and request them to get out of the
way, as he did when he came upon the truck
parked on the left hand side of the road seven or
eight meters from the place where the accident
occurred, and upon the persons who appeared to
have alighted from the said truck. If he failed to
stop, look and listen before going over the
21 | T O R T S
crossing, in spite of the fact that he was driving at
12 miles per hour after having been free from
obstacles, it was because, his attention having
been occupied in attempting to go ahead, he did
not see the crossing in question, nor anything, nor
anybody indicating its existence, as he knew
nothing about it beforehand. The first and only
warning, which he received of the impending
danger, was two short blows from the whistle of
the locomotive immediately preceding the
collision and when the accident had already
become inevitable.
In view of the foregoing considerations, this court
is of the opinion that the defendant the Manila
Railroad Company alone is liable for the accident
by reason of its own negligence and that of its
employees, for not having employed the diligence
of a good father of a family in the supervision of
the said employees in the discharge of their duties.
The next question to be decided refers to the sums
of money fixed by the court a quo as indemnities
for damages which the defendant company should
pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E.
Lilius, although this court believes his claim of a
net income of P1,500 a month to be somewhat
exaggerated, however, the sum of P5,000,
adjudicated to him by the trial court as indemnity
for damages, is reasonable.
As to the sum of P10,635 which the court awards
to the plaintiffs by way of indemnity for damages,
the different items thereof representing doctor's
fees, hospital and nursing services, loss of
personal effects and torn clothing, have duly been
proven at the trial and the sum in question is not
excessive, taking into consideration the
circumstances in which the said expenses have
been incurred.
Taking into consideration the fact that the plaintiff
Sonja Maria Lilius, wife of the plaintiff Aleko E.
Lilius is — in the language of the court, which saw
her at the trial — "young and beautiful and the big
scar, which she has on her forehead caused by the
lacerated wound received by her from the
accident, disfigures her face and that the fracture
of her left leg has caused a permanent deformity
which renders it very difficult for her to walk", and
taking into further consideration her social
standing, neither is the sum of P10,000,
adjudicated to her by the said trial court by way of
indemnity for patrimonial and moral damages,
excessive. In the case of Gutierrez vs. Gutierrez (56
Phil., 177), the right leg of the plaintiff Narciso
Gutierrez was fractured as a result of a collision
between the autobus in which he was riding and
the defendant's car, which fractured required
medical attendance for a considerable period of
time. On the day of the trial the fracture had not
yet completely healed but it might cause him
permanent lameness. The trial court sentenced
the defendants to indemnify him in the sum of
P10,000 which this court reduced to P5,000, in
spite of the fact that the said plaintiff therein was
neither young nor good-looking, nor had he
suffered any facial deformity, nor did he have the
social standing that the herein plaintiff-appellant
Sonja Maria Lilius enjoys.1ªvvphi1.ne+
As to the indemnity of P5,000 in favor of the child
Brita Marianne Lilius, daughter of Aleko E. Lilius
and Sonja Maria Lilius, neither is the same
excessive, taking into consideration the fact that
the lacerations received by her have left deep
scars that permanently disfigure her face and that
the fractures of both her legs permanently render
it difficult for her to walk freely, continuous
extreme care being necessary in order to keep her
balance in addition to the fact that all of this
unfavorably and to a great extent affect her
matrimonial future.
With respect to the plaintiffs' appeal, the first
question to be decided is that raised by the
plaintiff Aleko E. Lilius relative to the insufficiency
of the sum of P5,000 which the trial court
adjudicated to him by way of indemnity for
damages consisting in the loss of his income as
journalist and author as a result of his illness. This
question has impliedly been decided in the
negative when the defendant-appellant entity's
petition for the reduction of said indemnity was
denied, declaring it to be reasonable.
As to the amount of P10,000 claimed by the
plaintiff Aleko E. Lilius as damages for the loss of
his wife's services in his business as journalist and
author, which services consisted in going over his
writings, translating them into English, German
and Swedish, and acting as his secretary, in
addition to the fact that such services formed part
of the work whereby he realized a net monthly
income of P1,500, there is no sufficient evidence of
the true value of said services nor to the effect that
he needed them during her illness and had to
employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover
the sum of P2,500 for the loss of what is called
Anglo-Saxon common law "consortium" of his
wife, that is, "her services, society and conjugal
companionship", as a result of personal injuries
which she had received from the accident now
under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil.,
252, 255, 256), this court, interpreting the
provisions of the Civil Marriage Law of 1870, in
force in these Islands with reference to the mutual
rights and obligations of the spouses, contained in
articles 44-48 thereof, said as follows:
The above quoted provisions of the Law
of Civil Marriage and the Civil Code fix the
duties and obligations of the spouses. The
spouses must be faithful to, assist, and
support each other. The husband must
live with and protect his wife. The wife
must obey and live with her husband and
follow him when he changes his domicile
22 | T O R T S
 or residence, except when he removes to
a foreign country. . . .
Therefore, under the law and the doctrine of this
court, one of the husband's rights is to count on
his wife's assistance. This assistance comprises
the management of the home and the performance
of household duties, including the care and
education of the children and attention to the
husband upon whom primarily devolves the duty
of supporting the family of which he is the head.
When the wife's mission was circumscribed to the
home, it was not difficult to assume, by virtue of
the marriage alone, that she performed all the said
tasks and her physical incapacity always
redounded to the husband's prejudice inasmuch
as it deprived him of her assistance. However,
nowadays when women, in their desire to be more
useful to society and to the nation, are demanding
greater civil rights and are aspiring to become
man's equal in all the activities of life, commercial
and industrial, professional and political, many of
them spending their time outside the home,
engaged in their businesses, industry, profession
and within a short time, in politics, and entrusting
the care of their home to a housekeeper, and their
children, if not to a nursemaid, to public or private
institutions which take charge of young children
while their mothers are at work, marriage has
ceased to create the presumption that a woman
complies with the duties to her husband and
children, which the law imposes upon her, and he
who seeks to collect indemnity for damages
resulting from deprivation of her domestic
services must prove such services. In the case
under consideration, apart from the services of his
wife Sonja Maria Lilius as translator and secretary,
the value of which has not been proven, the
plaintiff Aleko E. Lilius has not presented any
evidence showing the existence of domestic
services and their nature, rendered by her prior to
the accident, in order that it may serve as a basis
in estimating their value.
Furthermore, inasmuch as a wife's domestic per annum from the date of the appealed
assistance and conjugal companionship are purely judgment until this judgment becomes final will be
personal and voluntary acts which neither of the added to the indemnities granted, with the costs of
spouses may be compelled to render (Arroyo vs. both instances against the appellant. So ordered.
Vazquez de Arroyo, 42 Phil., 54), it is necessary for
the party claiming indemnity for the loss of such Malcolm, Hull, Imperial, and Goddard, JJ., concur.
services to prove that the person obliged to
render them had done so before he was injured
and that he would be willing to continue
rendering them had he not been prevented from
so doing.
In view of the foregoing considerations this court
is of the opinion and so holds: (1) That a railroad
company which has not installed a semaphore at a
crossing an does not see to it that its flagman and
switchman faithfully complies with his duty of
remaining at the crossing when a train arrives, is
guilty of negligence and is civilly liable for
damages suffered by a motorist and his family
who cross its line without negligence on their
part; (2) that an indemnity of P10,000 for a
permanent deformity on the face and on the left
leg, suffered by a young and beautiful society
woman, is not excessive; (3) that an indemnity of
P5,000 for a permanent deformity on the face and
legs of a four-year old girl belonging to a well-to-
do family, is not excessive; and (4) that in order
that a husband may recover damages for
deprivation of his wife's assistance during her
illness from an accident, it is necessary for him to
prove the existence of such assistance and his
wife's willingness to continue rendering it had she
not been prevented from so doing by her illness.
The plaintiffs-appellants are entitled to interest of
6 percent per annum on the amount of the
indemnities adjudicated to them, from the date of
the appealed judgment until this judgment
becomes final, in accordance with the provisions
of section 510 of Act No. 190.
Wherefore, not finding any error in the judgment
appealed from, it is hereby affirmed in toto, with
the sole modification that interest of 6 per cent
23 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21291               March 28, 1969
PRECIOLITA V. CORLISS, plaintiff-appellant,
vs.
THE MANILA RAILROAD CO., defendant-
appellant.
Moises C. Nicomedes for plaintiff-appellant.
The Government Corporate Counsel for defendant-
appellee.
FERNANDO, J.:
  Youth, the threshold of life, is invariably
accompanied by that euphoric sense of well-being,
and with reason. The future, bright with promise,
looms ahead. One's powers are still to be tested,
but one feels ready for whatever challenge may
come his way. There is that heady atmosphere of
self-confidence, at times carried to excess. The
temptation to take risks is there, ever so often,
difficult, if not impossible, to resist. There could be
then a lessening of prudence and foresight,
qualities usually associated with age. For death
seems so remote and contingent an event. Such is
not always the case though, and a slip may be
attended with consequences at times unfortunate,
even fatal.
  Some such thought apparently was in the mind of
the lower court when it dismissed the complaint
for recovery of damages filed by plaintiff-
appellant, Preciolita V. Corliss whose husband, the
late Ralph W. Corliss, was, at the tender age of
twenty-one, the victim of a grim tragedy, when the
jeep he was driving collided with a locomotive of
defendant-appellee Manila Railroad Company,
close to midnight on the evening of Feb 21, 1957,
at the railroad crossing in Balibago, Angeles,
Pampanga, in front of the Clark Air Force Base. In
the decision appealed from, the lower court, after
summarizing the evidence, concluded that the
deceased "in his eagerness to beat, so to speak, the
oncoming locomotive, took the risk and attempted
to reach the other side, but unfortunately he
became the victim of his own miscalculation." 1
  The negligence imputed to defendant-appellee
was thus ruled out by the lower court, satisfactory
proof to that effect, in its opinion, being lacking.
Hence this appeal direct to us, the amount sought
in the concept of damages reaching the sum of
P282,065.40. An examination of the evidence of
record fails to yield a basis for a reversal of the
decision appealed from. We affirm.
  According to the decision appealed from, there is
no dispute as to the following: "In December 1956,
plaintiff, 19 years of age, married Ralph W. Corliss
Jr., 21 years of age, ...; that Corliss Jr. was an air
police of the Clark Air Force Base; that at the time
of the accident, he was driving the fatal jeep; that
he was then returning in said jeep, together with a
P.C. soldier, to the Base; and that Corliss Jr. died of
serious burns at the Base Hospital the next day,
while the soldier sustained serious physical
injuries and burns." 2
  Then came a summary of the testimony of two of
the witnesses for plaintiff-appellant. Thus:
"Ronald J. Ennis, a witness of the plaintiff,
substantially declared in his deposition, ..., that at
the time of the accident, he also awaiting
transportation at the entrance of Clark Field,
which was about 40 to 50 yards away from the
tracks and that while there he saw the jeep
coming towards the Base. He said that said jeep
slowed down before reaching the crossing, that it
made a brief stop but that it did not stop — dead
stop. Elaborating, he declared that while it was
slowing down, Corliss Jr. shifted into first gear and
that was what he meant by a brief stop. He also
testified that he could see the train coming from
the direction of San Fernando and that he heard a
warning but that it was not sufficient enough to
avoid the accident." 3 Also: "Virgilio de la Paz,
another witness of the plaintiff, testified that on
the night of February 21, 1957, he was at the
Balibago checkpoint and saw the train coming
from Angeles and a jeep going towards the
direction of Clark Field. He stated that he heard
the whistle of the locomotive and saw the
collision. The jeep, which caught fire, was pushed
forward. He helped the P.C. soldier. He stated that
he saw the jeep running fast and heard the tooting
of the horn. It did not stop at the railroad crossing,
according to him." 4
  After which reference was made to the testimony
of the main witness for defendant-appellee,
Teodorico Capili, "who was at the engine at the
time of the mishap," and who "testified that before
the locomotive, which had been previously
inspected and found to be in good condition
approached, the crossing, that is, about 300
meters away, he blew the siren and repeated it in
compliance with the regulations until he saw the
jeep suddenly spurt and that although the
locomotive was running between 20 and 25
kilometers an hour and although he had applied
the brakes, the jeep was caught in the middle of
the tracks." 5
  1. The above finding as to the non-existence of
negligence attributable to defendant-appellee
Manila Railroad Company comes to us encased in
the armor of what admittedly appears to be a
careful judicial appraisal and scrutiny of the
evidence of record. It is thus proof against any
attack unless sustained and overwhelming. Not
that it is invulnerable, but it is likely to stand firm
in the face of even the most formidable barrage.
  In the more traditional terminology, the lower
court judgment has in its favor the presumption of
24 | T O R T S
correctness. It is entitled to great respect. After all,
the lower court had the opportunity of weighing
carefully what was testified to and apparently did
not neglect it. There is no affront to justice then if
its finding be accorded acceptance subject of
course the contingency of reversal if error or
errors, substantial in character, be shown in the
conclusion thus arrived at. It is a fair statement of
the governing, principle to say that the appellate
function is exhausted when there is found to be a
rational basis for the result reached by the trial
court.
  As was held in a 1961 decision: "We have already
ruled, that when the credibility of witnesses is the
one at issue, the trial court's judgment as to their
degree of credence deserves serious consideration
by this Court." 6 An earlier expression of the same
view is found in Jai-Alai Corporation v. Ching Kiat:
"After going over the record, we find no reason for
rejecting the findings of the court below. The
questions raised hinge on credibility and it is well-
settled that in the absence of compelling reasons,
its determination is best left to the trial judge why
had the advantage of hearing the parties testify
and observing their demeanor on the witness
stand." 7
  In a 1964 opinion, we adhered to such an
approach. Thus: "'Nothing in the record suggests
any arbitrary or abusive conduct on the part of the
trial judge in the formulation of the ruling. His
conclusion on the matter is sufficiently borne out
by the evidence presented. We are denied,
therefore, the prerogative to disturb that finding,
consonant to the time honored tradition of the
Tribunal to hold trial judges better situated to
make conclusions on questions of fact'."  8 On this
ground alone we can rest the affirmance of the
judgment appealed from.lâwphi1.ñet
  2. Nor is the result different even if no such
presumption were indulged in and the matter
examined as if we were exercising original and not
appellate jurisdiction. The sad and deplorable
situation in which plaintiff-appellant now finds
herself, to the contrary notwithstanding we find
no reason for reversing the judgment of the lower
court.
  This action is predicated on negligence, the Civil
Code making clear that whoever by act or
omission causes damage to another, there being
negligence, is under obligation to pay for the
damage done. 9 Unless it could be satisfactorily
shown, therefore, that defendant-appellee was
guilty of negligence then it could not be held liable.
The crucial question, therefore, is the existence of
negligence.
  The above Civil Code provision, which is a
reiteration of that found in the Civil Code of Spain,
formerly applicable in this jurisdiction, 10 had been
interpreted in earlier decisions. Thus, in Smith v.
Cadwallader Gibson Lumber Co., 11 Manresa was
cited to the following effect "'Among the questions
most frequently raised and upon which the
majority of cases have been decided with respect
to the application of this liability, are those
referring to the determination of the damage or
prejudice, and to the fault or negligence of the
person responsible therefor. These are the two
indispensable factors in the obligations under
discussion, for without damage or prejudice there
can be no liability, and although this element is
present no indemnity can be awarded unless
arising from some person's fault or negligence'."
  Negligence was defined by us in two 1912
decisions, United States v. Juanillo 12 and United
States v. Barias. 13 Cooley' formulation was quoted
with approval in both the Juanillo and Barias
decisions. Thus: "Judge Cooley in his work on
Torts (3d ed.), Sec. 1324, defines negligence to be:
"The failure to observe for the protection of the
interests of another person that degree of care,
precaution and vigilance which the circumstance
justly demand whereby such other person suffers
injury." There was likewise a reliance on Ahern v.
Oregon Telephone Co. 14 Thus: "Negligence is want
of the care required by the circumstances. It is a
relative or comparative, not an absolute term and
its application depends upon the situation of the
parties and the degree of care and vigilance which
the circumstances reasonably require. Where the
danger is great, a high degree of care is necessary,
and the failure to observe it is a want of ordinary
care under the circumstances."
  To repeat, by such a test, no negligence could be
imputed to defendant-appellee, and the action of
plaintiff-appellee must necessary fail. The facts
being what they are, compel the conclusion that
the liability sought to be fastened on defendant-
appellee had not arisen.
  3. Plaintiff-appellant, in her brief, however,
would seek a reversal of the judgment appealed
from on the ground that there was a failure to
appreciate the true situation. Thus the first three
assigned errors are factual in character. The third
assigned error could be summarily disposed of. It
would go against the evidence to maintain the
view that the whistle was not sounded and the
brakes not applied at a distance of 300 meters
before reaching the crossing.
  The first two assigned errors would make much
of the failure of the lower court to hold that the
crossing bars not having been put down and there
being no guard at the gate-house, there still was a
duty on the part of Corliss to stop his jeep to avoid
a collision and that Teodorico Capili, who drove
the engine, was not qualified to do so at the time
of the accident. For one cannot just single out
circumstance and then confidently assign to it
decisive weight and significance. Considered
separately, neither of the two above errors
assigned would call for a judgment different in
character. Nor would a combination of acts
allegedly impressed with negligence suffice to
alter the result. The quantum of proof required
still not been met. The alleged errors fail of their
said effect. The case for plaintiff-appellant, such as
25 | T O R T S
it had not been improved. There is no justification
for reversing the judgment of the lower court.
  It cannot be stressed too much that the decisive
considerations are too variable, too dependent in
the lid analysis upon a common sense estimate of
the situation as it presented itself to the parties for
us to be able to say that this or that element
having been isolated, negligence is shown. The
factors that enter the judgment are too many and
diverse for us to imprison them in a formula
sufficient of itself to yield the correct answer to
the multi-faceted problems the question of
negligence poses. Every case must be dependent
on its facts. The circumstances indicative of lack of
due care must be judged in the light of what could
reasonably be expected of the parties. If the
objective standard of prudence be met, then
negligence is ruled out.
  In this particular case, it would be to show less
than fidelity to the controlling facts to impute
negligence to defendant-appellee. The first three
errors assigned certainly do not call for that
conclusion.
  4. The fourth assigned error is deserving of a
more extended treatment. Plaintiff-appellant
apparently had in mind this portion of the opinion
of the lower court: "The weight of authorities is to
the effect that a railroad track is in itself a warning
or a signal of danger to those who go upon it, and
that those who, for reasons of their own, ignore
such warning, do so at their own risk and
responsibility. Corliss Jr., who undoubtedly had
crossed the checkpoint frequently, if not daily,
must have known that locomotive engines and
trains usually pass at that particular crossing
where the accident had taken place." 15
  Her assignment of error, however, would single
out not the above excerpt from the decision
appealed from but what to her is the apparent
reliance of the lower court on Mestres v. Manila
Electric Railroad & Light Co. 16 and United States v.
Manlabat & Pasibi. 17 In the Manabat case, the
doctrine announced by this Court follows: "A
person in control of an automobile who crosses a
railroad, even at a regular road crossing, and who
does not exercise that precaution and that control
over it as to be able to stop the same almost
immediately upon the appearance of a train, is
guilty of criminal negligence, providing a collision
occurs and injury results. Considering the
purposes and the general methods adopted for the
management of railroads and railroad trains, we
think it is incumbent upon one approaching a
railroad crossing to use all of his faculties of
seeing and hearing. He should approach a railroad
crossing cautiously and carefully. He should look
and listen and do everything that a reasonably
prudent man would do before he attempts to cross
the track." The Mestres doctrine in a suit arising
from a collision between an automobile and a
street car is substantially similar. Thus: "It may be
said, however, that, where a person is nearing a
street crossing toward which a car is approaching,
the duty is on the party to stop and avoid a
collision who can most readily adjust himself to
the exigencies of the case, and where such person
can do so more readily, the motorman has a right
to presume that such duty will be performed."
  It is true, as plaintiff-appellant would now allege
that there has been a drift away from the apparent
rigid and inflexible doctrine thus set forth in the
two above cases evidenced by Lilius v. Manila
Railroad Co., 18 the controlling facts of which,
however, are easily distinguishable from what had
been correctly ascertained in the present case.
Such a deviation from the earlier principle
announced is not only true of this jurisdiction but
also of the United States.
  This is made clear by Prosser. Speaking of a 1927
decision by Justice Holmes, he had the following to
say: "Especially noteworthy in this respect is the
attempt Mr. Justice Holmes, in Baltimore & Ohio
Railway v. Goodman, to 'lay down a standard once
for all,' which would require an automobile driver
approaching a railroad crossing with an
obstructed view to stop, look and listen, and if he
cannot be sure otherwise that no train is coming
to get out of the car. The basic idea behind this is
sound enough: it is by no means proper care to
cross a railroad track without taking reasonable
precautions against a train, and normally such
precautions will require looking, hearing, and a
stop, or at least slow speed, where the view is
obstructed." 19
  Then, barely seven years later, in 1934,
came Pakora v. Wabash Railway, 20 where,
according to Prosser, it being shown that "the only
effective stop must be made upon the railway
tracks themselves, in a position of obligation
danger, the court disregarded any such uniform
rule, rejecting the 'get out of the car' requirement
as 'an uncommon precaution, likely to be futile
and sometimes even dangerous,' and saying that
the driver need not always stop. 'Illustrations such
as these,' said Mr. Justice Cardozo 'bear witness to
the need for caution in framing standards of
behavior that amount to rules of law....
Extraordinary situations may not wisely or fairly
be subjected to tests or regulations that are fitting
for the commonplace or normal." 21
  What Justice Cardozo announced would merely
emphasize what was set forth earlier that each
and every, case on questions of negligence is to be
decided in accordance with the peculiar
circumstances that present themselves. There can
be no hard and fast rule. There must be that
observance of that degree of care, precaution, and
vigilance which the situation demands. Thus
defendant-appellee acted. It is undeniable then
that no negligence can rightfully be imputed to it.
  What commends itself for acceptance is this
conclusion arrived at by the lower court:
"Predicated on the testimonies of the plaintiff's
witnesses, on the knowledge of the deceased and
his familiarity with the setup of the checkpoint,
the existence of the tracks; and on the further fact
26 | T O R T S
that the locomotive had blown its siren or whistle,
which was heard by said witnesses, it is clear that
Corliss Jr. was so sufficiently warned in advance of
the oncoming train that it was incumbent upon
him to avoid a possible accident — and this
consisted simply in stopping his vehicle before the
crossing and allowing the train to move on. A
prudent man under similar circumstances would
have acted in this manner. This, unfortunately,
Corliss, Jr. failed to do." 22

