Under Art. 2176 I. Jemima Fernando FAUSTO BARREDO VS. SEVERINO GARCIA and TIMOTEA ALMARIO G.R. No.

L-48006. July 8, 1942 BOCOBO, J: FACTS: On May 3, 1936, there was a head-on collision on the road between a taxi of the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis between Malabon and Navotas, Province of Rizal. The carretela was overturned, and one of its passengers, 16-yearold boy Faustino Garcia, suffered injuries from which he died two days later. A criminal action was filed against Fontanilla in the Court of First Instance of Rizal where he was convicted. The court in the criminal case granted the petition that the right to bring a separate civil action be reserved. Thus, the parents of the deceased, Severino Garcia and Timotea Almario, brought an action against Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of Pedro Fontanilla. The lower court ruled in favor of the respondents which was affirmed by the Court of Appeals stating that Fausto Barredo was careless in employing Fontanilla who had been caught several times for violation of the Automobile Law and speeding violation which appeared in the records of the Bureau of Public Works available to be public and to himself. In his defense, Barredo contends that the Court of Appeals erred in applying Article 1903 of the Civil Code since the provision itself speaks of (obligations) arising from wrongful or negligent acts or omissions not punishable by law. His liability arised from a felony or a misdemeanor (crime) of Pedro Fontanilla; and since there has been no civil action against Pedro Fontanilla, Barredo cannot be held responsible in the case. ISSUE: Whether the respondents, Severino Garcia and Timotea Almario, may bring a separate civil action against Fausto Barredo, thus making him primarily and directly, responsible under 1903 in relation to Article 1902 of the Civil Code as an employer of Pedro Fontanilla HELD:

A quasi-delict or culpa extra-contractual is a separate and distinct legal institution, independent from the civil responsibility arising from criminal liability, and that an employer is, under article 1903 of the Civil Code, primarily and directly responsible for the negligent acts of his employee. In the present case, the taxi driver was found guilty of criminal negligence, so that if he had even sued for his civil responsibility arising from the crime, he would have been held primarily liable for civil damages, and Barredo would have been held subsidiarily liable for the same. But the plaintiffs are directly suing Barredo, on his primary responsibility because of his own presumed negligence which he did not overcome under article 1903. Thus, there were two liabilities of Barredo: first, the subsidiary one because of the civil liability of the taxi driver arising from the latter's criminal negligence; and, second, Barredo's primary liability as an employer under article 1903. The plaintiffs were free to choose which course to take, and they preferred the second remedy. In so doing, they were acting within their rights. It might be observed in passing, that the plaintiff choose the more expeditious and effective method of relief, because Fontanilla was either in prison, or had just been released, and besides, he was probably without property which might be seized in enforcing any judgment against him for damages. Thus, Barredo is primarily and directly responsible in damages under article 1903, in relation to article 1902, of the Civil Code.

II. Edgar Cruz Spouses Elcano v Reginald Hill, minor, & Marvin Hill, father G.R. No. L-24803, May 26, 1977 FACTS: Sps Elcano filed a complaint before the CFI for recovery of damages from R. and M. Hill for the killing by Reginald of Sps Elcanos son. Reginald was acquitted in the criminal case because of lack of intent to kill, coupled with mistake. The CFI dismissed the complaint upon motion of R. and M. Hill on the grounds of res judicata and that NCC Arts 2176-2194 on quasi-delict do not apply. ISSUES: 1. Is the civil action for damages barred by the acquittal of Reginald in the criminal case wherein the action for civil liability was not reversed?

2. May NCC Art 2180 (2nd & last pars) be applied against M. Hill, even if Reginald, though a minor at the time, living with and getting subsistence from his father, was already legally married? HELD: 1. No. Art 2176, where it refers to "fault or negligence, covers not only acts "not punishable by law" but also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par (e) of Sec 3, Rule 111, refers exclusively to civil liability founded on Art 100 of the RPC, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. 2. Yes. Under Art 2180, the obligation imposed by Art 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The reason behind the joint and solidary liability of parents with their offending child under Art 2180 is that it is the obligation of the parent to supervise their minor children in order to prevent them from causing damage to third persons. III. Kenneth E. Regaon CINCO v. CANONOY G.R. No. L-33171 May 31, 1979 Facts: On February 25, 1970, petitioner Porfirio Cinco filed a Complaint in the City Court of Mandaue City, Cebu for the recovery of damages on account of a vehicular accident involving his automobile and a jeepney driven by private respondent Romeo Hilot and operated by private respondent Valeriana Pepito and Carlos Pepito. Subsequently, a criminal case was filed against the driver, Romeo Hilot, arising from the same accident. At pre-trial, private respondents moved to suspend the civil action pending the determination of the criminal suit, invoking Rule 111, Sec. 3 (b), Rules of Court, which provides: (b) After a criminal action has been commenced. no civil action arising from the same offense can be prosecuted, and the same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered

The City Court granted the motion and ordered the suspension of the civil case. Motion for reconsideration was denied. Petitioner elevated the matter on certiorari to the CFI of Cebu alleging that the City Judge acted with grave abuse of discretion in suspending the civil action for being contrary to law and jurisprudence. Respondent judge Mateo Canonoy dismissed the petition for certiorari; hence, petition for review with the SC. Issue: Can there be an independent civil action for damage to property during the pendency of the criminal action? Held: Yes The complaint filed by the petitioner was quasi-delictual based on Articles 2176 and 2180 of the Civil Code. Liability being predicated on quasi-delict, the civil case may proceed as a separate and independent civil action as provided in Article 2177. Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. The separate and independent civil action for a quasi-delict is also clearly recognized in section 2, Rule 111 of the Rules of Court. Sec. 2. Independent civil action. In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, Are independent civil action entirely separate and distinct from the c action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shag proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Sec. 3(b) of Rule 111, Rules of Court is not applicable because it refers to that civil action arising from the criminal offense, not the civil action based on quasi-delict. Also, Art. 31 provides, When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. In addition, according to Art. 1157, quasidelict is an independent source of obligation. Also, the concept of quasidelica as enunciated in Article 2176 of the Civil Code (supra), is so broad that it includes not only injuries to persons but also damage to property.

Thus, the SC granted the Writ of certiorari, set aside the Decision of CFI of Cebu, and ordered the City Court to proceed with the hearing of the civil case.

