IV.

CAUSATION
A. PROXIMATE CAUSE B. EFFICIENT INTERVENING CAUSE
MCKEE v IAC, TAYAG 211 SCRA 517 DAVIDE; July 16, 1992 NATURE: Appeal from decision of the IAC FACTS: - A head-on-collision took place between a cargo truck owned by private respondents, and driven by Ruben Galang, and a Ford Escort car driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort. - When the northbound Ford Escort was about 10 meters away from the southern approach of the bridge, two boys suddenly darted from the right side of the road and into the lane of the car. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said bridge. - Two civil cases were filed on Jan 31, 1977. - On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting in Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. - Judge Capulong found Galang guilty of the criminal charge and ordered him to pay damages. Galang appealed to IAC. IAC affirmed decision. - Judge Castaneda dismissed the 2 civil cases and awarded private respondents moral damages and exemplary damages, and attorneys fee. Petitioners appealed to IAC. In its consolidated decision of the civil cases, it reversed the ruling of the trial court and ordered the defendants to pay damages. The decision is anchored principally on the findings that it was Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the law presumes negligence on the part of the defendants, as employers of Galang, in the selection and supervision of the latter; it was further asserted that these defendants did not allege in their Answers the defense of having exercised the diligence of a good father of a family in selecting and supervising the said employee. - In an MFR, the decision for the consolidated civil cases was reversed. Hence this petition. ISSUES WON respondent Court's findings in its challenged resolution are supported by evidence or are based on mere speculations, conjectures and presumptions. HELD YES - Findings of facts of the trial courts and the Court of Appeals may be set aside when such findings are not supported by the evidence or when the trial court failed to consider the material facts which would have led to a conclusion different from what was stated in its judgment. - The respondent Court held that the fact that the car improperly invaded the lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, IAC immediately concluded that it was

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Jose Koh's negligence that was the immediate and proximate cause of the collision. This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the truck's lane because as it approached the southern end of the bridge, two boys darted across the road from the right sidewalk into the lane of the car. - Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do - The test by which to determine the existence of negligence in a particular case: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. - Using the test, no negligence can be imputed to Jose Koh. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. - Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence. - Assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision. Proximate cause has been defined as: that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred; the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom. - Although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continued at full speed towards the car. - The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30 miles (48 km) per hour along the bridge while the maximum speed allowed by law on a bridge is only 30 kph. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. - Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for

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damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. - Last clear chance: The doctrine 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. 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. a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's peril, or according to some authorities, should have been aware of it in the reasonable exercise of due care, had in fact an opportunity later than that of the plaintiff to avoid an accident. - As employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage. The answers of the private respondents in the civil cases did not interpose this defense. Neither did they attempt to prove it. On the separate civil and criminal actions - The civil cases, which were for the recovery of civil liability arising from a quasi-delict under Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of criminal case. They were eventually consolidated for joint trial. The records do not indicate any attempt on the part of the parties, and it may therefore be reasonably concluded that none was made, to consolidate criminal case with the civil cases, or viceversa. - Section 1, Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice with the least expense to the parties litigants, would have easily sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two judges appreciating, according to their respective orientation, perception and perhaps even prejudice, the same facts differently, and thereafter rendering conflicting decisions. Such was what happened in this case. - The responsibility arising from fault or negligence in a quasidelict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. In the case of independent civil actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction, would be entirely irrelevant to the civil action. What remains to be the most important consideration as to why the decision in the criminal case should not be considered in this appeal is the fact that private respondents were not parties therein. Dispositive Petition granted. Assailed decision set aside while its original is REINSTATED, subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee

MANILA ELECTRIC v REMOQUILLO SUPRA (causation, test) TEAGUE VS. FERNANDEZ 51 SCRA 181 MAKALINTAL; June 4, 1973 FACTS - The Realistic Institute, owned and operated by Mercedes M. Teague, was a vocational school for hair and beauty culture situated on the second floor of the Gil-Armi Building, a twostorey, semi-concrete edifice located at the comer of Quezon Boulevard and Soler Street, Quiapo, Manila. The second floor was unpartitioned, had a total area of about 400 square meters, and although it had only one stairway, of about 1.50 meters in width, it had eight windows, each of which was provided with two fire-escape ladders, and the presence of each of the fire exits was indicated on the wall. - In the afternoon of October 24, 1955, a fire broke out in a store for surplus materials located about ten meters away from the institute. Soler Street lay between that store and the institute. Upon seeing the fire, some of the students in the Realistic Institute shouted 'Fire! Fire!' and thereafter, a panic ensued. Four instructresses and six assistant instructresses of the institute were present and they, together with the registrar, tried to calm down the students, who numbered about 180 at the time, telling them not to be afraid because the Gil-Armi Building would not get burned as it is made of concrete, and that the fire was anyway, across the street. They told the students not to rush out but just to go down the stairway two by two, or to use the fire-escapes. The panic, however, could not be subdued and the students kept on rushing and pushing their way through the stairs, thereby causing stampede. No part of the Gil-Armi Building caught fire. But, after the panic was over, four students, including Lourdes Fernandez, sister of plaintiffs, were found dead and several others injured on account of the stampede. - The CFI of Manila found for the defendant and dismissed the case. The plaintiffs appealed to the CA, which by a divided vote of 3 to 2 (a special division of five members having been constituted) rendered a judgment of reversal and sentenced the defendant to pay damages to the plaintiffs in the sum of P11,000, plus interest at the legal rate from the date the complaint was filed. - The CA declared that Teague was negligent and that such negligence was the proximate cause of the death of Lourdes Fernandez. This finding of negligence is based primarily on the fact that the provision of Section 491 of the Revised Ordinances of the City of Manila had not been complied with in connection with the construction and use of the Gil-Armi building. This provision reads as follows: "Sec. 491. Fireproof partitions, exits and stairways - All buildings and separate sections of buildings or buildings otherwise known as accessorias having less than three stories, having one or more persons domiciled therein either temporarily or permanently, and all public or quasipublic buildings having less than three stories, such as hospitals, sanitarium, schools, reformatories, places of human detention, assembly halls, clubs, restaurants or panciterias, and the like, shall be provided with at least two unobstructed stairways of not less than one meter and twenty centimeters in width and an inclination of not less than forty degrees from the perpendicular, in case of large buildings more than two stairways shall likewise be provided when required by the chief of the fire department, said stairways shall be placed as far apart as possible." The alleged violation of the ordinance consisted is that the second storey of the building had only one stairway, 1.5