  WHEREFORE, the decision of the lower court of

November 29, 1962 dismissing the complaint, is
affirmed. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,

Zaldivar, Sanchez, Castro, Capistrano, Teehankee
and Barredo, JJ., concur.

27 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12191             October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to
this litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the
capacity of clerk, with a monthly wage of P25. He
lived in the pueblo of San Mateo, in the province of
Rizal, which is located upon the line of the
defendant railroad company; and in coming daily
by train to the company's office in the city of
Manila where he worked, he used a pass, supplied
by the company, which entitled him to ride upon
the company's trains free of charge. Upon the
occasion in question, January 20, 1915, the
plaintiff arose from his seat in the second class-car
where he was riding and, making, his exit through
the door, took his position upon the steps of the
coach, seizing the upright guardrail with his right
hand for support.
On the side of the train where passengers alight at
the San Mateo station there is a cement platform
which begins to rise with a moderate gradient
some distance away from the company's office
and extends along in front of said office for a
distance sufficient to cover the length of several
coaches. As the train slowed down another
passenger, named Emilio Zuñ iga, also an employee
of the railroad company, got off the same car,
alighting safely at the point where the platform
begins to rise from the level of the ground. When
the train had proceeded a little farther the plaintiff
Jose Cangco stepped off also, but one or both of his
feet came in contact with a sack of watermelons
with the result that his feet slipped from under
him and he fell violently on the platform. His body
at once rolled from the platform and was drawn
under the moving car, where his right arm was
badly crushed and lacerated. It appears that after
the plaintiff alighted from the train the car moved
forward possibly six meters before it came to a full
stop.
The accident occurred between 7 and 8 o'clock on
a dark night, and as the railroad station was
lighted dimly by a single light located some
distance away, objects on the platform where the
accident occurred were difficult to discern
especially to a person emerging from a lighted car.
The explanation of the presence of a sack of
melons on the platform where the plaintiff
alighted is found in the fact that it was the
customary season for harvesting these melons and
a large lot had been brought to the station for the
shipment to the market. They were contained in
numerous sacks which has been piled on the
platform in a row one upon another. The
testimony shows that this row of sacks was so
placed of melons and the edge of platform; and it
is clear that the fall of the plaintiff was due to the
fact that his foot alighted upon one of these
melons at the moment he stepped upon the
platform. His statement that he failed to see these
objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an
unconscious condition, and it appeared that the
injuries which he had received were very serious.
He was therefore brought at once to a certain
hospital in the city of Manila where an
examination was made and his arm was
amputated. The result of this operation was
unsatisfactory, and the plaintiff was then carried
to another hospital where a second operation was
performed and the member was again amputated
higher up near the shoulder. It appears in
evidence that the plaintiff expended the sum of
P790.25 in the form of medical and surgical fees
and for other expenses in connection with the
process of his curation.
Upon August 31, 1915, he instituted this
proceeding in the Court of First Instance of the
city of Manila to recover damages of the defendant
company, founding his action upon the negligence
of the servants and employees of the defendant in
placing the sacks of melons upon the platform and
leaving them so placed as to be a menace to the
security of passenger alighting from the
company's trains. At the hearing in the Court of
First Instance, his Honor, the trial judge, found the
facts substantially as above stated, and drew
therefrom his conclusion to the effect that,
although negligence was attributable to the
defendant by reason of the fact that the sacks of
melons were so placed as to obstruct passengers
passing to and from the cars, nevertheless, the
plaintiff himself had failed to use due caution in
alighting from the coach and was therefore
precluded form recovering. Judgment was
accordingly entered in favor of the defendant
company, and the plaintiff appealed.
It can not be doubted that the employees of the
railroad company were guilty of negligence in
piling these sacks on the platform in the manner
above stated; that their presence caused the
plaintiff to fall as he alighted from the train; and
that they therefore constituted an effective legal
cause of the injuries sustained by the plaintiff. It
necessarily follows that the defendant company is
liable for the damage thereby occasioned unless
28 | T O R T S
recovery is barred by the plaintiff's own
contributory negligence. In resolving this problem
it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the
defendant company and the contributory
negligence of the plaintiff should be separately
examined.
It is important to note that the foundation of the
legal liability of the defendant is the contract of
carriage, and that the obligation to respond for the
damage which plaintiff has suffered arises, if at all,
from the breach of that contract by reason of the
failure of defendant to exercise due care in its
performance. That is to say, its liability is direct
and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility
for the negligence of its servants, imposed by
article 1903 of the Civil Code, which can be
rebutted by proof of the exercise of due care in
their selection and supervision. Article 1903 of the
Civil Code is not applicable to obligations arising
ex contractu, but only to extra-contractual
obligations — or to use the technical form of
expression, that article relates only
to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon
articles 1103 and 1104 of the Civil Code, clearly
points out this distinction, which was also
recognized by this Court in its decision in the case
of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil.
rep., 359). In commenting upon article 1093
Manresa clearly points out the difference between
"culpa, substantive and independent, which of
itself constitutes the source of an obligation
between persons not formerly connected by any
legal tie" and culpa considered as an accident in
the performance of an obligation already existing .
. . ."
In the Rakes case (supra) the decision of this court
was made to rest squarely upon the proposition
that article 1903 of the Civil Code is not applicable
to acts of negligence which constitute the breach
of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and
1903 of the Civil Code] are applicable are
understood to be those not growing out of
pre-existing duties of the parties to one
another. But where relations already
formed give rise to duties, whether
springing from contract or quasi-contract,
then breaches of those duties are subject
to article 1101, 1103, and 1104 of the
same code. (Rakes vs. Atlantic, Gulf and
Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The
liability, which, under the Spanish law, is, in
certain cases imposed upon employers with
respect to damages occasioned by the negligence
of their employees to persons to whom they are
not bound by contract, is not based, as in the
English Common Law, upon the principle
of respondeat superior — if it were, the master
would be liable in every case and unconditionally
— but upon the principle announced in article
1902 of the Civil Code, which imposes upon all
persons who by their fault or negligence, do injury
to another, the obligation of making good the
damage caused. One who places a powerful
automobile in the hands of a servant whom he
knows to be ignorant of the method of managing
such a vehicle, is himself guilty of an act of
negligence which makes him liable for all the
consequences of his imprudence. The obligation to
make good the damage arises at the very instant
that the unskillful servant, while acting within the
scope of his employment causes the injury. The
liability of the master is personal and direct. But, if
the master has not been guilty of any negligence
whatever in the selection and direction of the
servant, he is not liable for the acts of the latter,
whatever done within the scope of his
employment or not, if the damage done by the
servant does not amount to a breach of the
contract between the master and the person
injured.
It is not accurate to say that proof of diligence and
care in the selection and control of the servant
relieves the master from liability for the latter's
acts — on the contrary, that proof shows that the
responsibility has never existed. As Manresa says
(vol. 8, p. 68) the liability arising from extra-
contractual culpa is always based upon a
voluntary act or omission which, without willful
intent, but by mere negligence or inattention, has
caused damage to another. A master who
exercises all possible care in the selection of his
servant, taking into consideration the
qualifications they should possess for the
discharge of the duties which it is his purpose to
confide to them, and directs them with equal
diligence, thereby performs his duty to third
persons to whom he is bound by no contractual
ties, and he incurs no liability whatever if, by
reason of the negligence of his servants, even
within the scope of their employment, such third
person suffer damage. True it is that under article
1903 of the Civil Code the law creates
a presumption that he has been negligent in the
selection or direction of his servant, but the
presumption is rebuttable and yield to proof of
due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting
identical provisions, as found in the Porto Rico
Code, has held that these articles are applicable to
cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this
Court in its decision in the case of
Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624),
which was an action brought upon the theory of
the extra-contractual liability of the defendant to
respond for the damage caused by the
carelessness of his employee while acting within
the scope of his employment. The Court, after
29 | T O R T S
citing the last paragraph of article 1903 of the Civil
Code, said:
From this article two things are apparent:
(1) That when an injury is caused by the
negligence of a servant or employee there
instantly arises a presumption of law that
there was negligence on the part of the
master or employer either in selection of
the servant or employee, or in
supervision over him after the selection,
or both; and (2) that that presumption
is juris tantum and not juris et de jure,
and consequently, may be rebutted. It
follows necessarily that if the employer
shows to the satisfaction of the court that
in selection and supervision he has
exercised the care and diligence of a good
father of a family, the presumption is
overcome and he is relieved from liability.
This theory bases the responsibility of the
master ultimately on his own negligence
and not on that of his servant. This is the
notable peculiarity of the Spanish law of
negligence. It is, of course, in striking
contrast to the American doctrine that, in
relations with strangers, the negligence of
the servant in conclusively the negligence
of the master.
The opinion there expressed by this Court, to the
effect that in case of extra-contractual culpa based
upon negligence, it is necessary that there shall
have been some fault attributable to the defendant
personally, and that the last paragraph of article
1903 merely establishes a rebuttable
presumption, is in complete accord with the
authoritative opinion of Manresa, who says (vol.
12, p. 611) that the liability created by article
1903 is imposed by reason of the breach of the
duties inherent in the special relations of
authority or superiority existing between the
person called upon to repair the damage and the
one who, by his act or omission, was the cause of
it.
On the other hand, the liability of masters and
employers for the negligent acts or omissions of
their servants or agents, when such acts or
omissions cause damages which amount to the
breach of a contact, is not based upon a mere
presumption of the master's negligence in their
selection or control, and proof of exercise of the
utmost diligence and care in this regard does not
relieve the master of his liability for the breach of
his contract.
Every legal obligation must of necessity be extra-
contractual or contractual. Extra-contractual
obligation has its source in the breach or omission
of those mutual duties which civilized society
imposes upon it members, or which arise from
these relations, other than contractual, of certain
members of society to others, generally embraced
in the concept of status. The legal rights of each
member of society constitute the measure of the
corresponding legal duties, mainly negative in
character, which the existence of those rights
imposes upon all other members of society. The
breach of these general duties whether due to
willful intent or to mere inattention, if productive
of injury, give rise to an obligation to indemnify
the injured party. The fundamental distinction
between obligations of this character and those
which arise from contract, rests upon the fact that
in cases of non-contractual obligation it is the
wrongful or negligent act or omission itself which
creates the vinculum juris, whereas in contractual
relations the vinculum  exists independently of the
breach of the voluntary duty assumed by the
parties when entering into the contractual
relation.
With respect to extra-contractual obligation
arising from negligence, whether of act or
omission, it is competent for the legislature to
elect — and our Legislature has so elected —
whom such an obligation is imposed is morally
culpable, or, on the contrary, for reasons of public
policy, to extend that liability, without regard to
the lack of moral culpability, so as to include
responsibility for the negligence of those person
who acts or mission are imputable, by a legal
fiction, to others who are in a position to exercise
an absolute or limited control over them. The
legislature which adopted our Civil Code has
elected to limit extra-contractual liability — with
certain well-defined exceptions — to cases in
which moral culpability can be directly imputed to
the persons to be charged. This moral
responsibility may consist in having failed to
exercise due care in the selection and control of
one's agents or servants, or in the control of
persons who, by reason of their status, occupy a
position of dependency with respect to the person
made liable for their conduct.
The position of a natural or juridical person who
has undertaken by contract to render service to
another, is wholly different from that to which
article 1903 relates. When the sources of the
obligation upon which plaintiff's cause of action
depends is a negligent act or omission, the burden
of proof rests upon plaintiff to prove the
negligence — if he does not his action fails. But
when the facts averred show a contractual
undertaking by defendant for the benefit of
plaintiff, and it is alleged that plaintiff has failed or
refused to perform the contract, it is not necessary
for plaintiff to specify in his pleadings whether the
breach of the contract is due to willful fault or to
negligence on the part of the defendant, or of his
servants or agents. Proof of the contract and of its
nonperformance is sufficient prima facie to
warrant a recovery.
As a general rule . . . it is logical that in
case of extra-contractual culpa, a suing
creditor should assume the burden of
proof of its existence, as the only fact
upon which his action is based; while on
the contrary, in a case of negligence which
presupposes the existence of a
30 | T O R T S
 contractual obligation, if the creditor
shows that it exists and that it has been
broken, it is not necessary for him to
prove negligence. (Manresa, vol. 8, p. 71
[1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action
for the breach of a contract to show that the
breach was due to the negligent conduct of
defendant or of his servants, even though such be
in fact the actual cause of the breach, it is obvious
that proof on the part of defendant that the
negligence or omission of his servants or agents
caused the breach of the contract would not
constitute a defense to the action. If the negligence
of servants or agents could be invoked as a means
of discharging the liability arising from contract,
the anomalous result would be that person acting
through the medium of agents or servants in the
performance of their contracts, would be in a
better position than those acting in person. If one
delivers a valuable watch to watchmaker who
contract to repair it, and the bailee, by a personal
negligent act causes its destruction, he is
unquestionably liable. Would it be logical to free
him from his liability for the breach of his
contract, which involves the duty to exercise due
care in the preservation of the watch, if he shows
that it was his servant whose negligence caused
the injury? If such a theory could be accepted,
juridical persons would enjoy practically complete
immunity from damages arising from the breach
of their contracts if caused by negligent acts as
such juridical persons can of necessity only act
through agents or servants, and it would no doubt
be true in most instances that reasonable care had
been taken in selection and direction of such
servants. If one delivers securities to a banking
corporation as collateral, and they are lost by
reason of the negligence of some clerk employed
by the bank, would it be just and reasonable to
permit the bank to relieve itself of liability for the
breach of its contract to return the collateral upon
the payment of the debt by proving that due care
had been exercised in the selection and direction
of the clerk?
This distinction between culpa aquiliana, as
the source of an obligation, and culpa
contractual as a mere incident to the performance
of a contract has frequently been recognized by
the supreme court of Spain. (Sentencias  of June 27,
1894; November 20, 1896; and December 13,
1896.) In the decisions of November 20, 1896, it
appeared that plaintiff's action arose ex contractu,
but that defendant sought to avail himself of the
provisions of article 1902 of the Civil Code as a
defense. The Spanish Supreme Court rejected
defendant's contention, saying:
These are not cases of injury
caused, without any pre-existing
obligation, by fault or negligence, such as
those to which article 1902 of the Civil
Code relates, but of damages caused by
the defendant's failure to carry out the
undertakings imposed by the contracts . . .
. give the owner a reasonable opportunity
A brief review of the earlier decision of this court
involving the liability of employers for damage
done by the negligent acts of their servants will
show that in no case has the court ever decided
that the negligence of the defendant's servants has
been held to constitute a defense to an action for
damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663),
the court held that the owner of a carriage was not
liable for the damages caused by the negligence of
his driver. In that case the court commented on
the fact that no evidence had been adduced in the
trial court that the defendant had been negligent
in the employment of the driver, or that he had
any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's
Successors vs. Compania Maritima (6 Phil. Rep.,
215), the plaintiff sued the defendant for damages
caused by the loss of a barge belonging to plaintiff
which was allowed to get adrift by the negligence
of defendant's servants in the course of the
performance of a contract of towage. The court
held, citing Manresa (vol. 8, pp. 29, 69) that if the
"obligation of the defendant grew out of a contract
made between it and the plaintiff . . . we do not
think that the provisions of articles 1902 and
1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil.
Rep., 374), plaintiff sued the defendant to recover
damages for the personal injuries caused by the
negligence of defendant's chauffeur while driving
defendant's automobile in which defendant was
riding at the time. The court found that the
damages were caused by the negligence of the
driver of the automobile, but held that the master
was not liable, although he was present at the
time, saying:
. . . unless the negligent acts of the driver
are continued for a length of time as to
to observe them and to direct the driver
to desist therefrom. . . . The act
complained of must be continued in the
presence of the owner for such length of
time that the owner by his acquiescence,
makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and
Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it
is true that the court rested its conclusion as to the
liability of the defendant upon article 1903,
although the facts disclosed that the injury
complaint of by plaintiff constituted a breach of
the duty to him arising out of the contract of
transportation. The express ground of the decision
in this case was that article 1903, in dealing with
the liability of a master for the negligent acts of his
servants "makes the distinction between private
individuals and public enterprise;" that as to the
latter the law creates a rebuttable presumption of
negligence in the selection or direction of
31 | T O R T S
servants; and that in the particular case the
presumption of negligence had not been
overcome.
It is evident, therefore that in its decision Yamada
case, the court treated plaintiff's action as though
founded in tort rather than as based upon the
breach of the contract of carriage, and an
examination of the pleadings and of the briefs
shows that the questions of law were in fact
discussed upon this theory. Viewed from the
standpoint of the defendant the practical result
must have been the same in any event. The proof
disclosed beyond doubt that the defendant's
servant was grossly negligent and that his