IV. Hyacinth Aldueso Baksh vs. Court of Appeals 115 SCRA 219, February 19, 1993 Ponente: Davide, Jr. Private respondent Marilou T. Gonzales filed with the Regional Trial Court of Pangasinan a complaint for damages against the petitioner Gashem Shookat Baksh for the alleged violation of their agreement to ge married. She alleges that she is twenty-two years old, single, Filipino and a pretty lass of good moral character and reputation duly respected in her community. Baksh on the other hand is an Iranian citizen who proposed to marry her. They agreed to get married after the end of the school semester. Baksh then visited the parents of Gonzales to secure their approval to the marriage. Sometime in August 20, 1987, Baksh forced the petitioner to live with him and she was a virgin before she began living with him. A week before the filing of the complaint, Bakshs attitude towards her started to change. He maltreated and threatened to kill her as a result of which she sustained injury.During the confrontation with the representative of barangay captain of Guilig a day before the filing of the complaint, Baksh repudiated their marriage agreement and asked her not to live with him anymore. The petitioner is already married to someone living in Bacolod City. Gonzales prayed for judgment ordering the petitioner to pay her damages in the amount not less than P45,000.00 reimbursement for actual expenses amounting to P600.00 attorneys fees and costs and granting her such other relief and remedies as may be just and equitable. Baksh argued that he did not propose marriage to or agreed to be married with Marilou and denied the other allegations of the latter. He stated that he only asked Marilou not to go his house because she had deceived him by stealing his money and passport. In his counterclaim, Baksh stated that the complaint is baseless and unfounded that as a result thereof, he was unnecessarily dragged into court and complled to incur expenses, and has suffered mental anxiety and a besmirched reputation. He prayed for an award of P5,000 for miscellaneous expenses and P25,000.00 as moral damages The trial court rendered a decision favoring Marilou Gonzales applying Article 21 of the New Civil Code. The decision is based on the factual findings and conclusion by the trial court that a) Baksh and Gonzales were lovers, b) respondent is not a woman of loose morals or questionable virtue who readily submits to sexual advances, c) petitioner, through machinations, deceit and false pretenses, promised to marry private respondent, d) because of his persuasive promise to marry her, she allowed herself to be deflowered by him, e) by reason of that deceitful promise, Marilou and her parents - in accordance with the Filipino customs and traditions - made some

preparation for the wedding that was to be held on October of 1987, f) petitioner did not fulfull his promise to marry her, and g) such acts of the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of morality, good customs, culture and traditions. The Court of Appeals affirmed in toto the the lower courts findings. Issue: Is breach of promise to marry is an actionable wrong? Ruling: No, breach of promise to marry is not an actionable wrong and Congress deliberately eliminated from the draft of the New Civil Code the provisions that would have made it so. Notwithstanding, Article 21 of the Civil Code which is designed to expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically enumerate and punish in statute books. Damage pursuant to Article 21 may be awarded not because of promise to marry but because of fraud and deceit behind it. Where a mans promise to marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or inveigle her to him and to obtain her consent to the sexual act. V. Maria Czabrina Ong Domingo On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at the Big Bang Sa Alabang, Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the security guard on duty at the said carnival, shot and killed Atty. Napoleon Dulay. Petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf and in behalf of her minor children, filed on February 8, 1989 an action for damages against Benigno Torzuela and herein private respondents Safeguard Investigation and Security Co., Inc., and/ or Superguard Security Corp. alleged employers of defendant Torzuela. It is stated in a portion of the complaint filed that the incident resulting in the death of Napoleon Dulay was due to the concurring negligence of the defendants. Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorneys fees. Private respondent SUPERGUARD filed a Motion to Dismiss on the ground that the complaint does not state a valid cause of action. SUPERGUARD claimed that Torzuelas act of shooting Dulay was beyond the scope of his duties, and that since the alleged act of shooting

was committed with deliberate intent (dolo), the civil liability therefor is governed by Article 100 of the Revised Penal Code Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorneys fees. Private respondent SUPERGUARD filed a Motion to Dismiss on the ground that the complaint does not state a valid cause of action. SUPERGUARD claimed that Torzuelas act of shooting Dulay was beyond the scope of his duties, and that since the alleged act of shooting was committed with deliberate intent (dolo), the civil liability therefor is governed by Article 100 of the Revised Penal Code Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorneys fees. Respondent SUPERGUARD further alleged that a complaint for damages based on negligence under Article 2176 of the New Civil Code, such as the one filed by petitioners, cannot lie, since the civil liability under Article 2176 applies only to quasi-offenses under Article 365 of the Revised Penal Code. Respondent judge granted the Motion to DIsmiss and also declared that the complaint was one for damages founded on crimes punishable under Articles 100 and 103 of the Revised Penal Code as distinguished from those arising from quasi-delict. The Court of Appeals affirmed the order of the trial court. ISSUE: Whether or not Article 2176 applies only when the act committed was done with negligence. HELD: An examination of the complaint in the present case would show that the plaintiffs, petitioners herein, are invoking their right to recover damages against the private respondents for their vicarious responsibility for the injury caused by Benigno Torzuelas act of shooting and killing Napoleon Dulay. There is no justification for limiting the scope of Article 2176 of the Civil Code to acts or omissions resulting from negligence. Well-entrenched is the doctrine that Article 2176 covers not only acts committed with negligence, but also acts which are voluntary and intentional. Citing Elcano v Hill, the Court stated that Article 2176, where it refers to fault or negligence, covers not only acts not punishable by law but also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Since Article 2176 covers not only acts of negligence but also acts which are intentional and voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioners

complaint simply because it failed to make allegations of attendant negligence attributable to private respondents.

VI. Kenneth Roy Sentillas Garcia v. Florido L-35095 / August 31, 1973 / 52 SCRA 420 Doctrine: An offended party loses his right to intervene in the prosecution of a criminal case not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. Facts: On August 4, 1971, petitioners, German C. Garcia, Chief of the Misamis Occidental Hospital, together with his wife, Luminosa L. Garcia, and Ester Francisco, bookkeeper of said hospital, hired and boarded a PU car owned and operated by respondent, Marcelino Inesin, and driven by respondent, Ricardo Vayson, for a round-trip from Oroquieta City to Zamboanga City for the purpose of attending a conference. At about 9:30 a.m., while the PU car was negotiating a slight curve on the national highway in Barrio Guisukan, Sindangan, Zamboanga del Norte, said car collided with an oncoming passenger bus owned and operated by the Mactan Transit Co., Inc. and driven by defendant, Pedro Tumala. As a result of the aforesaid collision, petitioners sustained various physical injuries which necessitated their medical treatment and hospitalization. Petitioners subsequently filed on September 1, 1971 with respondent Court of First Instance of Misamis Occidental an action for damages against the private respondents, owners and drivers, respectively, of the PU car and the passenger bus that figured in the collision, with prayer for preliminary attachment. On September 29, 1971, respondents, Mactan Transit Co., Inc. and Pedro Tumala, filed a motion to dismiss on the ground that the plaintiffs (petitioners) had no cause of action. The principal argument advanced in said motion to dismiss was that the petitioners had no cause of action for on August 11, 1971, or 20 days before the filing of the present action for damages, respondent Pedro Tumala was charged in a criminal case for "double serious and less serious physical injuries through reckless imprudence", and that, with the filing of the aforesaid criminal case, no civil action could be filed subsequent thereto unless the criminal case has been finally adjudicated.

