Lisaca, Mae Heloise R.

Asynchronous Activity #1 | 2020400017 | Torts 3S

Instructions: State the basic facts and discuss the presence or absence of negligence of ALL the parties
involved in the case using the Test of Negligence. There should be separate discussion for each
party/parties:
(1) Bataclan v. Medina, G.R. No. L-101126, October 22, 1957; and
(2) Abrogar v. Cosmos Bottling Company, G.R. 164749, March 15, 2017.

Bataclan v. Medina, G.R. No. L-101126, October 22, 1957

Basic Facts: A bus, a common carrier, fell into an accident during midnight wherein one of one of the
front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the
road and turned turtle. Some managed to escape, but among those who couldn’t escape was Bataclan, a
passenger. After shouting for help, one man carrying a lit torch made of bamboo approached the bus and
it almost immediately ignited a fire which consumed the entire bus because the gasoline had leaked all
over the bus when it tossed and turned.

Answer: The parties are the following: (1) Mariano Medina as the operator of the common carrier, (2)
Bataclan, (3) the driver, and (4) the men who carried a torch wood made of bamboo with a wick fueled
with petroleum.

Mariano Medina as the common carrier was guilty of negligence. Common carriers from the
nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety of the passengers transported by them, according to all the
circumstances of each case (Article 1733, New Civil Code). In Article 1756 of the same code, in case of
death of passengers, the common carrier is presumed to have acted negligently, unless they prove that
they have observed extraordinary diligence; and in Article 1759, common carriers are liable for the death
of passengers through the willful acts of the common former’s employees.
Applying the provisions, since the passenger died, negligence is attached to the common carrier, since it
was not shown that extraordinary diligence was exercised to overturn such presumption. The driver acted
negligently when he was speeding at midnight in a zigzagging road, and failed to change the tires when
told to do so. Therefore, through the negligence of the driver, the Mariano Medina as the common carrier
was guilty of negligence.

The driver is negligent. In the case of Picart v. Smith, the test of negligence is to determine
whether the defendant in doing negligent act, used reasonable care or caution which an ordinarily prudent
person would have used in the same situation. To determine what an ordinarily prudent person would
have done, the test of foreseeability must be applied, which means to determine if such a person would
have foreseen the sufficiently probable effect or harm to another which would warrant foregoing the
conduct or guard against consequences. In this case, an ordinarily prudent man would first drive carefully
during midnight at a considerably dangerous road since it was zigzagging and naturally required more
finesse in driving. Furthermore, since they were directly ordered to change the tires, an important part of a
vehicle commonly known to be maintained to avoid slipperiness, an ordinarily prudent man would not
neglect to change them since bad tires can lead to slippery driving and accidents. Finally, an ordinarily
prudent man would understand the danger of gasoline coming into contact with fire, and that detecting
gasoline was easy when the entire bus was drenched in where he was; warranting such a man to warn
people helping them not to go near with fire. In this case, the driver failed to exercise due diligence by
applying these conducts. Therefore, he is held negligent.

The man who carried the torchwood was not negligent. The same test in Picart v. Smith applies.
Considering the fact that it was midnight and an ordinarily prudent man would need a source of light to
see in the darkness, bringing a torchlight was not negligent since he would not have known that there was
gasoline all over the bus. In this case, the man acting with urgency to meet the emergency, he necessarily
used a torchlight but could not smell the gasoline until it was too late, since man’s sense of smell is
Lisaca, Mae Heloise R. Asynchronous Activity #1 | 2020400017 | Torts 3S

actually a lot weaker at midnight. Therefore, the man did not act negligently and only acted within his
options necessarily without omniscience at that time.

Lastly, Bataclan was not negligent. Applying the same test in Picart v. Smith, an ordinarily
prudent person would not have been able to have the clairvoyant foresight to choose a better seat which
would let him escape letter, or to avoid the bus altogether to avoid his fate, or do anything in his power to
prevent the accident. In this case, nothing in the facts showed that Bataclan was not guilty of any
contributory negligence.

Abrogar v. Cosmos Bottling Company, G.R. 164749, March 15, 2017.

Basic Facts: This case involved an organized marathon participant named Rommel Abrogar, being
bumped by a passenger jeepney on the route of the race. Even with medical treatment, Rommel had died.
Cosmos organized the running contest, jointly with Intergames, to be held through public roads. There
was a waiver executed by the participants prior the event.

Answer: The parties are the following: (1) Rommel Abrogar, (2) the passenger jeepney, (3) Cosmos, (4)
Intergames.

Rommel Abrogar was not negligent. In the case of Picart v. Smith, the test of negligence is to
determine whether the defendant in doing the negligent act, used reasonable care or caution which an
ordinarily prudent person would have used in the same situation. To determine what an ordinarily prudent
person would have done, the test of foreseeability must be applied, which means to determine if such a
person would have foreseen the sufficiently probable effect or harm to another which would warrant
foregoing the conduct or guard against consequences. The ordinarily prudent person, in the shoes of the
young person in question, would not have appreciated the risk of being fatally struck by any moving
vehicle while running the race. Instead, he had every reason to believe that the organizer had taken
adequate measures to guard all participants against any danger from the fact that he was participating in
an organized marathon. Therefore, the fact that he surveyed the route and attended the briefing and
followed the route prescribed by the marathon, showed that he did not act negligently and in fact acted
with ordinary due diligence.

The passenger jeepney was negligent. Although his negligence was not found to be the proximate
cause to hold him liable for damages, the driver was nonetheless negligent in bumping Rommel. Applying
the same test in Picart v. Smith, as well as Article 1733 of the New Civil Code, the jeepney driver in the
shoes of a common carrier should have acted with extra care in driving through a marathon, a marketing
event that would have been apparent to people witnessing it that it would involve people or participants
running through a public road. Furthermore, the fact that the jeepney was racing against a minibus when it
happened shows that safety of passengers was not in the mind of the driver as a common carrier required
to exercise due diligence. Therefore, the driver was negligent, albeit not liable for not being the proximate
cause.

Cosmos was not negligent. Applying the same test in Picart v. Smith, Cosmos as a sponsor
limited to financial support was expected to ensure that in entering a contract with another, the other party
would be someone with a reputable record or is trustworthy. In this case, Cosmos was not negligent in this
regard, since they already know that Intergames had a clean record and a history of at least thirty (30)
road races. They could not have foreseen that Intergames would be negligent in safeguarding the event
they jointly organized together, given the facts available to them. Therefore, Cosmos was not negligent in
their capacity.
Lisaca, Mae Heloise R. Asynchronous Activity #1 | 2020400017 | Torts 3S

Intergames was negligent. Applying the same test in Picart v. Smith, Intergames as a marathon
organizer was to ensure that the participants were blocked off or away from vehicular traffic, or to at least
coordinate with the volunteer personnel in properly manning the marathon with due diligence owing to
the inherent danger of a marathon on the public road. Otherwise, it would naturally expose participants to
the undue risk of collision with vehicles. The fact that Intergames had been lucky for more than 30
competitions does not mean it exercised due diligence required of them. They have foreseen the risk,
clearly seen with their waiver in which participants assume the risk of joining the marathon. However, the
fact that they did not guard against such an obvious harm is what makes them liable. Therefore,
Intergames was negligent for failing to guard participants such as Rommel against the foreseen risk.