negligence was the proximate cause of plaintiff's
injury. It also affirmatively appeared that
defendant had been guilty of negligence in its
failure to exercise proper discretion in the
direction of the servant. Defendant was, therefore,
liable for the injury suffered by plaintiff, whether
the breach of the duty were to be regarded as
constituting culpa aquiliana or culpa contractual.
As Manresa points out (vol. 8, pp. 29 and 69)
whether negligence occurs an incident in the
course of the performance of a contractual
undertaking or its itself the source of an extra-
contractual undertaking obligation, its essential
characteristics are identical. There is always an act
or omission productive of damage due to
carelessness or inattention on the part of the
defendant. Consequently, when the court holds
that a defendant is liable in damages for having
failed to exercise due care, either directly, or in
failing to exercise proper care in the selection and
direction of his servants, the practical result is
identical in either case. Therefore, it follows that it
is not to be inferred, because the court held in the
Yamada case that defendant was liable for the
damages negligently caused by its servants to a
person to whom it was bound by contract, and
made reference to the fact that the defendant was
negligent in the selection and control of its
servants, that in such a case the court would have
held that it would have been a good defense to the
action, if presented squarely upon the theory of
the breach of the contract, for defendant to have
proved that it did in fact exercise care in the
selection and control of the servant.
The true explanation of such cases is to be found
by directing the attention to the relative spheres
of contractual and extra-contractual obligations.
The field of non- contractual obligation is much
more broader than that of contractual obligations,
comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively
speaking, concentric; that is to say, the mere fact
that a person is bound to another by contract does
not relieve him from extra-contractual liability to
such person. When such a contractual relation
exists the obligor may break the contract under
such conditions that the same act which
constitutes the source of an extra-contractual
obligation had no contract existed between the
parties.
The contract of defendant to transport plaintiff
carried with it, by implication, the duty to carry
him in safety and to provide safe means of
entering and leaving its trains (civil code, article
1258). That duty, being contractual, was direct
and immediate, and its non-performance could
not be excused by proof that the fault was morally
imputable to defendant's servants.
The railroad company's defense involves the
assumption that even granting that the negligent
conduct of its servants in placing an obstruction
upon the platform was a breach of its contractual
obligation to maintain safe means of approaching
and leaving its trains, the direct and proximate
cause of the injury suffered by plaintiff was his
own contributory negligence in failing to wait
until the train had come to a complete stop before
alighting. Under the doctrine of comparative
negligence announced in the Rakes case (supra), if
the accident was caused by plaintiff's own
negligence, no liability is imposed upon
defendant's negligence and plaintiff's negligence
merely contributed to his injury, the damages
should be apportioned. It is, therefore, important
to ascertain if defendant was in fact guilty of
negligence.
It may be admitted that had plaintiff waited until
the train had come to a full stop before alighting,
the particular injury suffered by him could not
have occurred. Defendant contends, and cites
many authorities in support of the contention, that
it is negligence per se for a passenger to alight
from a moving train. We are not disposed to
subscribe to this doctrine in its absolute form. We
are of the opinion that this proposition is too
badly stated and is at variance with the experience
of every-day life. In this particular instance, that
the train was barely moving when plaintiff
alighted is shown conclusively by the fact that it
came to stop within six meters from the place
where he stepped from it. Thousands of person
alight from trains under these conditions every
day of the year, and sustain no injury where the
company has kept its platform free from
dangerous obstructions. There is no reason to
believe that plaintiff would have suffered any
injury whatever in alighting as he did had it not
been for defendant's negligent failure to perform
its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine
relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec.
3010) as follows:
The test by which to determine whether
the passenger has been guilty of
negligence in attempting to alight from a
moving railway train, is that of ordinary
or reasonable care. It is to be considered
whether an ordinarily prudent person, of
the age, sex and condition of the
passenger, would have acted as the
passenger acted under the circumstances
disclosed by the evidence. This care has
been defined to be, not the care which
32 | T O R T S
 may or should be used by the prudent
man generally, but the care which a man
of ordinary prudence would use under
similar circumstances, to avoid injury."
(Thompson, Commentaries on
Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition
used by this court in Picart vs. Smith (37 Phil. rep.,
809), we may say that the test is this; Was there
anything in the circumstances surrounding the
plaintiff at the time he alighted from the train
which would have admonished a person of
average prudence that to get off the train under
the conditions then existing was dangerous? If so,
the plaintiff should have desisted from alighting;
and his failure so to desist was contributory
negligence.1awph!l.net
As the case now before us presents itself, the only
fact from which a conclusion can be drawn to the
effect that plaintiff was guilty of contributory
negligence is that he stepped off the car without
being able to discern clearly the condition of the
platform and while the train was yet slowly
moving. In considering the situation thus
presented, it should not be overlooked that the
plaintiff was, as we find, ignorant of the fact that
the obstruction which was caused by the sacks of
melons piled on the platform existed; and as the
defendant was bound by reason of its duty as a
public carrier to afford to its passengers facilities
for safe egress from its trains, the plaintiff had a
right to assume, in the absence of some
circumstance to warn him to the contrary, that the
platform was clear. The place, as we have already
stated, was dark, or dimly lighted, and this also is
proof of a failure upon the part of the defendant in
the performance of a duty owing by it to the
plaintiff; for if it were by any possibility concede
that it had right to pile these sacks in the path of
alighting passengers, the placing of them
adequately so that their presence would be
revealed.
As pertinent to the question of contributory that employment. Defendant has not shown that
negligence on the part of the plaintiff in this case any other gainful occupation is open to plaintiff.
the following circumstances are to be noted: The His expectancy of life, according to the standard
company's platform was constructed upon a level mortality tables, is approximately thirty-three
higher than that of the roadbed and the years. We are of the opinion that a fair
surrounding ground. The distance from the steps compensation for the damage suffered by him for
of the car to the spot where the alighting his permanent disability is the sum of P2,500, and
passenger would place his feet on the platform that he is also entitled to recover of defendant the
was thus reduced, thereby decreasing the risk additional sum of P790.25 for medical attention,
incident to stepping off. The nature of the hospital services, and other incidental
platform, constructed as it was of cement material, expenditures connected with the treatment of his
also assured to the passenger a stable and even injuries.
surface on which to alight. Furthermore, the
plaintiff was possessed of the vigor and agility of The decision of lower court is reversed, and
young manhood, and it was by no means so risky judgment is hereby rendered plaintiff for the sum
for him to get off while the train was yet moving of P3,290.25, and for the costs of both instances.
as the same act would have been in an aged or So ordered.
feeble person. In determining the question of
contributory negligence in performing such act — Arellano, C.J., Torres, Street and Avanceñ a, JJ.,
that is to say, whether the passenger acted concur.
prudently or recklessly — the age, sex, and
physical condition of the passenger are
circumstances necessarily affecting the safety of
the passenger, and should be considered. Women,
it has been observed, as a general rule are less
capable than men of alighting with safety under
such conditions, as the nature of their wearing
apparel obstructs the free movement of the limbs.
Again, it may be noted that the place was perfectly
familiar to the plaintiff as it was his daily custom
to get on and of the train at this station. There
could, therefore, be no uncertainty in his mind
with regard either to the length of the step which
he was required to take or the character of the
platform where he was alighting. Our conclusion is
that the conduct of the plaintiff in undertaking to
alight while the train was yet slightly under way
was not characterized by imprudence and that
therefore he was not guilty of contributory
negligence.
The evidence shows that the plaintiff, at the time
of the accident, was earning P25 a month as a
copyist clerk, and that the injuries he has suffered
have permanently disabled him from continuing
33 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32611             November 3, 1930
CULION ICE, FISH AND ELECTRIC CO.,
INC., plaintiff-appellee,
vs.
PHILIPPINE MOTORS
CORPORATION, defendant-appellant.
Gibbs and McDonough for appellant.
Benj. S. Ohnick for appellee.
STREET, J.:
This action was instituted in the Court of First
Instance of Manila by the Culion Ice, Fish &
Electric Co., Inc., for the purpose of recovering
from the Philippine Motors Corporation the sum
of P11,350, with interest and costs. Upon hearing
the cause the trial court gave judgment in favor of
the plaintiff to recover of the defendant the sum of
P9,850, with interest at 6 per centum per annum
from March 24,1927, the date of the filing of the
complaint, until satisfaction of the judgment, with
costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic
corporations; and at the time of the incident with
which we are here concerned, H.D. Cranston was
the representative of the plaintiff in the City of
Manila. At the same time the plaintiff was the
registered owner of the motor
schooner Gwendoline, which was used in the
fishing trade in the Philippine Islands. In January,
1925, Cranston decided, if practicable, to have the
engine on the Gwendoline changed from a gasoline
consumer to a crude oil burner, expecting thereby
to effect economy in the cost of running the boat.
He therefore made known his desire to McLeod &
Co., a firm dealing in tractors, and was told by Mc
Kellar, of said company, that he might make
inquiries of the Philippine Motors Corporations,
which had its office on Ongpin Street, in the City of
Manila. Cranston accordingly repaired to the office
of the Philippine Motors Corporation and had a
conference with C.E. Quest, its manager, who
agreed to do the job, with the understanding that
payment should be made upon completion of the
work.
The Philippine Motors Corporation was at this
time engaged in business as an automobile agency,
but, under its charter, it had authority to deal in all
sorts of machinery engines and motors, as well as
to build, operate, buy and sell the same and the
equipment therof. Quest, as general manager, had
full charge of the corporations in all its branches.
As a result of the aforesaid interview, Quest, in
company with Cranston, visited
the Gwendoline while it lay at anchor in the Pasig
River, and the work of effecting the change in the
engine was begun and conducted under the
supervision of Quest, chiefly by a mechanic whom
Quest took with him to the boat. In this work
Quest had the assistance of the members of the
crew of the Gwendoline, who had been directed by
Cranston to place themselves under Quest's
directions.
Upon preliminary inspection of the engine, Quest
came to the conclusion that the principal thing
necessary to accomplish the end in view was to
install a new carburetor, and a Zenith carburetor
was chosen as the one most adapted to the
purpose. After this appliance had been installed,
the engine was tried with gasoline as a fuel,
supplied from the tank already in use. The result
of this experiment was satisfactory. The next
problem was to introduce into the carburetor the
baser fuel, consisting of a low grade of oil mixed
with distillate. For this purpose a temporary tank
to contain the mixture was placed on deck above
and at a short distance from the compartment
covering the engine. This tank was connected with
the carburetor by a piece of tubing, which was
apparently not well fitted at the point where it
was connected with the tank. Owing to this fact
the fuel mixture leaked from the tank and dripped
sown into the engine compartment. The new fuel
line and that already in use between the gasoline
tank and carburetor were so fixed that it was
possible to change from the gasoline fuel to the
mixed fuel. The purpose of this arrangement was
to enable the operator to start the engine on
gasoline and then, after the engine had been
operating for a few moments, to switch to the new
fuel supply. lawphil.net
In the course of the preliminary work upon the
carburetor and its connections, it was observed
that the carburetor was flooding, and that the
gasoline, or other fuel, was trickling freely from
the lower part to the carburetor to the floor. This
fact was called to Quest's attention, but he
appeared to think lightly of the matter and said
that, when the engine had gotten to running well,
the flooding would disappear.
After preliminary experiments and adjustments
had been made the boat was taken out into the
bay for a trial run at about 5 p.m. or a little later,
on the evening of January 30,1925. The first part
of the course was covered without any untoward
development, other than he fact that the engine
stopped a few times, owing no doubt to the use of
an improper mixture of fuel. In the course of the
trial Quest remained outside of the engine
compartment and occupied himself with making
distillate, with a view to ascertaining what
proportion of the two elements would give best
results in the engine.
34 | T O R T S
As the boat was coming in from this run, at about
7:30 p.m. and when passing near Cavite, the
engine stopped, and connection again had to be
made with the gasoline line to get a new start.
After this had been done the mechanic, or
engineer, switched to the tube connecting with the
new mixture. A moment later a back fire occurred
in the cylinder chamber. This caused a flame to
shoot back into the carburetor, and instantly the
carburetor and adjacent parts were covered with
a mass of flames, which the members of the crew
were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and
their escape was safely effected, but
the Gwendoline was reduced to a mere hulk. The
salvage from, the wreck, when sold, brought only
the sum of P150. The value of the boat, before the
accident occured, as the court found, was P10,000.
A study of the testimony lead us to the conclusion
that the loss of this boat was chargeable to the
negligence and lack of skill of Quest. The
temporary tank in which the mixture was
prepared was apparently at too great an elevation
from the carburetor, with the result that when the
fuel line was opened, the hydrostatic pressure in
the carburetor was greater than the delicate parts
of the carburetor could sustain. This was no doubt
the cause of the flooding of the carburetor; and the
result was that; when the back fire occurred, the
external parts of the carburetor, already saturated
with gasoline, burst into flames, whence the fire
was quickly communicated to the highly
inflammable material near-by. Ordinarily a back
fire from an engine would not be followed by any
disaster, but in this case the leak along the pipe
line and the flooding of the carburetor had created
a dangerous situation, which a prudent mechanic,
versed in repairs of this nature, would have taken
precautions to avoid. The back fire may have been
due either to the fact that the spark was too
advanced or the fuel improperly mixed.
In this connection it must be remembered that
when a person holds himself out as being
competent to do things requiring professional
skill, he will be held liable for negligence if he fails
to exhibit the care and skill of one ordinarily
skilled in the particular work which he attempts to
do. The proof shows that Quest had had ample
experience in fixing the engines of automobiles
and tractors, but it does not appear that he was
experienced in the doing of similar work on boats.
For this reason, possibly the dripping of the
mixture form the tank on deck and the flooding of
the carburetor did not convey to his mind an
adequate impression of the danger of fire. But a
person skilled in that particular sort of work
would, we think have been sufficiently warned
from those circumstances to cause him to take
greater and adequate precautions against the
danger. In other words Quest did not use the skill
that would have been exhibited by one ordinarily
expert in repairing gasoline engines on boats.
There was here, in our opinion, on the part of
Quest, a blameworthy antecedent inadvertence to
possible harm, and this constitutes negligence.
The burning of the Gwendoline may be said to
have resulted from accident, but this accident was
in no sense an unavoidable accident. It would not
have occured but for Quest's carelessness or lack
of skill. The test of liability is not whether the
injury was accidental in a sense, but whether
Quest was free from blame.
We therefore see no escape from the conclusion
that this accident is chargeable to lack of skill or
negligence in effecting the changes which Quest
undertook to accomplish; and even supposing that
our theory as to the exact manner in which the
accident occurred might appear to be in some
respects incorrect, yet the origin of the fire in not
so inscrutable as to enable us to say that it
was casus fortuitus.
The trial judge seems to have proceeded on the
idea that, inasmuch as Quest had control of
the Gwendoline during the experimental run, the
defendant corporation was in the position of a
bailee and that, as a consequence, the burden of
proof was on the defendant to exculpate itself
from responsibility by proving that the accident
was not due to the fault of Quest. We are unable to
accede to this point of view. Certainly, Quest was
not in charge of the navigation of the boat on this
trial run. His employment contemplated the
installation of new parts in the engine only, and it
seems rather strained to hold that the defendant
corporation had thereby become bailee of the
boat. As a rule workmen who make repairs on a
ship in its owner's yard, or a mechanic who
repairs a coach without taking it to his shop, are
not bailees, and their rights and liabilities are
determined by the general rules of law, under
their contract. The true bailee acquires possession
and what is usually spoken of as special property
in the chattel bailed. As a consequence of such
possession and special property, the bailee is
given a lien for his compensation. These ideas
seem to be incompatible with the situation now
under consideration. But though defendant cannot
be held liable in the supposition that the burden of
proof had not been sustained by it in disproving
the negligence of its manager, we are nevertheless
of the opinion that the proof shows by a clear
preponderance that the accident to
the Gwendoline and the damages resulting
therefrom are chargeable to the negligence or lack
of skill of Quest.
This action was instituted about two years after
the accident in question had occured, and after
Quest had ceased to be manager of the defendant
corporation and had gone back to the United
States. Upon these facts, the defendant bases the
contention that the action should be considered
stale. It is sufficient reply to say that the action
was brought within the period limited by the
statute of limitations and the situation is not one
where the defense of laches can be properly
invoked.
It results that the judgment appealed from,
awarding damages to the plaintiff in the amount of
35 | T O R T S
P9,850, with interest, must be affirmed; and it is
so ordered, with costs against the appellant.
Avanceña, C.J., Malcolm, Villamor, Ostrand,
Romualdez and Villa-Real, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7664             August 29, 1958
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 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 Abañ o and Mario
Villanueva. The tour of duty of Abañ o 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
Abañ o 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 Abañ o of the same
happening and Abañ o 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 Abañ o 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, Abañ o 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
36 | T O R T S
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:
"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 Abañ o 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 Abañ o, they contend, is attributable
to appellee.
But the claim of these two witnesses not only was
vehemently denied by lifeguard Abañ o, 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 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
37 | T O R T S
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 Abañ o 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 Abañ o
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 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)
38 | T O R T S
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.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes,

A., Concepcion, Reyes, J. B. L., Endencia and Felix,
JJ., concur.