On October 14, 1971, petitioners filed an opposition to said motion to dismiss alleging that the aforesaid action for damages was instituted not to enforce the civil liability of the respondents under Art. 100 of the Revised Penal Code but for their civil liability on quasi-delicts pursuant to Articles 2176-2194, as the same negligent act causing damages may produce civil liability arising from a crime under the Revised Penal Code or create an action for quasi-delict or culpa extra-contractual under the Civil Code, and the party seeking recovery is free to choose which remedy to enforce. In dismissing the complaint for damages, the lower court sustained the arguments of respondents, Mactan Transit Co., Inc. and Pedro Tumala, and declared that there "should be a showing that the offended party expressly waived the civil action or reserved his right to institute it separately" and because of the prayer in the complaint asking the Court to declare the defendants jointly and severally liable for moral, compensatory and exemplary damages, the Court is of the opinion that the action was not based on "culpa aquiliana or quasi-delict." Issue: Whether or not the respondent trial court erred in dismissing petitioners complaint for damages because there "should be a showing that the offended party expressly waived the civil action or reserved his right to institute it separately". Decision: The trial court erred in dismissing the complaint for damages. The essential averments for a quasi-delictual action under Articles 2176-2194 of the New Civil Code are present. Certainly excessive speed in violation of traffic rules is a clear indication of negligence. Since the same negligent act resulted in the filing of the criminal action by the Chief of Police with the Municipal Court and the civil action by petitioners, it is inevitable that the averments on the drivers' negligence in both complaints would substantially be the same. It should be emphasized that the same negligent act causing damages may produce a civil liability arising from a crime under Art. 100 of the Revised Penal Code or create an action for quasidelict or culpa extra-contractual under Arts. 2176-2194 of the New Civil Code. It is true that under Sec. 2 in relation to Sec. 1 of Rule 111 of the Revised Rules of Court which became effective on January 1, 1964, in the cases provided for by Articles 31, 33, 39 and 2177 of the Civil Code, an independent civil action entirely separate and distinct from the civil action, may be instituted by the injured party during the pendency of the criminal case, provided said party has reserved his right to institute it separately, but it should be noted, however, that neither Section 1 nor Section 2 of Rule 111 fixes a time limit when such reservation shall be made.

In the case at bar, there is no question that petitioners never intervened in the criminal action instituted by the Chief of Police against respondent Pedro Tumala, much less has the said criminal action been terminated either by conviction or acquittal of said accused. It is, therefore, evident that by the institution of the present civil action for damages, petitioners have in effect abandoned their right to press recovery for damages in the criminal case, and have opted instead to recover them in the present civil case. As a result of this action of petitioners the civil liability of private respondents to the former has ceased to be involved in the criminal action. Undoubtedly an offended party loses his right to intervene in the prosecution of a criminal case not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared.

VII. Angiereen Medina NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO vs. INTERMEDIATE and MISSIONARIES OF OUR LADY OF LA SALETTE, INC., Facts: Within the land of respondent corporation (Missionaries of our Lady of La Salette, Inc.), waterpaths and contrivances, including an artificial lake, were constructed, which allegedly inundated and eroded petitioner's land, caused a young man to drown, damaged petitioners' crops and plants, washed away costly fences, endangered the lives of petitioners and their laborers during rainy and stormy seasons, and exposed plants and other improvements to destruction. Petitioners Andamo instituted a criminal action in the RTC against the officers and directors of herein respondent corporation, for destruction by means of inundation under Article 324 of the Revised Penal Code. Subsequently, petitioners filed another action against respondent corporation, this time a civil case for damages with prayer for the issuance of a writ of preliminary injunction before the same court. Respondent corporation filed a motion to dismiss or suspend the civil action due to the pendency of the criminal action. The RTC issued an order to dismiss the civil action for lack of jurisdiction, as the criminal case which was instituted ahead of the civil case was still unresolved. Said order was anchored on the provision of Section 3 (a), Rule III of the Rules of Court which provides that "criminal and civil actions arising from the same offense may be instituted separately, but after the criminal action has been commenced the civil action cannot be instituted until final judgment has been rendered in the criminal action." The CA affirmed the order to dismiss.

Issue: Whether a corporation can be held civilly liable for damages under Articles 2176 and 2177 of the Civil Code on quasi-delicts such that the resulting civil case can proceed independently of the criminal case. Resolution: A careful examination of the aforequoted complaint shows that the civil action is one under Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a quasi-delict are present, to wit: (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. Clearly, from petitioners complaint, the waterpaths and contrivances built by respondent corporation are alleged to have inundated the land of petitioners. There is therefore, an assertion of a causal connection between the act of building these waterpaths and the damage sustained by petitioners. Such action if proven constitutes fault or negligence which may be the basis for the recovery of damages.Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his act or omission constituting fault or negligence, thus: "Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this chapter. Article 2176, whenever it refers to "fault or negligence", covers not only acts "not punishable by law" but also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually charged also criminally), to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. The distinctness of quasi-delicts is shown in Article 2177 of the Civil Code, which states: "Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant." This Court held that a quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crimea distinction exists between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa extra-contractual. The same negligence causing damages may produce civil liability arising from a crime under the Penal Code, or create an action for quasi-delicts or culpa extra-contractual under the Civil Code. Therefore, the acquittal

or conviction in the criminal case is entirely irrelevant in the civil case, unless, of course, in the event of an acquittal where the court has declared that the fact from which the civil action arose did not exist, in which case the extinction of the criminal liability would carry with it the extinction of the civil liability.

VIII. Noy Pandi Taylor v. Manila Electric Railroad and Light Co. G.R. No. 4977 March 22, 1910 Ponente: Justice Carson FACTS: The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, MORE MATURE THAN THE AVERAGE BOY OF HIS AGE AND HAVING A CONSIDERABLE APTITUDE AND TRAiNING IN MECHANICS. On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant. Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity, spent some time in wandering about the companys premises. After watching the operation of travelling crane used in the handling the defendants coal, they walked across the open space in the neighborhood of the place where the company dumped the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. After some discussion as to the ownership of the caps and their right to take them, the boys picked up all they could find and hung them on a stick, of which each took one end, and carried them home. The boys then made a series of experiments with the caps. They thrust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed. They then opened one of the cups with a knife, and finding that it was filled with a yellowish substance, they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious physical injuries to the plaintiff and his companions. David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to necessitate its removal by the surgeons who were called in to care for his wounds. ISSUE: WON plaintiff is entitled to recover damages? HELD: NO. When the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its determining factor, he cannot recover damages for the injury.