meters wide, instead of two of at least 1.2 meters each, although at the time of the fire the owner of the building had a second stairway under construction. ISSUES 1. WON Section 491 of the Revised Ordinances of the City of Manila refers only to public buildings and hence did not apply to the Gil-Armi building which was of private ownership 2. WON the ordinance devolved upon the owners of the building and therefore it is they and not the petitioner, who is a mere lessee, who should be liable for the violation 3. WON the failure to comply with the requirement of the ordinance was the proximate cause of the death of Lourdes Fernandez HELD 1. NO. Ratio it is not ownership which determines the character of buildings subject to its requirements, but rather the use or the purpose for which a particular building, is utilized. Reasoning Thus the same may be privately owned, but if it is devoted to any one of the purposes mentioned in the ordinance - for instance as a school, which the Realistic Institute precisely was - then the building is within the coverage of the ordinance. Indeed the requirement that such a building should have two (2) separate stairways instead of only one (1) has no relevance or reasonable relation to the fact of ownership, but does have such relation to the use or purpose for which the building is devoted. 2. NO. Reasoning It was the use of the building for school purposes which brought the same within the coverage of the ordinance; and it was the petitioner and not the owners who were responsible for such use. 3. YES. Ratio The violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of another agency if the occurrence of the accident, in the manner in which it happened, was the very thing which the statute or ordinance was intended to prevent. Reasoning The proximate legal cause is that acting first and producing the injury, either immediately or by settling other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately affecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result there from. [Citing Bataclan v Medina] - The petitioner relates the chain of events that resulted in the death of Lourdes Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring place; (3) shouts of "Fire!, Fire!"; (4) panic in the Institute; (5) stampede; and (6) injuries and death. The violation of the ordinance, it is argued, was only a remote cause, and cannot be the basis of liability since there intervened a number of independent causes which produced the injury complained of. - A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate

cause. And if an independent negligent act or defective condition sets into operation the circumstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause. [Citing MERALCO v Remoquillo] - According to the petitioner "the events of fire, panic and stampede were independent causes with no causal connection at all with the violation of the ordinance." The weakness in the argument springs from a faulty juxtaposition of the events which formed a chain and resulted in the injury. It is true that the petitioner's non-compliance with the ordinance in question was ahead of and prior to the other events in point of time, in the sense that it was coetaneous with its occupancy of the building. But the violation was a continuing one, since the ordinance was a measure of safety designed to prevent a specific situation which would pose a danger to the occupants of the building. That situation was undue overcrowding in case it should become necessary to evacuate the building, which, it could be reasonably foreseen, was bound to happen under emergency conditions if there was only one stairway available. It is true that in this particular case there would have been no overcrowding in the single stairway if there had not been a fire in the neighborhood which caused the students to panic and rush headlong for the stairs in order to go down. But it was precisely such contingencies or events that the authors of the ordinance had in mind, for under normal conditions one stairway would be adequate for the occupants of the building. - To consider the violation of the ordinance as the proximate cause of the injury does not portray the situation in its true perspective; it would be more accurate to say that the overcrowding at the stairway was the proximate cause and that it was precisely what the ordinance intended to prevent by requiring that there be two stairways instead of only one. Under the doctrine of the cases cited by the respondents, the principle of proximate cause applies to such violation. Dispositive Decision appealed from is affirmed. URBANO V IAC SUPRA (causation, distinguished from other kinds, remote)

C. LAST CLEAR CHANCE

Aquino, pages 311 to 329

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PICART V SMITH STREET; March 15, 1918 NATURE Appeal from a judgment of the CFI of La Union FACTS  On December 12, 1912, plaintiff was riding on his pony over the Carlatan Bridge, at San Fernando, La Union.  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 the plaintiff 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 saw the automobile coming and heard the warning signals.  However, given the novelty of the apparition and the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left.  He did this because he thought he did not have sufficient time to get over to the other side.  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 was 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.  As a result of its injuries the horse died.  The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days.  CFI absolved defendant from liability  Hence, the appeal ISSUE WON the defendant, in maneuvering his car in the manner above described, was guilty of negligence that would give rise to a civil obligation to repair the damage done Ratio: 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 part.