39 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-40570 January 30, 1976
TEODORO C. UMALI, petitioner,
vs.
HON. ANGEL BACANI, in his capacity as
Presiding Judge of Branch IX of the Court of
First Instance of Pangasinan and FIDEL H.
SAYNES, respondents.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.
ESGUERRA, J.:
Petition for certiorari to review the decision of the
Court of First Instance of Pangasinan Branch IX, in
Civil Case No. U2412, entitled, "Fidel H. Saynes,
plaintiff-appellee versus Teodoro C. Umali,
defendant-appellant", which found the death by
electrocution of Manuel Saynes, a boy of 3 years
and 8 months, as "due to the fault or negligence of
the defendant (Umali) as owner and manager of
the Alcala Electric Plant", although the liability of
defendant is mitigated by the contributory
negligence of the parents of the boy "in not
providing for the proper and delegate supervision
and control over their son The dispositive part of
the decision reads as follows:
Wherefore, the Court hereby
renders judgment in favor of the
plaintiff by ordering the
defendant to pay to the plaintiff
the sum of Five Thousand Pesos
(P5,000.00) for the death of his
son, Manuel Saynes; the sum of
One Thousand Two Hundred
Pesos (P1,200.00) for actual
expenses for and in connection
with the burial of said deceased
child, and the further sum of
Three Thousand Pesos
(P3,000.00) for moral damages
and Five Hundred (P500.00)
Pesos as reasonable attorney's
fee, or a total of Nine Thousand
Seven Hundred (P9,700.00)
Pesos, and to pay the costs of this
suit. It Is So Ordered.
Undisputed facts appearing of record are:
On May 14, 1972, a storm with
strong rain hit the Municipality of
Alcala Pangasinan, which started
from 2:00 o'clock in the
afternoon and lasted up to about
midnight of the same day. During
the storm, the banana plants
standing on an elevated ground
along the barrio road in San
Pedro Ili of said municipality and
near the transmission line of the
Alcala Electric Plant were blown
down and fell on the electric
wire. As a result, the live electric
wire was cut, one end of which
was left hanging on the electric
post and the other fell to the
ground under the fallen banana
plants.
On the following morning, at
about 9:00 o'clock barrio captain
Luciano Bueno of San Pedro Iii
who was passing by saw the
broken electric wire and so he
warned the people in the place
not to go near the wire for they
might get hurt. He also saw
Cipriano Baldomero, a laborer of
the Alcala Electric Plant near the
place and notified him right then
and there of the broken line and
asked him to fix it, but the latter
told the barrio captain that he
could not do it but that he was
going to look for the lineman to
fix it.
Sometime after the barrio captain
and Cipriano Baldomero had left
the place, a small boy of 3 years
and 8 months old by the name of
Manuel P. Saynes, whose house is
just on the opposite side of the
road, went to the place where the
broken line wire was and got in
contact with it. The boy was
electrocuted and he subsequently
died. It was only after the
electrocution of Manuel Saynes
that the broken wire was fixed at
about 10:00 o'clock on the same
morning by the lineman of the
electric plant.
Petitioner claims that he could not be liable under
the concept of quasi-delict or tort as owner and
manager of the Alcala Electric Plant because the
proximate cause of the boy's death electrocution
could not be due to any negligence on his part, but
rather to a fortuitous event-the storm that caused
the banana plants to fall and cut the electric line-
pointing out the absence of negligence on the part
of his employee Cipriano Baldomero who tried to
have the line repaired and the presence of
negligence of the parents of the child in allowing
him to leave his house during that time.
A careful examination of the record convinces Us
that a series of negligence on the part of
40 | T O R T S
defendants' employees in the Alcala Electric Plant
resulted in the death of the victim by
electrocution. First, by the very evidence of the
defendant, there were big and tall banana plants
at the place of the incident standing on an elevated
ground which were about 30 feet high and which
were higher than the electric post supporting the
electric line, and yet the employees of the
defendant who, with ordinary foresight, could
have easily seen that even in case of moderate
winds the electric line would be endangered by
banana plants being blown down, did not even
take the necessary precaution to eliminate that
source of danger to the electric line. Second, even
after the employees of the Alcala Electric Plant
were already aware of the possible damage the
storm of May 14, 1972, could have caused their
electric lines, thus becoming a possible threat to
life and property, they did not cut off from the
plant the flow of electricity along the lines, an act
they could have easily done pending inspection of
the wires to see if they had been cut. Third,
employee Cipriano Baldomero was negligent on
the morning of the incident because even if he was
already made aware of the live cut wire, he did not
have the foresight to realize that the same posed a
danger to life and property, and that he should
have taken the necessary precaution to prevent
anybody from approaching the live wire; instead
Baldomero left the premises because what was
foremost in his mind was the repair of the line,
obviously forgetting that if left unattended to it
could endanger life and property.
On defendants' argument that the proximate cause
of the victim's death could be attributed to the
parents' negligence in allowing a child of tender
age to go out of the house alone, We could readily
see that because of the aforementioned series of
negligence on the part of defendants' employees
resulting in a live wire lying on the premises
without any visible warning of its lethal character,
anybody, even a responsible grown up or not
necessarily an innocent child, could have met the
same fate that befell the victim. It may be true, as
the lower Court found out, that the contributory
negligence of the victim's parents in not properly
taking care of the child, which enabled him to
leave the house alone on the morning of the
incident and go to a nearby place cut wire was
very near the house (where victim was living)
where the fatal fallen wire electrocuted him, might
mitigate respondent's liability, but we cannot
agree with petitioner's theory that the parents'
negligence constituted the proximate cause of the
victim's death because the real proximate cause
was the fallen live wire which posed a threat to
life and property on that morning due to the series
of negligence adverted to above committed by
defendants' employees and which could have
killed any other person who might by accident get
into contact with it. Stated otherwise, even if the
child was allowed to leave the house unattended
due to the parents' negligence, he would not have
died that morning where it not for the cut live
wire he accidentally touched.
Art. 2179 of the Civil Code provides that if the
negligence of the plaintiff (parents of the victim in
this case) was only contributory, the immediate
and proximate cause of the injury being the
defendants' lack of due care, the plaintiff may
recover damages, but the courts shall mitigate the
damages to be awarded. This law may be availed
of by the petitioner but does not exempt him from
liability. Petitioner's liability for injury caused by
his employees negligence is well defined in par. 4,
of Article 2180 of the Civil Code, which states:
The owner and manager of an
establishment or enterprise are
likewise responsible for damages
caused by their employees in the
service of the branches in which
the latter are employed or on tile
occasion of their functions.
The negligence of the employee is presumed to be
the negligence of the employer because the
employer is supposed to exercise supervision over
the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum
Oil Co. vs. Tan and Court of Appeals, 107 Phil.
109). In fact the proper defense for the employer
to raise so that he may escape liability is to prove
that he exercised, the diligence of the good father
of the family to prevent damage not only in the
selection of his employees but also in adequately
supervising them over their work. This defense
was not adequately proven as found by the trial
Court, and We do not find any sufficient reason to
deviate from its finding.
Notwithstanding diligent efforts, we fail to fired
any reversible error committed by the trial Court
in this case, either in its appreciation of the
evidence on questions of facts or on the
interpretation and application of laws government
quasi-delicts and liabilities emanating therefrom.
The inevitable conclusion is that no error
amounting to grave abuse of discretion was
committed and the decision must be left
untouched.
WHEREFORE, the decision of respondent Court
dated June 27, 1974 is affirmed.
Costs against petitioner.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muñoz Palma
and Martin, JJ., concur.
41 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-15122             March 10, 1920
THE UNITED STATES, plaintiff-appellee,
vs.
TAN PIACO, VENTURA ESTUYA, PEDRO
HOMERES, MAXIMINO GALSA and EMILIO
LEOPANDO, defendants.
TAN PIACO, appellant.
Recaredo Ma. Calvo for appellant.
Attorney-General Paredes for appellee.
JOHNSON, J.:
Said defendants were charged with a violation of
the Public Utility Law (Act No. 2307 as amended
by Acts Nos. 2362 and 2694), in that they were
operating a public utility without permission from
the Public Utility Commissioner.
Upon the complain presented each of said
defendants were arrested and brought to trial.
After hearing the evidence the Honorable
Cayetano Lukban, judge, found that the evidence
was insufficient to support the charges against
Ventura Estuya, Pedro Homeres, Maximino Galsa
and Emilio Leopando, and absolved them from all
liability under the complaint and discharged them
from all liability under the complaint and
discharged them from the custody of the law. The
lower court found the defendant Tan Piaco guilty
of the crime charged in the complaint and
sentence him to pay a fine of P100, and, in case of
insolvency, to suffer subsidiary imprisonment, and
to pay one-fifth part of the costs. From that
sentence Tan Piaco appealed to this court.
The facts proved during the trial of the cause may
be stated as follows:
The appellant rented two automobile trucks and
was using them upon the highways of the
Province of Leyte for the purpose of carrying some
passengers and freight; that he carried passengers
and freight under a special contract in each case;
that he had not held himself out to carry all
passengers and all freight for all persons who
might offer passengers and freight.
The Attorney-General, in a carefully prepared
brief, says: "The question is whether the appellant,
under the above facts, was a public utility under
the foregoing definitions," and was therefore
subject to the control and regulation of the Public
Utility Commission. "We have not found anything
in the evidence showing that the appellant
operated the trucks in question for public use.
These trucks, so far as indicated by the evidence
and as far as the appellant is concerned, furnished
service under special agreements to carry
particular persons and property. . . . For all that we
can deduce from the evidence, these passengers,
or the owners of the freight, may have controlled
the whole vehicles 'both as to content, direction,
and time of use,' which facts, under all the
circumstances of the case, would, in our opinion,
take away the defendant's business from the
provisions of the Public Utility Act."
In support of the conclusion of the Attorney-
General, he cites the case of Terminal Taxicab Co.
vs. Kutz (241 U. S.. 252). In that case the Terminal
Taxicab Co. furnished automobiles from its central
garage on special orders and did not hold itself out
to accommodate any and all persons. The plaintiff
reserve to itself the right to refuse service. The
Supreme Court of the United States, speaking
through Mr. Justice Holmes, said: "The bargains
made by the plaintiff are individual, and however
much they may tend towards uniformity in price,
probably have not the mechanical fixity of charges
that attend the use of taxicabs from the stations to
the hotels. The court is of the opinion that that
part of the business is not to be regarded as a
public utility. It is true that all business, and for
the matter of that, every life in all its details, has a
public aspect, some bearing upon the welfare of
the country in which it is passed." The court held
that by virtue of the fact that said company did not
hold itself out to serve any and all persons, it was
not a public utility and was not subject to the
jurisdiction of the public utility commission.
Upon the facts adduced during the trial of the
cause, and for the foregoing reasons, the Attorney-
General recommends that the sentence of the
lower court be revoked and that the appellant be
absolved from all liability under the complaint.
Section 14 of Act No. 2307, as amended by section
9 of Act No. 2694, provides that: "The Public
Utility Commission or Commissioners shall have
general supervision and regulation of, jurisdiction
and control over, all public utilities. . . . The term
'public utility' is hereby defined to include every
individual, copartnership, association, corporation
or joint stock company, etc., etc., that now or
hereafter may own, operate, managed, or control
any common carrier, railroad, street railway, etc.,
etc., engaged in the transportation of passengers,
cargo, etc., etc., for public use."
Under the provisions of said section, two things
are necessary: (a) The individual, copartnership,
etc., etc., must be a public utility; and (b) the
business in which such individual, copartnership,
etc. etc., is engaged must be for public use. So long
as the individual or copartnership, etc., etc., is
engaged in a purely private enterprise, without
attempting to render service to all who may apply,
he can in no sense be considered a public utility,
for public use.
"Public use" means the same as "use by the
public." The essential feature of the public use is
42 | T O R T S
that it is not confined to privilege individuals, but
is open to the indefinite public. It is this indefinite
or unrestricted quality that gives it its public
character. In determining whether a use is public,
we must look not only the character of the
business to be done, but also to the proposed
mode of doing it. If the use is merely optional with
the owners, or the public benefit is merely
incidental, it is not a public use, authorizing the
exercise of the jurisdiction of the public utility
commission. There must be, in general, a right
which the law compels the power to give to the
general public. It is not enough that the general
prosperity of the public is promoted. Public use is
not synonymous with public interest. The true
criterion by which to judge of the character of the
use is whether the public may enjoy it by right or
only by permission.

For all of the foregoing reasons, we agree with the

Attorney-General that the appellant was not
operating a public utility, for public use, and was
not, therefore, subject to the jurisdiction of the
Public Utility Commission.

Therefore, the sentence of the lower court is

hereby revoked, and it is hereby ordered and
decreed that the complaint be dismissed and that
the defendant be absolved from all liability under
the same, and that he be discharged from the
custody of the law, without any finding as to costs.
So ordered.

Arellano, C.J., Torres, Araullo, Street, Malcolm and

Avanceña, JJ., concur.