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to which he exposed himself when he put the match to the contents of the cap, that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligent act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiffs own act was the proximate and principal cause of the accident which inflicted the injury. The just thing is that a man should suffer the damage which comes to him through his own fault, and that he cannot demand reparation therefor from another. (Law 25, tit. 5, Partida 3.) And they even said that when a man received an injury through his own negligence he should blame himself for it. (Rule 22, tit.4, Partida 7.) According to the ancient sages, when a man received an injury through his own acts the grievance should be against himself and not against another. (Law 2, tit.7, Partida 2)

IX. Rose Abiera G.R. No. L-50959 July 23, 1980 HEIRS OF PEDRO TAYAG, SR., petitioners, vs. HONORABLE FERNANDO S. ALCANTARA, PHILIPPINE RABBIT BUS LINES, INC. and ROMEO VILLA Y CUNANAN, respondents. Facts: The petitioners, heirs of Pedro Tayag, Sr., namely: Crisanta Salazar, Pedro Tayag, Jr., Renato Tayag, Gabriel Tayag, Corazon Tayag and Rodolfo Tayag, filed with the Court of First Instance of Tarlac, presided over by the respondent Judge, a complaint for damages against the private respondents Philippine Rabbit Bus Lines, Inc. and Romeo Villa y Cunanan docketed therein as Civil Case No. 5114 alleging among others that in the afternoon of September 2, 1974, while Pedro Tayag Sr. was riding on a bicycle along MacArthur Highway at Bo. San Rafael, Tarlac, Tarlac on his way home, he was bumped and hit by a Philippine Rabbit Bus and as a result of which he sustained injuries which caused his instantaneous death. The Philippine Rabbit Bus was at the time of the accident being driven by Romeo Villa y Cunanan in a faster and greater speed than what was reasonable and proper and in a gray negligent, careless, reckless and imprudent manner, without due regards to injuries to persons and damage to properties and in violation of traffic rules and regulations. Thereafter, the private respondents filed a motion to suspend the trial on the ground that the criminal case against the driver of the bus Romeo Villa was still pending in said court, and that Section 3, Rule Ill of the Revised Rules of Court enjoins the suspension of the civil action

until the criminal action is terminated. The respondent Judge granted the motion, and consequently, suspended the hearing of Civil Case No. 5114. In Criminal Case No. 836, the respondent Judge rendered a decision acquitting the accused Romeo Villa of the crime of homicide on the ground of reasonable doubt. Thereafter, the private respondents filed a motion to dismiss Civil Case No. 5114 on the ground that the petitioners have no cause of action against them the driver of the bus having been acquitted in the criminal action. The petitioners opposed the motion alleging that their cause of action is not based on crime but on quasi-delict. The respondent Judge issued an order dismissing the complaint in Civil Case No. 5114. The petitioners moved to reconsider; however, the same was denied by respondent Judge. Hence, this present petition. Issue: Whether or not the respondent Judge acted without or in excess of his jurisdiction and/or with grave abuse of discretion in dismissing Civil Case No. 5114. Held: Yes. Article 31 of the Civil Code provides When the civil action is based on an obligation not arising from the act or commission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. The provision refers to a civil action based, not on the act or omission charged as a felony in a criminal case, but one based on an obligation arising from other sources, like quasi-delict. The petitioners' cause of action being based on a quasi delict the acquittal of the driver, private respondent Romeo Villa, of the crime charged in Criminal Case No. 836 is not a bar to the prosecution of Civil Case No. 5114 for damages based on quasi-delict. All the essential averments for a quasi delictual action are present, namely: (1) an act or omission constituting fault or negligence on the part of private respondent; (2) damage caused by the said act or commission; (3) direct causal relation between the damage and the act or commission; and (4) no pre-existing contractual relation between the parties. Thus, the Court ruled that the respondent Judge acted with grave abuse of discretion amounting to lack of jurisdiction in dismissing Civil Case No. 5114. The order of dismissal is also set aside, and the case is remanded to the lower court for further proceedings, with costs against the private respondents. Under Art. 2177 I. Martin Michael Hatol Barredo v. Garcia L-48006 July 8, 1942 Facts:

On May 3, 1936, on the road between Malabon and Navotas, Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted and sentenced to an indeterminate sentence of one year and one day to two years of prision correccional. The court in the criminal case granted the petition that the right to bring a separate civil action be reserved. Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939, brought an action in the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of Pedro Fontanilla. The Court of First Instance of Manila awarded damages in favor of the plaintiffs for P2,000 plus legal interest and later on modified by the Court of Appeals by reducing the damages to P1,000 with legal interest. It is undisputed that Fontanilla 's negligence was the cause of the mishap, as he was driving on the wrong side of the road, and at high speed. As to Barredo's responsibility, the Court of Appeals found he was careless in employing Fontanilla who had been caught several times for violation of the Automobile Law and speeding violation which appeared in the records of the Bureau of Public Works available to be public and to himself. The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against Pedro Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. Issue: Whether or not the plaintiffs may bring this separate civil action against Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil Code as an employer of Pedro Fontanilla. Held: Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from delict or crime. Upon this principle and on the wording and spirit article 1903 of the Civil Code, the primary and direct responsibility of employers may be safely anchored. Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasidelito under the Civil Code are: 1. That crimes affect the public interest, while cuasi-delitos are only of private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by means of indemnification, merely repairs the damage. 3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king of fault or negligence intervenes." However, it should be noted that not all violations of the penal law produce civil responsibility, such as begging in contravention of ordinances, violation of the game laws, infraction of the rules of traffic when nobody is hurt. In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. it was held: It is contended by the defendant, as its first defense to the action that the necessary conclusion from these collated laws is that the remedy for injuries through negligence lies only in a criminal action in which the official criminally responsible must be made primarily liable and his employer held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the representative of the company accountable for not repairing the track, and on his prosecution a suitable fine should have been imposed, payable primarily by him and secondarily by his employer. This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code makes obligations arising from faults or negligence not punished by the law, subject to the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads: "A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. "SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible "The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors who live with them. xxx xxx xxx

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

"The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage." From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the matter or employer either in the selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieve from liability. The basis of civil law liability is not respondent superior but the relationship of pater familias. This theory bases the liability of the master ultimately on his own negligence and not on that of his servant. (Bahia vs. Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.) Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal import of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life. Death or injury to persons and damage to property through any degree of negligence even the slightest would have to be indemnified only through the principle of civil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code. Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910

of the Civil Code. Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium. Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the driver and exhaust his (the latter's) property first, would be tantamount to compelling the plaintiff to follow a devious and cumbersome method of obtaining relief. True, there is such a remedy under our laws, but there is also a more expeditious way, which is based on the primary and direct responsibility of the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy for civil wrongs, because the procedure indicated by the defendant is wasteful and productive of delay, it being a matter of common knowledge that professional drivers of taxis and similar public conveyance usually do not have sufficient means with which to pay damages. In construing the laws, courts have endeavored to shorten and facilitate the pathways of right and justice. At this juncture, it should be said that the primary and direct responsibility of employers and their presumed negligence are principles calculated to protect society. Workmen and employees should be carefully chosen and supervised in order to avoid injury to the public. It is the masters or employers who principally reap the profits resulting from the services of these servants and employees. It is but right that they should guarantee the latter's careful conduct for the personnel and patrimonial safety of others. Many jurists also base this primary responsibility of the employer on the principle of representation of the principal by the agent. All these observations acquire a peculiar force and significance when it comes to motor accidents, and there is need of stressing and accentuating the responsibility of owners of motor vehicles. Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a common practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has nevertheless rendered practically useless and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to the harm done by such practice and to restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is believed, make for the better safeguarding of private rights because it re-establishes an ancient and additional remedy, and for the further reason that an independent civil action, not depending on the issues, limitations and results of a criminal prosecution, and entirely directed by the party wronged or his counsel, is more likely to secure adequate and efficacious redress.