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HELD Yes.  As the defendant started across the 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 no 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.  The defendant ran straight on until he was almost upon the horse. He was, the court thinks, 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 excited 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 reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence.  The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.  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 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. 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, negligence is clearly established. A prudent man, placed in the position of the defendant, would 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.  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. It will be noted however, 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. Dispositive: Appealed decision is reversed. BUSTAMANTE V CA (DEL PILAR AND MONTESIANO) 193 SCRA 603 MEDIALDEA; February 6, 1991 NATURE: petition for certiorari to review decision of CA FACTS: a truck and a passenger bus sideswept each other, causing the deaths of the passengers of the bus. This is the way the collision happened: The bus, driven by Susulin, was traversing an inclined road when the driver saw from 30 meters away an approaching truck (driven by Montesiano), going very fast and the front wheels wiggling. The bus driver also observed that the truck was heading towards his lane. Not minding this circumstance due to his belief that the truck driver was merely joking, Susulin th rd shifted from 4 to 3 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 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. The heirs of the victims filed for damages. The RTC awarded damages, saying that the negligent acts of both drivers were the cause of the accident, thus their liability must be solidary. The driver and owner of the truck appealed to the CA, which was denied at first, but was granted on MFR, absolving the defendants based on the doctrine of last clear chance, saying that the bus driver had the last clear chance to avoid the accident, and that his negligence was the proximate cause of the same. ISSUES: 1. WON the CA was correct in absolving the driver and owner of the truck (answered by WON CA correctly applied the doctrine of last clear chance) HELD: 1. NO Ratio: The doctrine of last clear chance applies only between the negligent parties. It does not apply in a case wherein a victim (who is an outsider to the cause of the accident) demands liability from the negligent parties. Reasoning: The doctrine of last clear chance, 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 plaintiffs 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, 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). A negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiff's peril, or according to some authorities, should have been aware of it in the reasonable exercise of due case, had in fact an opportunity later than that of the plaintiff to avoid an accident (Am. Jur). rd As against 3 persons, a negligent actor cant defend by saying that another had negligently failed to take action which would have avoided injury. Disposition: Petition GRANTED. Defendants Del Pilar and Montesiano ordered to pay damages with other defendants PHOENIX CONSTRUCTION INC V IAC (DIONISIO) 148 SCRA 353 FELICIANO; March 10, 1987 NATURE PETITION for review of the decision of the IAC FACTS - 130AM 15 November 1975 - Leonardo Dionisio, driving his Volkswagen car, was on his way home to Makati from a cocktails-and-dinner meeting with his boss where had taken "a shot or two" of liquor. Crossing the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, 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 21/2meters away from his car. The dump truck, owned and registered by Phoenix Construction Inc. was parked askew (partly blocking the way of oncoming traffic) on the right hand side of General Lacuna Street facing the oncoming traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere near the dump truck. The dump truck had earlier that evening been driven home by Carbonel, its regular driver. Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures. - Dionisio commenced an action for damages claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck. Phoenix and Carbonel countered that the proximate cause of Dionisio's injuries was his own recklessness in driving fast at the time of the accident, while under the influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due care in the selection and supervision of the dump truck driver. - CFI: in favor of Dionisio - IAC: affirmed TC but modified amounts ISSUE (obiter) WON last clear chance doctrine should be applied therefore exculpating Phoenix from paying any damages HELD NO - 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

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though such damages are subject to mitigation by the courts (Article 2179, Civil Code of the Philippines). Obiter - Phoenix and Carbonel 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 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 rulethat of contributory negligence. 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. 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. 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 A2179 CC - 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 A2179, 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' proposition must tend to weaken the very bonds of society. Disposition CA decision is modified by reducing the aggregate amount of compensatory damages, loss of expected income and moral damages Dionisio is entitled to by 20% of such amount

GLAN PEOPLES LUMBER AND HARDWARE V IAC (VDA. DE CALIBO and kids)GR No.70493 NARVASA; May 18, 1989 NATURE Petition for certiorari praying for a reversal of the judgment of the Intermediate Appellate Court which, it is claimed, ignored or ran counter to the established facts. FACTS - 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. - Trial Court dismissed the complaint (and defendants' counterclaim) "for insufficiency of evidence." The circumstances leading to the conclusion just mentioned: 1. Moments before its collission with the truck being operated by Zacarias, the jeep of the deceased Calibo was "zigzagging." 2. Unlike Zacarias who readily submitted himself to investigation by the police, Calibo's companions 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." 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." 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. 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. - IAC reversed TC. 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 . . .;" what is worse, "the truck driver suddenly applied his brakes even as he knew that he was still

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within the lane of the jeep;" had both vehicles stayed in their respective lanes, the collision would never have occurred, they would have passed "along side each other safely;" 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;" 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. ISSUES WON respondent court is correct in reversing the decision of trial court. HELD NO. Ratio The doctrine of the last clear chance provides as valid and complete a defense to accident liability. (Picart v Smith) Reasoning 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. 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. 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. -Picart v Smith: The 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. . . . . 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. Dispositive 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. Voting Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