43 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19495             February 2, 1924
HONORIO LASAM, ET AL., plaintiffs-appellants,
vs.
FRANK SMITH, JR., defendant-appellant.
Palma and Leuterio for plaintiffs-appellants.
Mariano Alisangco for defendant-appellant.
OSTRAND, J.:
The plaintiff are husband and wife and this action
is brought to recover damages in the sum of
P20,000 for physical injuries sustained by them in
an automobile accident. The trial court rendered a
judgment in their favor for the sum of P1,254.10,
with legal interest from the date of the judgment.
Both the plaintiffs and the defendant appeal, the
former maintaining that the damages awarded are
insufficient while the latter denies all liability for
any damages whatever.
It appears from the evidence that on February 27,
1918, the defendant was the owner of a public
garage in the town of San Fernando, La Union, and
engaged in the business of carrying passengers for
hire from the one point to another in the Province
of La Union and the surrounding provinces. On the
date mentioned, he undertook to convey the
plaintiffs from San Fernando to Currimao, Ilocos
Norte, in a Ford automobile. On leaving San
Fernando, the automobile was operated by a
licensed chauffeur, but after having reached the
town of San Juan, the chauffeur allowed his
assistant, Remigio Bueno, to drive the car. Bueno
held no driver's license, but had some experience
in driving, and with the exception of some slight
engine trouble while passing through the town of
Luna, the car functioned well until after the
crossing of the Abra River in Tagudin, when,
according to the testimony of the witnesses for the
plaintiffs, defects developed in the steering gear so
as to make accurate steering impossible, and after
zigzagging for a distance of about half a kilometer,
the car left the road and went down a steep
embankment.
The defendant, in his testimony, maintains that
there was no defect in the steering gear, neither
before nor after the accident, and expresses the
opinion that the swaying or zigzagging of the car
must have been due to its having been driven at an
excessive rate of speed. This may possibly be true,
but it is, from our point of view, immaterial
whether the accident was caused by negligence on
the part of the defendant's employees, or whether
it was due to defects in the automobile; the result
would be practically the same in either event.
In going over the bank of the road, the automobile
was overturned and the plaintiffs pinned down
under it. Mr. Lasam escaped with a few contusions
and a "dislocated" rib , but his wife, Joaquina
Sanchez, received serious injuries, among which
was a compound fracture of one of the bones in
her left wrist. She also appears to have suffered a
nervous breakdown from which she had not fully
recovered at the time of the trial.
The complaint in the case was filed about a year
and a half after the occurrence above related. It
alleges, among other things, that the accident was
due to defects in the automobile as well as to the
incompetence and negligence of the chauffeur, and
the case appears to have been tried largely upon
the theory that it sounds in tort and that the
liability of the defendant is governed by article
1903 of the Civil Code. The trial court held,
however, that the cause of action rests on the
defendant's breach of the contract of carriage and
that, consequently, articles 1101-1107 of the Civil
Code, and not article 1903, are applicable. The
court further found that the breach of the contract
was not due to fortuitous events and that,
therefore, the defendant was liable in damages.
In our opinion, the conclusions of the court below
are entirely correct. That upon the facts stated the
defendant's liability, if any, is contractual, is well
settled by previous decisions of the court,
beginning with the case of Rakes vs. Atlantic, Gulf
& Pacific Co. (7 Phil., 359), and the distinction
between extra-contractual liability and
contractual liability has been so ably and
exhaustively discussed in various other cases, that
nothing further need here be said upon that
subject. (See Cangco vs. Manila Railroad Co., 38
Phil., 768; Manila Railroad Co. vs. Compania
Trasatlantica and Atlantic, Gulf & Pacific Co., 38
Phil., 875; De Guia vs. Manila Electric Railroad &
Light Co., 40 Phil., 706.) It is sufficient to reiterate
that the source of the defendant's legal liability is
the contract of carriage; that by entering into that
contract he bound himself to carry the plaintiffs
safely and securely to their destination; and that
having failed to do so he is liable in damages
unless he shows that the failure to fulfill his
obligation was due to causes mentioned in article
1105 of the Civil Code, which reads as follows:
No one shall be liable for events which
could not be foreseen or which, even if
foreseen, were inevitable, with the
exception of the cases in which the law
expressly provides otherwise and those in
which the obligation itself imposes such
liability.
This brings us to the principal question in the
case:
What is meant by "events which cannot be
foreseen and which, having been foreseen, are
inevitable?" The Spanish authorities regard the
language employed as an effort to define the
44 | T O R T S
term caso fortuito and hold that the two
expressions are synonymous.
(Manresa, Comentarios al Codigo Civil Español, vol.
8, pp. 88 et seq.; Scævola, Codigo Civil, vol. 19, pp.
526 et seq.)
The antecedent to article 1105 is found in Law 11,
Title 33, Partida 7, which defines caso fortuito as
"occasion que a case por aventura de que non se
puede ante ver. E son estos, derrivamientos de
casas e fuego que se enciende a so ora, e
quebrantamiento de navio, fuerca de ladrones. . . .
(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 robbers. . . .)"
Escriche defines caso fortuito as "an unexpected
event or act of God which could either be foreseen
nor resisted, such as floods, torrents, shipwrecks,
conflagrations, lightning, compulsion,
insurrections, destructions, destruction of
buildings by unforseen accidents and other
occurrences of a similar nature."
In discussing and analyzing the term caso
fortuito the Enciclopedia Juridica Española says:
"In a legal sense and, consequently, also in relation
to contracts, a caso fortuito presents the following
essential characteristics: (1) The cause of the
unforeseen and unexpected occurrence, or of the
failure of the debtor to comply with his obligation,
must be independent of the human will. (2) It
must be impossible to foresee the event which
constitutes the caso fortuito, or if it can be
foreseen, it must be impossible to avoid. (3) The
occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in
a normal manner. And (4) the obligor (debtor)
must be free from any participation in the
aggravation of the injury resulting to the creditor."
(5 Enciclopedia Juridica Española, 309.)
As will be seen, these authorities agree that some
extraordinary circumstance independent of the
will of the obligor, or of his employees, is an
essential element of a caso fortuito. Turning to the
present case, it is at once apparent that this
element is lacking. It is not suggested that the
accident in question was due to an act of God or to
adverse road conditions which could not have
been foreseen. As far as the records shows, the
accident was caused either by defects in the
automobile or else through the negligence of its
driver. That is not a caso fortuito.
We agree with counsel that neither under the
American nor Spanish law is a carrier of
passengers an absolute insurer against the risks of
travel from which the passenger may protect
himself by exercising ordinary care and diligence.
The case of Alba vs. Sociedad Anonima de
Tranvias, Jurisprudencia Civil, vol. 102, p. 928,
cited by the defendant in support of his
contentions, affords a good illustration of the
application of this principle. In that case Alba, a
passenger on a street car, was standing on the
platform of the car while it was in motion. The car
rounded a curve causing Alba to lose his balance
and fall off the platform, sustaining severe
injuries. In an action brought by him to recover
damages, the supreme court of Spain held that
inasmuch as the car at the time of the accident was
travelling at a moderate rate of speed and there
was no infraction of the regulations, and the
plaintiff was exposed to no greater danger than
that inherent in that particular mode of travel, the
plaintiff could not recover, especially so since he
should have been on his guard against a
contingency as natural as that of losing his balance
to a greater or less extent when the car rounded the
curve.
But such is not the present case; here the
passengers had no means of avoiding the danger
or escaping the injury.
The plaintiffs maintain that the evidence clearly
establishes that they are entitled to damages in
the sum of P7,832.80 instead of P1,254.10 as
found by the trial court, and their assignments of
error relate to this point only.
There can be no doubt that the expenses incurred
by the plaintiffs as a result of the accident greatly
exceeded the amount of the damages awarded.
But bearing in mind that in determining the extent
of the liability for losses or damages resulting
from negligence in the fulfillment of a contractual
obligation, the courts have "a discretionary power
to moderate the liability according to the
circumstances" (De Guia vs. Manila Electric
Railroad & Light Co., 40 Phil., 706; art. 1103, Civil
Code), we do not think that the evidence is such as
to justify us in interfering with the discretion of
the court below in this respect. As pointed out by
that court in its well-reasoned and well-
considered decision, by far the greater part of the
damages claimed by the plaintiffs resulted from
the fracture of a bone in the left wrist of Joaquina
Sanchez and from her objections to having a
decaying splinter of the bone removed by a
surgical operation. As a consequence of her refusal
to submit such an operation, a series of infections
ensued and which required constant and
expensive medical treatment for several years. We
agree with the court below that the defendant
should not be charged with these expenses.
For the reasons stated, the judgment appealed
from is affirmed, without costs in this instance. So
ordered.
Araullo, C.J., Street, Malcolm, Johns and Romualdez,
JJ., concur.
45 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10605             June 30, 1958
PRECILLANO NECESITO, ETC., plaintiff-appellant,
vs.
NATIVIDAD PARAS, ET AL., defendants-
appellees.
x---------------------------------------------------------x
G.R. No. L-10606             June 30, 1958
GERMAN NECESITO, ET AL., plaintiffs-appellants,
vs.
NATIVIDAD PARAS, ET AL., defendants-
appellees.
Tomas Besa and Federico Agrava for appellants.
Jose W. Diokno for appellees.
REYES, J. B. L., J.:
These cases involve ex contractu against the
owners and operators of the common carrier
known as Philippine Rabbit Bus Lines, filed by one
passenger, and the heirs of another, who injured
as a result of the fall into a river of the vehicle in
which they were riding.
In the morning of January 28, 1964, Severina
Garces and her one-year old son, Precillano
Necesito, carrying vegetables, boarded passenger
auto truck or bus No. 199 of the Philippine Rabbit
Bus Lines at Agno, Pangasinan. The passenger
truck, driven by Francisco Bandonell, then
proceeded on its regular run from Agno to Manila.
After passing Mangatarem, Pangasinan truck No.
199 entered a wooden bridge, but the front
wheels swerved to the right; the driver lost
control, and after wrecking the bridge's wooden
rails, the truck fell on its right side into a creek
where water was breast deep. The mother,
Severina Garces, was drowned; the son, Precillano
Necesito, was injured, suffering abrasions and
fracture of the left femur. He was brought to the
Provincial Hospital at Dagupan, where the fracture
was set but with fragments one centimeter out of
line. The money, wrist watch and cargo of
vegetables were lost.
Two actions for damages and attorney's fees
totalling over P85,000 having been filed in the
Court of First Instance of Tarlac (Cases Nos. 908
and 909) against the carrier, the latter pleaded
that the accident was due to "engine or
mechanical trouble" independent or beyond the
control of the defendants or of the driver
Bandonell.
After joint trial, the Court of First Instance found
that the bus was proceeding slowly due to the bad
condition of the road; that the accident was
caused by the fracture of the right steering
knuckle, which was defective in that its center or
core was not compact but "bubbled and cellulous",
a condition that could not be known or
ascertained by the carrier despite the fact that
regular thirty-day inspections were made of the
steering knuckle, since the steel exterior was
smooth and shiny to the depth of 3/16 of an inch
all around; that the knuckles are designed and
manufactured for heavy duty and may last up to
ten years; that the knuckle of bus No. 199 that
broke on January 28, 1954, was last inspected on
January 5, 1954, and was due to be inspected
again on February 5th. Hence, the trial court,
holding that the accident was exclusively due to
fortuitous event, dismissed both actions. Plaintiffs
appealed directly to this Court in view of the
amount in controversy.
We are inclined to agree with the trial court that it
is not likely that bus No. 199 of the Philippine
Rabbit Lines was driven over the deeply rutted
road leading to the bridge at a speed of 50 miles
per hour, as testified for the plaintiffs. Such
conduct on the part of the driver would have
provoked instant and vehement protest on the
part of the passengers because of the attendant
discomfort, and there is no trace of any such
complaint in the records. We are thus forced to
assume that the proximate cause of the accident
was the reduced strength of the steering knuckle
of the vehicle caused by defects in casting it. While
appellants hint that the broken knuckle exhibited
in court was not the real fitting attached to the
truck at the time of the accident, the records they
registered no objection on that ground at the trial
below. The issue is thus reduced to the question
whether or not the carrier is liable for the
manufacturing defect of the steering knuckle, and
whether the evidence discloses that in regard
thereto the carrier exercised the diligence
required by law (Art. 1755, new Civil Code).
ART. 1755. A common carrier is bound to
carry the passengers safely as far as
human care and foresight can provide,
using the utmost diligence of very
cautious persons, with a due regard for
the all the circumstances.
It is clear that the carrier is not an insurer of the
passengers' safety. His liability rests upon
negligence, his failure to exercise the "utmost"
degree of diligence that the law requires, and by
Art. 1756, in case of a passenger's death or injury
the carrier bears the burden of satisfying the court
that he has duly discharged the duty of prudence
required. In the American law, where the carrier is
held to the same degree of diligence as under the
new Civil Code, the rule on the liability of carriers
for defects of equipment is thus expressed: "The
preponderance of authority is in favor of the
doctrine that a passenger is entitled to recover
46 | T O R T S
damages from a carrier for an injury resulting
from a defect in an appliance purchased from a
manufacturer, whenever it appears that the defect
would have been discovered by the carrier if it
had exercised the degree of care which under the
circumstances was incumbent upon it, with regard
to inspection and application of the necessary
tests. For the purposes of this doctrine, the
manufacturer is considered as being in law the
agent or servant of the carrier, as far as regards
the work of constructing the appliance. According
to this theory, the good repute of the
manufacturer will not relieve the carrier from
liability" (10 Am. Jur. 205, s, 1324; see also
Pennsylvania R. Co. vs. Roy, 102 U. S. 451; 20 L. Ed.
141; Southern R. Co. vs. Hussey, 74 ALR 1172; 42
Fed. 2d 70; and Ed Note, 29 ALR 788; Ann. Cas.
1916E 929).
The rationale of the carrier's liability is the fact
that the passenger has neither choice nor control
over the carrier in the selection and use of the
equipment and appliances in use by the carrier.
Having no privity whatever with the manufacturer
or vendor of the defective equipment, the
passenger has no remedy against him, while the
carrier usually has. It is but logical, therefore, that
the carrier, while not in insurer of the safety of his
passengers, should nevertheless be held to answer
for the flaws of his equipment if such flaws were
at all discoverable. Thus Hannen, J., in Francis vs.
Cockrell, LR 5 Q. B. 184, said:
In the ordinary course of things, the
passenger does not know whether the
carrier has himself manufactured the
means of carriage, or contracted with
someone else for its manufacture. If the
carrier has contracted with someone else
the passenger does not usually know who
that person is, and in no case has he any
share in the selection. The liability of the
manufacturer must depend on the terms
of the contract between him and the
carrier, of which the passenger has no
knowledge, and over which he can have
no control, while the carrier can
introduce what stipulations and take
what securities he may think proper. For
injury resulting to the carrier himself by
the manufacturer's want of care, the
carrier has a remedy against the
manufacturer; but the passenger has no
remedy against the manufacturer for
damage arising from a mere breach of
contract with the carrier . . . . Unless,
therefore, the presumed intention of the
parties be that the passenger should, in
the event of his being injured by the
breach of the manufacturer's contract, of
which he has no knowledge, be without
remedy, the only way in which effect can
be given to a different intention is by
supposing that the carrier is to be
responsible to the passenger, and to look
for his indemnity to the person whom he
selected and whose breach of contract has
caused the mischief. (29 ALR 789)
And in the leading case of Morgan vs. Chesapeake
& O. R. Co. 15 LRA (NS) 790, 16 Ann. Cas. 608, the
Court, in holding the carrier responsible for
damages caused by the fracture of a car axle, due
to a "sand hole" in the course of moulding the axle,
made the following observations.
The carrier, in consideration of certain
well-known and highly valuable rights
granted to it by the public, undertakes
certain duties toward the public, among
them being to provide itself with suitable
and safe cars and vehicles in which carry
the traveling public. There is no such duty
on the manufacturer of the cars. There is
no reciprocal legal relation between him
and the public in this respect. When the
carrier elects to have another build its
cars, it ought not to be absolved by that
facts from its duty to the public to furnish
safe cars. The carrier cannot lessen its
responsibility by shifting its undertaking
to another's shoulders. Its duty to furnish
safe cars is side by side with its duty to
furnish safe track, and to operate them in
a safe manner. None of its duties in these
respects can be sublet so as to relieve it
from the full measure primarily exacted
of it by law. The carrier selects the
manufacturer of its cars, if it does not
itself construct them, precisely as it does
those who grade its road, and lay its
tracks, and operate its trains. That it does
not exercise control over the former is
because it elects to place that matter in
the hands of the manufacturer, instead of
retaining the supervising control itself.
The manufacturer should be deemed the
agent of the carrier as respects its duty to
select the material out of which its cars
and locomotive are built, as well as in
inspecting each step of their construction.
If there be tests known to the crafts of car
builders, or iron moulders, by which such
defects might be discovered before the
part was incorporated into the car, then
the failure of the manufacturer to make
the test will be deemed a failure by the
carrier to make it. This is not a vicarious
responsibility. It extends, as the necessity
of this business demands, the rule of
respondeat superior to a situation which
falls clearly within its scope and spirit.
Where an injury is inflicted upon a
passenger by the breaking or wrecking of
a part of the train on which he is riding, it
is presumably the result of negligence at
some point by the carrier. As stated by
Judge Story, in Story on Bailments, sec.
601a: "When the injury or damage
happens to the passenger by the breaking
down or overturning of the coach, or by
any other accident occurring on the
ground, the presumption prima facie is
that it occurred by the negligence of the
coachmen, and onus probandi is on the
47 | T O R T S
 proprietors of the coach to establish that
there has been no negligence whatever,
and that the damage or injury has been
occasioned by inevitable casualty, or by
some cause which human care and
foresight could not prevent; for the law
will, in tenderness to human life and limb,
hold the proprietors liable for the
slightest negligence, and will compel
them to repel by satisfactory proofs every
imputation thereof." When the passenger
has proved his injury as the result of a
breakage in the car or the wrecking of the
train on which he was being carried,
whether the defect was in the particular
car in which he was riding or not, the
burden is then cast upon the carrier to
show that it was due to a cause or causes
which the exercise of the utmost human
skill and foresight could not prevent. And
the carrier in this connection must show,
if the accident was due to a latent defect
in the material or construction of the car,
that not only could it not have discovered
the defect by the exercise of such care, but
that the builders could not by the exercise
of the same care have discovered the
defect or foreseen the result. This rule
applies the same whether the defective
car belonged to the carrier or not.
In the case now before us, the record is to the
effect that the only test applied to the steering
knuckle in question was a purely visual inspection
every thirty days, to see if any cracks developed. It
nowhere appears that either the manufacturer or
the carrier at any time tested the steering knuckle
to ascertain whether its strength was up to
standard, or that it had no hidden flaws would
impair that strength. And yet the carrier must
have been aware of the critical importance of the
knuckle's resistance; that its failure or breakage
would result in loss of balance and steering
control of the bus, with disastrous effects upon the
passengers. No argument is required to establish
that a visual inspection could not directly
determine whether the resistance of this critically
important part was not impaired. Nor has it been
shown that the weakening of the knuckle was
impossible to detect by any known test; on the
contrary, there is testimony that it could be
detected. We are satisfied that the periodical
visual inspection of the steering knuckle as
practiced by the carrier's agents did not measure
up to the required legal standard of "utmost
diligence of very cautious persons" — "as far as
human care and foresight can provide", and
therefore that the knuckle's failure can not be
considered a fortuitous event that exempts the
carrier from responsibility (Lasam vs. Smith, 45
Phil. 657; Son vs. Cebu Autobus Co., 94 Phil., 892.)
It may be impracticable, as appellee argues, to
require of carriers to test the strength of each and
every part of its vehicles before each trip; but we
are of the opinion that a due regard for the
carrier's obligations toward the traveling public
demands adequate periodical tests to determine
the condition and strength of those vehicle
portions the failure of which may endanger the
safe of the passengers.
As to the damages suffered by the plaintiffs, we
agree with appellee that no allowance may be
made for moral damages, since under Article 2220
of the new Civil Code, in case of suits for breach of
contract, moral damages are recoverable only
where the defendant acted fraudulently or in bad
faith, and there is none in the case before us. As to
exemplary damages, the carrier has not acted in a
"wanton, fraudulent, reckless, oppressive or
malevolent manner" to warrant their award.
Hence, we believe that for the minor Precillano
Necesito (G. R. No. L-10605), an indemnity of
P5,000 would be adequate for the abrasions and
fracture of the femur, including medical and
hospitalization expenses, there being no evidence
that there would be any permanent impairment of
his faculties or bodily functions, beyond the lack of
anatomical symmetry. As for the death of Severina
Garces (G. R. No. L-10606) who was 33 years old,
with seven minor children when she died, her
heirs are obviously entitled to indemnity not only
for the incidental loses of property (cash, wrist
watch and merchandise) worth P394 that she
carried at the time of the accident and for the
burial expenses of P490, but also for the loss of
her earnings (shown to average P120 a month)
and for the deprivation of her protection, guidance
and company. In our judgment, an award of
P15,000 would be adequate (cf Alcantara vs.
Surro, 49 Off. Gaz. 2769; 93 Phil., 472).
The low income of the plaintiffs-appellants makes
an award for attorney's fees just and equitable
(Civil Code, Art. 2208, par. 11). Considering that
he two cases filed were tried jointly, a fee of
P3,500 would be reasonable.
In view of the foregoing, the decision appealed
from is reversed, and the defendants-appellees are
sentenced to indemnify the plaintiffs-appellants in
the following amounts: P5,000 to Precillano
Necesito, and P15,000 to the heirs of the deceased
Severina Garces, plus P3,500 by way of attorney's
fees and litigation expenses. Costs against
defendants-appellees. So ordered.
Paras, C. J., Bengzon, Reyes, A., Bautista Angelo,
Concepcion, and Endencia, JJ., concur.
Felix, J., concurs in the result.
RESOLUTION
September 11, 1958
REYES, J. B. L., J.:
Defendants-appellees have Submitted a motion
asking this Court to reconsider its decision of June
48 | T O R T S
30, 1958, and that the same be modified with
respect to (1) its holding the carrier liable for the
breakage of the steering knuckle that caused the
autobus No. 199 to overturn, whereby the
passengers riding in it were injured; (2) the
damages awarded, that appellees argue to be
excessive; and (3) the award of attorneys' fees.
(1) The rule prevailing in this jurisdiction as
established in previous decisions of this Court,
cited in our main opinion, is that a carrier is liable
to its passengers for damages caused by
mechanical defects of the conveyance. As early as
1924, in Lasam vs. Smith, 45 Phil. 659 this Court
ruled:
As far as the record shows, the accident
was caused either by defects in the
automobile or else through the negligence
of its driver. That is not caso fortuito.
And in Son vs. Cebu Autobus Company, 94 Phil.,
892, this Court held a common carrier liable in
damages to passenger for injuries cause by an
accident due to the breakage of a faulty drag-link
spring.
It can be seen that while the courts of the United
States are at variance on the question of a carrier's
liability for latent mechanical defects, the rule in
this jurisdiction has been consistent in holding the
carrier responsible. This Court has quoted from
American and English decisions, not because it felt
bound to follow the same, but merely in approval
of the rationale of the rule as expressed therein,
since the previous Philippine cases did not enlarge
on the ideas underlying the doctrine established
thereby.
The new evidence sought to be introduced do not
warrant the grant of a new trial, since the
proposed proof available when the original trial
was held. Said evidence is not newly discovered.
(2) With regard to the indemnity awarded to the
child Precilliano Necesito, the injuries suffered by
him are incapable of accurate pecuniary
estimation, particularly because the full effect of
the injury is not ascertainable immediately. This
uncertainty, however, does not preclude the right
to an indemnity, since the injury is patent and not
denied (Civil Code, Art. 2224). The reasons behind
this award are expounded by the Code
Commission in its report:
There are cases where from the nature of
the case, definite proof of pecuniary loss
cannot be offered, although the court is
convinced that there has been such loss.
For instance, injury to one's commercial
credit or to the goodwill of a business
firm is often hard to show with certainty
in terms of money. Should damages be
denied for that reason? The judge should
be empowered to calculate moderate
damages in such cases, rather than that
the plaintiff should suffer, without
redress, from the defendant's wrongful
act." (Report of the Code Commission, p.
75)
In awarding to the heirs of the deceased Severina
Garces an indemnity for the loss of her "guidance,
protection and company," although it is but moral
damage, the Court took into account that the case
of a passenger who dies in the course of an
accident, due to the carrier's negligence
constitutes an exception to the general rule. While,
as pointed out in the main decision, under Article
2220 of the new Civil Code there can be no
recovery of moral damages for a breach of
contract in the absence of fraud malice or bad
faith, the case of a violation of the contract of
carriage leading to a passenger's death escapes
this general rule, in view of Article 1764 in
connection with Article 2206, No. 3 of the new
Civil Code.
ART. 1764. Damages in cases comprised
in this Section shall be awarded in
accordance with Title XVIII of this Book,
concerning Damages. Article 2206 shall
also apply to the death of a passenger
caused by the breach of contract by a
comman carrier. ART. 2206. . . .
(3) The spouse, legitimate and eligimate
descendants and ascendants of the
deceased may demand moral damages for
mental anguish by reason of the death of
the deceased.
Being a special rule limited to cases of fatal
injuries, these articles prevail over the general
rule of Art. 2220. Special provisions control
general ones (Lichauco & Co. vs. Apostol, 44 Phil.
138; Sancio vs. Lizarraga, 55 Phil. 601).
It thus appears that under the new Civil Code, in
case of accident due to a carrier's negligence, the
heirs of a deceased passenger may recover moral
damages, even though a passenger who is injured,
but manages to survive, is not entitled to them.
There is, therefore, no conflict between our main
decision in the instant case and that of Cachero vs.
Manila Yellow Taxi Cab Co., 101 Phil., 523, where
the passenger suffered injuries, but did not lose
his life.
(3) In the Cachero case this Court disallowed
attorneys' fees to the injured plaintiff because the
litigation arose out of his exaggerated and
unreasonable deeds for an indemnity that was out
of proportion with the compensatory damages to
which he was solely entitled. But in the present
case, plaintiffs' original claims can not be
deemed a priori wholly unreasonable, since they
had a right to indemnity for moral damages
besides compensatory ones, and moral damages
are not determined by set and invariable bounds.
Neither does the fact that the contract between
the passengers and their counsel was on a
49 | T O R T S
contingent basis affect the former's right to
counsel fees. As pointed out for appellants, the
Court's award is an party and not to counsel. A
litigant who improvidently stipulate higher
counsel fees than those to which he is lawfully
entitled, does not for that reason earn the right to
a larger indemnity; but, by parity of reasoning, he
should not be deprived of counsel fees if by law he
is entitled to recover them.