II. Evanor Bonaobra G.R. No. L-39999 May 31, 1984 ROY PADILLA, FILOMENO GALDONES, ISMAEL GONZALGO and JOSE FARLEY BEDENIA, petitioners, vs. COURT OF APPEALS, respondent. FACTS: This is a petition for review on certiorari of a Court of Appeals' decision which reversed the trial court's judgment of conviction and acquitted the petitioners of the crime of grave coercion on the ground of reasonable doubt but inspite of the acquittal ordered them to pay jointly and severally the amount of P9,000.00 to the complainants as actual damages. The petitioners were charged under the following information: The undersigned Fiscal accused ROY PADILLA, FILOMENO GALDONES, PEPITO BEDENIA, YOLLY RICO, DAVID BERMUNDO, VILLANOAC, ROBERTO ROSALES, VILLANIA, ROMEO GARRIDO, JOSE ORTEGA, JR., RICARDO CELESTINO, REALINGO alias "KAMLON", JOHN DOE alias TATO, and FOURTEEN (14) RICARDO DOES of the crime of GRAVE COERCION, committed as follows: That on or about February 8, 1964 at around 9:00 o'clock in the morning, in the municipality of Jose Panganiban, province of Camarines Norte, Philippines, Roy Padilla, Filomeno Galdones, Pepito Bedenia, Yolly Rico, David Bermundo, Villanoac, Roberto Rosales, Villania, Romeo Garrido, Jose Ortega, Jr., Ricardo Celestino, Realingo alias Kamlon, John Doe alias Tato, and Fourteen Richard Does, by means of threats, force and violence prevent Antonio Vergara and his family to close their stall located at the Public Market, Building No. 3, Jose Panganiban, Camarines Norte, and by subsequently forcibly opening the door of said stall and thereafter brutally demolishing and destroying said stall and the furnitures therein by axes and other massive instruments, and carrying away the goods, wares and merchandise, to the damage and prejudice of the said Antonio Vergara and his family. The Court of First Instance of Camarines Norte found the accused Roy Padilla, Filomeno Galdonez, Ismael Gonzalgo and Jose Parley Bedenia guilty beyond reasonable doubt of the crime of grave coercion. The petitioners appealed the judgment of conviction to the Court of Appeals. They contended that the trial court's finding of grave coercion was not supported by the evidence. The petitioners stated that the lower court erred in finding that the demolition of the complainants' stall was a violation of the very directive of the petitioner Mayor which gave the stall owners seventy two (72) hours to vacate the market premises. The dispositive portion of the decision of the respondent Court of Appeals states: WHEREFORE, we hereby modify the judgment appealed from in the sense that the appellants are acquitted on ground of reasonable doubt. but they are ordered to pay jointly and severally to complainants the amount of P9,600.00, as actual damages.

The petitioners filed a motion for reconsideration contending that the acquittal of the defendantsappellants as to criminal liability results in the extinction of their civil liability. ISSUE: Whether or not the Court of Appeals committed a reversible error in requiring the petitioners to pay civil indemnity to the complainants after acquitting them from the criminal charge. HELD: In the case before us, the petitioners were acquitted not because they did not commit the acts stated in the charge against them. There is no dispute over the forcible opening of the market stall, its demolition with axes and other instruments, and the carting away of the merchandize. The petitioners were acquitted because these acts were denominated coercion when they properly constituted some other offense such as threat or malicious mischief. The extinction of the civil action by reason of acquittal in the criminal case refers exclusively to civil liability ex delicto founded on Article 100 of the Revised Penal Code. In other words, the civil liability which is also extinguished upon acquittal of the accused is the civil liability arising from the act as a crime. As easily as 1942, the Supreme Court speaking through Justice Jorge Bocobo in Barredo v. Garcia, et at. 73 Phil. 607 laid down the rule that the same punishable act or omission can create two kinds of civil liabilities against the accused and, where provided by law, his employer. 'There is the civil liability arising from the act as a crime and the liability arising from the same act as a quasi-delict. Either one of these two types of civil liability may be enforced against the accused, However, the offended party cannot recover damages under both types of liability. The judgment of acquittal extinguishes the liability of the accused for damages only when it includes a declaration that the facts from which the civil might arise did not exist. Thus, the civil liability is not extinguished by acquittal where the acquittal is based on reasonable doubt as only preponderance of evidence is required in civil cases; where the court expressly declares that the liability of the accused is not criminal but only civil in nature and, where the civil liability does not arise from or is not based upon the criminal act of which the accused was acquitted. There is nothing contrary to the Civil Code provision (Article 29) in the rendition of a judgment of acquittal and a judgment awarding damages in the same criminal action. The two can stand side by side. A judgment of acquittal operates to extinguish the criminal liability. It does not, however, extinguish the civil liability unless there is clear showing that the act from which civil liability might arise did not exist. III. Fids Esteban IV. Gail Divino Philippine Rabbit Bus Lines vs People G.R. No. 147703 April 14, 2004

FACTS: On July 27, 1994, accused Napoleon Roman y Macadangdang was found guilty and convicted of the crime of reckless imprudence resulting to triple homicide, multiple physical injuries and damage to property. Admittedly, accused had jumped bail and remained at-large. It is worth mentioning that Section 8, Rule 124 of the Rules of Court authorizes the dismissal of appeal when appellant jumps bail. Counsel for accused, hired and provided by petitioner filed a notice of appeal which was denied by the trial court. The Supreme Court affirmed the denial of the notice of appeal filed in behalf of accused. Simultaneously, on August 6, 1994, petitioner filed its notice of appeal from the judgment of the trial court. The Court of Appeals held that since the notice of appeal filed by the accused had already been dismissed by the CA, then the judgment of conviction and the award of civil liability became final and executory. Included in the civil liability of the accused was the employer's subsidiary liability. Hence, the petition with the Supreme Court. ISSUE: Whether or not an employer, who dutifully participated in the defense of its accused-employee, may appeal the judgment of conviction independently of the accused. HELD: Well-established in our jurisdiction is the principle that the appellate court may, upon motion or motu proprio, dismiss an appeal during its pendency if the accused jumps bail. In the case before us, the accused-employee has escaped and refused to surrender to the proper authorities; thus, he is deemed to have abandoned his appeal. Consequently, the judgment against him has become final and executory. The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their employees. Although in substance and in effect, they have an interest therein, this fact should be viewed in the light of their subsidiary liability. While they may assist their employees to the extent of supplying the latter's lawyers, as in the present case, the former cannot act independently on their own behalf, but can only defend the accused. Moreover, an appeal from the sentence of the trial court implies a waiver of the constitutional safeguard against double jeopardy and throws the whole case open to a review by the appellate court. If the present appeal is given course, the whole case against the accused-employee becomes open to review. It thus follows that a penalty higher than that which has already been imposed by the trial court may be meted out to him. Petitioner's appeal would thus violate his right against double jeopardy, since the judgment against him could become subject to modification without his consent. To allow employers to dispute the civil liability fixed in a criminal case would enable them to amend, nullify or defeat a final judgment rendered by a competent court.