PANTRANCO NORTH EXPRESS, INC v CAR BASCOS BAESA 179 SCRA 384 CORTES J.: November 1989 FACTS: At about 7:00 o'clock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their children Harold Jim, Marceline and Maricar, together with spouses David Ico and Fe O. Ico with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on their way to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and Marilyn Baesa. Upon reaching the highway, the jeepney turned right and proceeded to MaIalam, River at a speed of about 20 kph. While they were proceeding towards Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila, encroached on the jeepney's lane while negotiating a curve, and collided with it. - David Ico, spouses Ceasar Baesa and Marilyn Baesa and their children, Harold Jim and Marcelino Baesa, died while the rest of the passengers suffered injuries. The jeepney was extensively damaged. After the accident the driver of the PANTRANCO Bus, Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela. From that time on up to the present, Ramirez has never been seen and has apparently remained in hiding. - Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her minor children, filed separate actions for damages arising from quasi-delict against PANTRANCO. Other victims settled with Bus Company. -PANTRANCO, aside from pointing to the late David Ico's alleged negligence as the proximate cause of the accident, invoked the defense of due diligence in the selection and supervision of its driver, Ambrosio Ramirez -TC ruled against PANTRANCO and ordered them to pay damages. -Pantranco appealed the decision. Appeal dismissed for lack of merit ISSUE: WON PANTRANCO is liable for damages. HELD: YES -Petitioner claims that under the circumstances of the case, it was the driver of the passenger jeepney who had the last clear chance to avoid the collision and was therefore negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. -petitioner claims that the original negligence of its driver was not the proximate cause of the accident and that the sole proximate cause was the supervening negligence of the jeepney driver David Ico in failing to avoid the accident - The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence. -The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff - The above contention of petitioner is manifestly devoid of merit. Contrary to the petitioner's contention, the doctrine of "last clear chance" finds no application in this case - Contrary to the petitioner's contention, the doctrine of "last clear chance" finds no application in this case. For the doctrine to be applicable, it is necessary to show that the person who

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allegedly had the last opportunity to avert the accident was aware of the existence of the peril or should, with exercise of due care, have been aware of it - In this case, there is nothing to show that the jeepney driver David Ico knew of the impending danger. When he saw at a distance that the approaching bus was encroaching on his lane, he did not immediately swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus driver will return the bus to its own lane upon seeing the jeepney approaching from the opposite direction. - Moreover, both the trial court and the Court of Appeals found that at the time of the accident the Pantranco bus was speeding towards Manila. At the time David Ico must have realized that the bus was not returning to its own lane, it was already too late to swerve the jeepney to his right to prevent an accident. - This Court has held that the last clear chance doctrine "can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered" - Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article III Chapter IV of Republic Act No. 4136** which provides that the driver of a vehicle entering a through highway or a stop intersection shall yield the right of way to all vehicles approaching in either direction on such through highway. -Petitioner's misplaced reliance on the aforesaid law is readily apparent in this case. The cited law itself provides that it applies only to vehicles entering a through highway or a stop intersection. At the time of the accident, the jeepney had already crossed the intersection and was on its way to Malalam River -On the issue of its liability as an employer, petitioner claims that it had observed the diligence of a good father of a family to prevent damage, conformably to the last paragraph of Article 2180 of the Civil Code -When an injury is caused by the negligence of an employee, there instantly arises a presumption that the employer has been negligent either in the selection of his employees or in the supervision over their acts. Although this presumption is only a disputable presumption which could be overcome by proof of diligence of a good father of a family, this Court believes that the evidence submitted by the defendant to show that it exercised the diligence of a good father of a family iti the case of Ramirez, as a company driver is far from sufficient PHILIPPINE BANK OF COMMERCE v CA (LIPANA) 269 SCRA 695 HERMOSISIMA; March 14, 1997 Nature: Petition to review decision of CA Facts: - Rommel's Marketing Corporation (RMC), represented by its President and General Manager Romeo Lipana, filed a complaint to recover from the former Philippine Bank of Commerce (PBC), now absorbed by the Philippine Commercial International Bank, P304, 979.74 representing various deposits RMC made in its current account with said bank. The amount was not credited to RMCs account but was instead deposited to the account of one Bienvenido Cotas. - RMC maintained two separate current accounts with the Pasig Branch of PBC in connection with its business of selling appliances. - From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have entrusted RMC funds in the form of cash totalling P304,979.74 to his secretary, Irene Yabut, for the purpose of depositing said funds in the current accounts of RMC with PBC. It turned out, however, that these deposits, on

all occasions, were not credited to RMC's account but were instead deposited to Account No. 53-01734-7 of Yabut's husband, Bienvenido Cotas who likewise maintains an account with the same bank. - During this period, petitioner bank had been regularly furnishing private respondent with monthly statements showing its current accounts balances. Unfortunately, it had never been the practice of Romeo Lipana to check these monthly statements of account reposing complete trust and confidence on petitioner bank. -Irene Yabut would accomplish two copies of the deposit slip, an original and a duplicate. The original showed the name of her husband as depositor and his current account number. On the duplicate copy was written the account number of her husband but the name of the account holder was left blank. PBC's teller, Azucena Mabayad, would, however, validate and stamp both the original and the duplicate of these deposit slips retaining only the original copy despite the lack of information on the duplicate slip. The second copy was kept by Irene Yabut allegedly for record purposes. After validation, Yabut would then fill up the name of RMC in the space left blank in the duplicate copy and change the account number written thereon, which is that of her husband's, and make it appear to be RMC's account number. With the daily remittance records also prepared by Ms. Yabut and submitted to private respondent RMC together with the validated duplicate slips with the latter's name and account number, she made her company believe that all the while the amounts she deposited were being credited to its account when, in truth and in fact, they were being deposited by her and credited by the petitioner bank in the account of Cotas. - Upon discovery of the loss of its funds, RMC demanded from petitioner bank the return of its money, but as its demand went unheeded, it filed a collection suit before RTC Pasig, which found petitioner bank negligent and ordered the bank and Mabayad to pay RMC jointly and severally P304,979.72, plus damages, attornets fees and costs of suit. - CA affirmed, but modified the award of damages. Issue: Whether the proximate cause of the loss, to the tune of P304,979.74, suffered by the private respondent RMC is petitioner bank's negligence or that of private respondent's. Held: It was the negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank in the selection and supervision of its bank teller, which was the proximate cause of the loss suffered by the private respondent. - There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. - Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. - Picart v. Smith. The test by which to determine the existence of negligence in a particular case: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. 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.