We find no reason to alter the main decision

heretofore rendered. Ultimately, the position
taken by this Court is that a common carrier's
contract is not to be regarded as a game of chance
wherein the passenger stakes his limb and life
against the carrier's property and profits.

Wherefore, the motion for reconsideration is

hereby denied. So ordered.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes,

A., Bautista Angelo, Concepcion, Endencia, and
Felix, JJ., concur.

50 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-8937           November 29, 1957
OLEGARIO BRITO SY, plaintiff-appellee,
vs.
MALATE TAXI CAB & GARAGE, INC., defendant-
appelant;
MALATE TAXICAB & GARAGE, INC., third-party
plaintiff-appellant,
vs.
JESUS DEQUITO Y DUPY, third-party defendant-
appellee.
Paredes, Gaw and Acevedo for appellee.
Diaz and Baizas for appellant.
ENDENCIA, J.:
On June 26, 1952, at Dewey Boulevard in front of
the Selecta Restaurant, Olegario Brito Sy engaged
a taxicab bearing plate No. Taxi-1130, owned and
operated by Malate Taxicab and Garage, Inc. and
driven by Catalino Ermino, to take him to his place
of business at Dencia's Restaurant on the Escolta
where he was the general manager. Upon reaching
the Rizal Monument he told the driver to turn to
the right, but the latter did not heed him and
instead countered that they better pass along
Katigbak Drive. At the intersection of Dewey
Bolevard and Katigbak Drive, the taxi collided
with an army wagon with plate No. TPI-695
driven by Sgt. Jesus De quito, as a result of which
Olegario Brito Sy was jarred, jammed and jolted.
He was taken to the Santa Isabel Hospital suffering
from bruises and contusions as well as fractured
right leg. Thereafter he was transferred to the
Gonzales Orthopedic Clinic and was accordingly
operated on. He spent some P2,266.45 for medical
bills and hospitalization.
On September 30, 1952, Sy filed action against the
Malate Taxicab & Garage, Inc., based upon a
contract of carriage, to recover the sums of P7,200
as actual or compensatory damages, P20,000 as
moral damages, P15,000 as nominal and
exemplary damages, and P3,000 a attorney's fees.
On October 2, 1952, a copy of the complaint was
served on and received by the defendant, but the
latter filed its answer only on October 20, 1952,
wherein it alleged that the collision subject of the
complaint was not due to the negligence of its
driver but to that of Sgt. Jesus Dequito, the driver
of the army wagon; and, by way of counterclaim,
sought to recover the sum of P1,000 as damages
caused by the alleged malicious and frivolous
action filed against it.
The record reveals that upon plaintiff's motion
filed on October 23, 1952, the lower court ordered
on October 25, 1952 that the answer which was
filed by defendant out of time be stricken out, and
declared the Malate Taxicab & Garage, Inc. in
default. Thereafter, on October 30, 1952, plaintiff
presented his evidence, and on November 20,
1952 judgment was rendered awarding plaintiff
the sum of P14.000 as actual, compensatory,
moral, nominal and exemplary damages including
attorney's fees and costs, with interest at the legal
rate from the filing of the action. Defendant then
filed a motion on December 17, 1952, for relief
from the order of default and for new trial, which
was granted. Hence, plaintiff filed his reply to
defendant's answer and counterelaim, and by
leave of court, the latter filed on February 24,
1953 a third-party complaint against Sgt. Jesus
Dequito alleging that the cause of the collision
between the taxicab and the army wagon was the
negligence of the army sergeant, and praying that
whatever amount the court may assess against it
in the action filed by plaintiff, be paid to said third-
party plaintiff, plus an additional amount of
P1,000 representing attorney's fees. It appears,
however, that the summons and copy of the third-
party complaint were never served upon third-
party defendant Dequito in view of his continued
assignment from place to place in connection with
his army duties, and for this reason the main case
was set for trial on May 10, 1953, obviously for the
sole purpose of disposing of the issue arising from
plaintiffs complaint. On the day of the trial,
defendant failed to appear, whereupon plaintiff
presented his evidence, and judgment was
rendered against the defendant in the total sum of
P4,200 representing actual, compensatory and
moral damages, as well as attorney's fees, with
interest at the legal rate from the filing of the
action, plus costs of suit. Aga nst said judgment
defendant appealed to the Court of Appeals and
assigned in its brief two errors of the lower court,
namely:
1. The trial court erred in not finding that
the third-party complaint involves a
prejudicial question, and therefore, the
main complaint cannot be decided until
the third-party complaint is decided.
2. The trial court erred in not deciding or
making an express finding as to whether
the defendant appellant Malate Taxicab &
Garage, Inc. was responsible for the
collision, and hence, civilly responsible to
the plaintiff-appellee.
Finding the quoted assignment of errors as
involving a purely question of law, the Court of
Appeals, by virtue of the provisions of section 17,
paragraph 6 of the judiciary Act of 1948, as
amended, certified the case to this Court for
adjudication, in its Resolution of February 7, 1955.
We find no merit in the first assignment of error
that the third-party complaint is a pre-judicial
question. As enunciated by this Court in Berbari
vs. Concepcion, 40 Phil. 837, "Pre-judicial question
51 | T O R T S
in understood in law to be that which precedes the
criminal action, or that which requires a decision
before final judgment is rendered in the principal
action with which said question is closely
connected. Not all previous questions are pre-
judicial questions are necessarily previous",
although all pre-judicial questions are necessarily
previous." In the present case, the third-party
complaint is not a pre-judicial question, as the
issue in the main action is not entirely dependent
upon those in the third-party complaint; on the
contrary, it is the third-party complaint that is
dependent upon the main case at least in the
amount of damages which defendant appellant
seeks to be reimbursed in its third-party
complaint. Furthermore, the complaint is based on
a contractual obligation of transportation of
passenger which defendant-appellant failed to
carry out, and the action is entirely different and
independent from that in the third-party
complaint which is based an alleged tortious act
committed by the third-party defendant Sgt.
Dequito. The main case, therefore, is entirely
severable and may be litigated independently.
Moreover, whatever the outcome of the third-
party complaint might be would not in any way
affect or alter the contractual liability of the
appellant to plaintiff. If the collision was due to the
negligence of the third-party defendant, as alleged,
then defendant appellant may file a separate civil
action for damages based on tort ex-delicto or
upon quasi-delict, as the case may be.
Coming to the second assignment of error that the
lower court erred in not making an express
findings as to whether defendant appellant was
responsible for the collision, we find the same to
be unjustified. The pertinent, provisions of the
new Civil Code under the heading Common
Carriers, are the following:
ART. 1733. Common carriers, from the
nature of their business and for reason of
public policy, are bound to observe
extraordinary diligence in the vigilance
over the goods and for the safety of the 1733 and 1755 of the new Civil Code. It is
passengers transported by them, according noteworthy, however, that at the hearing in the
to all the circumstances of each case. lower court defendant-appellant failed to appear
and has not presented any evidence at all to
Such extraordinary diligence in the overcome and overwhelm the presumption of
vigilance over the goods is further negligence imposed upon it by law; hence, there
expressed in articles 1734, 1735, and was no need for the lower court to make an
1745, Nos. 5, 6, and 7, while express finding thereon in view of the provisions
the extraordinary diligence for the safety of the aforequoted Article 1756 of the new Civil
of the passengers is further set forth in Code.
articles 1755 and 1756.
Wherefore, the decision of the lower court is
ART. 1755. A common carrier is bound to hereby affirmed with cost against the appellant.
carry the passengers to safety as far as
human care and foresight can Paras, C. J., Bengzon, Montemayor, Bautista Angelo,
provide, using the utmost diligence of very Labrador, and Concepcion, JJ., concur,.
cautious persons, with a due regard for all
the circumstances.
ART. 1756. In case of death of or injuries
to passengers, common carriers are
presumed to have been at fault or to have
acted negligently, unless they prove that
they observed extraordinary diligence as
prescribed in articles 1733 and 1755.
(Emphasis supplied.)
Evidently, under these provisions of law, the court
need not make an express finding of fault or
negligence on the part of the defendant appellant
in order to hold it responsible to pay the damages
sought for by the plaintiff, for the action initiated
therefor is based on a contract of carriage and not
on tort. When plaintiff rode on defendant-
appellant's taxicab, the latter assumed the express
obligation to transport him to his destination
safely, and to observe extraordinary diligence
with a due regard for all the circumstances, and
any injury that might be suffered by the passenger
is right away attributable to the fault or negligence
of the carrier (Article 1756, supra). This is an
exception to the general rule that negligence must
be proved, and it was therefore incumbent upon
the carrier to prove that it has exercised
extraordinary diligence as prescribed in Articles
52 | T O R T S
 G.R. No. L-5044
AMPANG V. GUINOO TRANSPORTATION CO,
APRIL 30, 1953
PARAS, C.J.:
On March 21, 1948, Moros Lambayong and Amsia
were paid passengers in bus No. 24, bearing TPU
plate No. 7629, and belonging to the Guinoo
Transportation Company, on its return trip from
Digos to Davao City. When said bus came to
kilometer 44, it capsized on the road, as a result of
which Lambayong died and Amsia suffered
physical injuries Amsia, Ampang and Lumpitan
instituted the present action in the Court of First
Instance of Davao, to recover from the Guinoo
Transportation Company and its manager, Vicente
Guinoo, P2,000.00 as damages for the death of
Lambayong and P1,000.00 as damages suffered by
Amsia for the physical injuries. After hearing, the
court dismissed the complaint on the following
grounds: "Sin embargo, del contenido de la
declaracion jurada suscrita por Amsia Puna y
Lumpitan Dumingay se infiere claramente, que el
accidente que causo la muerte de Lambayong, las
lessiones causadas en la persona de Amsia, y la
imposibilidad de los pasajeros de llegar a su
destino, se debio' a un caso forfuito que estaba
fuera del alcance de los demandados y del chofer
Quirino Piezas." The plaintiffs have appealed.
It appears that the case was submitted for
decision practically on the pleadings and the
meager stipulation of facts entered into by the
parties in open court, without any attempt on the
part of the plaintiffs to show by proper evidence
that the accident in question was due to any fault
of the defendants' driver, and not to a fortuitous
event. Upon the other hand, the records show that,
as a result of the accident, a criminal case was filed
in the Justice of the Peace Court of Sta. Cruz
against the driver, Quirino Piezas, but said case
was dismissed upon the joint affidavit of Amsia
and Lumpitan. This affidavit was presented in
evidence and the lower court based its decision
mainly thereon. In said affidavit Amsia and that cause the accident, reliance being placed on
Lumpitan declared as follows: the case of Lasam vs. Smith, 45 Phil. 657. This
authority, however, comes to the aid of the
"That as the HABACCO bus No. 39 was overtaking appellees, because the carrier is thereunder
the QUITRANCO bus we felt that the HABACCO excused from liability if the accident is due to a
bus struck the QUITRANCO bus somewhere on its fortuitous event, and this was the ruling in the
left side, thus suddenly pushing the said appealed decision. This Court, in interpreting
QUITRANCO bus toward the canal on the right "fortuitous event", stated that "As will be seen,
side of the road, and the driver of the QUITRANCO these authorities agree that some extraordinary
bus swerved the truck to the left in order to circumstance independent of the will of the
prevent the truck from falling into the canal, and obligor, or of his employees, is an essential
striking a tree standing on the side of the road, element of a caso fortuito." From the facts of the
and the HABACCO bus which was running very case at bar it is clear that the defendants' bus
fast proceeded on its way. which carried Lambayong and Amsia capsized
after being bumped on the left side by Habacco
"Then when the driver of the truck of the
bus No. 39, which caused the defendants' driver to
QUITRANCO suddenly swerved the truck to the
swerve his bus to the left so as to prevent it from
left in order to prevent it from falling to the canal
falling into the canal and striking a tree, a
and striking a tree on the side of the road, the
maneuver which led the bus to skid and capsize.
truck skidded, thereby turning the truck upside
This, in our opinion, resulted from the
down and as a result of which we suffered injuries
extraordinary circumstance of being resulted from
including Lamayong Mantuching who later died
the extraordinary circumstance of being struck by
because of the injuries she received."
the Habacco bus, independent of the will of, and
It is obvious from these statements that the unforseen by the defendants' driver, in the
accident could not be attributed in any manner to absence of any showing to the contrary.
any fault or omission of the defendants' driver. Of
course, it is now pretended by counsel for the Wherefore, the appealed decision is affirmed, and
appellants that "After investigation made by the it is so ordered without costs.
PC officers and policemen in charge of the case, Feria, Bengzon, Pablo, Tuason, Montemayor, Reyes,
the negligence imputed to the driver of the Bautista Angelo, and Labrador, JJ., concur.
HABACCO truck No. 39 was found not true,
because no sign or mark of any collision was
found on said two trucks and the driver of the
Habacco truck and the passengers of said two
trucks denied that any such collision has ever
taken place." However, this allegation cannot be
given any weight, there being nothing in the
record to sustain it. Upon the other hand, the
affidavit of Amsia and Lumpitan was introduced at
the hearing without any objection from counsel
for appellants.
It is urged for the appellants that the appellees are
liable under their contract as transport safely
passengers Lambayong and Amsia to their
destination, regardless of any fault or negligence
53 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19161             April 29, 1966
MANILA RAILROAD COMPANY, petitioner,
vs.
MACARIA BALLESTEROS, TIMOTEO CAMAYO,
JOSE REYES and JULIAN MAIMBAN,
JR., respondents.
Gov't Corp. Counsel S. M. Gopengco and Atty. R. G.
Fernando, for petitioner.
George G. Arbolario, for respondents.
MAKALINTAL, J.:
In civil case No. 45968 of the Court of First
Instance of Manila (Macaria Ballesteros, Timoteo
Camayo, Jose Reyes and Julian Maimban, Jr. vs.
Manila Railroad Company) the defendant was
adjudged to pay damages in the following
amounts: P2,400 to Macaria Ballesteros; P4,000 to
Timoteo Camayo; P3,000 to Jose Reyes: and
P2,000, plus P1,000 as attorney's fees, to Julian
Maimban, Jr.
The defendant appealed from the judgment, but
upon motion by the plaintiffs, the trial court, by
order dated October 14, 1961, dismissed the
appeal on the ground that it was "manifestly and
palpably frivolous and interposed ostensibly to
delay the settlement of the just and reasonable
claims of the herein plaintiffs, which have been
pending since 1958." The defendant moved to
reconsider, and upon denial of its motion
instituted in this Court the instant petition
for mandamus to set aside the order of dismissal
and to order respondent court to give due course
to the appeal.
In filing the petition directly with this Court,
petitioner evidently intended to raise only
questions of law in the appeal contemplated, since
under Rule 41, section 15, "when erroneously a
motion to dismiss an appeal is granted or a record
on appeal is disallowed by the trial court, a proper
petition for mandamus may be filed in the
appellate court;" and under section 17(6) of the
Judiciary Act this Court may review on appeal only
questions of law in civil cases decided by inferior
courts unless the value in controversy exceeds
P200,000.1äwphï1.ñët
The fact that an appeal is frivolous and interposed
only for purposes of delay has been recognized as
a valid ground to deny issuance of the writ of
mandamus to compel the trial court to approve
and certify the appeal. In De la Cruz vs. Blanco and
Quevedo, 73 Phil. 596, We held:
And where as in the instant case, the
dismissal has been ordered by the trial
court, it would not be disturbed in the
Appellate Court if the latter finds the
appeal to have been interposed ostensibly
for delay. It has been held that a frivolous
appeal is one presenting no justiciable
question or one so readily cognizable as
devoid of merit on the face of the record
that there is little, if any, prospect that it
can over succeed. The instant case is one
such instance in which the appeal is
evidently without merit, taken manifestly
for delay.
And in Paner vs. Yatco, 87 Phil. 271, We denied the
writ prayed for and held that "while strictly and
legally speaking the petition may be granted, we
may, before acting thereon, inquire into the facts
involved in order to determine whether once the
writ is granted and the case is brought up here on
appeal the appellant has any chance, even
possibility, of having the basic decision of the trial
court set aside or modified; for if the appellant has
not that prospect or likelihood then the granting
of the writ and the consequent appeal would be
futile and would mean only a waste of time to the
parties and to this Court."
The material facts, as found by respondent court
in its decision, are as follows: Private respondents
here, plaintiffs below, were passengers on
petitioner's bus, the driver of which was Jose
Anastacio. In Bayombong, Nueva Vizcaya,
Anastacio stopped the bus and got off to replace a
defective spark plug. While he was thus engaged,
one Dionisio Abello, an auditor assigned to
defendant company by the General Auditing
Office, took the wheel and told the driver to sit
somewhere else. With Abello driving, the bus
proceeded on its way, from time to time stopping
to pick up passengers. Anastacio tried twice to
take the wheel back but Abello would not
relinquish it. Then, in the language of the trial
court, "while the bus was negotiating between Km.
posts 328 and 329 (in Isabela) a freight truck ...
driven by Marcial Nocum ... bound for Manila, was
also negotiating the same place; when these two
vehicles were about to meet at the bend of the
road Marcial Nocum, in trying to evade several
holes on the right lane, where his truck was
running, swerved his truck towards the middle
part of the road and in so doing, the left front
fender and left side of the freight truck smashed
the left side of the bus resulting in extensive
damages to the body of the bus and injuries to
seventeen of its passengers, ... including the
plaintiffs herein."
In rejecting petitioner's contention that the
negligence of Marcial Nocum could not be imputed
to it and relieved it from liability, the trial court
found that Dionisio Abello "was likewise reckless
when he was driving the bus at the rate of from 40
to 50 kilometers per hour on a bumpy road at the
moment of the collision."
54 | T O R T S
Another defense put up by petitioner is that since
Abello was not its employee it should not be held
responsible for his acts. This defense was
correctly overruled by the trial court, considering
the provisions of Article 1763 of the Civil Code
and section 48 (b) of the Motor Vehicle Law,
which respectively provide as follows:
Art. 1763. A common carrier is
responsible for injuries suffered by a
passenger on account of the wilfull acts or
negligence of other passengers or of
strangers, if the common carrier's
employees through the exercise of the
diligence of a good father of a family could
have prevented or stopped the act or
omission.
Sec. 48(b). No professional chauffeur shall
permit any unlicensed person to drive the
motor vehicle under his control, or permit
a person, sitting beside him or in any
other part of the car, to interfere with him
in the operation of the motor vehicle, by
allowing said person to take hold of the
steering wheel, or in any other manner
take part in the manipulation or control of
the car.
It appears further, and so the trial court found,
that there were negotiations between the parties
to compromise the case, as a result of which
respondents herein, plaintiffs below, considerably
reduced their claims to the amounts subsequently
awarded in the judgment; that petitioner had in
fact settled the claims of the other passengers who
were also injured in the same accident and even
the claim for damages filed in another action by
the owner of the freight truck; and that the
Government Corporate Counsel himself, who
represents herein petitioner, rendered two
separate opinions (Op. No. 86, May 19, 1960; and
Op. No. 99, series of 1961) wherein, after
analyzing the facts and the law applicable, he
reached the conclusion that the acts of the bus
personnel, particularly "in allowing Mr. Abello to
drive despite two occasions when the bus stopped
and the regular driver could have taken over,
constitute reckless imprudence and wanton
injurious conduct on the part of the MRR
employees." On the basis of those opinions the
Government Corporate Counsel advised petitioner
that the offer of the claimants was reasonable and
should be accepted. His advice, however, was not
favorably acted upon, petitioner obviously
preferring to litigate.
The issues proposed to be taken up on appeal, as
set forth in the petition, are whether or not
Dionisio Abello acted with reckless negligence
while driving petitioner's bus at the time of the
accident, and whether or not petitioner may be
held liable on account of such negligence,
considering that he was not its employee. These
are no longer justiciable questions which would
justify our issuing the peremptory writ prayed for.
The first is a question of fact on which the
affirmative finding of respondent court is not
reviewable by Us; and the second is one as to
which there can be no possible doubt in view of
the provisions of the Civil Code and of the Motor
Vehicle Law hereinbefore cited. There would be
no point in giving the appeal due course.
The writ prayed for is denied, with costs against
petitioner.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes,
J.B.L., Barrera, Dizon, Regala, Bengzon, J.P., and
Sanchez, JJ., concur.
55 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-22272             June 26, 1967
ANTONIA MARANAN, plaintiff-appellant,
vs.
PASCUAL PEREZ, ET AL., defendants.
PASCUAL PEREZ, defendant appellant.
Pedro Panganiban for plaintiff-appellant.
Magno T. Bueser for defendant-appellant.
BENGZON, J.P., J.:
Rogelio Corachea, on October 18, 1960, was a
passenger in a taxicab owned and operated by
Pascual Perez when he was stabbed and killed by
the driver, Simeon Valenzuela.
Valenzuela was prosecuted for homicide in the
Court of First Instance of Batangas. Found guilty,
he was sentenced to suffer imprisonment and to
indemnify the heirs of the deceased in the sum of
P6,000. Appeal from said conviction was taken to
the Court of Appeals.1äwphï1.ñët
On December 6 1961, while appeal was pending in
the Court of Appeals, Antonia Maranan, Rogelio's
mother, filed an action in the Court of First
Instance of Batangas to recover damages from
Perez and Valenzuela for the death of her son.
Defendants asserted that the deceased was killed
in self-defense, since he first assaulted the driver
by stabbing him from behind. Defendant Perez
further claimed that the death was a caso
fortuito for which the carrier was not liable.
The court a quo, after trial, found for the plaintiff
and awarded her P3,000 as damages against
defendant Perez. The claim against defendant
Valenzuela was dismissed. From this ruling, both
plaintiff and defendant Perez appealed to this
Court, the former asking for more damages and
the latter insisting on non-liability. Subsequently,
the Court of Appeals affirmed the judgment of
conviction earlier mentioned, during the
pendency of the herein appeal, and on May 19,
1964, final judgment was entered therein. (Rollo,
p. 33).
Defendant-appellant relies solely on the ruling
enunciated in Gillaco v. Manila Railroad Co., 97
Phil. 884, that the carrier is under no absolute
liability for assaults of its employees upon the
passengers. The attendant facts and controlling
law of that case and the one at bar are very
different however. In the Gillaco case, the
passenger was killed outside the scope and the
course of duty of the guilty employee. As this
Court there found:
x x x when the crime took place, the guard
Devesa had no duties to discharge in
connection with the transportation of the
deceased from Calamba to Manila. The
stipulation of facts is clear that when
Devesa shot and killed Gillaco, Devesa
was assigned to guard the Manila-San
Fernando (La Union) trains, and he was at
Paco Station awaiting transportation to
Tutuban, the starting point of the train
that he was engaged to guard. In fact, his
tour of duty was to start at 9:00 two
hours after the commission of the
crime. Devesa was therefore under no
obligation to safeguard the passengers of
the Calamba-Manila train, where the
deceased was riding; and the killing of
Gillaco was not done in line of duty. The
position of Devesa at the time was that of
another would be passenger, a stranger
also awaiting transportation, and not that
of an employee assigned to discharge any
of the duties that the Railroad had
assumed by its contract with the
deceased. As a result, Devesa's assault can
not be deemed in law a breach of Gillaco's
contract of transportation by a servant or
employee of the carrier. . . . (Emphasis
supplied)
Now here, the killing was perpetrated by the
driver of the very cab transporting the passenger,
in whose hands the carrier had entrusted the duty
of executing the contract of carriage. In other
words, unlike the Gillaco case, the killing of the
passenger here took place in the course of duty of
the guilty employee and when the employee was
acting within the scope of his duties.
Moreover, the Gillaco case was decided under the
provisions of the Civil Code of 1889 which, unlike
the present Civil Code, did not impose upon
common carriers absolute liability for the safety of
passengers against wilful assaults or negligent
acts committed by their employees. The death of
the passenger in the Gillaco case was truly a
fortuitous event which exempted the carrier from
liability. It is true that Art. 1105 of the old Civil
Code on fortuitous events has been substantially
reproduced in Art. 1174 of the Civil Code of the
Philippines but both articles clearly remove from
their exempting effect the case where the law
expressly provides for liability in spite of the
occurrence of force majeure. And herein
significantly lies the statutory difference between
the old and present Civil Codes, in the backdrop of
the factual situation before Us, which further
accounts for a different result in the Gillaco case.
Unlike the old Civil Code, the new Civil Code of the
Philippines expressly makes the common carrier
liable for intentional assaults committed by its
employees upon its passengers, by the wording of
Art. 1759 which categorically states that
Common carriers are liable for the death
of or injuries to passengers through the
56 | T O R T S
 negligence or willful acts of the former's
employees, although such employees may
have acted beyond the scope of their
authority or in violation of the orders of
the common carriers.
The Civil Code provisions on the subject of
Common Carriers1 are new and were taken from
Anglo-American Law.2 There, the basis of the
carrier's liability for assaults on passengers
committed by its drivers rests either on (1) the
doctrine of respondeat superior or (2) the
principle that it is the carrier's implied duty to
transport the passenger safely.3
Under the first, which is the minority view, the
carrier is liable only when the act of the employee
is within the scope of his authority and duty. It is
not sufficient that the act be within the course of
employment only.4
Under the second view, upheld by the majority
and also by the later cases, it is enough that the
assault happens within the course of the
employee's duty. It is no defense for the carrier
that the act was done in excess of authority or in
disobedience of the carrier's orders.5 The carrier's
liability here is absolute in the sense that it
practically secures the passengers from assaults
committed by its own employees.6
said liability of the carrier for the servant's
violation of duty to passengers, is the result of the
formers confiding in the servant's hands the
performance of his contract to safely transport the
passenger, delegating therewith the duty of
protecting the passenger with the utmost care
prescribed by law; and (3) as between the carrier
and the passenger, the former must bear the risk
of wrongful acts or negligence of the carrier's
employees against passengers, since it, and not
the passengers, has power to select and remove
them.
Accordingly, it is the carrier's strict obligation to
select its drivers and similar employees with due
regard not only to their technical competence and
physical ability, but also, no less important, to
their total personality, including their patterns of
behavior, moral fibers, and social attitude.
Applying this stringent norm to the facts in this
case, therefore, the lower court rightly adjudged
the defendant carrier liable pursuant to Art. 1759
of the Civil Code. The dismissal of the claim
against the defendant driver was also correct.
Plaintiff's action was predicated on breach of
contract of carriage7 and the cab driver was not a
party thereto. His civil liability is covered in the
criminal case wherein he was convicted by final
judgment.
passenger killed to compensate for the mental
anguish they suffered. A claim therefor, having
been properly made, it becomes the court's duty
to award moral damages.9 Plaintiff demands
P5,000 as moral damages; however, in the
circumstances, We consider P3,000 moral
damages, in addition to the P6,000 damages afore-
stated, as sufficient. Interest upon such damages
are also due to plaintiff-appellant. 10
Wherefore, with the modification increasing the
award of actual damages in plaintiff's favor to
P6,000, plus P3,000.00 moral damages, with legal
interest on both from the filing of the complaint on
December 6, 1961 until the whole amount is paid,
the judgment appealed from is affirmed in all
other respects. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Sanchez and Castro, JJ., concur.