The fact remains that since the accused-employee's conviction has attained finality, then the subsidiary liability of the employer ipso facto attaches. There is only one criminal case against the accused-employee. A finding of guilt has both criminal and civil aspects. It is the height of absurdity for this single case to be final as to the accused who jumped bail, but not as to an entity whose liability is dependent upon the conviction of the former. In other words, the employer becomes ipso facto subsidiarily liable upon the conviction of the employee and upon proof of the latter's insolvency, in the same way that acquittal wipes out not only his primary civil liability, but also his employer's subsidiary liability for his criminal negligence. Petitioner admits that by helping the accused-employee, it participated in the proceedings before the RTC; thus, it cannot be said that the employer was deprived of due process. It might have lost its right to appeal, but it was not denied its day in court. In fact, it can be said that by jumping bail, the accused-employee, not the court, deprived petitioner of the right to appeal. V. Jose Belarmino People v. Ligon 152 SCRA 419; July 29, 1987

Facts: Accused-appellant, Fernando Gabat was convicted of the crime of Robbery with homicide and was sentenced to reclusion perpetua. Gabat allegedly robbed Jose Rosales Ortiz, a 17 year old working student, a cigarette vendor. According to Prudencio Castillo, a taxi driver, who allegedly saw the incident that transpired on the night Ortiz died. According to Castillo, he was at a distance of about 3 meters travelling on the same lane and was behind the Kombi driven by Rogelio Ligon together with Gabat. Castillo, in his testimony, said that Gabat grabbed the box of cigarettes from Rosales. That while waiting for the traffic light to change from red to green, Castillo idly watched the Volkswagon Kombi and saw Gabat signal to Ortiz. While Ortiz was handling the cigarettes to Gabat, the traffic light changed to green and as the Kombi moved forward, Gabat grabbed the box from Ortiz. Ortiz ran beside the Jombi and was able to hold on to the windowsill with his right hand. Howeverm as the Kombi continued to speed towards the C.M. Rector underpass, Gabat forcibly remove the hand of Rosales from the said windowsill and as a result fell face down on the ground. On the other hand, according to Gabat, after Ortiz handed the two sticks cigarettes Gabat in turn paid him a 5 peso bill. In order to change the said bill, Ortiz placed his box between the arm of Gabat and the window frame. When the traffic light changed to green, Ligon moved the vehicle forward. That in spite of Gabats order to stop the vehicle, Ligon said that it could not be done due the the moving vehicular traffic. When Ortiz fell down, Gabat shouted at Ligon but the latter replied that they should go on to Las Pinas and

report the incident to the parents of Gabat and that later they would come back to the scene of the incident. At this point, the Kombi was blocked by Castillos taxi and the jeep driven by the policeman. The trial court gave full credence to Castillos testimony and dismissed Gabats testimony on the ground that it is of common knowledge that cigarette vendors do not let go of their cigarette. Gabat was convicted by the trial court; Hence, this appeal. Issue: Whether a person who is not criminally liable is also free from civil liability. Held: According to the Court of Appeals, although Castillo is a disinterested witness, his testimony even if not tainted with bias is not entirely free from doubt because his observation of the event could have been faulty. Castillos taxi was driving a car lower in height compared to the Kombi. The windshield of the Kombi (1978 model) is occupying approximately 1/3 of the rear end of the vehicle making it visually difficult for Castillo to observe what clearly transpired. Also, Castillos statement given to the police on the evening of the incident did not mention that he saw Gabat forcibly prying off the hand of Rosales from the windowsill though such appeared in the police report. Given the circumstances, the Court is not convinced with moral certainty that the guilt of Gabat was established beyond reasonable doubt. As such he is acquitted. However, such does not necessarily exempt him from civil liability as such only requires a preponderance of evidence and such evidence is sufficient to establish Gabats liability. The Court finds Gabats act and omission with fault and negligence caused damage to Ortiz. That he failed to prevent the driver from moving forward while the purchase was completed; He failed to help Ortiz while the latter clung to the moving vehicle; e did not enforce his order to Ligon to stop; and that he acquiesced in the drivers act of speeding away instead of stopping and picking up Ortiz. His acquittal in the criminal prosecution does not bar the heirs of Ortiz from recovering damages. The judgment of acquittal extinguishes the civil liability only when it includes a declaration that the facts from which the civil liability might arise did not exist. Wherefore, Gabat is sentenced to indemnify the heirs of Ortiz the amount of P15,000 for the latters death, P1,733 for hospital and medical expenses, 4,100 for funeral expenses, and the alleged loss of income amounting to P20,000.

Under Art.1170-1174 I. Reynold Orsua Cangco vs. Manila Railroad Co. F: Plaintiff, Jose Cangco, was a clerk of the Manila Railroad Company. He lived in the pueblo of San Mateo, Rizal, which is located upon the line of the defendant railroad company; and he has free pass in the use of the train, supplied by the company. On January 20, 1915, as the train drew up to the station in San Mateo the plaintiff arose from his seat in the second class-car where he was riding and, making his exit through the door, took his position upon the steps of the coach, seizing the upright guardrail with his right hand for support. Jose Cangco stepped off, but one or both of his feet came in contact with a sack of watermelons with the result that his feet slipped from under him and he fell violently on the platform. His body at once rolled from the platform and was drawn under the moving car, where his right arm was badly crushed and lacerated. It appears that after the plaintiff alighted from the train the car moved forward possibly six meters before it came to a full stop. He was hospitalized and his arm was amputated. He filed a complaint to recover damages in the CFI of Manila founding his action upon the negligence of the servants and employees of the defendant in placing the sacks of melons upon the platform and in leaving them so placed as to be a menace to the security of passenger alighting from the company's trains. CFI entered in favor of the defendant company considering that petitioner is guilty of contributory negligence. Hence, plaintiff appealed. I: Whether or not Manila Railroad Co is liable for damages. H: Yes. It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the obligation arises from the breach of that contract by reason of the failure of defendant to exercise due care in its performance. Article 1903 of the Civil Code is not applicable to to culpa contractual but only to culpa aquiliana. In this case, the Court had the occasion of differentiating culpa aquiliana and culpa contractual. In the former, when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him, after the selection, or both; and (2) that that presumption is rebuttable. In the latter, the liability of masters and employers for the negligent acts or omissions of their servants or agents, when such acts or omissions cause damages which amount to the breach of a contract, is not based upon a mere presumption of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and care in this regard does not relieve the master of his liability for the breach of his contract. When the source of the obligation upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence if he does not his action fails. But when the facts averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused

to perform the contract, it is not necessary for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the part of the defendant, or of his ,servants or agents. The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and to provide safe means of entering and leaving its trains (Civil Code, article 1258). That duty, being contractual, was direct and immediate, and its nonperformance could not be excused by proof that the fault was morally imputable to defendant's servants. The railroad company's defense involves the assumption that even granting that the negligent conduct of its servants in placing an obstruction upon the platform was a breach of its contractual obligation to maintain safe means of approaching and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was his own contributory negligence in failing to wait until the train had come to a complete stop before alighting. Under the doctrine of comparative negligence announced in the Rakes case, if the accident was caused by plaintiff's own negligence, no liability is imposed upon defendant, whereas if the accident was caused by defendant's negligence and plaintiff's negligence merely contributed to his injury, the damages should be apportioned. In determining the question of contributory negligence in performing such act that is to say, whether the passenger acted prudently or recklessly the age, sex, and physical condition of the passenger are circumstances necessarily affecting the safety of the passenger, and should be considered. Our conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence and that therefore he was not guilty of contributory negligence. Respondent is liable for damages.

II. Ian Luis Aguila Fores vs. Miranda Facts: Miranda was one of the passengers of the jeep that hit the bridge wall because of its excessive speed the driver lost control of such. Miranda was injured and fractured part of body. Paz Fores was the registered owner of the jeep, but she claims that she sold it to Sacherman the day before the accident. The CFI of manila awarded actual damages amounting to 10K. The CA, however, modified the judgment of the CFI by awarding not only actual damages but also moral damages. Issue: whether or not the respondent is entitled to moral damages Held: Moral damages are not recoverable in damage actions predicted on a breach of the contract of transportation, in view of Articles 2219 (1 and 2) and 2220.

Art. 2219. Moral damages may be recovered in the following and analogous cases: (1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; xxxxxxxxx Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under circumstances, such damages are justify due. The same rule applies to breaches of contract where the defendant acted fraudulently or in bad faith. GR: By contrasting the provisions of these two article it immediately becomes apparent that: (a) In case of breach of contract (including one of transportation) proof of bad faith or fraud (dolus), i.e., wanton or deliberately injurious conduct, is essential to justify an award of moral damages; and (b) That a breach of contract cannot be considered included in the descriptive term "analogous cases" used in Art. 2219; not only because Art. 2220 specifically provides for the damages that are caused by contractual breach, but because the definition of quasi-delict in Art. 2176 of the Code expressly excludes the cases where there is a "preexisting contractual relation between the parties." EXCEPTION: mishap resulting in DEATH of PASSENGER, Art 1764 makes the common carrier expressly subject to the rule of Art. 2206, that entitles the deceased passenger to "demand moral damages for mental anguish by reason of the death of the deceased. Where the injured passenger does not die, moral damages are not recoverable unless it is proved that the carrier was guilty of malice or bad faith. Mere carelessness of the carrier's driver does not per se constitute of justify an inference of malice or bad faith on the part of the carrier. III. Lara Magulta FAR EAST BANK AND TRUST CO. VS. COURT OF APPEALS, LUIS LUNA AND CARLITA LUNA Vitug, J. FACTS: Private Respondent Luis Luna applied for, and was accorded, a FAREASTCARD issued by petitioner Far East Bank. Upon request, a supplemental card was also issued to Clarita S. Luna. Sometime in August 1988, Clarita lost her credit card. Petitioner was forthwith informed. In order to replace the lost card, Clarita was required to submit an affidavit of loss. Thereafter, in accordance with the banks internal security procedure and policy, the lost card along with the principal card was labeled as a Hot Card or Cancelled Card in the master file. On October 6, 1998, Luis tendered a despedida lunch for a close friend and another guest at the Bahia Rooftop Restaurant of the Hotel Intercontinental Manila. As payment, Luis presented his FAREASTCARD to the attending waiter who promptly verified through a telephone call to the banks Credit Card Department. Since the card was not honored, Luis was

forced to pay in cash the bill amounting to P588.13. Naturally, Luis felt embarrased by the incident. In a letter, dated 11 October 1988, private respondent Luis Luna, through counsel, demanded from FEBTC the payment of damages. Adrian V. Festejo, a vice-president of the bank, expressed the bank's apologies to Luis through a letter. A letter was likewise sent by Fasteho to the Manager of the Bahia Rooftop Restaurant to assure that the respondents were very valued clients of FEBTC. Still feeling aggrieved, private respondents filed a complaint for damages with the RTC of Pasig against FEBTC. The RTC rendered a judgment ordering FEBTC to pay private respondents moral damages, exemplary damages and attorneys fees. The Court of Appeals affirmed the decision of the trial court. ISSUE: Whether or not the award of damages is proper HELD: The award of moral damages is not proper. In culpa contractual, moral damages may be recovered where the defendant is shown to have acted in bad faith or with malice in the breach of the contract (Article 2220). Bad faith, in this context, includes gross, but not simple, negligence. Concededly, the bank was remiss in indeed neglecting to personally inform Luis of his own card's cancellation. Nothing in the findings of the trial court and the appellate court, however, can sufficiently indicate any deliberate intent on the part of FEBTC to cause harm to private respondents. Neither could FEBTC's negligence in failing to give personal notice to Luis be considered so gross as to amount to malice or bad faith. Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill will. Article 21 on human relations cannot likewise be invoked by respondents. Article 21 of the Code, it should be observed, contemplates a conscious act to cause harm. Thus, even if we are to assume that the provision could properly relate to a breach of contract, its application can be warranted only when the defendant's disregard of his contractual obligation is so deliberate as to approximate a degree of misconduct certainly no less worse than fraud or bad faith. Most importantly, Article 21 is a mere declaration of a general principle in human relations that clearly must, in any case, give way to the specific provision of Article 2220 of the Civil Code authorizing the grant of moral damages in culpa contractual solely when the breach is due to fraud or bad faith. The award of exemplary damages is likewise improper

Exemplary or corrective damages, are intended to serve as an example or as correction for the public good in addition to moral, temperate, liquidated or compensatory damages. In criminal offenses, exemplary damages are imposed when the crime is committed with one or more aggravating circumstances (Art. 2230, Civil Code). In quasi-delicts, such damages are granted if the defendant is shown to have been so guilty of gross negligence as to approximate malice.In contracts and quasi-contracts, the court may award exemplary damages if the defendant is found to have acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. The court awarded Nominal damages and Attorneys fees Nevertheless, the bank's failure, even perhaps inadvertent, to honor its credit card issued to private respondent Luis should entitle him to recover a measure of damages sanctioned under Article 2221 of the Civil Code providing thusly: Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him. Reasonable attorney's fees may be recovered where the court deems such recovery to be just and equitable (Art. 2208, Civil Code). We see no issue of sound discretion on the part of the appellate court in allowing the award thereof by the trial court.