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The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. - the bank's teller, Ms. Azucena Mabayad, was negligent in validating, officially stamping and signing all the deposit slips prepared and presented by Ms. Yabut, despite the glaring fact that the duplicate copy was not completely accomplished contrary to the self-imposed procedure of the bank with respect to the proper validation of deposit slips, original or duplicate. - Negligence here lies not only on the part of Ms. Mabayad but also on the part of the bank itself in its lackadaisical selection and supervision of Ms. Mabayad. - Proximate cause is determined on the facts of each case upon mixed considerations of logic, common sense, policy and precedent. Proximate cause is "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. . . ." In this case, absent the act of Ms. Mabayad in negligently validating the incomplete duplicate copy of the deposit slip, Ms. Irene Yabut would not have the facility with which to perpetrate her fraudulent scheme with impunity. - Furthermore, under the doctrine of "last clear chance" (also referred to, at times as "supervening negligence" or as "discovered peril"), petitioner bank was indeed the culpable party. This doctrine, in essence, states that where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence. Here, assuming that private respondent RMC was negligent in entrusting cash to a dishonest employee, thus providing the latter with the opportunity to defraud the company, as advanced by the petitioner, yet it cannot be denied that the petitioner bank, thru its teller, had the last clear opportunity to avert the injury incurred by its client, simply by faithfully observing their self-imposed validation procedure. - While it is true that had private respondent checked the monthly statements of account sent by the petitioner bank to RMC, the latter would have discovered the loss early on, such cannot be used by the petitioners to escape liability. This omission on the part of the private respondent does not change the fact that were it not for the wanton and reckless negligence of the petitioners' employee in validating the incomplete duplicate deposit slips presented by Ms. Irene Yabut, the loss would not have occurred. Considering, however, that the fraud was committed in a span of more than one (1) year covering various deposits, common human experience dictates that the same would not have been possible without any form of collusion between Ms. Yabut and bank teller Mabayad. Ms. Mabayad was negligent in the performance of her duties as bank teller nonetheless. - it cannot be denied that private respondent was likewise negligent in not checking its monthly statements of account. Had it done so, the company would have been alerted to the series of frauds being committed against RMC by its secretary. The damage would definitely not have ballooned to such an amount if only RMC, particularly Romeo Lipana, had exercised even a little vigilance in their financial affairs. This omission by RMC amounts to contributory negligence which shall mitigate the damages that may be awarded to the private respondent under Article 2179 of the New Civil Code

Disposition CA decision modified. The demands of substantial justice are satisfied by allocating the damage on a 60-40 ratio. Thus, 40% of the damage awarded by the respondent appellate court, except the award of P25,000.00 attorney's fees, shall be borne by private respondent RMC; only the balance of 60% needs to be paid by the petitioners. The award of attorney's fees shall be borne exclusively by the petitioners. PADILLA [dissent] - the doctrine of "last clear chance" assumes that the negligence of the defendant was subsequent to the negligence of the plaintiff and the same must be the proximate cause of the injury. In short, there must be a last and a clear chance, not a last possible chance, to avoid the accident or injury. It must have been a chance as would have enabled a reasonably prudent man in like position to have acted effectively to avoid the injury and the resulting damage to himself. - the bank was not remiss in its duty of sending monthly bank statements to private respondent RMC so that any error or discrepancy in the entries therein could be brought to the bank's attention at the earliest opportunity. Private respondent failed to examine these bank statements not because it was prevented by some cause in not doing so, but because it was purposely negligent as it admitted that it does not normally check bank statements given by banks. It was private respondent who had the last and clear chance to prevent any further misappropriation by Yabut had it only reviewed the status of its current accounts on the bank statement sent to it monthly or regularly. Since a sizable amount of cash was entrusted to Yabut, private respondent should, at least, have taken care of its concerns, as what the law presumes. Its negligence, therefore, is not contributory but the immediate and proximate cause of its injury. ONG VS METROPOLITAN WATER DISTRICT L-7644 August 29, 1958 FACTS y Metropolitan owns 3 swimming pools at its filters in Balara, Quezon City y IIt charges the public a certain fee if such wanted to use its pools y Dominador Ong, 14 years of age, son of petitioners, went to the pools along with his 2 brothers y He stayed in the shallow pool, but then he told his brothers that he would get something to drink. His brothers left him and went to the Deep pool. y Around 4pm that day, a bather reported that one person was swimming to long under water y Upon hearing this, the lifeguard on duty dove into the pool to retrieve Ongs lifeless body. Applying first aid, the lifeguard tried to revive the boy. y 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, Abao continued the artificial manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks were exhausted y Investigation was concluded and the cause of death is asphyxia by submersion in water (pagkalunod)

The parents of Ong bring this action for damages against Metropolitan, alleging negligence on the selection and supervision of its employees and if not negligent, they had the last clear chance to revive Ong. It is to be noted that Metropolitan had complete safety measures in place: they had a male nurse, six lifeguards, ring buoys, 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