As can be gleaned from Art. 1759, the Civil Code of
the Philippines evidently follows the rule based on
the second view. At least three very cogent
reasons underlie this rule. As explained in Texas
Midland R.R. v. Monroe, 110 Tex. 97, 216 S.W. 388,
389-390, and Haver v. Central Railroad Co., 43 LRA
84, 85: (1) the special undertaking of the carrier
requires that it furnish its passenger that full
measure of protection afforded by the exercise of
the high degree of care prescribed by the
law, inter alia from violence and insults at the
hands of strangers and other passengers, but
above all, from the acts of the carrier's own
servants charged with the passenger's safety; (2)
In connection with the award of damages, the
court a quo granted only P3,000 to plaintiff-
appellant. This is the minimum compensatory
damages amount recoverable under Art. 1764 in
connection with Art. 2206 of the Civil Code when a
breach of contract results in the passenger's
death. As has been the policy followed by this
Court, this minimal award should be increased to
P6,000. As to other alleged actual damages, the
lower court's finding that plaintiff's evidence
thereon was not convincing,8 should not be
disturbed. Still, Arts. 2206 and 1764
award moral damages in addition to
compensatory damages, to the parents of the

57 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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 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
58 | T O R T S
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
(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.
59 | T O R T S
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 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
60 | T O R T S
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 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
61 | T O R T S
 contesting such person's claim. If
there were no witness or record
available from the police
department of Bacolod,
defendant would not be able to
determine for itself which of the
conflicting testimonies of
plaintiffs is correct as to the
report or non-report of the
accident to the police
department.32

A person claiming damages for the negligence of

another has the burden of proving the existence of
such fault or negligence causative thereof. The
facts constitutive of negligence must be
affirmatively established by competent
evidence.33 Whosoever relies on negligence for his
cause of action has the burden in the first instance
of proving the existence of the same if contested,
otherwise his action must fail.

WHEREFORE, the resolutions of respondent Court

of Appeals, dated March 11, 1980 and September
3,1980, are hereby SET ASIDE. Its original
decision, promulgated on September 25,1979, is
hereby REINSTATED and AFFIRMED.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and

Sarmiento JJ., concur.