IV.Lowell Madrileno Facts: Rafael Carrascoso was a civil engineer and a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958. On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was occupying because there was a "white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man"

Air France asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would depend upon the availability of first class seats. Both the RTC and the CA ruled in favor of Carrascoso Issue: Whether or not Carrascoso is entitled to an award for moral damages, exemplary damages and attorneys fees Ruling: It can be substantially derived from the facts that First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion. Carrascoso was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will. Moreover, in view of Art. 2219 of the Civil Code, Air France is responsible for the tortuous acts of its employees. Petitioner's contract with Carrascoso is one attended with public duty partaking the nature of a contract of transportation. The stress of Carrascoso's action is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier a case of quasi-delict. Damages are proper in this case. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys' fees.

V. Janelle Mupas Phil. School of Business Administration vs. Court of Appeals Facts A stabbing incident caused the death of Carlitos Bautista while on the second-floor premises of the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit in the Regional for damages against the said PSBA and its corporate officer .At the time of his death,Carlitos was enrolled in the third year commerce course at thePSBA. It was established that his assailants were not members of the school's academic community but were elements from outside the school. Substantially, the respondents sought to adjudge them liable for the victim's untimely demise due to their-alleged negligence. Issue WON PSBA and its officers may be held liable for Carlitos death. Held The law holds the teachers and heads of the school staff liable unless they relieve themselves of such liability pursuant to the last paragraph of Article 2180 by 'provingthat they observed all the diligence toprevent damage.' Article 2180, in conjunction withArticle 2176 of the Civil Code,establishes the rule of in loco parentis. It had been stressed that the law (Article 2180) plainly provides that the damage should have been caused or inflicted by pupils or students of the educational institution sought to be held liable for the acts of its pupils or students while in its custody. However, this material situation does not exist in the present case for, as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made liable. A school, like acommon carrier, cannot be aninsurer of its students against allrisks. This is specially true in thepopulous student communities of the so called "university belt" inManila where there have been reported several incidents ranging from gang wars to other forms of hooliganism.

VI. Jonathan Vinarao Syquia v. CA

Pursuant to a Deed of appellee, the former, defendant-appellee to That on September 4,

Sale executed between plaintiff-appellant Juan J. Syquia and defendantfather of deceased Vicente Juan J. Syquia authorized and instructed inter the remains of deceased in the Manila Memorial Park Cemetery. 1978, preparatory to transferring the said remains to a newly purchased

family plot also at the Manila Memorial Park Cemetery, the concrete vault encasing the coffin of the deceased was removed from its niche underground with the assistance of certain employees of defendant-appellant (sic); that as the concrete vault was being raised to the surface, plaintiffs-appellants discovered that the concrete vault had a hole approximately three (3) inches in diameter near the bottom of one of the walls closing out the width of the vault on one end and that for a certain length of time (one hour, more or less), water drained out of the hole; that the water which had collected inside the vault have risen to the level of the coffin and flooded the same as well as the remains of the deceased with ill effects thereto. Due to the alleged unlawful and malicious breach by the defendant-appellee of its obligation to deliver a defect-free concrete vault designed to protect the remains of the deceased and the coffin against the elements which resulted in the desecration of deceased's grave and in the alternative, because of defendant-appellee's gross negligence conformably to Article 2176 of the New Civil Code in failing to seal the concrete vault, the complaint prayed that judgment be rendered ordering defendant-appellee to pay plaintiffs-appellants P30,000.00 for actual damages, P500,000.00 for moral damages, exemplary damages etc. In dismissing the complaint, the trial court held that the contract between the parties did not guarantee that the cement vault would be waterproof; that there could be no quasi-delict because the defendant was not guilty of any fault or negligence, and because there was a preexisting contractual relation between the Syquias and defendant Manila Memorial Park Cemetery, Inc. On appeal, CA affirmed the decision of RTC. ISSUE: Whether the defendent has committed culpa aquiliana. HELD: No. The Court of Appeals found no negligent act on the part of private respondent to justify an award of damages against it. Although a pre-existing contractual relation between the parties does not preclude the existence of a culpa aquiliana, We find no reason to disregard the respondent's Court finding that there was no negligence. In this case, it has been established that the Syquias and the Manila Memorial Park Cemetery, Inc., entered into a contract entitled "Deed of Sale and Certificate of Perpetual Care" 6 on August 27, 1969. That agreement governed the relations of the parties and defined their respective rights and obligations. Hence, had there been actual negligence on the part of the Manila Memorial Park Cemetery, Inc., it would be held liable not for a quasi-delict or culpa aquiliana, but for culpa contractual as provided by Article 1170 of the Civil Code, to wit: Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages.

The Manila Memorial Park Cemetery, Inc. bound itself to provide the concrete box to be send in the interment. There was no stipulation in the Deed of Sale and Certificate of Perpetual Care and in the Rules and Regulations of the Manila Memorial Park Cemetery, Inc. that the vault would be waterproof. We hold, therefore, that private respondent did not breach the tenor of its obligation to the Syquias. Calalas v. CA, Sunga Private respondent Eliza Jujeurche G. Sunga took a passenger jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the vehicle. On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. Sunga stepped down to give way when an Isuzu truck owned by Francisco Salva and driven by Iglecerio Verena bumped the jeepney. As a result, Sunga was injured. Sunga filed a complaint against Calalas for violation of contract of carriage. Calalas filed a third party complaint against Salva. The trial court held Salva liable and absolved Calalas, taking cognisance of another civil case for quasi-delict wherein Salva and Verena were held liable to Calalas. The Court of Appeals reversed the decision and found Calalas liable to Sunga for violation of contract of carriage. Issue: Whether the decision in the case for quasi delict between Calalas on one hand and Salva and Verena on the other hand, is res judicata to the issue in this case Held: The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle of res judicata does not apply. Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioners jeepney. On the other hand, the issue in this case is whether petitioner is liable on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or culpa contractual, is premised upon the negligence in the performance of a contractual obligation. There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for the damage to petitioners jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between the jeepney and the truck was the negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual relation

between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate the relation thus created.

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. (1104a) I. Marie Uy G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant, vs. FRANK SMITH, JR., defendant-appellee. Facts: In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed. The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road. The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of the apparition or 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 says that the reason he did this was that he thought he did not have sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed that the horseman

would move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced in the case we believe that when the accident occurred the free space where the pony stood between the automobile and the railing of the bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days. Issue: Was the defendant, in maneuvering his car in the manner above described, guilty of negligence such as gives rise to a civil obligation to repair the damage done? 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 not longer within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law. The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to

the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. 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.