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. 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 Abaoresponded 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. ANURAN V BUO 17 SCRA 224 BENGZON, May 20, 1966 NATURE: Petition for Review by certiorari of CA decision. FACTS - On January 12, 1958, a passenger jeepney was parked on the road to Taal, Batangas. Buo, driver of said jeepney stopped his vehicle in order to allow one of his passengers to alight. But he parked his jeepney in such a way that of its width (the left wheels) was on the asphalted pavement of the road and the other half, on the right shoulder of the said road. A motor truck speeding along, negligently bumped it from behind, which such violence that three of its passengers died, even as 2 other passengers suffered injuries that required their confinement at the Provincial Hospital for many days. - Suits were instituted by the representatives of the dead and the injured, to recover consequently damages against the drivers and the owners of the trucks and also against the driver and the owners of the jeepney. - CFI Batangas absolved the driver of the jeepney and its owners, but it required the truck driver and the owners o make compensation. Plaintiffs appealed to the CA insisting that the driver and the owners of the jeepney should also be made liable for damages. ISSUE WON the driver and owners of the jeepney should also be made liable. HELD YES. An error of law was committed in releasing the jeepney from liability. It must be remembered that the obligation of the carrier to transport its passengers safely is such that the New Civil Code requires utmost diligence from the carriers (Art. 1755) who are presumed to have been at fault or to have acted negligently, unless they prove that they have observed extraordinary diligence (Art. 1756). In this instance, this legal presumption of negligence is confirmed by the CAs finding that jeepney driver in question was at fault in parking the vehicle improperly. It must follow that the driver and the owners of the jeepney must answer for injuries to its passengers. Obiter on Application of Principle of Last Clear Chance: The principle about the last clear chance applies in a suit between the owners and drivers of the two 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. This principle does not apply in this case. DISPOSITION: Judgment modified.

ISSUE: 1. W/N Metropolitan is liable to the Ongs for its negligence 2. W/N the last clear chance doctrine may be invoked in this case HELD: 1. No. Metropolitan is not negligent Metropolitan has taken all necessary precautions to avoid danger to the lives of its patrons. 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 the minor Ong was retrieved from the bottom of the pool, the employees of appellee did everything possible to bring him back to life. 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 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 The Last Clear Chance Doctrine is inapplicable in this case 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 2.

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RAYNERA VS HICETAL PARDO (G.R. No. 120027) (21 April 1999) FACTS: y On March 23, 1989, at about 2:00 in the morning, Reynaldo Raynera was on his way home. He was riding a motorcycle traveling on the southbound lane of East Service Road, Cupang, Muntinlupa. The Isuzu truck was travelling ahead of him at 20 to 30 kilometers per hour. The truck was loaded with two (2) metal sheets extended on both sides, two (2) feet on the left and three (3) feet on the right. There were two (2) pairs of red lights, about 35 watts each, on both sides of the metal plates. The asphalt road was not well lighted. At some point on the road, Reynaldo Raynera crashed his motorcycle into the left rear portion of the truck trailer, which was without tail lights. Due to the collision, Reynaldo sustained head injuries and he was rushed to the hospital where he was declared dead on arrival. Edna Raynera, widow of Reynaldo, filed with the RTC a complaint for damages against respondents Hiceta and Orpilla, owner and driver of the Isuzu truck. At the trial, petitioners presented Virgilio Santos. He testified that at about 1:00 and 2:00 in the morning of March 23, 1989, he and his wife went to Alabang, market, on board a tricycle. They passed by the service road going south, and saw a parked truck trailer, with its hood open and without tail lights. They would have bumped the truck but the tricycle driver was quick in avoiding a collision. The place was dark, and the truck had no early warning device to alert passing motorists. Trial court: respondents negligence was the immediate and proximate cause of Rayneras death. CA: The appellate court held that Reynaldo Raynera's bumping into the left rear portion of the truck was the proximate cause or his death, and consequently, absolved respondents from liability.

victim's motorcycle that figured in the accident. Although Santos claimed the tricycle almost bumped into the improperly parked truck, the tricycle driver was able to avoid hitting the truck. It has been said that drivers of vehicles "who bump the rear of another vehicle" are presumed to be "the cause of the accident, unless contradicted by other evidence". The rationale behind the presumption is that the driver of the rear vehicle has full control of the situation as he is in a position to observe the vehicle in front of him. We agree with the Court of Appeals that the responsibility to avoid the collision with the front vehicle lies with the driver of the rear vehicle. CANLAS V, CA Purisima; February 28, 2000 Nature: Petition for Review on Certiorari Facts: -Sometime in August, 1982, Osmundo S. Canlas, and Vicente Maosca, decided to venture in business and to raise the capital needed therefor. The former then executed a Special Power of Attorney authorizing the latter to mortgage two parcels of land situated in San Dionisio, (BF Homes) Paranaque, Metro Manila, each lot with semi-concrete residential house in the name of the SPS Canlas. Osmundo Canlas agreed to sell the said parcels of land to Vicente Maosca, for and in consideration of P850,000.00, P500,000.00 of which payable within one week, and the balance of P350,000.00 to serve as his (Osmundo's) investment in the business. Thus, Osmundo Canlas delivered to Vicente Maosca the transfer certificates of title of the parcels of land involved. Vicente Maosca, as his part of the transaction, issued two postdated checks in favor of Osmundo Canlas in the amounts of P40,000.00 and P460,000.00, respectively, but it turned out that the check covering the bigger amount was not sufficiently funded. -On September 3, 1982, Vicente Maosca was able to mortgage the same parcels of land for P100,000.00 to a certain Attorney Manuel Magno, with the help of impostors who misrepresented themselves as the spouses, Osmundo Canlas and Angelina Canlas. On September 29, 1982, private respondent Vicente Maosca was granted a loan by the respondent Asian Savings Bank (ASB) in the amount of P500,000.00, with the use of subject parcels of land as security, and with the involvement of the same impostors who again introduced themselves as the Canlas spouses. When the loan it extended was not paid, respondent bank extrajudicially foreclosed the mortgage. -On January 15, 1983, Osmundo Canlas wrote a letter informing the respondent bank that the execution of subject mortgage over the two parcels of land in question was without their (Canlas spouses) authority, and request that steps be taken to annul and/or revoke the questioned mortgage. On January 18, 1983, petitioner Osmundo Canlas also wrote the office of Sheriff Maximo O. Contreras, asking that the auction sale scheduled on February 3, 1983 be cancelled or held in abeyance. But respondents Maximo C. Contreras and Asian Savings Bank refused to heed petitioner Canlas' stance and proceeded with the scheduled auction sale. -Consequently, on February 3, 1983 the herein petitioners instituted the present case for annulment of deed of real estate mortgage with prayer for the issuance of a writ of preliminary injunction; and on May 23, 1983, the trial court issued an Order restraining the respondent sheriff from issuing the corresponding Certificate of Sheriff's Sale.For failure to file his answer, despite several motions for extension of time for the