62 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-65295 March 10, 1987
PHOENIX CONSTRUCTION, INC. and ARMANDO
U. CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and
LEONARDO DIONISIO, respondents.
FELICIANO, J:
In the early morning of 15 November 1975 — at
about 1:30 a.m. — private respondent Leonardo
Dionisio was on his way home — he lived in 1214-
B Zamora Street, Bangkal, Makati — from a
cocktails-and-dinner meeting with his boss, the
general manager of a marketing corporation.
During the cocktails phase of the evening, Dionisio
had taken "a shot or two" of liquor. Dionisio was
driving his Volkswagen car and had just crossed
the intersection of General Lacuna and General
Santos Streets at Bangkal, Makati, not far from his
home, and was proceeding down General Lacuna
Street, when his car headlights (in his allegation)
suddenly failed. He switched his headlights on
"bright" and thereupon he saw a Ford dump truck
looming some 2-1/2 meters away from his car.
The dump truck, owned by and registered in the
name of petitioner Phoenix Construction Inc.
("Phoenix"), was parked on the right hand side of
General Lacuna Street (i.e., on the right hand side
of a person facing in the same direction toward
which Dionisio's car was proceeding), facing the
oncoming traffic. The dump truck was parked
askew (not parallel to the street curb) in such a
manner as to stick out onto the street, partly
blocking the way of oncoming traffic. There were plaintiff brought about the
no lights nor any so-called "early warning" accident in controversy and
reflector devices set anywhere near the dump which is the result of the
truck, front or rear. The dump truck had earlier negligence of the defendants;
that evening been driven home by petitioner
Armando U. Carbonel, its regular driver, with the (3) To pay the plaintiff jointly
permission of his employer Phoenix, in view of and severally the sum of P
work scheduled to be carried out early the 10,000. as moral damages for the
following morning, Dionisio claimed that he tried unexpected and sudden
to avoid a collision by swerving his car to the left withdrawal of plaintiff from his
but it was too late and his car smashed into the lifetime career as a marketing
dump truck. As a result of the collision, Dionisio man; mental anguish, wounded
suffered some physical injuries including some feeling, serious anxiety, social
permanent facial scars, a "nervous breakdown" humiliation, besmirched
and loss of two gold bridge dentures. reputation, feeling of economic
insecurity, and the untold
Dionisio commenced an action for damages in the sorrows and frustration in life
Court of First Instance of Pampanga basically experienced by plaintiff and his
claiming that the legal and proximate cause of his family since the accident in
injuries was the negligent manner in which controversy up to the present
Carbonel had parked the dump truck entrusted to time;
him by his employer Phoenix. Phoenix and
Carbonel, on the other hand, countered that the (4) To pay plaintiff jointly and
proximate cause of Dionisio's injuries was his own severally the sum of P 10,000.00
recklessness in driving fast at the time of the as damages for the wanton
accident, while under the influence of liquor, disregard of defendants to settle
without his headlights on and without a curfew amicably this case with the
pass. Phoenix also sought to establish that it had plaintiff before the filing of this
exercised due rare in the selection and case in court for a smaller
supervision of the dump truck driver. amount.
The trial court rendered judgment in favor of (5) To pay the plaintiff jointly
Dionisio and against Phoenix and Carbonel and and severally the sum of P
ordered the latter: 4,500.00 due as and for
attorney's fees; and
(1) To pay plaintiff jointly and
severally the sum of P 15,000.00 (6) The cost of suit. (Emphasis
for hospital bills and the supplied)
replacement of the lost dentures
of plaintiff;
(2) To pay plaintiff jointly and
severally the sum of P 1,50,000.-
00 as loss of expected income for
63 | T O R T S
Phoenix and Carbonel appealed to the
Intermediate Appellate Court. That court in CA-
G.R. No. 65476 affirmed the decision of the trial
court but modified the award of damages to the
following extent:
1. The award of P15,000.00 as
compensatory damages was
reduced to P6,460.71, the latter
being the only amount that the
appellate court found the
plaintiff to have proved as
actually sustained by him;
2. The award of P150,000.00 as
loss of expected income was
reduced
to P100,000.00, basically
because Dionisio had voluntarily
resigned his job such that, in the
opinion of the appellate court,
his loss of income "was not
solely attributable to the
accident in question;" and
3. The award of P100,000.00 as
moral damages was held by the
appellate court as excessive and
unconscionable and hence
reduced to P50,000.00.
The award of P10,000.00 as
exemplary damages
and P4,500.00 as attorney's fees
and costs remained untouched.
This decision of the Intermediate Appellate Court
is now before us on a petition for review.
Both the trial court and the appellate court had
made fairly explicit findings of fact relating to the
manner in which the dump truck was parked
along General Lacuna Street on the basis of which
both courts drew the inference that there was
negligence on the part of Carbonel, the dump
truck driver, and that this negligence was the
proximate cause of the accident and Dionisio's
injuries. We note, however, that both courts failed
to pass upon the defense raised by Carbonel and
Phoenix that the true legal and proximate cause of
the accident was not the way in which the dump
truck had been parked but rather the reckless way
in which Dionisio had driven his car that night
when he smashed into the dump truck. The
Intermediate Appellate Court in its questioned
decision casually conceded that Dionisio was "in
some way, negligent" but apparently failed to see
the relevance of Dionisio's negligence and made
no further mention of it. We have examined the
record both before the trial court and the
Intermediate Appellate Court and we find that
both parties had placed into the record sufficient
evidence on the basis of which the trial court and
the appellate court could have and should have
made findings of fact relating to the alleged
reckless manner in which Dionisio drove his car
that night. The petitioners Phoenix and Carbonel
contend that if there was negligence in the
manner in which the dump truck was parked, that
negligence was merely a "passive and static
condition" and that private respondent Dionisio's
recklessness constituted an intervening, efficient
cause determinative of the accident and the
injuries he sustained. The need to administer
substantial justice as between the parties in this
case, without having to remand it back to the trial
court after eleven years, compels us to address
directly the contention put forward by the
petitioners and to examine for ourselves the
record pertaining to Dionisio's alleged negligence
which must bear upon the liability, or extent of
liability, of Phoenix and Carbonel.
There are four factual issues that need to be
looked into: (a) whether or not private
respondent Dionisio had a curfew pass valid and
effective for that eventful night; (b) whether
Dionisio was driving fast or speeding just before
the collision with the dump truck; (c) whether
Dionisio had purposely turned off his car's
headlights before contact with the dump truck or
whether those headlights accidentally
malfunctioned moments before the collision; and
(d) whether Dionisio was intoxicated at the time
of the accident.
As to the first issue relating to the curfew pass, it
is clear that no curfew pass was found on the
person of Dionisio immediately after the accident
nor was any found in his car. Phoenix's evidence
here consisted of the testimony of Patrolman
Cuyno who had taken Dionisio, unconscious, to the
Makati Medical Center for emergency treatment
immediately after the accident. At the Makati
Medical Center, a nurse took off Dionisio's clothes
and examined them along with the contents of
pockets together with Patrolman Cuyno. 1 Private
respondent Dionisio was not able to produce any
curfew pass during the trial. Instead, he offered
the explanation that his family may have
misplaced his curfew pass. He also offered a
certification (dated two years after the accident)
issued by one Major Benjamin N. Libarnes of the
Zone Integrated Police Intelligence Unit of Camp
Olivas, San Fernando, Pampanga, which was said
to have authority to issue curfew passes for
Pampanga and Metro Manila. This certification
was to the effect that private respondent Dionisio
had a valid curfew pass. This certification did not,
however, specify any pass serial number or date
or period of effectivity of the supposed curfew
pass. We find that private respondent Dionisio
was unable to prove possession of a valid curfew
pass during the night of the accident and that the
preponderance of evidence shows that he did not
have such a pass during that night. The relevance
of possession or non-possession of a curfew pass
that night lies in the light it tends to shed on the
other related issues: whether Dionisio was
speeding home and whether he had indeed
purposely put out his headlights before the
accident, in order to avoid detection and possibly
arrest by the police in the nearby police station for
64 | T O R T S
travelling after the onset of curfew without a valid
curfew pass.
On the second issue — whether or not Dionisio
was speeding home that night — both the trial
court and the appellate court were completely
silent.
The defendants in the trial court introduced the
testimony of Patrolman Cuyno who was at the
scene of the accident almost immediately after it
occurred, the police station where he was based
being barely 200 meters away. Patrolman Cuyno
testified that people who had gathered at the
scene of the accident told him that Dionisio's car
was "moving fast" and did not have its headlights
on. 2 Dionisio, on the other hand, claimed that he
was travelling at a moderate speed at 30
kilometers per hour and had just crossed the
intersection of General Santos and General Lacuna
Streets and had started to accelerate when his
headlights failed just before the collision took
place. 3
Private respondent Dionisio asserts that
Patrolman Cuyno's testimony was hearsay and did
not fag within any of the recognized exceptions to
the hearsay rule since the facts he testified to were
not acquired by him through official information
and had not been given by the informants
pursuant to any duty to do so. Private
respondent's objection fails to take account of the
fact that the testimony of Patrolman Cuyno is
admissible not under the official records
exception to the hearsay rule 4 but rather as part
of the res gestae. 5 Testimonial evidence under this
exception to the hearsay rule consists of excited
utterances made on the occasion of an occurrence
or event sufficiently startling in nature so as to
render inoperative the normal reflective thought
processes of the observer and hence made as a
spontaneous reaction to the occurrence or event,
and not the result of reflective thought. 6
We think that an automobile speeding down a
street and suddenly smashing into a stationary
object in the dead of night is a sufficiently startling
event as to evoke spontaneous, rather than
reflective, reactions from observers who
happened to be around at that time. The
testimony of Patrolman Cuyno was therefore
admissible as part of the res gestae and should
have been considered by the trial court. Clearly,
substantial weight should have been ascribed to
such testimony, even though it did not, as it could
not, have purported to describe quantitatively the
precise velocity at winch Dionisio was travelling
just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio
purposely turned off his headlights, or whether his
headlights accidentally malfunctioned, just
moments before the accident. The Intermediate
Appellate Court expressly found that the
headlights of Dionisio's car went off as he crossed
the intersection but was non-committal as to why
they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even
before he reached the intersection so as not to be
detected by the police in the police precinct which
he (being a resident in the area) knew was not far
away from the intersection. We believe that the
petitioners' theory is a more credible explanation
than that offered by private respondent Dionisio
— i.e., that he had his headlights on but that, at the
crucial moment, these had in some mysterious if
convenient way malfunctioned and gone off,
although he succeeded in switching his lights on
again at "bright" split seconds before contact with
the dump truck.
A fourth and final issue relates to whether
Dionisio was intoxicated at the time of the
accident. The evidence here consisted of the
testimony of Patrolman Cuyno to the effect that
private respondent Dionisio smelled of liquor at
the time he was taken from his smashed car and
brought to the Makati Medical Center in an
unconscious condition. 7 This testimony has to be
taken in conjunction with the admission of
Dionisio that he had taken "a shot or two" of
liquor before dinner with his boss that night. We
do not believe that this evidence is sufficient to
show that Dionisio was so heavily under the
influence of liquor as to constitute his driving a
motor vehicle per se an act of reckless
imprudence. 8 There simply is not enough
evidence to show how much liquor he had in fact
taken and the effects of that upon his physical
faculties or upon his judgment or mental
alertness. We are also aware that "one shot or
two" of hard liquor may affect different people
differently.
The conclusion we draw from the factual
circumstances outlined above is that private
respondent Dionisio was negligent the night of the
accident. He was hurrying home that night and
driving faster than he should have been. Worse, he
extinguished his headlights at or near the
intersection of General Lacuna and General Santos
Streets and thus did not see the dump truck that
was parked askew and sticking out onto the road
lane.
Nonetheless, we agree with the Court of First
Instance and the Intermediate Appellate Court
that the legal and proximate cause of the accident
and of Dionisio's injuries was the wrongful — or
negligent manner in which the dump truck was
parked in other words, the negligence of
petitioner Carbonel. That there was a reasonable
relationship between petitioner Carbonel's
negligence on the one hand and the accident and
respondent's injuries on the other hand, is quite
clear. Put in a slightly different manner, the
collision of Dionisio's car with the dump truck was
a natural and foreseeable consequence of the
truck driver's negligence.
The petitioners, however, urge that the truck
driver's negligence was merely a "passive and
static condition" and that private respondent
Dionisio's negligence was an "efficient intervening
65 | T O R T S
cause and that consequently Dionisio's negligence
must be regarded as the legal and proximate cause
of the accident rather than the earlier negligence
of Carbonel. We note that the petitioners'
arguments are drawn from a reading of some of
the older cases in various jurisdictions in the
United States but we are unable to persuade
ourselves that these arguments have any validity
for our jurisdiction. We note, firstly, that even in
the United States, the distinctions between
"cause" and "condition" which the 'petitioners
would have us adopt have already been "almost
entirely discredited." Professors and Keeton make
this quite clear:
Cause and condition. Many courts
have sought to distinguish
between the active "cause" of the
harm and the existing
"conditions" upon which that
cause operated. If the defendant
has created only a passive static
condition which made the
damage possible, the defendant is
said not to be liable. But so far as
the fact of causation is concerned,
in the sense of necessary
antecedents which have played an
important part in producing the
result it is quite impossible to
distinguish between active forces
and passive situations,
particularly since, as is invariably
the case, the latter are the result
of other active forces which have
gone before. The defendant who
spills gasoline about the
premises creates a "condition,"
but the act may be culpable
because of the danger of fire.
When a spark ignites the
gasoline, the condition has done
quite as much to bring about the
fire as the spark; and since that is
the very risk which the defendant
has created, the defendant will
not escape responsibility. Even
the lapse of a considerable time
during which the "condition"
remains static will not necessarily
affect liability; one who digs a
trench in the highway may still
be liable to another who fans into
it a month afterward. "Cause" and
"condition" still find occasional
mention in the decisions; but the
distinction is now almost entirely
discredited. So far as it has any
validity at all, it must refer to the
type of case where the forces set
in operation by the defendant
have come to rest in a position of
apparent safety, and some new
force intervenes. But even in such
cases, it is not the distinction
between "cause" and "condition"
which is important but the nature
of the risk and the character of
the intervening cause. 9
We believe, secondly, that the truck driver's
negligence far from being a "passive and static
condition" was rather an indispensable and
efficient cause. The collision between the dump
truck and the private respondent's car would in an
probability not have occurred had the dump truck
not been parked askew without any warning
lights or reflector devices. The improper parking
of the dump truck created an unreasonable risk of
injury for anyone driving down General Lacuna
Street and for having so created this risk, the truck
driver must be held responsible. In our view,
Dionisio's negligence, although later in point of
time than the truck driver's negligence and
therefore closer to the accident, was not an
efficient intervening or independent cause. What
the Petitioners describe as an "intervening cause"
was no more than a foreseeable consequent
manner which the truck driver had parked the
dump truck. In other words, the petitioner truck
driver owed a duty to private respondent Dionisio
and others similarly situated not to impose upon
them the very risk the truck driver had created.
Dionisio's negligence was not of an independent
and overpowering nature as to cut, as it were, the
chain of causation in fact between the improper
parking of the dump truck and the accident, nor to
sever the juris vinculum of liability. It is helpful to
quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If
the intervening cause is one which
in ordinary human experience is
reasonably to be anticipated or
one which the defendant has
reason to anticipate under the
particular circumstances, the
defendant may be negligence
among other reasons, because of
failure to guard against it; or the
defendant may be negligent only
for that reason. Thus one who
sets a fire may be required to
foresee that an ordinary, usual
and customary wind arising later
wig spread it beyond the
defendant's own property, and
therefore to take precautions to
prevent that event. The person
who leaves the combustible or
explosive material exposed in a
public place may foresee the risk
of fire from some independent
source. ... In all of these cases
there is an intervening cause
combining with the defendant's
conduct to produce the result and
in each case the defendant's
negligence consists in failure to
protect the plaintiff against that
very risk.
Obviously the defendant cannot be
relieved from liability by the fact
that the risk or a substantial and
66 | T O R T S
important part of the risk, to
which the defendant has subjected
the plaintiff has indeed come to
pass. Foreseeable intervening
forces are within the scope
original risk, and hence of the
defendant's negligence.  The
courts are quite generally agreed
that intervening causes which fall
fairly in this category will not
supersede the defendant's
responsibility.
Thus it has been held that a
defendant will be required to
anticipate the usual weather of
the vicinity, including all ordinary
forces of nature such as usual
wind or rain, or snow or frost or
fog or even lightning;  that one
who leaves an obstruction on the
road or a railroad track should
foresee that a vehicle or a train
will run into it; ...
The risk created by the defendant
may include the intervention of
the foreseeable negligence of
others. ... [The standard of
reasonable conduct may require
the defendant to protect the
plaintiff against 'that occasional
negligence which is one of the
ordinary incidents of human life,
and therefore to be
anticipated.' Thus, a defendant
who blocks the sidewalk and
forces the plaintiff to walk in a
street where the plaintiff will be
exposed to the risks of heavy
traffic becomes liable when the
plaintiff is run down by a car,
even though the car is negligently
driven;  and one who parks an
automobile on the highway
without lights at night is not
relieved of responsibility when
another negligently drives into it.
--- 10
We hold that private respondent Dionisio's
negligence was "only contributory," that the
"immediate and proximate cause" of the injury
remained the truck driver's "lack of due care" and
that consequently respondent Dionisio may
recover damages though such damages are subject
to mitigation by the courts (Article 2179, Civil
Code of the Philippines).
Petitioners also ask us to apply what they refer to
as the "last clear chance" doctrine. The theory
here of petitioners is that while the petitioner
truck driver was negligent, private respondent
Dionisio had the "last clear chance" of avoiding the
accident and hence his injuries, and that Dionisio
having failed to take that "last clear chance" must
bear his own injuries alone. The last clear chance
doctrine of the common law was imported into
our jurisdiction by Picart vs. Smith 11 but it is a
matter for debate whether, or to what extent, it
has found its way into the Civil Code of the
Philippines. The historical function of that
doctrine in the common law was to mitigate the
harshness of another common law doctrine or
rule that of contributory negligence. 12 The
common law rule of contributory negligence
prevented any recovery at all by a plaintiff who
was also negligent, even if the plaintiff's
negligence was relatively minor as compared with
the wrongful act or omission of the
defendant. 13 The common law notion of last
clear chance permitted courts to grant recovery to
a plaintiff who had also been negligent provided
that the defendant had the last clear chance to
avoid the casualty and failed to do
so. 14 Accordingly, it is difficult to see what role, if
any, the common law last clear chance doctrine
has to play in a jurisdiction where the common
law concept of contributory negligence as an
absolute bar to recovery by the plaintiff, has itself
been rejected, as it has been in Article 2179 of the
Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear
chance" that may be extracted from its common
law matrix and utilized as a general rule in
negligence cases in a civil law jurisdiction like
ours? We do not believe so. Under Article 2179,
the task of a court, in technical terms, is to
determine whose negligence — the plaintiff's or
the defendant's — was the legal or proximate
cause of the injury. That task is not simply or even
primarily an exercise in chronology or physics, as
the petitioners seem to imply by the use of terms
like "last" or "intervening" or "immediate." The
relative location in the continuum of time of the
plaintiff's and the defendant's negligent acts or
omissions, is only one of the relevant factors that
may be taken into account. Of more fundamental
importance are the nature of the negligent act or
omission of each party and the character and
gravity of the risks created by such act or
omission for the rest of the community. The
petitioners urge that the truck driver (and
therefore his employer) should be absolved from
responsibility for his own prior negligence
because the unfortunate plaintiff failed to act with
that increased diligence which had become
necessary to avoid the peril precisely created by
the truck driver's own wrongful act or omission.
To accept this proposition is to come too close to
wiping out the fundamental principle of law that a
man must respond for the forseeable
consequences of his own negligent act or
omission. Our law on quasi-delicts seeks to reduce
the risks and burdens of living in society and to
allocate them among the members of society. To
accept the petitioners' pro-position must tend to
weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a
presumption of negligence on the part of his
employer Phoenix 16 in supervising its employees
properly and adequately. The respondent
appellate court in effect found, correctly in our
67 | T O R T S
opinion, that Phoenix was not able to overcome
this presumption of negligence. The circumstance
that Phoenix had allowed its truck driver to bring
the dump truck to his home whenever there was
work to be done early the following morning,
when coupled with the failure to show any effort
on the part of Phoenix to supervise the manner in
which the dump truck is parked when away from
company premises, is an affirmative showing
of culpa in vigilando on the part of Phoenix.

Turning to the award of damages and taking into

account the comparative negligence of private
respondent Dionisio on one hand and petitioners
Carbonel and Phoenix upon the other hand, 17 we
believe that the demands of substantial justice are
satisfied by allocating most of the damages on a
20-80 ratio. Thus, 20% of the damages awarded
by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and
P4,500.00 as attorney's fees and costs, shall be
borne by private respondent Dionisio; only the
balance of 80% needs to be paid by petitioners
Carbonel and Phoenix who shall be solidarity
liable therefor to the former. The award of
exemplary damages and attorney's fees and costs
shall be borne exclusively by the petitioners.
Phoenix is of course entitled to reimbursement
from Carbonel. 18 We see no sufficient reason for
disturbing the reduced award of damages made by
the respondent appellate court.

WHEREFORE, the decision of the respondent

appellate court is modified by reducing the
aggregate amount of compensatory damages, loss
of expected income and moral damages private
respondent Dionisio is entitled to by 20% of such
amount. Costs against the petitioners.

SO ORDERED.

Yap (Chairman), Narvasa, Cruz, Gancayco and

Sarmiento, JJ., concur.

Melencio-Herrera, J., is on leave.

68 | T O R T S
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77679 September 30, 1987
VICENTE VERGARA, petitioner,
vs.
THE COURT OF APPEALS and AMADEO
AZARCON, respondents.
RESOLUTION
 
PADILLA, J.:
An action for damages based on quasi-delict (Art.
2176 of the Civil Code) was filed by private
respondent against petitioner. The action arose
from a vehicular accident that occurred on 5
August 1979 in Gapan, Nueva Ecija, when Martin
Belmonte, while driving a cargo truck belonging to
petitioner, rammed "head-on" the store-residence
of the private respondent, causing damages
thereto which were inventoried and assessed at
P53,024.22.
In his answer to the complaint, the petitioner
alleged principally: "that his driver Martin
Belmonte operated said cargo truck in a very
diligent (and) careful manner; that the steering
wheel refused to respond to his effort and as a
result of a blown-out tire and despite application
of his brakes, the said cargo truck hit the store-
residence of plaintiff (private respondent) and
that the said accident was an act of God for which
he cannot be held liable." 1
Petitioner also filed a third party complaint
against Travellers Insurance and Surety
Corporation, alleging that said cargo truck
involved in the vehicular accident, belonging to
the petitioner, was insured by the third party
defendant insurance company. Petitioner asked
that the latter be ordered to pay him whatever
amount he may be ordered by the court to pay to
the private respondent.
The trial court rendered judgment in favor of
private respondent. Upon appeal to the Court of
Appeals, the latter court affirmed in toto the
decision of the trial court, which ordered
Petitioner to pay, jointly and severally with
Travellers Insurance and Surety Corporation, to
the private, respondent the following: (a)
P53,024.22 as actual damages; (b) P10,000.00 as
moral damages; (c) P10,000.00 as exemplary
damages; and (d) the sum of P5,000.00 for
attorney's fees and the costs. On the third party
complaint, the insurance company was sentenced
to pay to the petitioner the following: (a)
P50,000.00 for third party liability under its
comprehensive accident insurance policy; and (b)
P3,000.00 for and as attorney's fees.
Hence, this petition for review on certiorari.
Petitioner's contention that the respondent court
erred in finding him guilty of fault or negligence is
not tenable. It was established by competent
evidence that the requisites of a quasi-delict are
present in the case at bar. These requisites are: (1)
damages to the plaintiff; (2) negligence, by act or
omission, of which defendant, or some person for
whose acts he must respond, was guilty; and (3)
the connection of cause and effect between such
negligence and the damages.
It is undisputed that private respondent suffered
damages as a result of an act or omission of
petitioner. The issue of whether or not this act or
omission can be considered as a "negligent" act or
omission was passed upon by the trial court. The
findings of said court, affirmed by the respondent
court, which we are not prepared to now disturb,
show that the fact of occurrence of the "vehicular
accident" was sufficiently established by the
policy report and the testimony of Patrolman
Masiclat. And the fact of negligence may be
deduced from the surrounding circumstances
thereof. According to the police report, "the cargo
truck was travelling on the right side of the road
going to Manila and then it crossed to the center
line and went to the left side of the highway; it
then bumped a tricycle; and then another bicycle;
and then said cargo truck rammed the store
warehouse of the plaintiff."2
According to the driver of the cargo truck, he
applied the brakes but the latter did not work due
to mechanical defect. Contrary to the claim of the
petitioner, a mishap caused by defective brakes
can not be consideration as fortuitous in
character. Certainly, the defects were curable and
the accident preventable.
Furthermore, the petitioner failed to adduce any
evidence to overcome the disputable presumption
of negligence on his part in the selection and
supervision of his driver.
Based on the foregoing finding by the respondent
Court that there was negligence on the part of the
petitioner, the petitioner's contention that the
respondent court erred in awarding private
respondent actual, moral and exemplary damages
as well as attorney's fees and costs, is untenable.
ACCORDINGLY, the petition is DENIED.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and
Sarmiento, JJ., concur.
69 | T O R T S