y y

ISSUE: 1. 2. whether respondents were negligent, and if so, whether such negligence was the proximate cause of the death of Reynaldo Raynera.

HELD: We find that the direct cause of the accident was the negligence of the victim. Traveling behind the truck, he had the responsibility of avoiding bumping the vehicle in front of him. He was in control of the situation. His motorcycle was equipped with headlights to enable him to see what was in front of him. He was traversing the service road where the prescribed speed limit was less than that in the highway. Traffic investigator Cpl. Virgilio del Monte testified that two pairs of 50-watts bulbs were on top of the steel plates, which were visible from a distance of 100 meters Virgilio Santos admitted that from the tricycle where he was on board, he saw the truck and its cargo of iron plates from a distance of ten (10) meters. In light of these circumstances, an accident could have been easily avoided, unless the victim had been driving too fast and did not exercise dues care and prudence demanded of him under the circumstances. Virgilio Santos' testimony strengthened respondents' defense that it was the victim who was reckless and negligent in driving his motorcycle at high speed. The tricycle where Santos was on board was not much different from the

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filing thereof, Vicente Maosca was declared in default. Lower court a quo came out with a decision annulling subject deed of mortgage and disposing. Asian Savings Bank appealed to the Court of Appeals and CA reversed the lower court decision. Issue/s and Held WON CA erred in holding that the mortgage is valid Settled is the rule that a contract of mortgage must be constituted only by the absolute owner on the property mortgaged; a mortgage, constituted by an impostor is void. Considering that it was established indubitably that the contract of mortgage sued upon was entered into and signed by impostors who misrepresented themselves as the spouses Osmundo Canlas and Angelina Canlas, the Court is of the ineluctible conclusion and finding that subject contract of mortgage is a complete nullity. WON ASB must incur the resulting loss Yes. The doctrine of last clear chance is applicable, the respondent bank must suffer the resulting loss. In essence, the doctrine of last clear chance is to the effect that where both parties are negligent but the negligent act of one is appreciably later in point of time than that of the other, or where it is impossible to determine whose fault or negligence brought about the occurrence of the incident, the one who had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable with the consequences arising therefrom. Stated differently, the rule is that the antecedent negligence of a person does not preclude recovery of damages caused by the supervening negligence of the latter, who had the last fair chance to prevent the impending harm by the exercise of due diligence. In the case under consideration, from the evidence on hand it can be gleaned unerringly that respondent bank did not observe the requisite diligence in ascertaining or verifying the real identity of the couple who introduced themselves as the spouses Osmundo Canlas and Angelina Canlas. It is worthy to note that not even a single identification card was exhibited by the said impostors to show their true identity; and yet, the bank acted on their representations simply on the basis of the residence certificates bearing signatures which tended to match the signatures affixed on a previous deed of mortgage to a certain Atty. Magno, covering the same parcels of land in question. Applying Art. 1173 It could be said that the degree of diligence required of banks is more than that of a good father of a family in keeping with their responsibility to exercise the necessary care and prudence in dealing even on a registered or titled property. The business of a bank is affected with public interest, holding in trust the money of the depositors, which bank deposits the bank should guard against loss due to negligence or bad faith, by reason of which the bank would be denied the protective mantle of the land registration law, accorded only to purchasers or mortgagees for value and in good faith. Evidently, the efforts exerted by the bank to verify the identity of the couple posing as Osmundo Canlas and Angelina Canlas fell short of the responsibility of the bank to observe more than the diligence of a good father of a family. The negligence of respondent bank was magnified by the fact that the previous deed of mortgage (which was used as the basis for checking the genuineness of the signatures of the supposed Canlas spouses) did not bear the tax account number of the spouses, as well as the Community Tax Certificate of Angelina Canlas. But such fact notwithstanding, the bank did not require the impostors to submit additional proof of their true identity. For not observing the degree of diligence required of banking institutions, whose business is impressed with public interest,

respondent Asian Savings Bank has to bear the loss sued upon. Disposition WHEREFORE, the Petition is GRANTED and the Decision of the Court of Appeals, dated September 30, 1993, in CA-G.R. CV No. 25242 SET ASIDE. The Decision of Branch 59 of the Regional Trial Court of Makati City in Civil Case No. M-028 is hereby REINSTATED. No pronouncement as to costs. SO ORDERED.1wphi1.nt CONSOLIDATED BANK V CA (L.C.DIAZ AND CO.) GR No. 138569 CARPIO; September 11, 2003 NATURE: Review of the decision of the CA FACTS: - LC Diaz is a professional partnership engaged in accounting. On 14 August 1991, LC diaz, thru its cashier, instructed their messenger, Calapre, to deposit money in Solidbank. Calapre then deposited in Solidbank. Since the transaction took time and Calapre had to make another deposit for L.C. Diaz with Allied Bank, he left the passbook with Solidbank. When he came back, the teller told him that somebody else got the passbook. The next day, it was learned that 300k was withdrawn from the account. - An information for estafa was filed against one of their messengers (Ilagan) and one Roscoe Verdazola. LC Diaz demanded SolidBank the return of their money. The latter refused and a case for recovery of a sum of money was filed against them - TC applied rules on savings account written on the passbook. The rules state that possession of this book shall raise the presumption of ownership and any payment or payments made by the bank upon the production of the said book and entry therein of the withdrawal shall have the same effect as if made to the depositor personally. Also, they applied the rule that the holder of the passport is presumed the owner. It was also held that Solidbank did not have any participation in the custody and care of the passbook and as such, their act was not the proximate cause of the loss. The proximate cause was LC Diaz negligence. - CA revered. It ruled that Solidbanks negligence was the proximate cause. It applied the provision on the CC on quasi delicts and found that the requisite elements were present. They found that the teller made no inquiry upon the withdrawal of 300k. The teller could have called up LC Diaz since the amount being drawn was significant. The appellate court ruled that while L.C. Diaz was also negligent in entrusting its deposits to its messenger and its messenger in leaving the passbook with the teller, Solidbank could not escape liability because of the doctrine of last clear chance. Solidbank could have averted the injury suffered by L.C. Diaz had it called up L.C. Diaz to verify the withdrawal. ISSUES: WON Solidbank was liable HELD - For breach of the savings deposit agreement due to negligence, or culpa contractual, the bank is liable to its depositor. - When the passbook is in the possession of Solidbanks tellers during withdrawals, the law imposes on Solidbank and its tellers an even higher degree of diligence in safeguarding the passbook. Likewise, Solidbanks tellers must exercise a high degree of diligence in insuring that they return the passbook only to the depositor or his authorized representative - In culpa contractual, once the plaintiff proves a breach of contract, there is a presumption that the defendant was at fault or negligent. The burden is on the defendant to prove that he

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was not at fault or negligent. Solidbank failed to discharge this burden. (they could have presented the teller to whom the passbook was left, but they didnt) - L.C. Diaz was not at fault that the passbook landed in the hands of the impostor. Solidbank was in possession of the passbook while it was processing the deposit. After completion of the transaction, Solidbank had the contractual obligation to return the passbook only to Calapre, the authorized representative of L.C. Diaz. SolidBanks negligence in returning the passbook was the proximate cause. - The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. Stated differently, the antecedent negligence of the plaintiff does not preclude him from recovering damages caused by the supervening negligence of the defendant, who had the last fair chance to prevent the impending harm by the exercise of due diligence. - We do not apply the doctrine of last clear chance to the present case. Solidbank is liable for breach of contract due to negligence in the performance of its contractual obligation to L.C. Diaz. This is a case of culpa contractual, where neither the contributory negligence of the plaintiff nor his last clear chance to avoid the loss, would exonerate the defendant from liability. Such contributory negligence or last clear chance by the plaintiff merely serves to reduce the recovery of damages by the plaintiff but does not exculpate the defendant from his breach of contract. DISPOSITIVE:Decision affirmed, modification only to damages ENGADA V CA QUISUMBING, J.: June 20, 2003 NATURE Petition for review seeking the reversal of the decision of the CA which affirmed with modification the judgment of the RTC of Iloilo City FACTS - On November 29, 1989, at about 1:30 in the afternoon, Edwin Iran was driving a blue Toyota Tamaraw jeepney bound for Iloilo City. On board was Sheila Seyan, the registered owner of the Tamaraw. The Tamaraw passengers allegedly saw from the opposite direction a speeding Isuzu pick-up, driven by petitioner Rogelio Engada. When it was just a few meters away from the Tamaraw, the Isuzu pick-ups right signal light flashed, at the same time, it swerved to its left, encroaching upon the lane of the Tamaraw and headed towards a head-on collision course with it. Seyan shouted at Iran to avoid the pick-up. Iran swerved to his left but the pick-up also swerved to its right. Thus, the pick-up collided with the Tamaraw, hitting the latter at its right front passenger side. The impact caused the head and chassis of the Tamaraw to separate from its body. Seyan was thrown out of the Tamaraw and landed on a ricefield. Seyan incurred P130,000 in medical expenses. The Toyota Tamaraw jeepney ended up in the junk heap. Its total loss was computed at P80,000. ISSUES 1. WON petitioners negligence was the proximate cause of the accident HELD 1. YES. Ratio It is a settled rule that a driver abandoning his proper lane for the purpose of overtaking another vehicle in an ordinary situation has the duty to see to it that the road is clear

and he should not proceed if he cannot do so in safety. For failing to observe the duty of diligence and care imposed on drivers of vehicles abandoning their lane, petitioner must be held liable. Iran could not be faulted when in his attempt to avoid the pick-up, he swerved to his left. Petitioners acts had put Iran in an emergency situation which forced him to act quickly. An individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. Reasoning The doctrine of last clear chance states that a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent, is considered in law solely responsible for the consequences of the accident. But what has been shown is the presence of an emergency and the proper application of the emergency rule. There was no clear chance to speak of. Iran swerved to the left only to avoid petitioners pick-up, which was already on a head to head position going against Irans Tamaraw jeepney immediately before the vehicles collided. No convincing proof was adduced by petitioner that Iran could have avoided a head-on collision. Dispositive The appealed decision is AFFIRMED.

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